Friday, April 20, 2018

Errantry: The Law Commission of India

The Law Commission of India has been in the news recently for making recommendations on how to categorise the BCCI for purposes of filing information requests under the Right to Information Act, as well as for expressing support for simultaneous state and central elections. During colonial rule - both before and after 1857 - the Law Commission played a pivotal role in formulating India's system of laws. Most of our current civil and criminal legal system can be traced to the work done by the Law Commissioners of British India in the 19th Century. The inception of a Law Commission for independent India was a project dear to both Prime Minister Nehru and India's first Attorney General M.C. Setalvad. Before the current tradition of the Commission being chaired by retired judges began, it was Mr. Setalvad who assumed responsibilities at the helm between 1955-58. 

From 1955 till 2018, the Commission has published 275 Reports. Out of these, some have been truly significant contributions to Indian Law. Perhaps the two standout ones are the Fourteenth Report - providing a comprehensive account of the Indian legal system - and the Forty-First Report which led to the Criminal Procedure Code, 1973. But my illusions about the importance of the Commission in the law-making process received a slight blow when, by pure chance, I stumbled upon a recent link that gives details on what happened to the first 262 Reports that the Commission has produced since 1955. From these, data is still missing for 52 reports, giving us information on 211 Reports. The statistics are not flattering. Out of 211 Reports, 92 have been implemented. But 101 out of 211 are still pending consideration. Yes, not rejected - which includes only 16 Reports. Shockingly, from the list of 101 Reports, three date back to 1957. 

For convenience, let's term the period between 1955 and 1985 - covered by the first ten Commissions - as an era of big party rule. And that since 1985 as the era of coalition politics. Till 1985, 113 Reports had been published with data for 79 Reports. Out of these 79 Reports, 54 had been accepted, 7 rejected, and 17 are still pending. That's a massive acceptance percentage of over 65%. The list contains 149 Reports between 1985 and 2015, with data on 132 Reports. Out of these, 38 have been accepted / partly accepted, and 10 rejected. That's almost 29% reports being accepted. A staggering 84 Reports are still pending consideration. All of the eighteen Reports prepared by the Commission under the chairmanship of Justice (Retd.) A.P. Shah are pending. Only one Report out of the nine prepared by the Commission before that, under Justice (Retd.) PV Reddi, was implemented.

Fascinatingly, it seems that the fate of the Law Commission Reports seems to have suffered a serious blow with the onset a more fractious political system in India. The data does not tell us when the reports were accepted or rejected, which would make it more possible to verify the effect of changing regimes on the nature of Law Commission recommendations. 

What is the significance of this, apart from being a fun pastime for perennially boring individuals such as myself? For starters, there is a statutory interpretation issue for lawyers. Classical canons of interpretation from English Law, which Indian courts often rely upon, suggest that Law Commission proposals that are rejected are evidence to support the statutory text which was kept on the books. But there is nothing on what happens when a Report is kept pending for over half a century. But the broader claim is that, perhaps, this data should make us re-examine the role and purpose of the Law Commission - at both the federal and the state level. Ideally, looking to the vision of Nehru, and how similar Commissions operate elsewhere, the Reports are serious efforts to keep improving the law by ensuring it remains useful for contemporary society. Clearly that is not happening: as the most recent Budget Session reminded us, our legislators have much better things to do than legislate. Perhaps the Commission could have a bigger involvement with law reform rather than merely forwarding the final report to the relevant Ministry? Some food for thought. 

 

Thursday, March 29, 2018

The Supreme Court Decision in Asian Resurfacing of Road Agency

Yesterday, a Three-Justices' Bench of the Indian Supreme Court decided a batch of forty-six petitions referred to it, with the lead petition being Asian Resurfacing of Road Agency P. Ltd. v. Central Bureau of Investigation [Crl. Appeal Nos. 1375-76 of 2013, (Asian Resurfacing)]. The decision carries two separate opinions - one by Justice Goel for himself and Justice Sinha, and a concurrence by Justice Nariman. The issues common to these petitions (which date back to 2013), were (i) what is the scope of Section 19(3)(c) of the Prevention of Corruption Act, 1988 [PC Act] (which places some prohibitions on granting of stays in corruption trials), and (ii) whether an order on charge in trials for PC Act offences can be challenged in Revision proceedings before a High Court under Section 397 Cr.P.C. The Court answered these questions as follows: (i) Section 19(3)(c) of the PC Act prohibits granting of stays for any reason, but does not take away the inherent powers of High Courts to grant stays under Section 482 Cr.P.C., and (ii) an order an charge in PC Act cases can be challenged via Revision proceedings before the High Court, as it is not a purely interlocutory order [orders on charge being the judicial stamp on the allegations by the prosecution, where the judge concludes there is enough basis to start taking evidence in the case]. 

Neither opinion answers both issues - Justice Goel mainly addresses the Revision petition problem [Paragraphs 25, 35], and Justice Nariman engages with the issue of stays [Paragraphs 8-11]. If one was to be a purist, these parts of the opinions are what form the ratio, or that part which should be followed in later cases. But such fine lines are hardly ever drawn with Supreme Court decisions, especially so with those by three Justices. And Asian Resurfacing might well prove more important for the large parts of obiter in Justice Goel's opinion, for he created new rules for how stay orders will be granted by courts - "stay orders" here being orders by which the proceedings can be halted by a superior court while it decides a petition brought before it. Now, stay orders shall lapse in all civil or criminal cases upon the expiry of six months unless "in an exceptional case" the presiding judge passes a "speaking order" explaining why continuing the stay was more important than proceeding with the trial [Paragraphs 35-36, Goel J.]. Having explained the effect of the decision, let me now turn to the reasoning adopted for deciding the two questions, before addressing the other remarkable parts in both opinions.

What Was The Problem?
The problem arose because of a decision by a two judges' bench of the Delhi High Court delivered by the current CJI in Anur Kumar Jain [2011) 178 DLT 501 (DB)] (previously discussed here and here). In that case, the Delhi High Court had held that (i) there can be no revision proceeding against orders on charge in PC Act cases, and (ii) while proceedings under Section 482 Cr.P.C. or under Article 226 / 227 of the Constitution were not barred, no order staying the trial could be passed because it was barred by Section 19(3)(c). The practical effect of this was that litigants challenged orders on charge through petitions under Section 482 Cr.P.C. but without getting a stay of proceedings. It should be clear why stay orders were so sought after - if the trial kept proceeding, then any order from the High Court on the point of charge could potentially be useless. Since the High Court could not grant a stay, litigants turned to request the trial court to defer recording of evidence until the High Court decided the petition. Now, High Courts have clogged dockets, and without extremely reputed counsel one is unlikely to get a petition disposed fast enough, and even then most petitions would eventually prove futile. This legal position made it unfairly prohibitive for litigants (both with means and without) to challenge orders on charge despite having good bases to do so.

The legal basis of the Delhi High Court's opinion was tenuous on both issues. It had decided that the order on charge in PC Act cases was an "interlocutory" order, and so could not be challenged through a Revision petition because of the specific bar against this under Section 397(2) Cr.P.C. But it had come to this conclusion by attempting to distinguish earlier Supreme Court precedent in Madhu Limaye [(1977) 4 SCC 551], by suggesting it had been modified by another Supreme Court decision in V.C. Shukla [1980 (Supp) SCC 92] (discussed previously here). With respect to the ban on stay orders, the High Court relied on the Supreme Court decision in Satya Narayan Sharma [(2001) 8 SCC 607] which had held that Section 19(3)(c) of the PC Act completely prohibits granting any stay orders by any court, including by the High Court under Section 482 Cr.P.C. The Supreme Court had arrived at this conclusion in Satya Narayan Sharma without discussing the nature of inherent powers under Section 482, and how several decisions including Madhu Limaye had interpreted the scope of these powers being untrammelled as they were intended to do justice and prevent abuse of process.

How did the Supreme Court Decide the Issues?
The Court held that the Delhi High Court in Anur Kumar Jain was wrong on both counts, while it did correctly hold that exclusion of Revision petitions did not control the scope of a High Court's inherent powers or constitutional jurisdiction. The issue on the nature of orders on charge was straightforward enough - the Court approved the legal position in Madhu Limaye, which had held that "interlocutory" for purposes of Section 397(2) Cr.P.C. was not to be seen as referring to everything except the final judgment. In doing so, it relegated the decision in V.C. Shukla to historical insignificance by holding that that the decision was purely limited to the special statute it was concerned with, and did not affect the position of law. So, the position of law governing PC Act cases remained what the Court had held in Madhu Limaye, and by that standard, orders on charge were not "interlocutory" and remained open to challenge through Revision petitions under Section 397 Cr.P.C. [Paragraphs 24-25, Goel J.].

The legal aspects of the issue regarding granting stay orders in PC Act cases was addressed by Justice Nariman. He reasoned, first, that while Section 19(3)(c) of the PC Act did go beyond merely sanction issues [contrary to what the Petitioners argued (Paragraphs 7-8, Nariman J.)], it did not cast an absolute ban on granting stay orders. Rather, he read this together with Section 19(3)(b), and said that the power to grant stay orders to prevent failures of justice did exist [Paragraph 8, Nariman, J.]. The second part of his reasoning extended this power to High Courts. For this, he reasoned that inherent powers of a High Court were not granted by the Criminal Procedure Code but arose because of the High Court being a Court of Record with powers to punish for its contempt, and the origins of inherent power were thus properly traced to the Constitution itself. Section 19 of the PC Act, by overriding application of anything in the Criminal Procedure Code, therefore could not affect exercise of the constitutional authority by High Courts - under Section 482 Cr.P.C. as well as Articles 226 / 227 of the Constitution [Paragraphs 9-11, Nariman, J.]. High Courts had full powers to grant stay orders even in PC Act cases, and this conclusion meant that the Court's earlier decision in Satya Narayan Sharma was no longer good law.

Everything Else - Rules on Stay Orders and the Ghost of Suneja
Both opinions are curious things - Justice Goel says nothing about the legal issue on stays, and yet his opinion will shake up how courts across the country regulate stay orders in all sorts of cases. And then there is the ghost of Girish Kumar Suneja v. CBI [(2017) 14 SCC 809 (Suneja)] - another decision by three Justices where the Supreme Court considered the same issues. Let's take up both in order.

Limits on Stay Orders 
In recent years, several government bodies have cast a beady eye on stay orders and the delays they cause in the legal system (see here and here). The Court itself has been quite vocal about stay orders being granted too loosely and matters dragging on endlessly. In Asian Resurfacing itself, the Court notes how the FIR was registered in 2001 - seventeen years ago - and the case is still at the stage of charge (although no explicit mention of stay orders is made). Thus, a move which tightens this process can arguably be considered as a positive move for the Indian legal system. To this extent, I agree, but I maintain a cautious optimism over what this case could achieve. We must remember that this is happening in appeals where two specific legal issues regarding the PC Act were referred to a larger bench of the Supreme Court, and none of them was about delays through stay orders in the entire legal system. Thus, it remains fully possible for a subsequent bench of the Court to go ahead and remind us that these observations could not be binding. The chances of this are not remote, considering how a large part of litigation in India involves lawyers strategically using stay orders. On a related note, it should also concern us that the Court was ready to come at these sweeping conclusions without citing any recent data on the problem - it cited portions of a 2012 decision in Imtiaz Ahmed [(2012) 2 SCC 688] which had nothing to do with civil litigation either. Do we know how many cases will be affected by this ruling? Was there a better way than to issue a diktat sitting from New Delhi, that will now rumble on slowly through the vast legal system across India and cause havoc in several cases? Perhaps there was, but now, unless something changes one can expect a fair bit of turmoil as all courts across the country determine the impact of what the Supreme Court said in Asian Resurfacing.

Girish Kumar Suneja
Which brings me to Suneja - a decision that had been the subject of some criticism on this blog (see here, and here) [Full disclosure: I was involved in the litigation in a connected petition for petitioners who had challenged the impugned order, and thus lost in the Supreme Court]. Suneja also addressed both of these issues (unnecessarily, as I argued previously), and had come at diametrically opposite conclusions: the Court had held that (i) Revision proceedings against PC Act orders on charge are barred, (ii) that this prohibition also barred challenging such orders under Section 482 Cr.P.C. as this indirectly lifted the ban on Revision proceedings, and finally (iii) that Section 19(3)(c) of the PC Act completely barred stay orders from being granted. Now, since Suneja was also decided by three Justices, the Supreme Court could not overrule it in Asian Resurfacing. So we find both opinions trying to arrive at a compromise - holding that the conclusions in Suneja were incorrect without actually saying that the decision was wrong. And it makes for a sad spectacle. Justice Goel's opinion admits that "seemingly conflicting observations" were made in Suneja, but it did not displace Madhu Limaye, which remained good law through all these years [Paragraph 25, Goel J.], and strangely enough, goes ahead and favourably cites Suneja to begin his lament against delays [Paragraph 26, Goel, J.]

Justice Nariman tries to salvage Suneja by indirectly admitting that some parts of that decision were incorrect and conflicted with other parts which contain "an exposition of the law correctly setting out what has been held earlier in Madhu Limaye". But judgments must be read as a whole, and thus he asks that these parts be read "harmoniously" to arrive at the correct conclusion, i.e. the one that he has arrived at [Paragraph 17, Nariman, J.]. I am yet to fully wrap my head around how this happens: the parts of Suneja that are admittedly incorrect are in fact the holding of the case on two PC Act issues that we have flagged here [Paragraphs 25, 29 and 32 of Suneja]. The lone paragraph in Suneja that Justice Nariman says is "correctly setting out" the law [Paragraph 38 of Suneja], comes when the Court is deciding whether or not litigants could challenge orders on charge through Article 226 / 227 of the Constitution, after the Court has already decided that litigants cannot challenge these orders under the Cr.P.C. And even if one agrees that Paragraph 38 of Suneja should control, I struggle to understand how it controls on the issue of granting stays, which it says nothing about. 

Conclusions
Asian Resurfacing has already made headlines for its limits on stay orders. Those observations are of undoubted significance, but for reasons that I already expressed above, I remain wary of hailing it as a game-changer just yet. The decision is also striking for providing an insight into a peculiar problem that the Supreme Court has often faced - genuine disagreement between two sets of benches on what the law should be. The institutional dynamics of the Court have not always been conducive to neat solutions in these scenarios, and something similar has happened between Asian Resurfacing and the 2017 decision in Suneja. The Supreme Court in Asian Resurfacing has tried to remove the ground on which Suneja stood without finding it incorrect, but the reconciliation is far from satisfactory. Despite how both opinions refused to call it so, the conclusions in Asian Resurfacing are certainly in conflict with what was held by the three Justices in Suneja, which makes the conclusions arrived at in Asian Resurfacing of questionable legal force. This means that, technically, one can argue that the decision in Asian Resurfacing is little more than a bright facade with a hollow core and should not be followed by courts. Only time will tell how the decision is received.   

Tuesday, March 20, 2018

The Shifting Judicial Sands on Accused's Right to Rely on Exculpatory Material at the Stage of Discharge

(I am happy to host a guest post co-authored by Mr. Bharat Chugh, Managing Associate, & Mr. Vibhor Jain, Associate, at Luthra & Luthra Law Offices, New Delhi. A modified version of this post first appeared on Mondaq)

A preliminary hearing in a criminal trial is one of great importance, and the right to seek a discharge (threshold dismissal) is an extremely valuable right that the Criminal Justice System guarantees to the Accused. This allows a court to sift out meritless cases at the very threshold, and throw them out. However, the scope of scrutiny at that stage, and the material that the court can look into to make that decision, are extremely limited. It has been held in a number of cases by the Supreme Court that a court cannot look beyond the material that the Prosecution chooses to rely on, to decide whether to discharge the accused, or take the matter to trial. Practice has shown that this often leads to the Prosecution relying solely only on ‘self-serving’ and ‘incriminating’ material, and suppression / withholding of exculpatory evidence that can potentially disprove the case against the accused at that stage itself. 

This has been the consistent position over the last few decades. However, the recent judgment of the Supreme Court in Nitya Dharmananda v. Gopal Sheelum Reddy [(2018) 2 SCC 93 (Nitya)] has once again reignited the debate on the vexed question of an accused's right to rely on material other than the police report, to make out a case for discharge. To set the context for the discussion, in Nitya, a Division Bench of the Supreme Court held: 

…it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge. 

The above observations, particularly their consistency with judicial precedent, as also their desirability for the administration of criminal justice and due process, are the subject of this post. With that anchor in mind, let us begin at the beginning, with the first principles governing the judicial evaluation at the time of discharge. 

What Materials does a Court see during Arguments on Charge?

The provisions in the Criminal Procedure Code 1973 [Cr.P.C.] relating to the framing of charge against an accused are broadly Sections 227, 239, and 245, depending on the nature of the offence that one is looking at. (See, here, for an earlier discussion of these provisions on the Blog)These provisions show that a court can discharge an accused if, on a perusal of the Police Report and documents sent along with it, the court concludes that the charge is groundless. Therefore, the statute mandates the court to use only the Police Report as the input material, and not evaluate any other evidence, in order to arrive at a decision on framing the charge. With that being the case, the next question is what all does this Police Report contain? Is it required to contain evidence favourable to the accused, or should it be confined to material that the prosecution seeks to rely on? What about the statements of those witnesses examined by the Investigating Officer, who have gone on to support the defence case? The answer lies in Section 173(5) of the CrPC, requires the police to forward only those materials which "the prosecution proposes to rely upon" and "statements ... of all those persons whom the prosecution proposes to examine as its witnesses". So, the material sent to court with the Police Report contains all documents and witness statements which the prosecution proposes to rely upon and examine. One can see how this can easily be used by the prosecution in a self-serving manner. The Investigating Officer is, therefore, not mandated by law to forward to the Court, as part of his Police Report, material which might be favourable to the defence. But can the Court, on its own, look at material presented by the accused? Or, can the accused invoke the powers of a court under Section 91 of the Cr.P.C., to bring to the court’s attention documents etc. which are exculpatory in nature, but have not been made part of the Police Report? Having either of these rights would render the accused better equipped to demonstrate the charge to be ‘groundless’, on the face of it, without having to go through a trial. We examine both these claims in reverse order. 

Debendra  Nath Padhi and Excluding Materials from an Accused 

With regards to Section 91, a bare reading of that provision does not suggest anything that prohibits its use at the stage of discharge. So how do we read this together with the limits placed through the provisions on discharge which said the court cannot look at anything beyond the Police Report? The task of harmonising these two provisions was taken up by the Supreme Court in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 (Padhi)]. In Padhi, a Three-Judge Bench of the Supreme Court held that defence material cannot be advanced during arguments on charge as the defence of the Accused is irrelevant at this stage, and a court can only rely upon the record as submitted by the police with the charge sheet. The decision further held that ordinarily, there would be no right of the accused to seek production of a document under Section 91 of the CrPC at the stage of framing of charge. The decision was in sync with the statutory scheme and also in the interests of avoiding a ‘trial within a trial’, to reduce delays in our already overburdened criminal courts. The Supreme Court in Padhi specifically noted that Section 227 Cr.P.C. had been introduced with the specific purpose of dispensing with the lengthy committal process which involved making an inquiry (which included examination of witnesses), that protracted proceedings and made the criminal justice process slower. 

With respect to the words “hearing the submissions of the accused” in the discharge context, the Court held that this did not mean an opportunity is granted to an accused to file material; the submissions have to be confined to “record of the case”, i.e. material produced by the police. It held that “record of the case” in Section 227 Cr.P.C. was to be understood in light of Section 209(c) Cr.P.C., which provides that in a case exclusively triable by a Sessions Judge, the Magistrate shall send to the Sessions Court “the record of the case and the documents and articles, if any, which are to be produced in evidence”. Reading the two provisions together, the Court found that “No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.” Therefore, the legal position effectively was that the judge could look only at the Police Report while deciding whether to discharge or proceed to trial. This made obtaining a discharge a herculean task for any defence lawyer, and reduced, rather unfortunately, most discharge hearings/proceedings to mere foregone conclusions and exercises in futility. It deprived the accused of an important due process right; the right to demonstrate the falsity of the prosecution case, without going through the rigmarole of a long-drawn trial. This is unfortunate, since elsewhere, preliminary hearings are much more effective and meaningful. For instance, in US, the defence gets to cross-examine Prosecution witnesses at the stage of discharge (called a “preliminary hearing”) with a view to demonstrate that there is no probable cause to take the Accused to trial. 

Departures from Padhi 

In Padhi, the Supreme Court envisaged a very limited evaluation at the stage of charge, which also led to there being practically no remedy in case an Investigating Officer, in flagrant disregard of ‘due process’, ‘duty of fair disclosure’ and principles of fair investigation, suppressed or withheld exculpatory material. However, subsequently, somewhat discordant notes have been struck on this issue by smaller Two-Judge Benches of the Supreme Court, firstly in Rukmini Narvekar v. Vijaya Satardekar [(2008) 14 SCC 1], and recently, in Nitya

In Rukmini Narvekar, the accused challenged the issue of process by seeking quashing of proceedings before the High Court under Section 482 Cr.P.C. The High Court allowed the petition by relying on evidence recorded in a separate civil proceeding where the complainant was plaintiff. The question before the Supreme Court was whether defence material could have been relied upon by the High Court. Justice Markandey Katju embarked upon an analysis of Padhi and observed: that 

Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568], there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 

Though of great practical utility, this decision was decried to be of tenuous legality since the Court appeared to have misemployed a standard laid down in context of inherent powers of the High Court, and proceeded to incorrectly conflate it with the powers of a court while framing a charge, which was not warranted by Padhi. Though there seems to be no intelligible differentia between the two cases; and there is no justifiable reason why the High Court, acting exercising powers, can examine documents of unimpeachable character of exculpatory nature and the Trial Court cannot. Be that as it may, unless the Supreme Court equates the two, the law of the land remained thus: the High Court exercising wide inherent powers can rely upon documents or material advanced by defence / accused of unimpeachable or sterling quality in proceedings under Section 482 Cr.P.C. The same, however, was not so with a judge framing charge, in respect of which, guidelines have been laid down in the form of the explicit text of the relevant Cr.P.C. provisions, reaffirmed by the Court in Padhi. This was noticed in Rukmini Narvekar itself, by Justice Altamas Kabir, who in his concurring opinion hinted at having held a diametrically opposite view from Justice Katju’s opinion. Rukmini Narvekar, therefore, is not a good authority for the proposition that defence material can be taken into consideration at the stage of deciding the question of charge. Since this was also not the issue before the Court in that case, its value as precedent for this proposition is rather suspect. 

Nitya: A Possible Reconciliation, and a Progressive One 

Which brings us to Nitya, which, in our opinion, stands on somewhat better legal ground. In this case, a Bench of Justices U. U. Lalit and Adarsh Kumar Goel was faced with the question as to whether an accused, before framing of charge, can file an application under Section 91 Cr.P.C., to summon materials collected during investigation, but not made a part of the Police Report. In this case, the said material (statements of witnesses unfavourable to the prosecution) was available with the police, but had not been included in the Police Report. The High Court allowed the petition and directed the trial court to summon the witness statements available with the police (and also directed the Trial Court to look into the case diary to examine availability of other material sought by the accused) [Gopal Sheelum Reddy v. State of Karnataka, 2016 SCC OnLine Kar 8449]. The Supreme Court set aside the High Court’s judgment in appeal, holding that there was no right of accused under Section 91 Cr.P.C. to summon material. However, the Court held that in the interest of a fair trial, the court in its discretion may summon such material as has been withheld by the police and not made part of the charge sheet, if it is of “sterling quality” and has a “crucial bearing” on framing of charge (the extract was provided at the start of this post). A possible reconciliation of Padhi and Nitya could be the usage of the word “ordinarily” in the relevant passage of Padhi which laid down that an application under Section 91 Cr.P.C. cannot ordinarily be used by the accused to summon material. The new dictum of there being (1) material withheld by police/Prosecution, (2) said material being of sterling quality, and (3) said material having crucial bearing on framing of charge, can then, indeed, be sourced to the law laid down by the larger bench in Padhi allowing for such an observation, by saying Section 91  Cr.P.C. cannot ordinarily be used by an accused for this purpose. What would be the ‘extraordinary’ event in which Section 91 Cr.P.C. can so be used? The three conditions enumerated in Nitya

Though Nitya’s compatibility with older judgments may be debatable, and there may be two views on that, but we firmly believe the judgment must be lauded for recognising that the imperatives of fair trial demand that the accused (who, unlike the prosecution, does not have the wherewithal to privately investigate and collect evidence) should be provided exculpatory material collected by the Investigating Officer during investigation, and allow him to rely on this while arguing for a discharge. Absent strong disclosure requirements and discovery proceedings written into the Cr.P.C. itself, this judicial intervention was long due, and would go a long way in making discharge proceedings more effective. Of course, this, by itself, would not allow us to achieve the same levels of fair play that, for instance, the US system allows. Major statutory overhauling would be required to introduce a right to cross-examine (at least the material witnesses) at the stage of discharge, and to introduce defence witnesses. However, the enormity of changes required and difficulties in implementation should not detain us from aspiring-for what would definitely be a fairer system. We feel that the justification assigned for not implementing such a system on account of courts being overburdened may not a good enough justification to cut short valuable due process guarantees. A need for pragmatism, understandable as it may be, must not take away from what the law ought to be. Until such statutory changes which guarantee that benchmark of fairness, this decision does make the process a bit more fair and objective.

Friday, March 2, 2018

The 2-G Spectrum Case

(This post first appeared on the Global Anticorruption Blog) 

It all started in May 2009 with a report filed by an NGO, Telecom Watchdog, with India’s Central Vigilance Commission. The NGO claimed that there were gross irregularities, likely due to corruption, in the allocation of licenses to operators for the 2nd Generation mobile communication standard spectrum (2G spectrum for short). By October 2009, India’s premier investigating agency, the Central Bureau of Investigation (CBI), had opened an investigation into the allegations, and in November 2010, the Comptroller and Auditor General of India estimated the losses to the government from the alleged misconduct at a whopping US$29 billion. Indian media called it the “biggest scam in the history of Independent India.” Time Magazine put it just behind Watergate as the second worst case of abusing executive power.

Petitions were filed in the Supreme Court of India pressing for cancelling the allocation and making sure that those behind the corruption would be held responsible. In 2012, the Supreme Court obliged, canceling all 122 licenses and imposing huge fines. The Court declared that the then-Minister for Communications and Information Technology, A. Raja, had used an inappropriate allocation procedure (first-come-first-served rather than an auction) to “favour some of the applicants … at the cost of the exchequer.” In an unprecedented move, the Court also ordered the creation of a “Special Court” to try the cases, and modified regular criminal procedure by curbing intermediate challenges, in order to ensure a speedy trial. The first case was instituted against the former Minister, senior bureaucrats, and prominent businessmen for conspiring to rig the allocation process and cheat the government of revenue.

On December 21, 2017, the Special Court announced its verdict—and it was not what many had expected: The Special Court acquitted all the accused, declaring that “a huge scam was seen by everyone when there was none,” and that “some people created [the perception of] a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The Court also found that, notwithstanding the earlier 2010 report (which others had already suggested was methodologically problematic), the actual losses to the government were marginal at most.

Many commentators were stunned and dismayed by the Special Court’s decision, denouncing it as “shocking” and “flawed.” But after reading the Special Court’s decision, I find myself in agreement with the Special Court’s reasoning. While it’s impossible, in a short blog post, to wade through the merits of the Special Court’s analysis for each of its conclusions, here I want highlight some of the most important arguments in support of the Special Court’s controversial decision.
  • First, it’s worth addressing the apparent conflict between the Special Court’s ruling and the 2012 Supreme Court decision. The latter had quite clearly ruled that wrongdoing had occurred. But it’s a mistake to say that these two decisions are at loggerheads, for two reasons: For one thing, in 2012 the Supreme Court was dealing with an omnibus petition that put the allocation of 2G spectrum under a cloud and only sought initiation of prosecutions. At that stage, all one needs are grounds for suspicion of wrongdoing (something akin to probable cause). In fact, even the Special Court thought the material presented in to the Supreme Court had created a valid basis for suspicion, as it emphasised in a lengthy order refusing to discharge the cases back in 2012. But suspicion is not proof, and it was only after a careful examination of the evidence that the Special Court came to the conclusion that there was no proof beyond a reasonable doubt to convict the accused persons. Rather than condemn the Special Court’s decision, we should laud the Special Court for confirming that a trial court can function independently in spite of the strong preliminary observations made by the Supreme Court.
  • Second, the Special Court’s verdict strongly suggests that the controversial government decisions were mistakenly depicted as corrupt, when in fact the controversy was due to the inefficiency and opacity of the bureaucracy. A review of the official records led the Court to conclude that the decisions allegedly initiated and pushed through by the disgraced Minister had hardly ever been taken by him alone. Other officials, who ended up as key prosecution witnesses, were fully involved in the decision-making process. The record revealed these officials were passive and happy to pass the buck rather than take responsibility at the appropriate time. Further, the Court also faulted badly-drafted government policies, and found that bidders had not acted wrongfully in exploiting gaps that the government had created. Remarkably, the prosecution could not prove that the accused companies were ineligible under the policy governing the spectrum allocation process, despite strong suspicions of this being the case, because none of the government’s witnesses could testify that the relevant words in the policy carried a definite meaning.
  • Finally, the Special Court’s decision strongly suggests that the investigators and prosecutors simply botched the case. Some vital records were never collected or produced. For instance, no records of any kind were presented to show the Minister and private persons were meeting very frequently at the Minister’s office, which was a key government allegation in connection with the conspiracy charges. Even more problematic was how witnesses were examined, both by the investigators pre-trial and by prosecutors in court. As the Special Court emphasised (and illustrated with a helpful chart), although the investigation began in 2009, the CBI did not examine the most important witnesses until 2011 or 2012, in some instances doing so merely a few days before filing the dossier in court. Star witnesses often gave deposition testimony that contradicted the official record, which led the Court to reject their testimony as unreliable. The Special Court also lamented the failure of the prosecution to lay proper evidentiary foundations for its main arguments, noting that “arguments alone do not prove a case … For proof, legally admissible evidence is required.”

Once the dust settles, it is highly likely that an appeal will be filed, as acquittals can be challenged under Indian law. Overturning acquittals in appeals carries a tougher standard than challenging convictions, and it will be interesting to see how the government chooses to attack the Special Court verdict. One suspects that the speed of governmental action over the case might hinge on the upcoming national elections in 2019, as the verdict is bound to become an election issue. While ordinarily appeals continue slowly through the Indian judicial system, the government could push for a speedier resolution, and these special circumstances might yet see more twists in the 2G spectrum saga.

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.