Wednesday, June 29, 2016

Helping out with the Democracy Deficit?

This is just a quick jotting. 

News items are reporting that a bench of the Supreme Court has referred a petition to the Chief Justice of India, seeking 'quashing' of Section 377 IPC - the anti-gay law as it is now commonly called (Hindu link here, NDTV here, and Times of India here). It is also reported that the petition is fronted by various individuals of public persona, challenging the provision on grounds of it violating their sexual freedom (could be Article 19 and/or Article 21). The Division Bench before whom the petition was posted agreed to send it to the Chief Justice, to decide whether it should be tagged with the curative petitions filed against the decision in Suresh Kumar Koushal v. Naz Foundation & Ors.

If the Supreme Court in Koushal held that the Legislature is the one responsible for deciding whether a statutory provision must be repealed - for that is effectively the import of the submissions in this case - then one asks what has happened in the Legislature regarding this? Very little, lamentably. In the years post Koushal, we have managed to hear the Union Minister for Law stated once in parliament that the Government will engage consultations. A private member's bill was presented by MP Shashi Tharoor, but was not allowed to be introduced in the Lok Sabha. Consequently, no debate has been raised in parliament on this issue.  

Here things become interesting. For one, I do agree with the argument that seeking judicial repeal of statutes is contrary to a democratic setup with an elected parliament. But every theory holds with a certain premise, and the premise behind the separation of powers doctrine is three functioning pillars of democracy. It would perhaps be better to call it the balance of powers, for if one pillar fails the balance must still be maintained. Many would argue that the Indian Legislature is teetering on the verge of collapse, with little or no engaged debate on proposed legislation. In light of this, it becomes important to place the spotlight on the rejection of the private member's bill in the Lok Sabha. Could it be construed as the Legislature considering and then deciding against any change to Section 377 IPC, or as the Legislature failing to consider the question itself?

The Supreme Court, ideally, should address this question as it could help refine an important area in the legal terrain of substantive due process in India. Perhaps, the Constitutional Bench could arrive at some limited exception to allow the Supreme Court to step in and consider issues of substantive due process where the Legislature has just booted the question without consideration. It might go a long way in re-tilting the lop-sided balance between the institutions of our democracy.  

Wednesday, June 22, 2016

Special Offences: The Supreme Court on Section 7 and 13(1)(d) of the Corruption Act

[This is the fourth post in continuation of a stop-start series  discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here,  here and here]

Although an instance of malum prohibitum (acts made criminal by virtue of statute but not otherwise offences), many argue that corruption jars the moral fabric of democratic society as harshly as any act that is mala in se (murder, for instance). The criminal justice system in India seems to support this view. The space and attention devoted to public discussions of corruption allegations are a testament to it. In this discussion, the pre-eminent position has often been accorded to the Supreme Court. Circumstances have made it don the mantle of a full-service corruption dousing machine. It oversees investigations, sets up special trials, and then eventually decides cases in appeal. 

Habitual readers of this Blog (if any) would be aware that it is rather skeptical of the efficacy and accuracy with which the Supreme Court dispenses its judicial functions in this era of its heightened importance. This post on the Court's interpretation of the primary offences under Sections 7 and 13(1(d) of the Prevention of Corruption Act, 1988 [PC Act] is of a similar vein. I argue that recent decisions of the Court have conflated the two already-similar offences while ignoring their text. The Court's interpretation casts unnecessary doubts over the position of law and is thus undesirable from the perspectives of both prosecution and defence.

The Offences - Section 7 and 13
The PC Act was designed as an upgrade on its 1947 namesake by combining elements from the predecessor with a scheme of bribery-related offences previously contained in the Indian Penal Code.  Identical provisions can thus be found for most of the PC Act in these historical sources. Section 7 of the PC Act is strikingly similar to the now-repealed Section 161 of the IPC. Similarly, Section 13 is modelled on Section 5 of the 1947 Act. Section 13(1)(d) nearly identical to Section 5(1)(d).

The headnote for Section 7 reads "Public servant taking gratification other than legal remuneration in respect of an official act". The headnote for Section 13 - it criminalises various types of conduct - reads "Criminal misconduct by public servant". The scope for overlap is apparent, as taking illegal gratification falls within the larger, general, field of misconduct. The text of the provisions, Sections 7 and 13(1)(d) parts (i) and (ii) that is, make the possibility of overlaps a clear probability:

Section 13(1)(d): [A public servant is said to commit the offence of criminal misconduct] if he: (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; ...

Section 7: Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever,  other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, ... shall be punishable with imprisonment ... 

Imagine the two offences as concentric circles. The Section 7 offence can be very nearly subsumed within the broader offence created by Section 13(1)(d). Nearly and not completely subsumed, for there is one crucial difference in the preliminary conduct requirements of the two offences. Section 7 criminalises accepting or obtaining illegal gratification in a particular manner. Section 13(1)(d) only speaks of obtaining. Beyond this, the particular manner in which the illegal gratification is accepted under Section 7 can easily be classified as corrupt means and fall under Section 13(1)(d)(i).

Accepting, Obtaining, and the Supreme Court
Is there a difference between accepting and obtaining in the context so described? This question has arisen before the Supreme Court in context of the PC Act as well as the old 1947 Act and IPC regime. In Ram Kishan & Anr. v. State of Delhi [AIR 1956 SC 476] the Court while reading Section 5(1)(d) of the 1947 Act held that 'obtain' "does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver." Such sophistry was shed for clearer dictum by the Court in C.K. Damodaran Nair v. Government of India [(1997) 9 SCC 477], again a decision under the old regime. Implicitly building on Ram Kishan, the Court held that acceptance need not involve an element of demand, but obtaining necessarily involved demand on part of the public servant. Thus, demand was necessary for an offence under Section 5(1)(d) - now 13(1)(d) - whereas it was not necessary for an offence under Section 161 IPC and correspondingly an offence under Section 7 of the PC Act. This reading of the text was upheld in the context of the PC Act by the Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587].

Soon after, though, things begin to get interesting. After Subair, a spate of decisions emerged which hold that demand is the sine qua non for an offence under Section 7, and none of these cited C.K. Damodaran Nair. The list includes C.M. Girish Babu v. CBI [(2009) 3 SCC 779], C.M. Sharma v. State of A.P. [(2010) 15 SCC 1], and B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55]. Importantly, in all these cases the Appellants were alleged to have committed offences under Section 7 as well as Section 13(1)(d) based on the same underlying transaction. The cases were also factually similar - a trap was sprung to catch the public servant red-handed while taking illegal gratification, with the Accused arguing that the gratification must have been demanded for it to be an offence. Reading these decisions together with the view in Ram Kishan and C.K. Damodaran Nair makes it clear that the Court is wrong to hold that demand is a sine qua non for offences under Section 7. It is certainly necessary, though, for an offence under Section 13(1)(d). [As an aside, it is interesting that the charges against the Accused were under Section 13(1)(d)(ii) in two cases and 13(1)(d)(i) in one.] 

All these cases were decided by co-ordinate benches of two judges. A bench of three judges decided P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh [(2015) 10 SCC 152], yet another trap case involving allegations under Sections 7 and 13(1)(d)(i) & (ii). The three judges cited previous decisions noted above to conclusively opine that "the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail." Very recently in April 2016, the Supreme Court in V. Sejappa v. The State by Police Inspector, Lokayukta [Crl. Appeal No. 747/2008, decided on 12.04.2016] used an opportunity to present these decisions - excluding Subiar - as an impenetrable facade for the proposition that demand is the sine qua non for an offence under Section 7. Notably, this case also concerned allegations under both Sections 7 and 13(1)(d).

Cutting through the Rhetoric
I've been at pains to highlight the factual likeness of all the decisions mentioned above. A failure to adequately do so by the Supreme Court in these decisions is what today risks incorrectly conflating both offences. The Supreme Court, most notably in the three-judge bench decision of Satyanarayana Murthy, egregiously speaks in highly-general terms of demand being a necessary element for offences under Section 7 despite this being clearly unsupported by the text of that provision. In fact, the basic difference between the scope of offences under Section 7 and Section 13(1)(d) is the former possibly covers situations where there is no demand

Restricting the effect of these cases by considering their facts allows us to limit the extent of damage. Although facts are pithily discussed in the reported decisions, it is clear that the prosecution hinged its case every time on the existence of a demand and acceptance of a bribe for securing a conviction under both offences. By levelling both sets of allegations, the prosecution necessarily only argues that the Accused obtains the gratification - as Section 13(1)(d) excludes mere acceptance. Once the prosecution argues that the Accused obtains a bribe for purposes of Section 13(1)(d) it cannot also argue, on the same set of facts, that the Accused merely accepted the bribe to secure a conviction under Section 7. In this very limited context of trap cases where allegations are levelled under both Sections 7 and 13(1)(d) one can support the logic of the Supreme Court, though nothing can support the unnecessarily grandiose rhetoric.   

Why then, one might ask, are prosecutors insistent on levelling allegations under both sets of offences  in corruption cases despite the onerous requirements of Section 13(1)(d) - establishing both demand and acceptance? Or well, if you persist in levelling allegations for Section 13(1)(d) why must Section 7 also be added? There are reasons, of course. Prosecutors insist on Section 13(1)(d) because it carries a higher sentence - ten years, as against the seven years of Section 7. They continue on adding Section 7, however, because of evidentiary benefits that it entails at the trial. Section 20 of the PC Act contains a reverse-onus clause that applies in trials for Section 7 offences but not 13(1)(d). 

This framework is not likely to be amended anytime soon. Thus, the jurisprudence on corruption laws in India is bound to see several more cases involving laying of a trap to catch offenders red-handed, with prosecutors then levelling charges under both Sections 7 and 13(1)(d). But there will also be several more cases not involving these scenarios, with only allegations of an offence under Section 7. It is imperative that the Court appreciate the distinctions, rendered ever-so thin by its rhetoric. If not, Section 7 would then collapse completely within Section 13(1)(d) and be rendered redundant. 

Saturday, June 18, 2016

Did the Supreme Court just 'Expand' Self-Defence?

I'm on holiday, which means no work-related reading (as far as possible). But it was interesting to see many major newspapers running an article that the Supreme Court had 'expanded' the scope of the right to self-defence/private defence (Times of India, New Indian Express links here). Naturally, it piqued curiosity and got me to read the judgment. At the outset, I cannot fathom why the piece has come in the news only yesterday, i.e. 16th June when the decision itself came on the 3rd. That's a speculative aside, fuelled by conspiracy theories germane to the kind of reading I'm doing right now. Also, I found the description in the Times a tad disconcerting: "one can take the law into hands if parents assaulted". A complex branch of the common law so horribly oversimplified in a tenor with apparently dangerous outcomes. Sigh.

Self-Defence in the Indian Penal Code, 1860
Of course, none of the pieces actually mentioned that there are statutory provisions on the right against self-defence. Sections 96-106 of the Indian Penal Code [IPC] painstakingly detail the various facets of this right, and have to be read together with the Second and Fourth Exceptions to Section 300 IPC. Importantly, the Supreme Court decision in question - Bhagwan Sahai & Anr. v. State of Rajasthan [Crl. Appeal 416/2016, decided on 03.06.2016] also doesn't discuss or mention these. 

Self-defence is a justificatory defence as opposed to an excusatory one. An excusatory defence is not based on the circumstances of conduct but the nature of the actor. For instance, insanity of the actor excuses her conduct from being considered an offence. As against this, if you are not insane or forcefully drunk and were to, say, hit X with a stick, that would normally be an offence. But if you were doing this because X had tried to stab you with a knife, then there is a justification behind your conduct. This justification is what makes it a non-offence.  Although the IPC doesn't bother too much about the different kinds of defences, a little clarity is useful to help understand their operation. 

The contours of this concept are etched through Section 96 to 106 in the IPC. Two things are of primary importance for this post. One, one has a right to defend his own body an the body of another against an offence affecting the body, as well as a right to defend his or another's property from offences of theft, robbery, mischief or criminal trespass [Section 97]. Two, the right of defence begins as soon as a reasonable apprehension of danger to the body arises, and continues till such apprehension remains [Section 102]. Furthermore, one has a very limited right of defence against acts done by public servants, or done under the authority of public servants [Section 99]. 

A last word before we move to the decision itself on the defence under Sections 96 to 106, and the exceptions under Section 300 which I flagged above. If you successfully argue that your conduct was protected under the right of self-defence/private defence under Sections 96 to 106 then it warrants an acquittal. Successfully pleading the conduct falls in the Second or Fourth Exception to Section 300 means the culpable homicide committed would not amount to murder, and thus be punished with the lesser sentence under Section 304 as opposed to Section 302.

Did the Supreme Court Really Expand the Defence?
The failure to actually mention any provision on the issue of self-defence makes it difficult to discern whether the argument was on the defence itself or the Exception to Section 300. But as the Court notes that the Appellant argued an acquittal was warranted, we can safely assume it is the defence itself that was argued at the trial. The facts are conveniently stated: a fight seems to have arisen over land between two sets of parties. The Appellants' father was grievously injured and ultimately died, while the Appellants inflicted various injuries themselves on members of the opposite party. The trial court had convicted the Appellants on inter alia Attempt to Murder but the High Court had reduced that to a conviction for Attempt to commit Culpable Homicide.

The Supreme Court reversed the decision and acquitted the Appellants. The primary reason for doing so was the failure of the prosecution to reveal the exact nature of circumstances before the trial court. It appears that the prosecution had omitted to mention that the injuries arose out of a cross-fight where a case had also been instituted against the alleged victims. This merited adverse inferences against the prosecution case and so the Court viewed the Defence version more favourably. Thus, the Court believed the version that the Appellants were only retaliating to their parents being assaulted by the alleged victims, because of which their father ultimately died. The Court summarily observed that this gave legitimacy to the claim for self-defence. 

Once the Court agrees with the Defence version, that their conduct was retaliatory in nature, the plea of self-defence automatically gains credibility. The lower courts hadn't done so as they agreed with the prosecution version of events, which omits the part about the dispute being a open fight. So is the view that seeing one's parents getting assaulted is grounds for self-defence a significant expansion of the law? A bare perusal of the facts as mentioned in the decision read together with the provisions of Section 97 make it clear that this well-within the current scope of self-defence. I have a right to defend the body, as well as the property, of another person already conferred under the IPC. So, I fail to understand the belated hype generated in the news behind this decision.

I may of course be mistaken. There may exist a decision which constricted the right of self-defence that this significant decision has done away with which the newspapers are aware of and I am not. Sadly, though, neither the significant decision nor the newspapers actually state any such decision. Perhaps this was just another instance of that old saying: don't trust what the papers say, ever.