Monday, October 31, 2016

Special Offences: The White Knight and Heroes we Deserve

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

[A slightly different version of this post first appeared on the Indian Constitutional Law and Philosophy Blog]

Last week a Single Judge of the Delhi High Court decided Girish Kumar Suneja v CBI (Crl. M.C. 3847/2016 decided on 27.10.2016), dismissing a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution as non-maintainable. The petition challenged an order framing charges in one of the many Coal-Block Allocation Scam related matters being tried before a Special Judge in New Delhi (this particular case also had the industrialist Naveen Jindal as a co-accused). It forms part of our series on the Prevention of Corruption Act, 1988, and can be seen as tying in with the third post in the series on appellate jurisdiction. This post begins with some much needed background before going to the decision in Girish Kumar Suneja, with some mild comments to close.

The Genesis – Shahid Balwa and the 2-G Trial

I’ve written earlier about a tendency to idolise the Supreme Court as a White Knight cleaning up the corrupt governance of India. This was in full view in 2010-2011 as the telecom spectrum allocation scandal hit the country, seriously questioning the integrity of the Executive and Legislature. Approval ratings of the Supreme Court automatically skyrocketed while it quashed license-allocations, and, most importantly for this post, monitored a CBI investigation and then vetted the entire set-up (from the particular judge to the special prosecutor) for trial of the offences allegedly arising out of this ‘2-G Scam’. Before ridding itself of the matter, it also directed that any challenge to orders passed by the Special Judge trying the 2-G Scam cases had to be made before the Supreme Court and access to the High Court had been completely barred for anyone aggrieved. This was labelled an exercise of the Court’s extraordinary powers to do ‘complete justice under Article 142 of the Constitution.

Procedural rights of accused persons had been restricted before by both Federal and State legislatures [the legality of which came up before the Supreme Court way back in State of West Bengal v Anwar Ali Sarkar (AIR 1952 SC 75)]. But for the first time we saw the Supreme Court itself go ahead and take up the reins. And since the Supreme Court was seemingly handling everything at that point this evoked little criticism. Naturally, though, it was challenged by the accused in the first 2-G Scam case and this was decided in Shahid Balwa v Union of India & Ors. [(2014) 2 SCC 687]. The Supreme Court took the opportunity to rubber-stamp its actions with approval while giving little legal justification. Instead, it turned to coffee-table conversation and served up ‘Larger Public Interest’ as the answer. Larger Public Interest demanded a speedy trial. This meant denying the accused their constitutional remedies to challenge judicial orders, because these challenges were mostly fraudulent abuses by these ‘better-heeled litigants’ of the ‘openings’ offered by the criminal justice system and delayed the trial. In fact, the Court thought the accused owed it to this Larger Public Interest to forego their rights to appeal and challenge decisions to ensure the smooth progress of the trial.

The Coal Scam and Girish Kumar Suneja

The Coal-Block Allocation Scam is the latest opportunity for the Supreme Court to reprise its White Knight act and go through the repertoire of corruption-cleaning remedies. Barring access to the High Court for criminal defendants figured as a part of this and became the focal point in Girish Kumar Suneja. The Petitioner argued a challenge to the order framing charges was maintainable before the High Court and could not be barred by the Supreme Court’s orders. This seemed obvious it was argued, for of course the Supreme Court could never have intended to take away substantive rights, or limit the High Court’s writ jurisdiction under Articles 226 & 227. The focus of those orders was to prohibit challenges that sought a stay against trial court proceedings, and there was no problem here as no stay was sought.

The Delhi High Court disagreed. It did not merely recite Shahid Balwa but gave a lengthy order with three main planks of reasoning. The first was to distinguish the right of appeal and the right of revision/exercise of inherent powers by the High Court. There was no problem in denying the latter, the High Court held, because it was discretionary as opposed to a statutory right of appeal. The second plank was to conclude that no problem arose by denying writ remedies under Articles 226 & 227 as the Supreme Court remained accessible to those aggrieved. And finally, the High Court observed that orders passed under Article 142, such as the one barring access to the High Court in the present case, were binding on all courts and thus had to be complied with here.  

Comment – An Odious State of Affairs

Girish Kumar Suneja leaves much wanting. For starters, if the High Court thought it was bound by Article 142 then this renders the other planks of reasoning entirely superfluous. Those planks, in any event, are made of termite-stricken wood. In distinguishing the right of appeal with revision / inherent powers the High Court missed the point entirely. The issue here was not about the exercise of power but about whether access to court through this means could itself be barred completely for particular litigants. On this point the Petitioner cited Anur Kumar Jain [(2011) 178 DLT 501 (DB)] (which I discussed earlier). A Division Bench of the High Court held that while Section 19 of the Prevention of Corruption Act, 1988 barred a revision against orders on charge, this could not prohibit invoking Section 482 Cr.P.C. and / or Articles 226 & 227 of the Constitution, as such a denial would be unconstitutional. Girish Kumar Suneja tries to side-step the issue of unconstitutionality in denying writ remedies [held contrary to the basic structure in L. Chandra Kumar (1997) 3 SCC 261] by wrongly equating the Supreme Court and High Court as fungible forums which is contrary to the text of the Constitution itself. I would go so far as to argue that reliance on Article 142 was also misplaced here. Because orders passed on 25.07.2014 by the Supreme Court in the Coal Block Allocation Scam did not specifically invoke Article 142 unlike the orders passed at the time of the 2-G Scam.

The biggest problem remains the decision in Shahid Balwa. In Anwar Ali Sarkar (supra) the Court struck down a West Bengal Special Courts Act as it did not provide any principles for the executive to decide which cases could be tried by special procedures that took away some rights of the accused. Larger Public Interest is as bad, if not worse, as that untrammelled executive discretion the Court warned against. The rhetoric about ‘better-heeled litigants’ reminds me of the criticisms levelled by Professor Hart in his exchange with Patrick (later Lord Devlin, where he questioned his conclusions on the relationship between law and morals for lacking any empirical basis. But since Article 142 of the Constitution does not prescribe how the Court must go about dispensing ‘complete justice’, we are expected to keep calm and carry on knowing that our constitutional rights may be withdrawn based on what the Court feels is the Larger Public Interest. One can argue that Shahid Balwa has limited applicability by relying upon the observations of the Three Judge Bench decision in State of Punjab v Rafiq Masih [(2014) 8 SCC 883] which noted that orders under Article 142 are not binding precedent [a paragraph that was cited in Girish Kumar Suneja]. This would prevent blind reliance on Shahid Balwa to pre-empt any debate on the validity of such orders excluding access to justice in subsequent cases. One can only hope that the decision in Shahid Balwa has been cut down to size before the next time the White Knight makes a reprisal.

Tuesday, October 25, 2016

Snippet - The Delhi Public Gambling Act, 1955

Diwali in New Delhi means parties with some festive gambling in many households across the city (Tambola was a family favourite). Recently, the Delhi Police raided a high-profile Diwali party in the posh residential colony of Sainik Farms. It has been alleged that this was actually a gambling den and a case has been registered. A friend called up asked whether this means the little party he was planning this week could also come under the cloud. I figured it would make good material for a short post.

The Delhi Public Gambling Act 1955 is what governs this area. It is based on an old colonial statute - the Public Gambling Act 1867 - and one can find similar laws today in Maharashtra, Gujarat and Madhya Pradesh among other states. The name of the statute makes it clear that it does not have a problem with all kinds of gambling. Public gambling is the vice it deals with. This covers two situations, the first where the organisation of the gambling itself is being made a venture. So if there was a fee levied on entering the gambling house, for instance, which the owner of the house keeps. The other situation is where some manner of gambling occurs on the occurrence or non-occurrence or extent of any natural event. So, no, the regular Diwali party is not going to make an offence under the Delhi Public Gambling Act. This is without even discussing what is gambling and whether some games of skill can be excluded, a question that has reached the Supreme Court more than once. 

But this is not all. What is far more interesting, and problematic, in the Delhi Public Gambling Act is Section 10. This empowers a magistrate to compel any individual arrested / apprehended on suspicion of committing an offence to make a statement on oath. The provision categorically states, that "No person so required to be examined as a witness shall be excused ... on the ground that his evidence will tend to criminate himself." The provision further states that refusal to make a statement is an offence itself, punishable under Sections 178 or 179 IPC. This is also present in the older Public Gambling Act 1867, and the laws on public gambling promulgated by other states mentioned above. If ever there was a clear violation of the right against self-incrimination under Article 20(3) of the Constitution, it is this. Despite this, I haven't come across a decision of the Supreme Court or any High Court declaring this provision to be unconstitutional. Depending upon how the investigation in the current case arising out Sainik Farms goes, we might just get that decision. 

Saturday, October 15, 2016

The Right to Counsel in India

I've made several visits to a police station over the last two years. A few of them were when a person had been issued a notice to appear - either as a potential witness [Section 160 Cr.P.C.] or as a suspect [Section 41-A Cr.P.C.]. These meetings teach you a lot. The last one involved me standing outside the station for five hours while the person was being interrogated by the police. This was legal - after all, one has a rather limited right to counsel in India. I argue that it is urgently necessary to reconsider this fundamental right and expand its scope in line with the developments of the criminal justice system. 

The Fundamental Right under Article 22(1)
Article 22(1) of the Constitution reads "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." There are two important observations that I wish to make about the constitutional right.

The first, is that the right to counsel was an innovation by the Constitution in the scheme of Indian criminal procedure. If we look at Article 20 of the Constitution, and even the remainder of Article 22(1), we find these protections had existing statutory equivalents at the time. Those rights had been elevated to the status of constitutional safeguards. With the right to counsel, there wasn't any such statutory protection. The shared experience of many in the Constituent Assembly led to the insertion of this right. 

The second, is the text and consequent scope of this right. The trigger for the protection is very clearly set at arrest (I will argue that this itself is a problem, but more on that letter). This is where the clarity ends. 'Consult' can mean many things. Does this mean I can have a lawyer present during interrogation?  Or does it mean I can meet a lawyer for one hour once a week while I am lodged in jail during the pendency of my case? 

The Right to Counsel in Statutory Law
I've already mentioned that the right to counsel didn't have any statutory equivalent in 1950. This important right only found a mention in the Criminal Procedure Code 1973 with amendments made in 2010 [this was after the decision in D.K. Basu (AIR 1997 SC 610)]. Section 41-D, so inserted, reads: "When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."

Depending on your point of view, this right re-confirms or expands the scope of the fundamental right. 'Consulting' now definitely means meeting your lawyer during an interrogation. This right is limited, but again, the boundaries are hazy. Who decides when I can't meet my lawyer? The police? The fairness of that decision would be under obvious question. In fact, this is is what leads to most lawyers remaining outside the police station despite the existence of this right to an arrested persons. Would that decision be amenable to any judicial scrutiny, say, under Section 156(3) Cr.P.C.? I haven't seen any such challenges in court yet.

Cribbed, Cabined and Confined
That, for me, is the current status of the right to counsel in India. There are more exceptions to it than there is substance. It could be said that the system exhibits some innate fear of allowing a suspect to meet a lawyer, that this would allow the suspect to 'wise-up' and thwart investigation. This is bogus. Even today, the law places many restrictions on using the evidence from an accused. Of course there is little that beats a confession, but centuries of criminal jurisprudence have developed the idea that a confession will not come. Police are trained to make a case without relying upon the accused. That is how most investigations and cases proceed. In any event, this supposed 'fear' has other remedies: police can be trained better and given better resources (forensics, for starters). The answer cannot be a denial of basic human rights.

The unclear limits in Section 41-D have rendered it entirely inept, as I've argued above. But this impotence of the right is reflected most severely in how it has been guaranteed to undertrial prisoners under state jail manuals. In Delhi, the Department of Prisons limits the right to meet a lawyer to only once a week for an hour. This standing order was challenged before the Delhi High Court but nothing came of it. These are obvious areas to be addressed. But some fundamental restructuring is also required. Mostly because today an arrest is not the first point of contact between the potential defendant and the police as was the situation around 1950. Policing has changed and so have attitudes towards policing. This social fact has been given legal recognition recently by the Supreme Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] which prohibits immediate arrests in a vast majority of cases. 

I argue that in light of this decision, it is about time the right to counsel was delinked from the idea of arrest The underlying idea must be salvaged - that the right to counsel was made available from the point one was coerced to be involved with law enforcement. Naturally, this would allow extending the right in cases where suspects and witnesses receive notices to appear before the police.

Saturday, October 1, 2016

Patna HC Liquor Ban Verdict - Proportionality in Punishments

A Division Bench of the Patna High Court yesterday ruled that the Bihar government’s prohibition measures were unconstitutional. These measures included notifications passed by the executive as well as amendments to the Bihar Excise Act made in 2016 by the Bihar Legislative Assembly. My friend at The Indian Constitutional Law and Philosophy Blog is most likely to post a scintillating analysis of the various constitutional law issues discussed by the Division Bench very soon. I’m trying to beat my friend at his game here. In this short comment I focus on the penal provisions introduced by the amendments which have been held unconstitutional.

The separate opinion of Justice Singh covers seven issues and he saves the best for last with his analysis of punishment clauses coming right at the end at Paragraph 89. Effectively, the law criminalised anything one did with alcohol (i.e. acts/omissions associated with its production, possession and consumption) contrary to the Act and rules. Punishments for these offences are neatly summarised into three categories in the judgment: (i) incarceration and fine (Sections 47, 53), (ii) confiscation of property (Sections 68-A, 68-G), and (iii) collective fines (Section 68-I) [There are other provisions on punishments in the Act as well that developed on these basic offences]. These were supplemented by the now-standard provision on reversing the burden of proof and presuming the accused is guilty (Section 48). The High Court unanimously held that these penal clauses were unconstitutional.

The Opinion
Out of these three categories, take categories (i) and (ii) separately from category (iii) which is collective fines. The collective fine provision is set aside for obvious violations of Article 21 of the Constitution as it imposed punishments contrary to a procedure established by law as no right of hearing or right of appeal was provided by the clause. Similar provisions for collective fines are present elsewhere that have these procedural safeguards [See, Section 16 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989].

Which brings me to the more interesting part of the decision concerning categories (i) and (ii). The primary plank on which these penal clauses are set aside is an argument on proportionality, i.e. the sentence imposed for an offence must be proportionate to the harm purportedly caused by the offence. This is a rather crude summation of what is a highly technical concept in sentencing theory [See, Andrew Ashworth Sentencing and Criminal Justice (5th edn., 2010); Andrew Von Hirsch Censure and Sanctions (1993)]. The High Court located the concept of proportionality in criminal statutes in Article 21 of the Constitution by relying upon the Supreme Court decisions in Mithu Singh v. State of Punjab [(1983) 2 SCC 277] and Vikram Singh v. Union of India [(2015) 9 SCC (502)]. The three judges in Vikram Singh framed the proportionality test as follows: “Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.

In this case, the harm as per the State of Bihar was the various evils associated with excessive alcohol consumption that are afflicting its people. The response was to introduce penal provisions that had these notable features:
  • A presumption of guilt which the accused must rebut without specifying whether the State had any burden to prove objective facts displaying commission of the offence;
  • Broad constructive liability attracting persons whose property was allegedly involved in the commission of offences. These persons would be subjected to the similar presumption of guilt which they must rebut;
  • Mandatory minimum punishments – warranting that a sentence of at least ten years’ imprisonment be awarded for possessing alcohol and at least five years for consuming it in a public place;
  • Sealing of properties allegedly involved in commission of offences and their confiscation upon conviction;
The Court posed to itself a question – was this response proportionate to the harm – and answered it in the negative as it found the penal clauses were notoriously overbroad and unspecific. There was no gradation of punishment to differentiate minor and major violations. Nor did the punishment clauses show any sensitivity to how different acts posed different harms. The NDPS Act was cited as an example of how such clauses can be provided within constitutional limits (to think that the NDPS Act would appear as a measure for principled criminal legislation!). Notably, Justice Singh did not restrict his opinion to the badly drafted punishment provisions for his proportionality analysis. It also looked at the various procedural conveniences incorporated by the 2016 Amendments, i.e. the reversed burdens of proof and coercive procedures of confiscation and sealing of property. Although persons could plead ignorance as a defence, broad constructive liability meant far too many people would be unfairly accused and subjected to these coercive procedures while having to prove their innocence. These dangers were not set aside by the stringent punishments imposed on vexatious actions by overzealous state agents.

Some Comments
The absence of any sentencing policy or guidelines has been a common lament for several criminal law scholars in India over the years. This decision puts the problems starkly into perspective. Imposing a minimum ten-year imprisonment for possessing alcohol and confiscating premises where nobody knew alcohol was present there seems to satisfy the outrageously disproportionate standard of the decision in Vikram Singh. However, the Supreme Court in both Mithu Singh as well Vikram Singh was at pains to stress the different position that the death penalty occupied from a sentence of imprisonment. In Mithu Singh, one may recall, Section 303 IPC was set aside because it only allowed for the death sentence without any alternative. The Supreme Court in Vikram Singh put it bluntly: “there are very few and rare cases of sentences of imprisonment being held disproportionate. The Patna High Court decision is therefore remarkable, for it places the penal clauses in the Bihar Excise (Amendment) Act 2016 in this category of very few and rare cases. To my knowledge, this is the first decision to use the proportionality doctrine to set aside penal clauses despite no death sentence being involved.

There are deeper problems though. The decision in Vikram Singh provided a neat ‘sum up’ of principles on proportionality at Paragraph 52. It was a summing up of principles drawn from Canadian and American jurisprudence – both have specific constitutional prohibitions on certain kinds of punishment. India does not. In fact, the Supreme Court on an earlier occasion in Jagmohan Singh v. State of U.P. [AIR 1973 SC 947] specifically noted that American jurisprudence on prohibiting cruel and unusual punishment [flowing from the Eighth Amendment to the United States Constitution] could not be imported in India because the Indian Constitution did not have similar clauses. Of course, Maneka Gandhi came after Jagmohan Singh and expanded the boundaries of Article 21 allowing us to possibly incorporate the Eighth Amendment jurisprudence. The problems of having such an indeterminate constitutional jurisprudence have been seen with the tussles over the right to privacy and its scope. Therefore, it should be clear that proportionality analysis of punishment clauses does not have a sure footing in Indian constitutional law and the expansion by the Patna High Court may well be considered beyond its current scope.


For now, though, one can only be happy with how proportionality is invoked to set aside statutes inflicting persons with disproportionate terms of imprisonment. This experience is similar to what happened in Maharashtra with the beef ban, where again a proportionality argument was raised to set aside the reverse burden clauses. It shows us that High Courts are stressing on a more principled brand of criminalisation, something that has not been the hallmark of how criminal law developed in India over time. A refusal to budge especially when prohibition was such an integral scheme of the ruling government reflects a commitment to principles that must be lauded. The decision is kind, for it tells the legislature what can be done to fix the law. If the State of Bihar chooses to challenge the decision rather than amend the statute, the Supreme Court will be able to consider these important questions. One hopes it upholds how the Patna High Court applied proportionality to restrain the legislature from abusing its near-plenary powers in sending people away for a decade for having a pint.