Tuesday, March 28, 2017

The Shifting Sands of Adversarial and Inquisitorial Systems in India

In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.

Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.

So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.

The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.

First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.

Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.

The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.

What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.

(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)

Thursday, March 23, 2017

New Blog Update - Socio-Legal Review Forum / SLR Forum

The Socio-Legal Review is one of the flagship publications of the National Law School, Bangalore, and is currently in its twelfth volume. Readers would note that the Review has now launched the Socio-Legal Review Forum, or the SLR Forum. This blog will serve as a companion to the print edition while retaining the informality and immediacy that the blogosphere offers. 

I am sure that the SLR Forum is soon going to become a very useful resource for practitioners and academics alike. You can access it here. Those interested in submitting pieces can find the necessary information on the first post on the Forum itself.






Monday, March 13, 2017

Guest Post: Justifications, Excuses and General Exceptions

(This post has been co-authored by Kaustav Saha, who is currently a BCL candidate at Exeter College, University of Oxford)

This post considers two issues from the realm of defences in criminal law. The first part, co-authored with Kaustav, engages with the debate concerning treatment of justificatory and excusatory defences. In the second, unrelated, part, I focus on the Indian Penal Code 1860 [IPC] and examine a particular issue regarding the Indian statutory framework surrounding general defences. 

Justifications, Excuses and Wrongfulness
Justifications and excuses differ considerably in their normative implications as well as practical effects. A useful barometer [which may break down on severe scrutiny], is that justifications are attached to the circumstances of an offence, while excuses arise from the personality of defendants. But this does not consider a deeper question, which is whether persons invoking these defences should be viewed differently? Should claiming a justificatory defence as opposed to an excusatory defence attract different consequences?

To answer this, think of justifications and excuses differently. A standard view in the literature is that while justifications deny wrongdoing, excuses deny responsibility. In the former, a defendant is denying that she committed a wrong, while in the latter she asserts that she should not be held liable (be excused) despite the wrongful character of her actions. Professor Gardner argues this distinction is misleading, for by invoking a justification the defendant is not denying wrongdoing but is in fact conceding it. The innate wrongfulness of hurting a person does not change, whether done by a police officer chasing a suspect or a person killing for personal motives. For him, thus, a justificatory act cannot be considered as something that guides conduct. In this, his view is opposed by Professor Simester who argues justifications do indeed offer motivating reasons to engage in certain conduct. These acts, according to him, are not merely tolerated but are morally permissible and this takes away from the wrongfulness of the act. 

We find Professor Gardner's view more acceptable that defences cannot serve as positive reasons for acting. Most importantly, because it supports the desirable principle that accepting this reinforces a cynical view of the law and militates against the idea that people may aspire to standards of conduct that go above and beyond what the law may demand from them.

It may well be argued that this debate about 'wrong' is, well, purely academic. After all, most criminal law functions do not care about the innate wrongfulness and the successful pleading of both justificatory and excusatory defences completely takes away the label of criminality which matters most. The different consequences - insanity may lead to the defendant being admitted to a facility - is not concerned with the issue of 'wrong' either. But we argue that this debate is not without practical utility. For instance, consider this in context of the allegations of police brutalities in the USA. One could argue that maybe, in that setting, Professor Simester's view would resonate with officers often considering the ability to take violent action itself as reason to take that action. The existence of a duty-based justification served as reason to shoot suspects because the justification dissolved the wrongfulness of causing harm.

Could this view be extended to other scenarios? For instance, an over-exuberant exercise of detention powers by officials when dealing with anti-terrorism legislation? Or in India, the carrying out of search, seizure, and arrests when dealing with economic offences which are consistently labelled as 'threats of economic security of the nation' by the State. We are unaware of empirical studies specifically testing the arguments of Professors Gardner and Simester in such duty-contexts. It may offer fantastic insight into how analysis of justificatory conduct is highly context dependant.

The IPC and General Exceptions
This brings me to the second issue. Chapter IV groups Sections 76 to 106 of the Indian Penal Code 1860 [IPC] under the title of 'General Exceptions' (not General Defences, as is commonly assumed). These apply to offences under the IPC and beyond [See Section 40 IPC] and are basis upon which criminal liability can be negated. The IPC does not contain any distinction between how the different defences are treated, and also stays away from the debate of justifications and excuses. Exceptions normally fully absolve the defendant of criminal liability, and the Code expressly indicates where this is not so [Section 86 and voluntary intoxication, for instance]. During trial, the burden of proving the existence of facts to claim an exception is placed upon the defendant [Section 105, Indian Evidence Act 1872]. Is this fair? 

In this regard, the Indian system differs from how criminal trials operated (and continue to operate) in the UK [under common law, the burden was only placed on a defendant when claiming a defence of insanity]. A frequent argument justifying the reversing of burdens [quite prevalent across criminal law today], is how the defendant is best-placed to offer proof for facts especially within her knowledge. The Indian Evidence Act statutorily recognises this principle through Section 106. Does this logic of the defendant being 'best-placed' sufficiently explain away the rule of Section 105? I argue that it  is mostly acceptable, but for the position in Section 81 of the IPC, which is a mixture of both, subjective and objective, positions in the criminal law.

What are these subjective and objective positions? A subjective position in criminal law means that you view the existence / non-existence of facts from the eyes of the defendant. An objective view would view things from the standpoint of an outside observer. Naturally, fidelity to either position can attract very different consequences on issues of liability as it poses questions to the very existence of fault elements [as I explained in context of attempts once on the Blog]. If we look at the General Exceptions in the IPC, it becomes apparent how the Code adopts different positions for the different exceptions it provides. For instance, consider Section 79 which says "nothing is an offence which is done by any person who is justified by law, ow who by reason of a mistake of fact and not be reason of mistake of law in good faith, believes himself to be justified by law, in doing it." The text, together with the illustration, confirm the subjective position is adopted: it tells us that an officer is justified for arresting someone she believed had committed murder, though it may turn out that the person was acting in self-defence

But move to Section 81 which is India's version of a defence of duress: "nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property." This is followed by an important injunction: "it is a question of fact in such a case whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm." The initial subjective position is interposed with a clear objective caveat!

I argue that where, after claiming an exception, the Code adopts an objective position regarding the existence / non-existence of facts upon which a successful claim depends, it is unfair to place the burden upon a defendant to prove such facts. It is not a fact especially within the knowledge of the defendant. Rather, it is perhaps easier for the prosecution to furnish statistics. Even if we imagine the state of play, shifting the burden on the prosecution would appear more suitable. If the court is unconvinced with the initial plea itself, then the question would not arise. If the court thinks there is an arguable case, then have the prosecution show why the exception cannot be successfully claimed.

Friday, March 3, 2017

Remands to Custody and Bail

A long, long time ago, this blog ran a series on issues surrounding the grant of bail for non-bailable offences. The primary issue focused upon, was how several statutes placed the burden upon the accused to show that there were no reasonable grounds to believe that the alleged offences had been committed by her. In the last of those posts (available here), I covered a section on how the law placed this burden upon on the accused, without providing her any right to access documents prior to filing of the charge-sheet.  Section 207 Cr.P.C., concerning supply of copies for certain documents, only applies after the charge-sheet has been filed. Before that (and this is when bail applications are most commonly filed), no statutory right to copies of documents and statements exists. A brief insight into the case law was provided in that post, which showed courts occasionally had decided to supply a copy out of concerns for fair trials.

Recently, I was part of arguments before a trial court in Delhi where the investigating agency sought remand to police custody. Remand to custody, it may be recalled, stems from Section 167 Cr.P.C. When the police fail to complete investigation within 24 hours, this provision enables the police to make a request to the Magistrate, for detaining the accused person for a further duration in custody. This custody can be of two kinds, police custody or judicial custody. As it normally happens with the Cr.P.C., Section 167 does not explicitly state that an Application has to be filed. It does explicitly demand that Case Diaries (See Section 172, Cr.P.C.) are to be forwarded when the accused is produced. Normally though, for a judge to pass orders an application would be necessary, and so applications are always filed for seeking remand. These are, commonly, cyclostyled applications that merely recount the facts of the case with one or two paragraphs containing the reasons for seeking further custody of the accused. These, again, are usually (i) fear of the accused fleeing the course of justice, (ii) fear of tampering with evidence, and (iii) apprehension of coercing witnesses.  

In our case, when the remand application was filed, copies were specifically denied to the accused persons. The prosecution argued that there was no provision under the Cr.P.C. allowing for such copies to be filed. As I was given to understand, this stand is routinely adopted by prosecutors across courts. Remember, an Application seeking remand is different from the Case Diaries, for which access-restrictions are specifically crafted within the Code. While it could be argued that the Code does not specifically enable the accused to obtain copies of documents and statements before the charge-sheet is filed (an argument which in my opinion is contrary to all sense of fairness), can the same logic be extended to a mere remand application?  

I think it cannot, and in light of the possible merit the other argument has - that no materials can be supplied - it serves all the more reason to ensure a copy of the remand application is supplied to the accused. To make an argument through analogy let us look at preventive detention. While preventive detention laws come with deprivations of standard procedural rights (such as a right to counsel), even persons detained under these laws are constitutionally required to be supplied with the grounds seeking detention! Without having any knowledge of the reasons why the state seeks my custody, what is the point of the accused even contesting the point of custody in that event?

Most judges have a fine sense of balance and often inform the counsel for an accused the basis for the remand application. It is not as if the nitty-gritty of an investigation is being laid bare in the investigation. That remains the domain of a Case Diary which is rightly shielded from prying eyes. Moreover, there is no prohibition on the counsel for an accused inspecting the court record or applying for a certified copy of these records, which are public documents in the eyes of law. If this is the case, then why stick with the charade of non-cooperation? Such a position only worsens the imbalance in resources that the State has at its disposal as against those an accused person can summon. The Delhi High Court rules have a fine chapter on police and custody remands which could sorely do with an amendment addressing this anomalous situation.