The Law Commission of India Report on Bail - Some Concerns

The Law Commission of India [Commission] has released its 268th Report titled "Amendments to the Criminal Procedure Code, 1973 - Provisions Relating to Bail". The Report has been in the pipeline for over a year and has provided a draft Criminal Law (Amendment) Bill 2017 focusing on making changes to the provisions on arrest and bail throughout the Criminal Procedure Code, 1973 [Cr.P.C.]. However, the minutes of meetings and consultations between the contributors are not available. Chapter Eleven contains recommendations covering thirteen broad areas. I briefly summarise these below:

1. Arrest: Amend Section 50 Cr.P.C. to require police officers inform arrested persons of the reasons for arrest in a language she understands.

2. Statutory Bail and Remand: Courts should not authorise remand to custody routinely and examine the case diary [Section 172 Cr.P.C.] thoroughly. Judges must not accept blanket statements that remand is necessary as "accused may be able to give further information". They must enforce the rule that Supplementary Chargesheets [Section 173(8) Cr.P.C.] are filed only to add information subsequently available, to prevent delays. Specific suggestions are made in respect of Sections 167 and 309 Cr.P.C. [the two provisions authorising remand as per the Commission, which is, in fact, incorrect as it ignores Section 209 Cr.P.C.]. For Section 309, amendments are suggested to require judges ascribing reasons for denying bail during trial. Section 167 is sought to be amended for excluding the period an accused spends outside the actual custody of the police from calculations.

3. Conditions for Bail: Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. Courts are encouraged to look beyond financial considerations to enforce appearance. The Report says "bail must be granted subject to the least restrictive conditions to ensure the appearance of the person accused of an offence and the safety of the community", and emphasises that pre-trial detention is exceptional.

4. Modifying Classifications of Bailable and Non-Bailable Offences: Recommendations that there should be correlation between the term of imprisonment and classification of offence [see here for a discussion on the Blog about this issue].

5. Anticipatory Bail: Recommends the proviso to Section 438 Cr.P.C. be retained [contrary to Report No. 203 of the Commission]. Suggests a more careful approach towards granting anticipatory bail, and that it must be made available for a limited period of time, with every order of grant or rejection being accompanied by reasons.

6. Bail in Economic Offences: Economic offences are "crimes which imperil the nation's security and governance" and a stricter approach is recommended while deciding the issue of custody here. The Report says "all forms of economic offences which include tax evasion, customs offences or bank fraud" should be dealt with strictly and amendments are suggested to make bail harder.

7. Special Laws: The Commission suggests that courts must prevent release of persons on bail in special laws on 'technicalities' - with the NDPS and terrorism related offences highlighted. 

8. Modification of Sections 436 and 436-A Cr.P.C.: Recommends amendments to unambiguously reflect that bail is a matter of right which must be communicated to arrested persons. A fresh scheme is suggested for Section 436-A to decide release of persons suffering lengthy pre-trial detention.

9. Centralised Database and Electronic Tagging: Considers the database necessary to confirm criminal antecedents but posits caution about the introduction of Electronically Monitored Bail. 

10. Public Prosecutor and Victims: Victims must be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. 'Treatment of Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment Report' may be called for where offences are of a particularly grave of heinous nature. The Commission also recommends adopting the check-list model of the UK Crown Prosecution Service.

11. Risk Assessment: Risk-assessment is a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and and community safety. Principles governing these decisions are suggested by the Commission.

12. Exceptions: Absolute restrictions on grant of bail are uncalled for, suggesting grant of bail where grave circumstances exist - for instance, the arrested person suffering from life-threatening disease for which custodial treatment is impossible.

13. Prison Infrastructure: Recommendation to overhaul the "crumbling prison infrastructure and system". One suggestion is to release the under-trials that currently crowd these prisons, subject, of course, to a proper evaluation of relevant factors.

Comments

The Report is a curious creature reflecting a myriad set of concerns, and ultimately does little more than scratch the surface of an extremely problematic area in the Indian criminal process. I make two sets of comments, then; first addressing the Report and what it says, moving on to all that it misses. 

The Report and Amendment Bill

The dissonance between recommendations in Chapter Eleven of the Report and the draft Amendment Bill annexed is striking. A paragraph is spent recommending amendments to Section 309 Cr.P.C. and yet no provisions reflect this in the annexed Bill. The recommended amendments to Section 50 Cr.P.C. do not find a mention anywhere, nor do the suggestions about allowing a victim to contest grant of bail and incorporating a requirement for 'Victim Impact Assessment' Reports. The Bill suggests heightened scrutiny for granting bail in 'economic offences' without ever explaining the term. It would seem as if the Bill was never discussed between the members and consultants. Having access to the minutes of the Commission would have helped ascertain this better.

Airbrushing Issues

The recommendations do not reflect an eye on how issues of arrest and custody are being decided in the district courts, which are the sites of these battles. For instance, recommending 'reasons' of arrest be communicated under Section 50 Cr.P.C. doesn't tell us how that happens. Does it entail handing over a copy of the FIR? Must a formal application be filed for securing these reasons? [In Delhi at least, I have seen applications being required for supplying a copy of the FIR under Section 50 Cr.P.C.]. In situations of arrest and detention, the balance must tilt in favour of bright line rules over vague standards which can be clearly enforced without debate, and the Commission does not follow this principle with any consistency. 

Similarly, when it comes to statutory bail and Section 167 Cr.P.C., the Commission tells us about the problem of detaining undertrials and yet the only amendment is towards strengthening the rigours of custody. Having noted the lack of quality legal assistance [or any legal assistance], the Commission does not touch upon the problems caused by requiring detained persons file an application to secure statutory bail. Considering the increased scrutiny the Commission demands of courts, this would have been an obvious method to help enforce compliance with the provision. Instead, the focus remains on monetary requirements and other conditions.

Finally, a word on the 'economic offences' ghost that continues to haunt the present government. The suggestions are in line with the consistent rhetoric that tells us that 'economic offences' are akin to the plague in terms of their ability to harness devastation for the security of the Indian republic. While that rhetoric helps hammer propaganda, it does not work with the law, especially when it comes to depriving persons of their liberty. 'Economic Offences' is a horribly vague term, spanning potentially the entire gamut of offences having anything to do with a wrongful deprivation of property. Surely trespass on house property doesn't threaten our borders the same way financing terrorism does? 

Missing the Forest?

The Report not only misses small, technical issues, that are currently affecting the process of bail, but it also misses huge problem areas that one would consider a body like the Commission to be uniquely able to address. One technical issue was discussed in great detail on this blog before through a series of posts - that of reversing burdens during bail hearings (see here, for the first post in this series). This is a problem endemic to 'Special Laws', where all the Report has to offer is a rebuke to courts for releasing persons on technicalities. Similarly, no mention is made about the issue of an accused having a right to access materials upon which a remand request is made before courts. while the CBI continues to deny even copies of applications seeking a remand to custody. Another technical issue is that of remands to custody between stages of completed investigations and taking cognizance - where the latter is contingent on grant of sanction for instance. With the continuous din of criticism on delays in securing prosecutorial sanction for public servants, and the general opprobrium that the government projects towards corruption, one would have thought this issue merited some debate.

The big issue which I think the Commission fails to discuss was how pre-trial detention is actually seen as punishment in a system where eventual convictions are secured only after enormous delays. Vrinda Bhandari had written about this once (see her paper here). Her comments about pre-trial detention being punitive are quite accurate and one can visit district courts anywhere for a while to experience it. Prosecutors press for custody arguing retributive logic rather than the possibility of a person being a flight-risk. Victims cite their plight as reasons for denying bail. Judges encourage detention to be used as a bargaining chip to force an accused into plea-bargaining or extra-judicial agreements for quashing prosecutions. These are serious issues, and depending on where you stand are either huge problems or ingenious solutions that the criminal process has developed to address the burgeoning backlog. Yet, lamentably, there is not a whisper of this anywhere in the Report.

Conclusions - No Reform in Sight?

News coverage for the Report has hardly been forensic till now, but displays a degree of optimism. In the true spirit of this blog, I conclude this optimism is definitely misplaced. It would be misleading to label this Report as batting for 'reform'. It is, frankly, conservative, and only shifts to the front foot while facing run-of-the-mill deliveries. It would be unfortunate if the annexed Amendment Bill is tabled in the upcoming session of parliament without changes. It would be a tragedy if it becomes part of the statute books in its current form. 

Snippet - PMLA Amendments Repealed? Not really - Updated

While working on the Prevention of Money Laundering Act 2002, I came across the omnibus Repeal and Amending Act of 2016 (part of the set of statutes available here). The acts specified in the First Schedule to the Repealing Act have been hereby repealed to the extent specified there. This Schedule, notably, states that the Prevention of Money Laundering (Amendment) Act 2012 [Act 2 of 2013] has been repealed in its entirety. You can access the Act here by searching on the page.

The 2012 amendments to the Money Laundering Act were substantial. These were India's efforts at accepting the Financial Action Task Force recommendations, soon after India was made a member of the Task Force in 2010. 

Below is a summary of the more important changes brought in by the 2012 Amendment Act:

• It expanded the scope of the statute to cover beneficial owners, and placed positive obligations on various enterprises notorious for money laundering such as real estate agents and dealers in precious stones;
• It expanded the money laundering offence under Section 3 from merely generating proceeds of crime and projecting them as untainted, to also cover the concealment, acquisition, use, or possession of proceeds of crime and their projection as untainted;
• It allowed for a provisional attachment of property under Section 5 to happen even without a Chargesheet being filed for the Scheduled Offence;
• It severed the connection between the trial for a Scheduled Offence and the attachment of property under Section 8. So, an acquittal for the Scheduled Offence did not automatically result in releasing attached properties anymore;
• It imposed an advanced set of positive obligations on entities under Section 12 to proactively combat money laundering;
• It created a mechanism for the retention of property seized or frozen during searches conducted under the Act by amending Sections 20 and 21;
• It relaxed the strict reversal of the persuasive burden of proof and introduced a concept of rebuttable presumptions under Section 24 of the Act;
• It allowed for a transfer of prosecutions for Scheduled Offences pending before other courts to the Special Court adjudicating the money laundering offence under Section 44;
• It instituted additional penalties through Section 63 PMLA for non-compliance with notices to furnish information issued under Section 50 PMLA.

The validity of the amendments was subjected to an omnibus challenge in K. Sowbhagya v Union of India (decided on 28 January 2016), but the Karnataka High Court dismissed the petition in a lengthy decision. A few months later, we have the Repealing Act come in May, 2016, striking out the changes from the statute books. Why? None of the four Law Commission of India reports on repealing obsolete laws refer to the 2012 Amendment Act, and I have not found any discussion in the public domain elaborating upon this process (the Press Information Bureau merely carried this note).  The best I found was a draft for the Repealing and Amending Act 2014, where the 2005, 2009 and 2012 amendment acts were all mentioned. That doesn't explain much either.

From what I have been able to find out, then, with effect from 6 May 2016, none of those changes to the PMLA remain in force, and for all prosecutions instituted after this date, the legislation  must operate as it existed prior to the 2012 amendments. Given the magnitude that this possibility carries, I think I might be mistaken, and would definitely appreciate any assistance in this regard in discovering if something has been missed out.

Post-Script

A helpful friend pointed out Section 6-A of the General Clauses Act 1897, which as interpreted by the Indian Supreme Court in Jethanand Betab (AIR 1960 SC 89) suggests a Repealing and Amending Act merely prunes the statute book, and the effect of the amending act continues. Why only repeal the latest edition of the amending acts? I don't know. But this sure puts the controversy to rest!

(This post was updated on 28 May 2017 at 11 PM IST to add the post-script. Thanks to Nidhisha Phillip for pointing out where I was going wrong!)

Supreme Court Affirms Death Sentence for December 16 Incident - Some Thoughts

The Supreme Court yesterday affirmed the death sentence awarded by the Trial Court, and confirmed by the High Court, in the case resulting out of the gang-rape incident that occurred in New Delhi on December 16, 2012. The decision was lapped up by raucous applause we are told, as "justice had been done". Seeing the circus that followed on national television led to some thinking and this post follows. The comments are frankly unoriginal, and are merely confirming what many of us know and understand. 

Criminal Law in the Age of Consumerism

Perhaps history will remember the first decades of the 21st century as the apogee of the age of consumerism and service-oriented thinking. Consumerist ideology has affected all facets of life, most notably government and governance. Good governance manuals now emphasise that this is a service being offered to citizens, and citizens have grievance redressal mechanisms galore akin to making complaints at a shopping mall. 

How has this affected the traditional understanding of criminal law? Significantly. There are books (David Garland's The Culture of Control an excellent one) which discuss this phenomenon. One thing that the present incident puts in the spotlight is how the consumerist ideology has brought victims in the spotlight. Criminal law classes begin by telling us how here the state is the victim - which is why most cases are prosecuted by state agencies. Crime is about harm to society, and the victim was not really given much importance. Slowly, though, this changed. If security is a service offered by the state, of which the criminal law was a facet, then it made sense to accede to victims demands for greater inclusion in the decision-making process. This would increase satisfaction with the system. This, like most other things, accelerated drastically with 24 hour television cycles. It became obvious that crime sells, and so maniacal reporting with amazing graphic (more on that later), little insight, and opinion polls through SMS came here to stay. Obviously, all this is class-specific, so the security concerns of the rich and middle class naturally get more air-time and attention than those affecting the poor. 

The legislative changes are there to see - India has allowed for victims to appeal against acquittals for some time now. This was unimaginable around thirty years ago. The present incident and the media coverage surrounding it just shows how far we've come down the road. Here, there is little else but the victim's perspective that is commented upon everywhere. 

Justice seems to have become rather One-Sided

A very wise lawyer once told me that our statutes created courts of law and not courts of justice, and so I should not lament over seemingly bad decisions. But what really is justice? If I was to take a shot at it, justice best serves as an adjective, describing decisions by looking at the means and ends both. A just decision is not only one arrived at in terms with proper processes of law, but also one that takes into account the rights and interests of every party involved. Given how scholars since Aristotle have been taking a shot at this, I'm pretty certain that my crude understanding is rather inadequate. Still, the idea of justice being something wholesome is something that can be found across philosophers, and can serve as one of the markers.

That wholesomeness seems to have been entirely abandoned in the present case. Nearly every news outlet ran pieces titled Justice for Nirbhaya. These ran with images of the adult perpetrators being crossed out with Hanged (eerily similar to the montage in the first Death Race film which was based on a system of lawlessness). Possible arguments advanced by the defence, on both conviction and sentencing, were brushed aside summarily. The bloodlust was chilling, but hardly novel. In all such cases, wherever there is extensive media coverage and sympathy for the victim, it becomes anathema to raise arguments supporting the rights of an accused person. This is mots extreme in terrorism trials, where persons are routinely denied fundamental human rights but those issues are airbrushed because of the threats to national security. 

In this regard, the Supreme Court deserves to be lauded for the effort it took to hear arguments on sentencing. The Court accepted specific affidavits addressing mitigation factors to consider whether the case fell within the rarest of rare standard (something which was not done in either of the courts below).

Extreme Cases and Lessons to Learn

Make no mistake, this case was extreme in terms of its brutality and violence. Extreme cases often lead to extreme reactions, so it is said, and therefore must not be used as markers to gauge a system. There is much merit in this. It is also valid to argue that extreme cases bring out latent tendencies and show exactly what each of us expects from the criminal justice system. Reactions to the present case leave me with little doubt that debates on abolishing the death sentence in India are a tad redundant. This is saddening, for there is nothing as arbitrary as the infliction of the death sentence in India. Perhaps more disturbing is the perception that those arguing for the defence are somehow bogeymen, delaying the inevitable. Such a view distorts the crucial role that the defence plays in ensuring that justice is not only done but in fact seen to be done. Alas, it would seem that the idea of justice, itself, may no longer be the same.