Monday, April 23, 2018

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

(This post, by Gautam Bhatia, first appeared on the Indian Constitutional Law and Philosophy Blog)

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that "in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court."

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court's decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya's death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court's judgment from a criminal law perspective - that is, ask whether the Court applied the standards and burdens of proof that are normally applied at the stage at which a judicial officer decides whether or not to order an investigation. That too has been done elsewhere. However, what I do want to address is the Supreme Court's approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes - and that this warranted an investigation. In response, the State of Maharashtra - which had conducted what it called a "discreet enquiry" after The Caravan articles came out - argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan's stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the "say" of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya's death; and on the other side, there were other documents (the "discreet enquiry" report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners' case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya's death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

"In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure."

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material "without being bound by technicalities of procedure" does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court's treatment of the "Discreet enquiry", conducted by the State of Maharashtra, which recorded the "say" of the four judicial officers. The judicial officers broadly supported the State's view that there was no reason to believe that Judge Loya's death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let's imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya. There are two possibilities.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed (again, a very low threshold), then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no "discreet enquiry" and no "say": rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply "technicalities of procedure." They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth - or an approximation of it - cannot be arrived at in the absence of each party's case being tested by its opponent. For this reason, courts across the common law world have held that even the word "evidence" has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the "inquiry" was vitiated or not could not be decided without actually submitting the "evidence" of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the "discreet inquiry" and the "say", was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adversarial legal system is founded on the postulate that whether a statement has "a ring of truth" is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard (recall how it was noted, in the Constituent Assembly, that "judges have not got two horns; they are men like us"). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation - or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position. 

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as "witnesses", in the common sense of the word. 

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system's tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya's father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was "hearsay" (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act - discarding it in order to accord the highest probative value to a judicial officer's "say" in a "discreet inquiry", but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges' assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken

Sunday, April 22, 2018

The "Pathological Politics" of Criminal Laws in India

By all accounts, criminal justice is currently one of the most pressing issues in the Indian political process. Powerful protests erupted in different parts of the country over the past few months blaming the system not only for how it treats the rich and privileged - the laxity over bank frauds - but also the poor and helpless - the horrors in Kathua, Unnao, and countless other places. On April 21, the President promulgated two ordinances designed to purportedly address both ends: The Fugitive Economic Offenders Ordinance, and the Criminal Law (Amendment) Ordinance. Both seem to be rooted in a deterrence logic that operates on either end of the spectrum. Allegations of having committed an economic offence involving sums of one hundred crores or above are sufficient to trigger asset forfeiture unless the suspect cooperates with the investigation, which is supposed to deter the rich from fleeing the country. Similarly, prescribing tougher sentences for rape ought to deter them from happening.

We have been here before, most recently with amendments to the Juvenile Justice Act and tougher sentences for rape in the wake of the 2012 Delhi Gang-Rape case, and by now it can be safely asserted that the deterrence logic is questionable at best. But here we are again, different government but the same result. Why? The answer has a lot to do with what the late law professor William Stuntz explained in his seminal essay, “The Pathological Politics of Criminal Procedure”. Writing in the American context where a similar tough on crime approach had led to a significant ratcheting up of punishments for drug crimes without any real deterrent effect, he argued that it was because passing new laws and increasing sentences was the cheapest option in the political process. Compare that with the cost of finally bringing about police reforms that have been in cold-storage since the 1960s that would reduce politicisation of police and improve investigation. Or with reforming the structures of public-sector banks to rid them of government influence in appointments. Passing an ordinance costs nothing more than the paper it is printed on, police reforms will come at thousands of crores, and bank reforms involve incalculable political cost. Together with that low cost, the option brings significant political returns – the government will use the new laws to show voters that it cares about these issues and is willing to do something about them.

This skewed cost-benefit incentive makes it logical for our politicians to adopt seemingly illogical policies. The consequences of these cycles do not result in any appreciable effect on reducing the incidence of crime, as we know by now. But this does not mean that they are benign. They carry serious downstream consequences. Passing more laws, that too stiffer laws, without making similar investments on their enforcement, means that the police and prosecution forces are getting more and more discretion to enforce those laws. That discretion can be challenged in India – one can petition a court to either start or quash an investigation – but besides being restricted to the privileged, courts are usually circumspect about intervening at this stage. Effectively, then, we give more and more power to the police. The same police which is maligned for shoddy investigations, arbitrary targeting of individuals, corruption, use of third-degree torture methods and whatnot. Since nobody speaks of, or either pays attention to, these downstream effects, we only realise them when it is too late.

In India, an additional feature worsens the “pathological politics”: the relative importance given to the start of a case with its end. Here, the political process meets the systemic problem of judicial delays. It takes years for any criminal trial to conclude, and the passing of time depreciates the deterrence value of any possible sentence that might follow a conviction. Because of this, the public at large views the pretrial stage as appropriate to start dishing out the penalties. The problem is that the criminal justice system isn’t designed to function that way. It traditionally takes the end more seriously – the label of “guilty” and eventual sentence – and guarantees accused persons with several rights to ensure that those consequences are not lightly or wrongly imposed. It does not provide with similar protections at the start of the process because that would obstruct the investigation itself.

This demand for pretrial punishment is being met by all branches of the State, in different ways and forms. The judicial branch has the power to deny bail and condemn individuals to jail without them having a right to know exactly what the evidence against them is, without having the ability to cross-examine witnesses, and without being able to introduce evidence. Since convictions take time, judges frequently use pretrial detention to achieve punitive functions, thus depriving individuals of their liberty without them having been proven guilty. While this is the most obvious problem, it is not the only one. What we rarely appreciate are the collateral consequences that have been imposed by the legislative and executive branches on persons “accused of an offence”.

Being arrested means your fingerprints and photograph will be taken, and your name will be entered into a national database. A pending case against you means restrictions on issuing a passport. If you are a public servant, it means suspension. If you are aspiring to be one, you will not be considered. The private sector frequently runs background checks where you will be flagged. And till you are released on bail, you lose your voting rights. These are only some illustrations of the general consequences. Besides others of this nature, there are also specific consequences that can arise depending on the alleged crime. The legislature has made it very easy for court to deny bail in certain offences. Similarly, if you are accused of a crime covered by the Money Laundering Statute, you stand to be dispossessed of any assets that the government alleges was connected to that crime.

The traditional notions of procedural guarantees to accused persons to protect them against the stigma of convictions are turned on their head in India. The accusation of crime involves equally serious consequences, if not more serious, then what can follow a conviction. The effect of which is to expose defendants to serious life-changing consequences based upon unproven allegations, that are the product of an unchecked exercise of discretion vested in untrustworthy police forces. Each subsequent cycle of criminal law’s pathological politics will worsen this underlying tension leading to short-term gains for whichever government is in power, at the cost of long-term damage to the Indian criminal process. 

(Many thanks to Deekshitha Ganesan for her help with this post)

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.