Friday, February 26, 2016

Wither the Right against Self-Incrimination?

(An earlier version of this post first appeared on the Indian Constitutional Law & Philosophy Blog)   

Article 20(3) of the Constitution of India is extremely fascinating. Tersely worded, it can be quoted in full: No person accused of any offence shall be compelled to be a witness against himself. Three components can be identified: (i) the protection applies to a person accused of any offence, (ii) it prohibits said person being compelled to be a witness, and (iii) this prohibition applies only to the person concerned. It is the first of these three issues that occupies me for this post. 

M.P. Sharma and a Nascent Right 
M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] was the first decision to consider Article 20(3). The facts were simple. Investigations ordered by the Registrar of Joint Stock Companies revealed certain companies were engaging in fraudulent transactions. The Delhi Special Police Establishment (now CBI) required to seize their books and separate First Information Reports (FIR) were registered against the different companies. Search warrants under Section 96 of the Cr.P.C. 1898 were issued and the documents seized. The proprietors then filed petitions under Article 226 challenging the searches as violating their fundamental rights under Articles 20(3) and 19(1)(f) of the Constitution. Only the Article 20(3) question was considered important. Eight judges delivered a unanimous decision, rejecting the claim. The Court noted how self-incrimination required a careful balancing of the needs of investigation with individual protection. With this in mind, the Court explained all three of the facets identified above. I’ll restrict myself to the aspect of Article 20(3) being limited to a person accused of any offence. The Court held that the right extends to beyond the courtroom (yes, I’m cheating. This came in context of the ‘being a witness’ part), and then had to draw a line on how far did the right extend. In rather vague fashion, the Court said limited it to “a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution”. Importantly, the Court observed “whether it is available to other persons in other situations does not call for a decision in this case”.

The Court made an important choice in choosing to expand the scope of Article 20(3) beyond the courtroom despite it having a qualifier (accused of any offence). However, I argue that the Court got it slightly wrong. The problem lies in the vantage point the Court adopts while viewing Article 20(3). The Court decides against a narrow approach, yes, but it still bases its decision by looking at the protection from that standpoint of the eventual court proceedings. Compelled evidence is inherently unreliable for trial (for people lie when tortured), and such tainted evidence can arise through compulsion exercised beyond the courtroom, so we need this right to extend that far. This reasoning is commonly touted as the basis for the protection only for such claims to be convincingly rebuffed time and again [For instance, Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37(4) U. Cin. L.Rev. 671 (1968); Amar & Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857 (1995)]. Shorn of the academic discourse, the reason why focusing too much on eventual proceedings is practically a problem is not hard to fathom either. Imagine a situation where you are not named in the FIR as an accused but are picked up by the police, forced into writing a confession, but the matter ultimately never goes to trial and are thus released from custody. The detention is not unlawful – the police can arrest suspects – so no Article 21 violation occurs. You were forced to incriminate yourself. But, according to M.P. Sharma, it is difficult to claim this as a violation of the right under Article 20(3). Difficult and not impossible, only because of the caveat, which was to get forgotten soon after.

Socio-Economic Offences and a Withering Right 
The formal accusation referred to in M.P. Sharma must also be one that normally may result in prosecution (Thomas Dana v. State of Punjab, AIR 1959 SC 375). Prosecution refers to initiation of legal proceedings, i.e. a trial. A formal accusation appears to have been used with the intention to create different classes of accusations. Formal here would mean ‘official’ (the other definition of the word being based on etiquette must be excluded), and the Court perhaps wanted to separate official accusations from those by private individuals. The police registering an FIR is qualitatively different from me filing a complaint against you at the local police station. But now a gap emerges between the time when an accusation becomes a formal accusation. Here, remember, the Court issued a caveat – its judgment did not preclude an extension of the right under Article 20(3), but only provided some sort of minimum. This gap might yet be covered under Article 20(3), as the Court didn’t discuss such cases.

How did the Court look at it though? 5 judges in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [AIR 1961 SC 29] had a case similar on facts to M.P. Sharma; the only difference being that here there was no FIR against the companies or proprietors. An Inspector appointed under the Companies Act, 1956, called upon the appellants to furnish certain information. The Appellant challenged this investigation as being inter alia, contrary to Article 20(3). While observing the earlier judgment of M.P. Sharma, the 5 judges concluded that “the effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Art. 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution.” Did the inquiry here amount to such an accusation? No, it was more like a fact-finding commission and “the fact that a prosecution may ultimately be launched against the alleged offender will not retrospectively change the complexion or character of the proceedings”. The unanimous answer thus being, no violation of Article 20(3). The Court seems to have been referring to the caveat of M.P. Sharma at the end of its decision in Raja Narayanlal. It observed “even if the clause ‘accused of any offence’ is interpreted in a very broad and liberal way it is clear that at the relevant stage the appellant has not been, and cannot be, accused of any offence.” Only to then say that such a broad interpretation did not appear “consistent with the tenor and effect of the previous decisions of this Court”.

The 'gap' identified came sharply in focus with the socio-economic legislation introduced/modified in the 1960s. Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] was a case that arose out of the old Sea Customs Act, 1878 (replaced by the Customs Act, 1962). The Appellant had been searched at Dum Dum Airport, Calcutta, and this search lead to recoveries of jewels and currency worth several lakhs of rupees. He was questioned under Section 171-A of that Act (after possibly being arrested, which is not entirely clear from the judgment), where disclosures lead to further recoveries. These discoveries made pursuant to this inquiry were assailed as being the result of the Appellant being compelled to incriminate himself. 5 judges unanimously dismissed the claim finding no violation of the right. The Court’s reasoning while denying that Article 20(3) applied to the case is important: “a person arrested by a customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act … he is not accusing the person of any offence punishable at a trial before a Magistrate”. With this it would appear that the Court has taken a clear and consistent view on how to consider that gap we identified. Anything prior to the formal accusation means no protection.

The Problem Laid Bare
Have a look at the procedure under the Customs Act 1962 and other socio-economic offences such as the Foreign Exchange Management Act 1999, and the Narcotics, Drugs and Psychotropic Substances Act 1985. The formal accusation in these cases is a Complaint filed by the authorised officer, which is the result of an investigation. Here, there is no pre-investigative accusation drawn up by the authority like an FIR required under the Cr.P.C. The reason for this is a ridiculous deeming fiction which requires that we don’t call these officers police officers and by extension call these investigations enquiries, despite the officers having the same powers of investigation as conferred under Chapter XII of the Cr.P.C. [on this, see Sekhri, Confessions, Police Officers and Section 25 of the Indian Evidence Act, 1872, 7 NUJS L. Rev. 1 (2014). The formulaic rather than functional approach of the Court adopted here is strikingly similar to its decisions on Section 25 of the Evidence Act].

These socio-economic offences have extensive pre-trial powers during the ill-phrased enquiry stage. The Customs Act 1962 (successor to the Sea Customs Act, 1871), allows customs officers powers of ‘searches, seizure and arrest’. A customs officer can summon any person [Section 108] and examine her during the course of an enquiry into the smuggling of goods [Section 107]. Persons summoned are “bound to state the truth upon any subject respecting which they are examined or make statements”, and these enquiry proceedings are deemed to be judicial proceedings for Section 193 and 228 of the Indian Penal Code. So if you lie, perjury charges can follow. On top of this, the customs officer can arrest [Section 104] upon having reasons to believe that the person committed an offence punishable under Section 132, or 133, or 135, or 135-A or 136 of that Act. Detention can and will follow, and could possibly extend to 60 days as specified under Section 167, Cr.P.C. What the Supreme Court has done, is to exclude the right of self-incrimination from this entire process because of its focus on the actual realisation of proceedings as first seen in M.P. Sharma.

The steady growth of powers during this enquiry stage under socio-economic offences supports the theory that the Legislature is not blind to the line-drawing adopted by the Supreme Court. So what do we draw from this? Today you can be questioned under the threat of prosecution to supply potentially incriminating information. You can be arrested and detained during this process, but still the right under Article 20(3) remains beyond reach. Why? Because the accuser might not have found all that was needed from you to incriminate yourself.

Tuesday, February 23, 2016

The IPC and Conspiracy

Inchoate offences are perhaps the most theoretically engaging area of the criminal law. On this blog, we ran a couple of posts discussing the issues surrounding criminal attempts (which you can access here and here). Attempts, as we discussed, are however not in vogue as tools for the prosecution in India. What the prosecution does resort to, and nearly always in corruption cases, is the charge of criminal conspiracy under Section 120-B IPC. The one-size-fits-all strategy that is the zeitgeist makes conspiracy one of the most important offences to understand today. Which makes it a fit thing to do on this blog. In this post, I'll just throw out issues arising from a reading of the IPC.

Conspiracy and Inchoate Liability
Think of an offence as a transaction, which begins with some conduct on part of an individual [accused] and ends with logical consequence that the interests of another person are affected [victim]. Sometimes, there are certain circumstances surrounding this transaction that lend it a criminal colour. Now, the legislature may either deem an offence to occur upon the occurrence of conduct, or the consequence. When the line is drawn, especially at the consequence stage, it sometimes appears illogical and arbitrary to allow individuals to proceed that far before criminal liability kicks in. Why wait for the killer to shoot the victim when you knew she had a gun and was aiming at her? 

This idea, of drawing the line of criminality earlier by deriving it from the parent offence, is inchoate liability. By its very definition, it is relative to another offence. Two things here. First, its clear that inchoate liability can affect the accused himself, or persons surrounding the accused. After all, the law should be equipped to stop someone else from goading the accused to kill a person and handing her a loaded gun. Such abetment is necessarily criminalised. Second, inchoate liability qua the accused ends when the parent offence is committed. I am not liable for attempt when my attempt succeeds in the offence itself, nor am I abetting someone when I go beyond the shouting and fire the gun myself. 

What is conspiracy, then, and where does it fit? Section 120-A of the IPC answers the first question and defines a criminal conspiracy as "when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy". This is limited by a proviso, that "no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance thereof." It is also explained, that "it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Given this definition, conspiracy appears to be a hybrid form, combining the inchoate liability attracted by the accused and an abettor to make them one enterprise. This is obviously supported by the fact, that inchoate liability through conspiracy already existed as a form of abetment under Section 107 of the IPC. 

120-B and More Questions Than Answers 
Let me acknowledge the big elephant in the corner by saying that yes, by punishing mere agreements to commit offences the IPC comes as close to a generic thought-crime as you get outside of 1984. What's more, the current offence is amazingly overbroad and criminalises potential agreements to commit civil wrongs following erstwhile British law. I think some constitutional challenges could yet be made to the offence under Section 120-B IPC, but that is beyond this post. From a mere reading of the IPC, several interpretive questions arise that are very interesting. Foremost among them, the paradox posed by criminal conspiracy at large - that it is an inchoate offence that can be punished even after the primary offence is complete. Even after the gang executes its masterplan to rob a bank concocted in shady corners and dark alleys [this is nearly para-phrasing the Supreme Court, mind you], not only would liability for the resulting offences follow, but also liability for conspiring to commit the primary offence of robbery and other offences. The hybrid nature of conspiracy goes beyond the persons attracted category, it seems.

Second, and peculiar to India, is the co-existence of the independent conspiracy offence under Section 120-B IPC with it being a form of abetment as explained under Section 107 IPC. The difference is simple: conspiring to commit offences is punishable under Section 120-B without any act/illegal omission being performed in pursuance of the conspiracy. Conspiracy to be punished as abetment always requires some acts/illegal omissions to follow. Neat? Not quite. To prove a criminal conspiracy, the prosecution necessarily requires some acts/illegal omissions to show for it. When you have those acts/omissions, it would make the conspiracy a form of abetment as well. So how do we logically choose? The choice in practice is clear with prosecutions rarely arising for conspiracy under abetment today across the country. This obviously has got to do with (a) the increased punishment possible for conspiracy, and (b) evidentiary relaxations under Section 10 of the Evidence Act that the prosecution gets when alleging a conspiracy exists. But theoretically, no clear answer can be found.

The idea of agreeing to commit an offence is the fulcrum of a conspiracy which can be punished. But what does this agreement entail, and what is special about it? Should the conspirators have the same intention with respect to each other, and the offence in question? If I agree with you to commit an offence, but don't actually want to commit any offence, would it be an agreement? Does everyone need to know what the other is doing, or would the exceptions akin to those under Explanation 5 to Section 108 apply? Would an agreement to commit an offence with a minor, or an insane or intoxicated person, amount to a conspiracy for the purposes of this section? The explanation to Section 120-A makes clear that the 'illegal act' in question need not be 'ultimate object' of the agreement. So for a transaction to be punished as a criminal conspiracy, should there be agreement as to the exact manner of carrying out that transaction - every illegal act involved requires prior agreement? Or is it allowing for a criminal conspiracy charge to follow whenever two persons agree to commit an offence in the course of a larger criminal transaction? 

And what about the way new offences don't require intention or knowledge requirements as are prevalent across statutes today. Can I conspire with others to commit such offences of strict liability? Or can I conspire to attempt to commit offences? The former is especially important, in light of the manner in which certain cases are proceeding on Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988. Likewise, if an offence requires a specific mental state as to circumstances for its commission (recklessness as to consent in rape, for instance), would it be sufficient for conspirators to be merely reckless as to those circumstances, or should they have intended the circumstances exist? The questions are nearly limitless, but rarely do they get addressed systematically in the standard textbooks available in the market. I hope to have sufficiently roused your curiosity for this area of criminal conspiracy with this taster, and in the next post we'll consider particular issues in some detail.

[This post was corrected on 24.02.2016 to remove certain typographical errors. All thanks to Ms. Juhi Gupta and Mr. Kartikeya Panwar] 

Sunday, February 7, 2016

Custody and Section 167 Cr.P.C.

Section 167 of the Cr.P.C. has been subjected to a lot of interpretation over time due to the nature of the subject matter. The provision concerns remanding a person to custody by a court, when the police present said person before the court within 24 hours of an arrest. Nonetheless, two very interesting interpretive questions remain largely unexplored when you scan through Section 167 of the Cr.P.C. They are quite fascinating. I thought they merit some discussion.

Enter, the 'accused'
Our criminal law confers several rights upon an accused person. For instance, the accused has a constitutional right against self-incrimination [Article 20(3) of the Constitution]. But, nowhere do we have a definition of who is an 'accused'. The Supreme Court helped out by giving an explanation in 1954, when it held that one is an 'accused' when there is a formal accusation which may in the normal course result in prosecution [M.P. Sharma v Satish Chandra, AIR 1954 SC 300]. Later, though, it held that persons taken into custody and interrogated by customs officers are not 'accused' [Romesh Chandra Mehta v State of West Bengal, AIR 1970 SC 940]. The problems arising from this stand have been discussed here before. Suffice to say, that it remains unclear from the decisions who is an 'accused'. Which is why Section 167 assumes significance. This is the first time when the Cr.P.C. mentions an 'accused'. Section 167(1) says "whenever any person is arrested and detained in custody ... and there are grounds for believing that the accusation or information is well-founded ... shall at the same time forward the accused to such Magistrate" [Run a ctrl+f search to test me]. Before this, the Code speaks of arresting a person "accused of" a certain offence. Now, that person becomes the accused

Lets try line-drawing. Before this, what has happened? Arrest, and some (not more than 24) hours in custody. One conclusion which emerges is that only after the police seek formal custody from court does one become an accused. The first 24 hours are not included because they are needed to determine whether the accusation is well-founded. We can perhaps say that the test in M.P. Sharma could be modified to define the accused as a person against whom a well-founded accusation, as opposed to an accusation, has been made. This also invites a problematic reading of Article 20(3) which would then exclude the protection from persons for that initial 24 hour period and incentivise under-reporting of arrests. Before you disregard the idea, remember that the Court has already sanctified this exclusion for periods longer than 24 hours where the detaining authority is not wearing khaki but a better fabric [i.e., its a customs officer and not police officer]. Keeping that important development aside for a moment, what is important here is the possibility to use Section 167 for providing a clear, consistent idea of who is an accused.

Interpreting The Proviso 
The proviso to Section 167(2) creates 90 day and 60 day limits on detention in custody. 90 days where the offence is one punishable with death, imprisonment for life "or imprisonment for a term of not less than ten years". 60 days for "any other offence". Death and life imprisonment are clear enough, but how do we read "imprisonment for a term not less than ten years" in Proviso (a). Our drafting style for offences has been quite standard over time: there is always a maximum, there may be a minimum. The Proviso is based on the nature of offences, but no offence in the IPC is defined as having a punishment "not less than ten years". So why choose such perplexing language! The courts are left to make good of what they have. The Supreme Court has considered the proviso in detail twice to my knowledge; Rajeev Chaudhary v State [AIR 2001 SC 2369] and Bhupinder Singh v Jarnail Singh [(2006) 6 SCC 277]. Both decisions are problematic.

Rajeev Chaudhary required deciding whether Section 386 IPC fell in the 60 day or 90 day category. Section 386 is punishable up to ten years imprisonment. The Court held that in the Proviso "the expression not less than would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more." In Bhupinder Singh, the Court was faced with a resulting problem. Section 304-B IPC allowed a minimum imprisonment of seven years and a maximum of life. This meant imprisonment was not "for a clear period of 10 years or more". Justice Pasayat decided that custody could still be for 90 days by wisely noting that "merely because the minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence". The only way to arrive at this conclusion was to overrule the clear period test of Rajeev Chaudhary but this never happens.  

I would therefore regard Bhupinder Singh as per incuriam, and address the position as it remains from Rajeev Chaudhary. The position is unacceptable. Not only does it re-write the text, but (a) plainly illogical and (ii) contrary to how we read the Cr.P.C. elsewhere. On logic, this reading potentially excludes offences such as Section 307 IPC and a host of other grave offences under special laws [NDPS Act, for instance] by this clear period test. Surely, that could not have been the legislative intention. On interpreting the Cr.P.C., turn to the Part-II of the Schedule to the Cr.P.C. [its right at the end] which explains how offences under laws other than IPC are normally tried. Offences punishable for 3 years form one category of cognizable and non-bailable, and those for less than 3 years form a separate one of non-cognizable and bailable. Non-IPC offences punishable up to 3 years have been consistently treated as cognizable and bailable (unless specified otherwise) illustrating that courts include the maximum punishment while understanding the offence (see decisions on Section 63 of the Copyright Act 1957). Similarly, not less than ten years in the Proviso, must mean to include all offences punishable with up to ten years.