Reversing the Presumption of Innocence: Part I

It was one of those monikers we grew up with: one is innocent until proven guilty at trial. In coffee-table conversations I've found this principle frustrates as much as it reassures. "Why do we have to put those terrorists on trial when they've confessed to have done it" is a common refrain to the point that "Should the state be able to take away anyone's liberty at the drop of a hat?". If an outside observer was to look at the developments in our criminal law over the previous two decades, which one of these arguments do you think she'd find has more sway? 

Professor Ashworth wrote about four "threats" to this presumption in European Law some time ago. A similar study would not be untimely for India. Here, proceeding with that line of though and supplementing the previous post, I consider provisions restricting the grant of bail for particular offences. Part I looks at the provision under the Cr.P.C. and its ancestry. 

The Cr.P.C. and Non-Bailable Offences 

Offences in India are distinguished as being bailable or non-bailable. A person accused of the former has a right to be released on bail, while no such right exists where one is accused of the latter and it becomes a matter of discretion. Section 437 of the Cr.P.C. 1973 explains how this discretion is to be exercised, and 437(1) mandates no person "shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". The court is required to pre-judge the guilt or innocence of an accused at the initial stage itself. At least my counter-intuitive response to this phrase was that it is a reflection of the legislature taking away personal liberty in the name of social good. But I was surprised to find how similar clauses have existed for more than a century in the various Criminal Procedure Codes of India.

Section 156 of the Cr.P.C. 1861 stated that any person accused of a non-bailable offence "shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of the offence imputed to him." This Code was replaced in 1898, and Section 497 therein stated that one accused of a non-bailable offence "shall not be so released if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused." Section 497 of the 1898 Code was amended in 1923 to restrict the class of cases where bail was to be denied: from all non-bailable cases it was limited to those punishable with "death or transportation for life." The sentence of transportation for life was abolished, resulting in this part being replaced with "imprisonment for life", which is how the 1973 Code inherited the provision.

Conclusions
Context is key here. When the 1861 and 1898 Codes were drafted, the presumption of innocence did not carry any great importance. In fact, Section 212 of the 1861 Code, concerning bail in committal cases, required Magistrates to consider whether the evidence adduced at that stage either strengthened or weakened the "presumption of the guilt" of the accused. Though the presumption of innocence was identified as the golden thread running through English criminal law by the House of Lords Woolmington [1935 AC 462], commentators have shown how this was more rhetoric rather than a statement of fact [Lord Cooke, Turning Points of the Common Law, pp. 28-48].

Between that time and the drafting of our current Code, the presumption of innocence certainly became one of the hallmarks of common law criminal justice systems. But the retention of this clause seems to have ruffled no feathers at any time, considering the lack of any discussion on the point in the Law Commission's 36th and 41st Report [the latter led to the 1973 Cr.P.C.] and no constitutional challenges thereafter. This silent acceptance was used by the Supreme Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] to justify the constitutional validity of Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 which carried the identical clause restricting grant of bail [Paragraph 349]. These special statutes carrying identical provisions shall be the focus of Part II of this Post.

Guest Post: Arup Bhuyan, Article 19(1)(a) and Bail Jurisprudence in Terror-Related Cases

I am very proud to present a guest post by Mr Gautam Bhatia, who is currently practising law in Delhi and is responsible for the Indian Constitutional Law and Philosophy Blog. 

Introduction

The distinction between “advocacy” and “incitement” is one that is familiar and important for constitutional courts world over. Advocacy of dangerous and subversive ideas is constitutionally protected, unless it rises to the level of incitement to violence, or to lawless action. In India, the distinction has had a troubled history, but it was endorsed most recently last month by Justice Nariman in Shreya Singhal vs Union of India, while striking down S. 66A of the IT Act for its failure to distinguish between the two concepts. Four years ago in 2011 though, the Supreme Court had already distinguished advocacy and incitement in a little-publicised, but extremely important case: Arup Bhuyan vs State of Assam.

Appreciating Arup Bhuyan

The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization. This provision is in pari materia Sections 10 and 20 of the Unlawful Activities Prevention Act [“UAPA”], which replaced the TADA as the umbrella legislation for prosecuting terror suspects. While setting aside the conviction, Justice Katju read down S. 3(5) to save it from unconstitutionality on the grounds of Articles 19 and 21 of the Constitution. He did so by distinguishing passive from active “membership”, and restricted the latter to actual commission of violence, or incitement to violence. This distinction, naturally, closely tracks the difference between advocacy and incitement.

Arup Bhuyan distinguished between active and passive membership in a way crucial to UAPA cases, but beyond its conceptual articulation of the issues, that decision itself did not break new ground. In State of Kerala vs Raneef, decided in 2011, the Supreme Court upheld the Kerala High Court’s grant of bail to a person accused of UAPA offences, for being a member of the Muslim group “Popular Front of India”. Evidence, as ever, included “certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad'.” The Court noted that there was no prima facie evidence against the accused to warrant the restrictions on bail under S. 43(D)(5). Possession of literature was found insufficient to demonstrate active membership, and the doctrine of ‘guilt by association’ was unknown to the Constitution. A few months before, in Vishvanath vs State of Gujarat, another UAPA case built on possession of literature/propaganda, the Gujarat High Court held that “possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”

The importance of this jurisprudence cannot be overstated. In India, where trials for terror cases drag on for years, bail is perhaps the most crucial safeguard of personal life and liberty. But its importance is perhaps matched only by its fragility, evident upon evaluating the effect of the decision on bail jurisprudence in terror cases.

Arup Bhuyan: Impact

Section 43D(5) of the UAPA restricts the discretion of courts in granting bail: the accused “shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” In May 2011, the Anti-Terrorism Squad arrested six members of the cultural group, the Kabir Kala Manch, for offences under the UAPA. It was alleged that the KKM had close links with the banned Communist Party of India (Maoist), which was sought to be proved through the recovery of allegedly “incriminating literature and propaganda”. Accordingly, the Sessions Court refused to grant bail.

Nonetheless, in two separate applications before the Bombay High Court, Justice Thipsay granted bail. In doing so, he relied directly on Arup Bhuyan. Possession of literature relating to a banned organisation was not, in itself, prima facie evidence of active membership as understood in Arup Bhuyan. Consequently, Justice Thipsay held:

     “Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organization, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members - much less such members as would attract the penal liability - of the said organization.”

Conclusion

In conclusion, it is also important to note that the State has asked for a review of Arup Bhuyan. In light of the discussion above, it is submitted that setting aside or watering down Arup Bhuyan will present a grave risk not just to free speech jurisprudence, but more directly and immediately to the right to personal liberty and fair trial under the Constitution.

(The author has been unable to find public-domain links to some of the cases cited in this essay. He welcomes any assistance on this issue.)

Delhi High Court on Section 138 and Dashrath Rupsingh

Section 138 of the Negotiable Instruments Act, 1881 [NI Act] remains primarily responsible for clogging the dockets of most courts. The ease of prosecution had also transformed it into a weapon for abuse and misuse by errant litigants, so thought the Supreme Court while passing the important decision of Dashrath Rupsingh Rathod v. State of Maharashtra [(2014) 9 SCC 129]. The decision has been already discussed on this blog, and I remarked on how the follow up will be interesting. 

One issue among several left open in Dashrath is how do we interpret the requirement that cases shall not be transferred if they have reached the stage of Section 145(2) of the Act. The relevant extract from the decision reads as follows:

Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending.

Pendulum Swinging in the High Court

I have been following the decisions from the High Courts of Bombay and Delhi in the aftermath of Dashrath on this point, and the Delhi High Court has provided interesting material for study. Two material decisions are discussed below:

1. New Delhi Tele Tech v. Cisco Systems Capital (India) Pvt Ltd [Crl. M.C. 4690/2014, decided on 12.01.2015, Vaish J.]

This matter was part of a series of cases, with the same Bench passing another order in separate but connected cases on 13.01.2015. Here, an application under Section 145(2) was filed by the Accused persons and allowed on 25.03.2014 but no examination was conducted, and then a jurisdictional challenge under Dashrath was made. The Single Judge held this was sufficient to conclude trial has commenced, thus warranting the case to remain with the same judge though a jurisdictional challenge existed under Dashrath. The Court held:

The Apex Court in Dashrath Rupsingh Rathod’s case (supra) observed in para 22 that the category of complaint cases where proceedings have gone to the stage of Section 145(2) of the Act or beyond shall be deemed to have been transferred from the Court ordinarily possessing territorial jurisdiction, as clarified therein, to the Court where it is presently pending. Thus, it is only when the stage of proceedings in cases filed under Section 138 of the Act has reached the stage of Section 145(2) of the Act or beyond thereof, such case shall continue to be dealt with by the Court where it is pending trial [Emphasis supplied].

2. Neerav J. Shah v. State & Anr [Crl. M.C. 700/2012, decided on 23.03.2015, Gaur J.]

Similar to the previous case, here an application for cross-examination of the Complainant under Section 145(2) was allowed by the Magistrate in 2011, but no cross-examination had been conducted till the challenge under Dashrath was made. The decisions in the Cisco litigation were relied upon to argue that the cases must be retained by the same magistrate albeit there was no jurisdiction. On this occasion, a co-ordinate Bench disagreed thus dismissing this and other connected matters. 

Relying upon Dashrath as seemingly clarified in Shivgiri Associates & Ors v. Metso Mineral (India) Pvt Ltd [(2014) 12 SCC 366], the Court held that it was necessary for actual evidence to be recorded and merely allowing the application would not do. The Court held:

On careful perusal of afore-noted two decisions of this Court, it becomes apparent that Apex Court decision rendered by Hon’ble Mr. Justice T.S.Thakur and Hon’ble Mr. Justice Vikramjit Sen in Shivgiri Associates (supra) was not brought to the notice of the two Coordinate Benches of this Court, which had rendered the decision in cases of CISCO Systems (supra) and Naveen Malhotra (supra). The Apex Court’s decision in Dashrath Rupsingh (supra) is authored by Hon’ble Mr. Justice Vikramajit Sen, who is also party to the later Apex Court decision in Shivgiri (supra), wherein paragraph No.22 of Dashrath Rupsingh (supra) stands duly explained. In Shivgiri (supra), it has been clearly held that evidence post-summoning has not been recorded and so the complaint under Section 138 of Negotiable Instruments Act, 1881 was directed to be transferred to the Court of competent territorial jurisdiction. In the face of latest Apex Court decision in Shivgiri (supra), reliance placed upon decisions in Peter David Xavier Pinto v. Dinesh M. Ranwat & Anr. 2014 SCC Online Bom 1248, New Delhi Tele Tech Pvt. Ltd. v. M/s CISCO Systems Capital (India) Pvt. Ltd. 2015 SCC Online Del.6533, Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201 and CISCO Systems Capital (India) Pvt. Ltd. v. New Delhi Tele Tech. Pvt. Ltd. & Ors. 2015 SCC Online Del 6535 is of no avail. Applying the dictum of Apex Court in Dashrath Rupsingh (supra) which is reiterated in Shivgiri (supra), it is held that the complaints in which cross examination in pursuance to allowing of application under Section 145(2) of Negotiable Instruments Act, 1881 has not commenced, shall stand transferred to the court of competent territorial jurisdiction.

Conclusion

Thus, after holding that an application for cross-examination need only be allowed for the matter to remain with the original court, the High Court has now shifted its position to require for the actual cross-examination to have begun. In my opinion, it does not further the underlying intent behind the restriction provided by the Supreme Court in Dashrath, despite the best efforts of Gaur J. to convince us otherwise. The Supreme Court in Dashrath created this exception to reduce the number of matters which were bound to be transferred due to the decision being given retrospective effect. The delays caused in examining witnesses before the trial courts are notorious but very real, and to allow matters to be transferred even where applications for cross-examination have been allowed is a position ignorant of this reality. 

The latest decision only worsens the confusion currently pervading across trial courts in cheque bouncing cases. But on the bright side, this clearly contradictory stand of co-ordinate benches might necessitate intervention by a higher bench/higher court to finally put the issue to bed.  

In Terrorem: Bow thy Humble Supplicant

[Caveat: this post may be tagged as a rant]

During my brief and uneventful stint at the helm of National Law School of India Review (NLSIR), I was involved with the hosting of a Symposium which concerned the apparent conflict between security legislation and individual liberty. In the interests of ensuring security, the legislature seems overeager to withdraw procedural and other safeguards guaranteed to accused persons which help ensure individual liberty is not whimsically compromised. This well documented phenomenon cuts across jurisdictions and has been extensively written about. My personal favourite remains Professor Andrew Ashworth's Hamlyn Lecture of 2002, which can be found here. 

Why talk about it here? Because the recent episode surrounding the Gujarat Control of Terrorism and Organised Crime Bill 2015 (GCTOC) in times of relative peace makes one think that there is a long way to go. As is already known to most of us, the Bill dilutes several procedural and evidentiary rights guaranteed to an accused to presumably help secure convictions. I stress upon this aspect of relative peace: most instances of stringent anti-terror legislation rode high upon the great wave of emotion generated from particularly terrifying episodes of violence. The TADA Ordinance of 1985 and the 1987 Act were the aftermath of gruesome riots in the 1980s. MCOCA came at a time Mumbai was engulfed with mob violence in the 1990s. POTA came in 2002 after attacks on Parliament in 2001. The infamous Patriot Act in the USA came after 9/11. Where is the attendant terrorist plot behind the GCTOC? There is none, which is why support for the Bill must provoke serious questions about where society stands on the issue of protecting individual liberty. 

These statutes continue to strike me as rather odd. Considering the gravity of the charge, one assumes courts require the most reliable evidence to conclude the question of guilt or innocence. But repeatedly we find the system turning to ends-based reasoning and providing severe dilutions which make it possible to lead sub-standard evidence as proof of guilt. A prime example being the favourite provision of rendering confessions to police officers admissible. Prosecutions for serious crime charges through statutes which relax the requirements of proof are too high a cost to offer society a placebo, i.e. its a bad argument to say we need these laws for society to think something is being done by the police. It in fact grants the police legislative backing to take an easy way out, which they won't mind and thus resort to adding serious crime charges to an array of situations as has happened with the MCOCA.  

The Latin phrase In Terrorem refers to the practice of invoking fear as a basis to seek compliance from individuals to protect private rights. It seems to have found immense favour with the State. By enhancing the repertoire of offences to label nearly everything a crime on one hand and then relax proof requirements on the other, fear is soon becoming the sole basis to secure our political obligation to the State. History bears witness to how revolt soon follows.