Guest Post: The Supreme Court on mandatory voice samples – I: Some glaring conceptual errors

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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(This is a guest post by Abhinav Sekhri, the first in a two-part series. On 2nd of August, a three-judge bench of the Supreme Court decided the case of Ritesh Sinha v State of UP, dealing with the question of whether an accused could be compelled to provide voice samples during the course of a criminal investigation. The issue had divided many High Courts – some of which had returned detailed judgments – and had also divided a two-judge bench of the Supreme Court, where the judges had disagreed whether the Code of Criminal Procedure authorised this form of compulsion. The three-judge bench was called upon to resolve the issue. The Bench found that there was no statutory authorisation for the process; but it then noted that “procedure was the handmaiden of justice”, and decided to “fill in the gap” by invoking its powers under Article 142 of the Constitution to do “complete justice”, and authorised Magistrates to demand voice samples anyway.)

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“In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

This decision by a three-judge Bench of the Supreme Court in Ritesh Sinha v. State of U.P. [Crl. Appeal 2003 of 2012, decided on 02.08.2019 (“Ritesh Sinha”)], is the latest iteration of the Court using its extraordinary powers under Article 142 for “doing complete justice”. This time, “complete justice” has been done by (i) ignoring elementary differences between civil and criminal procedure; (ii) creating new law without any modicum of precision or clarity, and; (iii) by ignoring past precedent on using Article 142 itself, with the Court choosing, of its own volition, to give the law a course that necessarily infringes fundamental rights. 

These features have adorned previous decisions of the Supreme Court as well. But very rarely do we get an example of all three working together with such destructive potency, as it has been done in Ritesh Sinha to achieve the result mentioned at the outset of this post.

Civil v. Criminal Procedure   

Throughout Ritesh Sinha, the Court is at pains to remind us that procedural law mustn’t become a thorn in the side of substantive justice — instead, procedural law must serve its role as the “handmaiden” of justice. The opinion turns to old cases, as if to suggest that its views are hardly new but rather a reflection of time-honoured tradition. But this is a ruse, dear reader: By relying upon the distracting prose of prior precedent, Ritesh Sinha tries to throw sand in your eyes. 

Why? Because all of those flowery words are germane to the context of civil litigation. Here, the idea of procedural law is to help ensure litigation places parties on an equal footing for the Court to do justice. It does so by removing privilege and secrecy, bringing before the Court all possible material and giving both sides equal opportunities to advance their case. Therefore, when there are doubts about what course procedural law should take, the answer is clear: take the path that helps the litigation to proceed.

If civil procedure is planet Earth, then criminal procedure is the moon. Police investigations are, by definition, not a situation with two equal players. Till the time a case is under investigation, the police hold all the cards. If it is a cognizable case, then the police can go and arrest anyone, question anyone, practically conduct searches anywhere, to gather material. And there is no duty to share this material with the subject of a future prosecution: an accused person does not even have the right to get a copy of the FIR registered against her.

Procedural law is not a handmaiden of justice in this context: it is the only sword and shield in the hands of an ordinary person to resist the truly awesome might of the State. It is the only rope I can cling onto for securing some measure of restraint against the State when it proceeds down the brutally invasive path of a criminal investigation. It is, also, the golden thread that protects an individual from being condemned unfairly to a conviction and the badge of guilt and shame that it must carry.

But in its earnest efforts at “doing complete justice”, the Supreme Court seems to have ignored these differences. If not, then the Court seems to have imagined a different criminal justice system from the one that most ordinary Indians are subject to. Perhaps it would help if rather than only quote prior precedent, the Court resume past practices of actively engaging with the various facets of the criminal justice system by doing surprise inspections at prisons and police stations. Maybe then the Court might see the police practices that coerce an innocent person to implicate herself falsely just to end the brutal harassment of interrogation. 

Where is the Law?

Ritesh Sinha is not the first or the last time that the Court decides to “fill the gaps” and create law rather than wait for Parliament to do its job. But, if you are deciding to deal another hammer blow to the system of the separation of powers and create law, you might at least do a decent job of it. Previous instances have included detailed guidelines being passed in Vishaka, as well as a fully detailed draft legislation being blessed in Prakash Singh; so one would expect that the Court create judicial legislation with some measure of precision.

Sadly, that doesn’t happen. The paragraph quoted at the outset is all we have by way of a law. Rather than pen a paragraph with the many gaps left behind by the Court in its effort to plug a single one, below is an illustrative list of questions, based on all that is left unclear:

• What kind of Judicial Magistrate is conferred the power?
• Is the Court acknowledging that no existing provision in the Cr.P.C. could confer this power on Magistrates?
• Will a Magistrate / Sessions court not have the power to compel persons to give voice samples during trial? (since the judgment specifies investigation)
• Who will take the sample? Must it be before officials of the Forensic Science Laboratory or can the Investigating Officer take samples? Or will they be taken before Court?
• Is custody a necessary requirement for taking voice samples? 
• What kind of questions can be asked during this process? Will earlier guidelines offered by the Court in the Zee extortion case be valid?

None of these questions are immaterial, and all of them are bound to start coming up sooner or later before courts, to clog our system with more cases and contribute to rising delays. That is the cost of “doing complete justice”, and not waiting for Parliament to do its job.

Atlas, Shrugged?

The premise behind the title of Ayn Rand’s famous novel was simple: Atlas, the Greek Titan, is supposedly keeping the Earth aloft on his shoulders; so what happens if Atlas shrugged? Apply this in context of the Indian Constitution and the fundamental rights of citizens, and we find that the Supreme Court has been placed in the role of Atlas. It bears the brunt of our crazy system on its shoulders, to ensure that the fundamental rights of persons are protected as the cogs of this machine keep ticking. Ritesh Sinha seems to suggest that our Atlas has shrugged, and it is perhaps time to start rethinking our approach to protect fundamental rights in the Indian polity.

The signs had come at least a decade ago, when the Court used Article 142 in Shahid Balwa [(2014) 2 SCC 687)] to go ahead and completely remove the constitutional right of appeal under Article 226 of persons who had been embroiled in the “2G Scam” cases. On that occasion, this removal of right was justified on a balancing logic, keeping in mind the overwhelming public interest in a quick prosecution (but it still took almost a decade to complete the trial, which ended in acquittals). This resurfaced in the “Coal Scam” cases, where again the same tactic was used and justified away. 

What makes Ritesh Sinha different, is that while the “2G Scam” and “Coal Scam” orders also involved a clear derogation of rights, this was limited to a particular class of cases. This time around, the criminal procedure code itself stands amended by the Court through Article 142, in spite of having noted the possible derogation of fundamental rights that this involved: because in paragraph 24 of Ritesh Sinha, the Court concedes how, at least at the threshold level, its decision can infringe the fundamental right to privacy.

Now at this point, the Court was bound to follow prior precedent set by a Constitution Bench in Prem Chand Garg [AIR 1963 SC 996], where it was held that Article 142 cannot be used to pass any orders inconsistent with fundamental rights. But there is no mention of Prem Shankar Shukla in the judgment. Instead, after noting how the fundamental right to privacy can be infringed, the Court in Ritesh Sinha justifies the derogation on grounds of “compelling public interest.”

Even if you disagree with the idea of precedent and that the sound restraint advised in Prem Chand Garg should not be controlling subsequent benches, the Court’s attempt in Ritesh Sinha to justify derogations from the fundamental right to privacy is flawed at a very basic level. In the haste to limit the fundamental right, the Court somehow forgets that such restraints must be through procedure established by law, and that judicial orders do not fall within the definition of “law” for this purpose. It is painfully ironic that the one privacy decision that ignored the Court’s attention in Paragraph 24, i.e. Kharak Singh, saw this issue being discussed at some length.

Conclusion: History Repeats Itself

In August 1961, an Eleven Justices’ Bench of the Supreme Court delivered separate opinions in State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR 10]. In Oghad as well, the Court chose to limit a fundamental right [Article 20(3)] by operating on unrealistic presumptions about criminal investigations involving an exchange between equal participants. 

In August 2019, nearly sixty years later, the Supreme Court has made the same mistake. As I have argued recently, some reasons behind the outcome in Oghad were probably the peculiar politics of 1961 — police reform was considered imminent, emboldening the Court to show more faith in the police by allowing it more investigative leeway. Maybe the only way to make sense of the judgment in Ritesh Sinha is also by turning to the peculiar politics of our time, and removing naive notions of the Court being a counter-majoritarian protector of our civil rights.