Tag Archives: criminal procedure

Guest Post: Bail Provisions of Section 45 PMLA Struck Down – Some Hits and Misses

(This is a guest post by Abhinav Sekhri, which first appeared on the Proof of Guilt blog)

Two days ago, a Two Judges’ Bench of the Indian Supreme Court decided a batch of writ petitions led by Writ Petition (Crl) No. 67 of 2017 titled Nikesh Tarachand Shah v. Union of India & Anr. [Nikesh Shah] in which it struck down the parts of Section 45 of the Prevention of Money Laundering Act 2002 [PMLA] which concerned the grant of bail. The Court held that these parts violated Articles 14 and 21 of the Constitution – guaranteeing a right to equality, and protection against deprivation of the right to life and personal liberty by a procedure not established by law. The effect of this judgment is that bail petitions earlier subject to a stringent standard under Section 45 PMLA will now be tested on the less taxing standards of Sections 439 and 437 of the Criminal Procedure Code 1973 [Cr.P.C.]. This post has four parts – (i) explaining how money laundering and the PMLA work (which I’d urge you to skim through even if you’re a lawyer, because at times the judgment reflects some lack of knowledge on the Court’s part), (ii) charting out how the Court did what it did, (iii) showing where the Court goes wrong, and finally (iv) what this judgment might mean for the many other statutes with similar clauses that have not been examined by the Court yet.

What is the PMLA, What are the Schedules, and What does Section 45 do?

The PMLA is India’s answer to its global commitment to tackle money laundering, which (at the cost of oversimplification) means representing assets obtained through illegal acts as untainted. In line with global standards, the PMLA covers all kinds of conduct connected with this process of representing black as white (doing, aiding, abetting, attempting etc), as long as one knowingly did so [Sections 3 and 4]. The PMLA not only makes this is an offence but also triggers connected civil actions of attaching and confiscating the tainted assets themselves [Sections 5-8].

Notice how the entire idea of money laundering is linked to some underlying illegal act which results in generating some proceeds – cash or kind. While some countries don’t require that illegal act to be a crime, India does, and the PMLA calls it a ‘Scheduled Offence’ [Section 2(y)] i.e. offences that are part of the Schedules to the PMLA. There are three Schedules – A, B, and C – and Schedule A contains the bulk of offences and Schedule C is basically the same thing applied in a transnational context. Schedule B contains only one offence – Section 132 of the Customs Act 1962 which criminalises making false declarations before customs officers. Importantly, when the underlying offence is one from Schedule B, the PMLA will only apply if the allegations involve a value of at least one crore rupees. There is no such minimum monetary limit for cases with Schedule A offences. It wasn’t always like this, and the history behind these Schedules became quite important in Nikesh Shah which requires me to discuss it here.

When the PMLA came into force in 2005, Schedule A only had two paragraphs carrying offences punishable under the Indian Penal Code 1860 [IPC] for waging war against India and nine offences from the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. Schedule B contained the bulk of offences, along with a lower minimum threshold of thirty lakhs for the value of allegations. Then around 2010 India wanted to join the Financial Action Task Force [FATF] as a member. The FATF is a global body created by the G-8 for money laundering and membership is a big deal [India is the only South Asian member state till today]. When the FATF conducted its evaluation of Indian money laundering laws, it heavily criticised the monetary limit for the cases in Schedule B [paragraph 167 of the linked report]. The logic was that the limit would allow money laundering to escape under the radar as people would just deal in smaller tranches over a slightly elongated period of time. So the FATF recommended the limit be abolished [paragraph 175]. The government sought to do this by simply moving all Schedule B offences to Schedule A, which was done through the 2013 Amendment, leaving Schedule B empty for the time being.

In all this moving around offences, nobody thought fit to look at what impact it would have on the rest of the PMLA – specifically, on Section 45 which spoke about bail. Since the money laundering offence was tied to the Scheduled Offence, Section 45(1) looked at that underlying offence and this decided how difficult it would be to get bail. If it was a Schedule A offence with a sentence of more than three years, the law placed two additional conditions for getting bail: (i) the public prosecutor had to be given a chance to oppose bail, and if the prosecutor chose to oppose bail, then (ii) the court had to satisfy itself that the defendant was “not guilty of such offence” and was not likely to commit any offence on bail, and the burden fell on the defendant to satisfy the court. For all other Schedule A offences, and all Schedule B offences, the regular bail clauses from the Cr.P.C. continued to apply. You can see how the 2013 amendments to the Schedules completely changed the look of Section 45 – the exceptional process became the norm. This new normal was under challenge before the Supreme Court in Nikesh Shah.

SC on Section 45 – Violates Articles 14 and 21
Petitioners argued that the constitutional protections of Articles 14 and 21 were violated by Section 45 PMLA, and the Court agreed to both contentions. Rather than address arguments first and then move to the Court’s appreciation, I discuss both together for brevity.

Article 14
The Petitioners argued that linking the stringent bail clauses to offences in Schedule A that carried at least a three year maximum sentence was creating several irrational and arbitrary classifications which the Court encapsulated through examples [Paragraphs 24-27, and 35]. The Court found no basis to differentiate the harsh treatment meted out under Section 45 from the following hypothetical cases which according to the Court did not attract Section 45:

  • When there is only the PMLA charge as the trial for the Scheduled offence was complete;
  • When the PMLA allegation is based on a Schedule B offence;
  • When the PMLA allegation is based on a Schedule A offence carrying a maximum sentence below three years;
  • When a person is tried for a Part A offence with at least a three year term (versus a joint trial where the same person is tried together with the person with PMLA charges);
  • When the person is released on Anticipatory Bail under Section 438 Cr.P.C. for allegations of the Scheduled Offence, before the PMLA charge was brought in.

The Court was of the view that the seriousness of money laundering cases depended on the amount of money involved [Paragraphs 29-30]. Since Schedule A had no monetary limits, the Court concluded that the likelihood of being granted bail was being significantly affected under Section 45 by factors that had nothing to do with allegations of money laundering [Paragraphs 26-27]. When the Attorney General attempted to defend the scheme by painting the classification as a punishment-based one, the Court easily rebuffed his argument. First, the Court suggested there was no such scheme, but noted that even then, the idea should have something to do with the object of the PMLA. The Court showed how Schedule A had many offences that didn’t seem related to money laundering [taking particular objection in Paragraph 34 to offences under the National Biodiversity Act being there], leaving out others that might have more rational connections to money laundering such as counterfeiting currency [Paragraphs 29-30]. The Court also adversely commented on how Schedule A had lumped different NDPS offences together, at the cost of ignoring how the parent Act treated those offences differently [Paragraph 32-33].

The Court noted also that Section 45 of the PMLA was different from other laws that carried similar requirements such as Section 20(8) of the Terrorism and Disruptive Activities (Prevention) Act 1987 [TADA]. The ‘such offence’ in TADA required a court to be satisfied that the defendant was not guilty of the TADA offence in question before granting bail. But in the PMLA, ‘such’ offence referred to the Scheduled Offence instead of the PMLA offence. So, the restrictions imposed by Section 45 PMLA were held to have no connection to the objects of the PMLA itself and thus the rational classification, if any, violated Article 14 [Paragraph 28].

Article 21

The Petitioners argued that requiring defendants to satisfy the court that they were not guilty of ‘such’ offence violated Article 21 by reversing the presumption of innocence and required the defendant to disclose her defence at the outset of the case. In the judgment the Court doesn’t really address Article 21 independently – instead the Court suggest that because the provision violates Article 14 it cannot be ‘procedure established by law’ and therefore violated Article 21. Towards the end of the decision the Court begins discussing the argument though. It labels Section 45 a “drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence.” [Paragraph 38]. In the same paragraph it goes on to observe that “before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime. Absent any such compelling state interest, the indiscriminate application of section 45 will certainly violate Article 21 of the Constitution. Provisions akin to section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature.”

Hits and Misses
There are two questions that were at stake here: (i) did any part of Section 45 offend the Constitution, and if so, (ii) did the Court have no other option but to repeal the provision. Reading the decision, it seems like the Court felt there was so much wrong in the PMLA scheme it decided to throw the kitchen sink at one point rather than explain the issues. The Court answered both affirmatively but never explained to us whether any argument dispositive, or does every case need this sort of broad argumentation to succeed.

Classification and Article 14 first. After reading the legislative history behind the 2013 amendments and the FATF argument, do you think that the Court is right in concluding that higher the monetary allegations, more serious the PMLA case? I’m not so sure. Nor do I think there is much to be gained by placing emphasis (like the Court does) on how Schedule B today has a higher limit than the initial thirty lakhs to suggest that this is in fact the case. It is far more plausible that the one crore limit was placed keeping in mind the underlying offence (false declarations to customs officials in an enquiry) and the concerns of the export industry, which is already subject to Schedule A through Section 135 of the Customs Act 1962 (evading customs duty). Rather than attempt at answering what might be the basis for such a classification for the PMLA (and indirectly giving hints to the government on what might pass muster), the Court would have done well by restricting itself to answering whether the present classification between (i) PMLA allegations based on a type of Schedule A offences versus (ii) all other PMLA cases was intelligible and connected to the objects of the PMLA. As there was enough to show that the original intent (if any) behind Section 45 had not kept apace with the subsequent amendments to the Schedules in 2013, the Court could strike down this classification. But did that require striking down the whole clause?

This brings us to the other part of what did that classification achieve. If it sought to serve as a filter for PMLA cases when it came to administering a strict bail clause, we are left with no filter. Does that mean no PMLA case is serious enough to warrant an application of the clause, or will the clause apply to every PMLA case? Deciding this would need the Court to decide whether clauses such as Section 45 that required a court to find defendants ‘not guilty’ at the bail stage were constitutional. Rather than directly address this, the Court turned to how the text of Section 45 was flawed, as it referred back to the Scheduled Offence on deciding bail petitions. Since the scheduled classification had been struck down, there was nothing to refer to, and so the clause had to go. While there is little to fault this approach, I remain unconvinced that the Court had no option but to strike down the clause because of the text. The Court has performed far greater feats of legislative reconstruction than being asked to read ‘such offence’ in Section 45 PMLA as referring to the PMLA allegations rather than only the Scheduled Offence. After all, it stands to reason that a bail provision in the PMLA would want a PMLA special court to consider the PMLA allegations. In fact, many High Court decisions show this is how they were doing it. Heck, this is how the Court itself was doing it in Rohit Tandon at the start of November [Paragraphs 21-23 of the link]. I think this course was adopted as it helped secure two objectives. Not only did this take care of the PMLA clause which this bench of the Court clearly did not like much, it also helped to protect other statutes with similar clauses which the Court held met a ‘compelling state interest’ test.

This brings me to one last bit about Article 21 and the Eighth Amendment of the U.S. Constitution. The Court cites a previous decision in Rajesh Kumar v. State (NCT) of Delhi [(2011) 13 SCC 706] for the proposition that Article 21 of the Indian Constitution has incorporated the Eighth Amendment and its protection against excessive bail [Paragraphs 13, 19 of Nikesh Shah]. The Court also cites two American decisions [Paragraph 37] on bail for good measure. This is, unfortunately, wrong. Rajesh Kumar cited previous precedent in Sunil Batra to suggest that even though India did not have the Eighth Amendment or the ‘Due Process’ clause, the consequences were the same to prevent cruel and unusual punishment. Not only did both those decisions not mention the excessive bail clause, the references to the cruel and unusual punishment clause itself are highly contentious as an earlier bench of the Supreme Court had held it couldn’t be pressed in India, and that decision continues to be cited.

Conclusion

The slapdash manner in which the PMLA Schedules were amended in 2013 to appease the FATF had already caused some High Courts to address this issue of Section 45. The closest it came to striking down the clause was the Punjab & Haryana High Court’s decision in Gorav Kathuria v. Union of India & Anr. where it held the bail provisions would not apply retrospectively to offences previously in Schedule B [Paragraphs 43-45 of Nikesh Shah]. When the Court declined to hear an appeal against the High Court order in Kathuria I thought that it had indirectly affirmed the validity of Section 45. The judgment in Nikesh Shah comes as a surprise, and marks the first occasion when the Court has looked at any part of the PMLA through a constitutional lens. There are other parts that are equally problematic – the asset forfeiture scheme and the compulsion on witnesses to make truthful declarations, for instance – that litigants may take to the Court being encouraged by this judgment.

As for the future impact of Nikesh Shah on other statutes that carry the same ‘drastic provision’, the stage is set for some litigation on that front as well. The Supreme Court has only approved of the TADA and the MCOCA provisions in the past, leaving the many others open to scrutiny on this new test of whether the provision furthers a ‘compelling state interest’. The Court never answered that for the PMLA context while deciding the petitions in Nikesh Shah. Do you think it might conclude that the PMLA does not meet the test? What about the other statutes? I’ve re-pasted my list of statutes containing the clauses below after accounting for the ones that are not relevant anymore. Comments, as always, are welcome.

  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  4. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  5. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982.
  6. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982.
  7. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  8. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  9. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  10. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

 

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Filed under Article 14, Article 21 and the Right to Life, Bail, Criminal Law and the Constitution, Criminal Procedure, Cruel and Unusual Punishment, Equality

Guest Post: The Right Against Self-Incrimination and its Discontents – II

(In this second and concluding post, Abhinav Sekhri, a Delhi-based criminal lawyer, discusses the application of Article 20(3) to persons “accused of an offence”)

Recap

Previously, we talked about how the words ‘person accused of an offence’ present in Article 20(3) of the Constitution of India have been interpreted by the Supreme Court. We saw that the Court had understood this phrase as describing a person subject of a formal accusation, akin to a FIR. This naturally created a lacuna for the time it takes for an informal accusation against one to become a formal accusation. While ordinary investigations for IPC offences may confer little investigative mettle to the Police before a formal accusation, the same is not the case in statutes creating socio-economic offences, such as smuggling. Statutes such as the Customs Act 1962, and the NDPS Act 1988 vest officers with extensive investigative powers before a formal accusation is levelled.

The Supreme Court during the 1960s consistently held that no self-incrimination could arise if persons were compelled to give evidence against themselves at these stages. I have expressed deep reservations about this approach, and in this part of my argument, I flesh out a possible alternative approach to answering the problem. While nothing would be better than an amendment to either the Constitution or the Cr.P.C. for providing clarity, we know how remote the possibility of such a non-political amendment getting tabled in Parliament is today, and must make do with innovating from the existing morass of laws. I thus propose that the phrase ‘person accused of an offence’ must be understood to include detention in custody by any authority during an investigation. I will elaborate on the benefits of this later, and require the reader to be content with just understanding my proposal for now. Simply put, if an authority seeks your detention for more than the 24-hour minimum period (before it needs to produce you for the first time before a magistrate), you necessarily must be able to exercise your right against self-incrimination.

Deepak Mahajan and a Lost Opportunity

The judicial history of interpreting Article 20(3) reflects a certain reluctance to re-evaluate basic premises and stick to formulas. The near-vehement consistency in the Supreme Court’s decisions M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] onwards on the point is remarkable. There is not one stray decision in all those years. The scope for innovation when arguing this issue before a Division Bench in the 1990s was thus quite slim. Still, Directorate of Enforcement v. Deepak Mahajan [AIR 1994 SC 1775], is a landmark decision in its own right.

The offence in question was under the erstwhile Foreign Exchange Regulation Act 1973 [FERA], which followed in the footsteps of all socio-economic offences in vesting great investigative powers before filing of a formal accusation., including that of detention in custody [Section 35 FERA]. The Respondent here had been arrested and detained under Section 35 FERA – the issue was whether a Magistrate could remand him to judicial custody. Section 167 Cr.P.C. provided for remand by magistrates, but applied during investigation. But the Supreme Court itself had created a fiction that what officers did under the FERA and other such offences is not an “investigation”. To now apply Section 167 Cr.P.C. would mean that it was investigation, and that the person detained was a ‘person accused of any offence’ since investigation presumed formal accusation. Interestingly, the Delhi High Court held that Section 167 Cr.P.C. did not apply for these reasons.

Reading the decision, it is clear that the Supreme Court knew exactly how tricky the issue was. It reversed the conclusions of the High Court and held that Section 167 Cr.P.C. would apply to allow those arrested under Section 35 of FERA and other socio-economic offences to be remanded to judicial custody. While doing so, the Court did not extend the protection of Article 20(3) to such persons who are remanded to custody. With due respect, the basis for this decision is utter rubbish, and the Court horribly let itself down. The refusal to extend Article 20(3) was despite the admission that the “words ‘accused’ or ‘accused person’ is used only in a generic sense in Section 167(1) and (2) denoting the ‘person’ whose liberty is actually restrained on his arrest by a competent authority on a well-founded information or formal accusation or indictment.”

This was the first time in nearly 50 years that the Supreme Court had to consider the text of Section 167 Cr.P.C. together with the right under Article 20(3). The decision shows how the Court goes to absurd lengths to try and avoid this connection, where at one point it distinguishes the binding Constitution Bench decisions on Article 20(3) by saying that none of them applied to the ever-so slight issue of actual detention but only with admissibility of evidence. This is the reason why I term the decision a lost opportunity, for I argue that a far more consistent and coherent approach to Article 20(3) lies in considering it together with Section 167 Cr.P.C. and the idea of remand.

Re-Drawing Lines in Article 20(3)

The illogical approach of the Supreme Court was pushed to theoretically unbelievable limits in Deepak Mahajan where it held that persons arrested under laws such as the erstwhile FERA could even be remanded to judicial custody under Section 167 Cr.P.C. yet remain beyond the pale of Article 20(3). If nothing else, this by itself should make the reader a bit concerned about how the basic premise of Article 20(3) is being understood today. I propose a simpler alternative not located in the judicial precedent – connect the idea of remand to custody with terming someone as ‘accused of any offence’.

Why do we have a right against self-incrimination in the way we do under Article 20(3)? There is no one-size-fits-all rationale here, but several that apply. An interpretation of the right that tries to be in sync with these different claims is bound to bring a more wholesome solution to the problem. By providing this right, the legal system attempts to expel potentially unreliable evidence obtained through coercion. But protection from being compelled to incriminate oneself is also a basis to ensure protection from coercion itself, and all the necessary evils a system using coercion brings. At the same time, having an unbridled right to stay silent can naturally dent any investigation and we often see potentially sensitive legislation contain relaxations from certain legislative expressions of self-incrimination [the erstwhile Prevention of Terrorism Act 2002 allowed judges to draw an adverse inference against persons refusing to tender voice samples]. Not providing the right to every person but only those accused of any offence is the Constitutional balancing act.

The fact that Section 167 Cr.P.C. is the first place in the criminal process that the word ‘accused’ finds a mention to describe the affected person is not pithy phrasing. The reason being that a request by an officer seeking further remand to custody of any person shows that at that time that there is something in the allegations against that person. Otherwise what is the need to seek further custody in the first place? It is irrelevant whether the person so detained is not ultimately proceeded against. To hold that self-incrimination should only protect such eventual accused is solely looking to the evidentiary purposes of the right and completely ignores the idea of personal protection it entails. 24 hours also protect the needs of investigation, and is a Constitutionally prescribed limit [Article 22].

Furthermore, such a statutory approach allows for a more wholesome take on the investigative and evidentiary process at large. Having begun by looking at the Cr.P.C., we must now turn to the Evidence Act 1872; Sections 25 and 27 more specifically. These provisions address two concerns that arise from my proposal from the standpoint of both prosecution and defence. If you are forced by the police to confess before expiry of 24 hours, does that render you defenceless? Section 25 negates such a conclusion, for it says that “no confession made to a police officer shall be proved as against a person accused of any offence”. This ‘person accused’ is at the trial, remember, and would cover our initial un-protected suspect. On the other hand, what investigation can the police conduct with Article 20(3)? Section 27 of the Evidence Act becomes relevant here, and allows the limited use of information if any fact is discovered consequent to such information being provided by the accused.

Conclusion

The current approach to the words ‘person accused of any offence’ in Article 20(3) established from the decision in M.P. Sharma was useful but short-sighted. It was useful because it provided a simple solution to a difficult problem. It was short-sighted for it failed to consider the problem from all angles. This became evident with the growth of a peculiar form of socio-economic offences. The interaction of the right against self-incrimination with the procedure created under these offences that have come to represent a vast section of the criminal law in India, is illogical at best and horrendous at worst leaving the right utterly redundant. I am the first to admit that my alternative setup to Article 20(3) suffers from critical flaws of design. I do consider, however, the need for other ideas imperative, and the essence of my own argument as being sound.

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Guest Post: Admissibility of Confessions made to the Police: From Exception to the Norm – I

(Previously on this blog, we have discussed Giorgio Agamben’s theory of the state of exception, according to which “extraordinary laws” ostensibly meant for “extraordinary times”, characterised by concentration of power in the executive, bypassing of parliamentary oversight, and incremental erosion of procedural safeguards, gradually become “normalised” parts of the existing legal landscape. In a two-part series, Manasa Sundar Raman discusses the use of extraordinary law to achieve the gradual normalisation of confessions made to police officers, that were originally considered inadmissible under the Indian Evidence Act.)

One of the chief goals of any liberal democratic Constitution, including India’s, is to guard against the growth and abuse of police power of the state and corrosion of civil liberties. Yet, it is no secret that in the recent decades, basic constitutional guarantees have increasingly come under threat and have been justified in the name of counter-terrorism. Despite struggling to define “terrorism”, most counter-terror legislations and judgments that interpret them, comfortably place terrorism as an exceptional or extraordinary crime that justifies infringements on civil liberties that are otherwise prohibited.

Characteristically, counter-terrorism legislations give enormous and overriding powers to the executive. Further, in accordance with the extraordinary concern that is sought to be addressed by such laws, they also have extraordinary provisions in procedural aspects such as bail, arrest, detention, confessions, sentencing etc. A recurring ‘extraordinary’ feature in these statutes is the admissibility of confessions made to police during interrogation.

Such extraordinary provisions inevitably lead to constitutional concerns. However, over the years, it can be observed that the judiciary is inclined to save them, paying undue deference to the government rather than declaring them as being unconstitutional. The judgments in this regard invoke the stereotypical imagery of brutalities, fear psychosis and loss of life inflicted by terrorism. This is used as a ground in itself to undermine constitutional guarantees.

In this context, one can consider the extent of deference given to legislative wisdom by the judiciary when these statutes permit confessions made to police as being admissible in trial and are challenged for being violative of Article 20(3). It is my thesis that the judiciary, by allowing for the so-called extraordinary statutes to undermine the right under Article 20(3) without constitutional basis, has gradually aided in the erosion of the right for ‘ordinary’ situations, as well. Therefore, admissibility of confession to police officer is no longer a shocking exception, but well on its way to becoming the norm.

Right against Self-Incrimination in India

Prohibition against self-incrimination is undoubtedly one the cardinal principles of criminal law. Under Article 20(3) of the Indian Constitution, the safeguard, framed as a right, extends to all accused persons to not be compelled to be a witness against themselves.

The Article 20(3) guarantee is further codified under Sections 161, 162, 163 and 164 of the Criminal Procedure Code, 1973 and such guarantees are also present in statutes pre-dating the Constitution in the form of Section 25 and Section 26 of the Indian Evidence Act, 1872. Additionally, India has also, without any reservations, ratified the ICCPR which under Article 14 provides for the right against self-incrimination “in full equality”.

The extent of the right against self-incrimination was fully recognized by the Supreme Court in Nandini Satpathy v. P L Dani. In this case, the court relied on Miranda v. Arizona, to extend the embargo against compulsion in testimony to the investigation stage as well. Further, the judgment recognises that compulsion may come in many forms i.e. not just by way of physical torture, but also in the form of psychic pressure or a coercive atmosphere. Most importantly, the decision holds the right under Article 20(3) and under the Criminal Procedure Code to be co-terminus in their protection. Thus, such strong language used by Nandini Satpathy was merely one step behind holding that provisions enabling the admissibility of confessions recorded by the police would be unconstitutional. However, we notice that subsequent judgements on Article 20(3) regress from this holding and dilute the protection altogether.

Judicial Response to Art. 20(3) challenges to Extraordinary statutes

The Terrorists and Disruptive Activities (Prevention) Act, 1987 (“TADA”) was introduced in May, 1985 as a temporary and extraordinary measure to deal with insurgent movements felt in several areas in India. However, over the years, it was notified in almost all states and became infamous as one the most abused laws.

Many provisions of the TADA, including Section 15 were challenged before a constitutional bench in Kartar Singh v. State of Punjab. Section 15 of the TADA provided that a confessional statement recorded by a police officer is admissible as evidence. In a 3-2 split, the Court upheld the section.

The judgment is prefaced with the historical background and circumstances that led to the enactment of the TADA. For a large part, the Supreme Court dwells on the legislative competence of the State to enact such a law. It then proceeds to hold the section as valid under Article 14 on the basis of the legislative classification that differentiates between ‘terrorists and disruptionists’ and ‘ordinary criminals’. Rejecting the reliance on State of W.B. v. Anwar Ali Sarkar, it reasons that classification of offences is constitutional as long as they are legislatively defined and not left to the arbitrary and uncontrolled discretion of the executive. The issue with this reasoning is that the Court refuses to dig deeper into the rationality of the legislative classification itself. Even assuming that there is an intelligible differentia between the ‘terrorists and disruptionists’ as determined by the police and ‘ordinary criminals’, the Court fails to elaborate on the rational nexus between such a difference and lesser degree of constitutional protection against self-incrimination.

Further, it holds the procedure to be just and fair under Article 21. In the reasoning for this, the majority cite a National Police Commission report that recommends that confessions made to the police to be made admissible so that it will “remove the present feeling of the police that they have been unjustly discriminated against in law”! Thereafter, once again the Court invokes the spectre of terrorism. It paints terror and disruptions as those which endanger the sovereignty and integrity of the country, the normal life of the citizens, and by linking it to the difficulty in obtaining evidence, upholds it entirely.

There are several things that are inexplicable and downright absurd in the Court’s reasoning in saving Section 15. First, it is beyond comprehension why the entire reasoning is based on Article 14 and 21 even though the Court earlier admits that Article 20(3) concerns were implicated by such a provision. There is absolutely no analysis on the extent of protection guaranteed by Article 20(3) and to what degree can it be infringed, if at all. Admittedly, the Court issues guidelines for recording of a complaint of torture by Magistrate if the accused so complains. However, it omits to state the consequence of torture on the probative value of the ‘confession’. Further, the judges limit their understanding of involuntary confessions to those made under torture. There is no mention of other methods by which a confession may be extracted such as by inducement or threats. As rightly pointed out in Nandini Satpathy, compelled testimony is not limited to those made by “physical threats or violence” alone but also as a response to “psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods” as well. Therefore, there is no way for the Court to determine if the accused did in fact make the confession freely and voluntarily. Second, the judges acknowledge truth of custodial torture to obtain evidence and then shockingly, in the same breath, turn a blind eye to it by invoking the imagery of terrorists being a threat to the nation’s sovereignty.

Thus, despite powerful dissents by Justice Ramaswamy and Justice Sahai, it is unfortunate that the majority chooses to substitute constitutional analysis with rhetoric on barbarity of terrorism. The saving grace of the majority judgment is the guidelines issued by the majority such as appearance of the accused before the Magistrate and forwarding the confessional statement recording. Ostensibly, the guidelines were aimed at ensuring the voluntariness of the confession and as a protection mechanism against torture. However, this rationale is not explicitly mentioned, perhaps because it would become an implicit admission of the constitutional infirmities of the section.

The TADA was subsequently repealed but was re-incarnated as the Prevention of Terrorism Act, 2002. Section 32 of the POTA, akin to Section 15 of the TADA, allowed for admissibility of confessions made to a police officer. However, Section 32 in sub-sections (2) to (5) statutorily incorporated the guidelines issued in Kartar Singh. In PUCL v. Union of India it was argued that the since the accused has to be produced before the Magistrate within forty-eight hours, there is no reason why the police are authorised to collect confessions. The Supreme Court rejected this contention stating that a similar provision was upheld in Kartar Singh and also pointed out that it incorporates the guidelines issued therein. Once again, the Court falls into the trap of excessive deference to the determination of “necessity” by Parliament, by characterising this encroachment of a fundamental right as an issue of policy rather than principle. Moreover, just as in Kartar Singh, the Court makes no reference to the fact that the recording of confession by the police is an exceptional case, departing from the well-established rules under Evidence Act, Criminal Procedure Code and norms under Article 20(3). Thus it is uncertain from the reasoning whether the Court does view Section 32 as a justified derogation from Article 20(3) in view of terrorism or if recording of confession by police is normally allowed even for regular offences under Article 20(3).

(Manasa is a Vth year student at the National Law School of India University)

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Filed under Article 20(3), Confessions, Criminal Law and the Constitution, Criminal Procedure