In the past few weeks, constitution benches of the Supreme Court have struck down Section 377 of the Indian Penal Code (IPC) (Navtej Singh Johar and Ors v Union of India 2018) and Section 497 of the IPC (Joseph Shine v Union of India 2018), partly upheld the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 and partly struck it down (K S Puttaswamy v Union of India 2018), and held that the rules in Kerala which prevented women from entering the Ayyappa temple at Sabarimala were unconstitutional (Indian Young Lawyers Association v State of Kerala 2018). These are important judgments that have tangibly advanced the cause of women’s rights, LGBTQ (Lesbian, gay, bisexual, transgender, and queer) rights, and the right to privacy, even if these are baby steps in relation to the larger causes. However, it would be a mistake to assume that these are the only kinds of cases that advance or diminish important civil and political rights in India. Less discussed are those judgments where the Supreme Court is interpreting criminal laws: the all-important trifecta of the IPC, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act, 1872.
Even though their origins lie in colonial rule, they do contain valuable legal rights for an accused in a trial and those facing state action. To the modern observer, it may seem odd that the Constitution of India does not explicitly enshrine some of the most important rights of an accused in a criminal trial: the right to be represented by a lawyer, the non-admissibility of extrajudicial confessions, the right to be confronted with charges, and the right to cross-examine witnesses or lead evidence. Rather, the rights guaranteed under Article 20 of the Constitution were already provided for in the then Code of Criminal Procedure, 1898, the Indian Evidence Act, and in English common law as applied to India.
Interestingly, the Constituent Assembly did debate whether there was a need to enshrine certain rights in respect of criminal trials in the Constitution itself. On the question of whether the right to cross-examine witnesses should be in the Constitution itself, B R Ambedkar does not think it necessary.
He said –“The right of cross-examination is already there in the Criminal Procedure Code and in the Evidence Act. Unless a provincial Government goes absolutely stark mad and takes away these provisions it is unnecessary to make any provision of that sort. Defending includes cross-examination … If you can give a single instance in India where the right of cross-examination has been taken away, I can understand it. I have not seen any such case.”
Thus far, Ambedkar’s expectations have not been belied, and even though the CrPC was revamped in 1974, none of the key rights of an accused in a trial have been taken away.
This does not mean that these rights are fixed forever in time or should be assumed to be fixed in the absence of legislation. Every day, these laws are being interpreted by the Supreme Court and the high courts, and are being applied by the trial courts in numerous ways, affecting the rights of the lakhs of people facing trial in the Indian criminal justice system. These judgments sometimes escape notice or at least do not enjoy the kind of exposure that constitution bench cases interpreting the Constitution do, but that does not diminish their importance. Sometimes, important civil rights may be won or lost in the most unlikely of cases; two recent examples are discussed here.
According to the Asian Centre for Human Rights, there were 1,674 custodial deaths in India between 1 April 2017 and 28 February 2018 (ACHR 2018). This is a figure that has risen over the years, notwithstanding the Supreme Court’s attempts in D K Basu v State of West Bengal (1997) and other cases to put an end to custodial torture and deaths. Very few police personnel face consequences for such deaths and it is, therefore, refreshingly surprising when the Supreme Court comes down as hard as possible in an instance of proven custodial death.
In Yashwant v State of Maharashtra (2018), the Supreme Court has, for the first time ever, enhanced the punishment awarded to nine policemen who had been convicted of causing a custodial death. These nine policemen had picked up an innocent man, Joinus Adams Yellamatti, under the guise of “investigating” a case, thrashed him in the police lock-up, and left him there overnight, only to find that he had died in the morning. Convicted by the trial court and the Bombay High Court, the nine policemen had been given relatively light sentences of three years of rigorous imprisonment each. When they still persisted with an appeal in the Supreme Court, not only did the Court dismiss their appeals, it enhanced their sentence to the maximum possible in this case, to seven years of rigorous imprisonment each.
Even though the events go back as far as 1993, the Court does not show any leniency towards the policemen, and its anger—at the way an entirely innocent man (whom the police knew was innocent and still wanted to frame him for an offence)—is palpable. The Court intends to send out a message. Far too often, courts have been happy to indulge in rhetoric on this matter without seeing it through with proper action and, for once, the Supreme Court has done the absolute right thing. One can only hope that rhetoric and law laid down in Yashwant v State of Maharashtra (2018) percolates their way downwards in the judicial system as custodial death cases work their way up.
In Mallikarjun Kodagali v State of Karnataka (2018) a three-judge bench of the Supreme Court was called upon to decide whether the victim of a crime had the statutory right to file an appeal in the High Court of Karnataka against the acquittal of those accused of attacking him.
The majority judgment, with Justice Madan B Lokur writing on behalf of himself and Justice Abdul Nazeer, decided two important points: one, that irrespective of when the complaint was made, so long as the trial court judgment was delivered after 2009 (when Section 372 of the CrPC was amended to allow victims to file an appeal), an appeal by a victim would be maintainable; and two, such an appeal did not need to seek the “leave” of the high court. In this way, the majority judgment harmonised the multiple contradictory views taken by division benches of high courts across the country on these two issues.
Justice Deepak Gupta, however, dissents only on one point: that an appeal should be allowed only with the leave of the high court. Looking at the text of the CrPC, he finds that Section 372 simply grants the right to appeal, but does not prescribe the procedure by which such an appeal is to be filed. For that, he looks at Section 378(3), which mandates that all appeals filed by the government against an acquittal must require leave of the high court, and, likewise, Section 378(4) insofar as appeals by a complainant are concerned. Hence, he concludes, there is no reason for the appeals filed by the victim to be on a different footing.
He offers another very important reason for interpreting Section 372 thus: that criminal law deems that all offences are offences against the state, no matter who the victim is, and that it is only in exceptional cases where the state fails that a victim may approach the court in a criminal case. Similarly, when it comes to appeal, an acquittal, he points out, strengthens and “fortifies” the presumption of innocence of the accused and that the criminal justice machinery should not be further used to keep the matter alive simply for the asking. He does not necessarily dispute the majority’s thinking that where the state may, for mala fide reasons, refuse to file further appeals, the victims should not be left remedy-less. Rather, he tries to strike a healthy balance which, in his view, would prevent criminal law from becoming a mechanism for revenge.
The two judgments try to address two of the failings of the criminal justice system. On the one hand, Justice Lokur finds that the victim of the crime is rendered voiceless and can sometimes be let down by a state that is captured by influential criminals. On the other, Justice Gupta is well aware that the malaise is not just with the state, but also with litigants who may use the criminal justice system to settle scores. Both have in mind a very different type of “victim:” one, a victim of the crime, and the other, the victim of the criminal justice system itself. It is hard to say exactly how the law should balance the interests of the two, but one cannot help but feel that Justice Gupta has struck a better balance than Justices Lokur and Nazeer.
Civil and political rights are not always fought over and debated upon in the Supreme Court or even in the high courts on a daily basis. It is not the writ petitions asking for the striking down of precolonial laws or post-independence ones that are necessarily the most important battles when it comes to guarding fundamental rights. Every time that an accused is produced before the magistrate, every time that a magistrate is called upon to decide on a question of bail, and every time that an accused fights to prove the absence of evidence, these are all small but significant battles in the larger war. Regrettably, instances of magistrates believing that they are mere rubber stamps of the state seem to be increasing, for example, the almost casual way in which transit remands were granted by magistrates in Delhi and Gurgaon when the Maharashtra police came knocking on the doors of activists accused of ludicrous charges in the Bhima Koregaon case (Jain 2018). It is a different matter that superior courts stepped in, in both cases, to remedy the obvious injustices, but it is a reminder that we cannot always take for granted that the first tier of the judiciary will necessarily do its job without fear or favour. If, however, the higher judiciary sets the tone, by understanding the implications of its judgments even in the most mundane of cases, perhaps, the message will get through.