Friday, December 8, 2023

Times of Stress & Distress

There is a constitutional right to speedy trial, but this often does not take place due to case overload in courts. The apex court needs to devise an effective policy on wrongful charging, prosecution and incarceration.

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By Prof Upendra Baxi

The times of stress (on institutions) and distress (for individuals) for civil and political human rights occur and recur in every constitutional democracy. The very text of the Indian Constitution embodies these times, some which are near permanent (like preventive detention and stringent security laws), and some which are transitional (like declarations of emergency and President’s Rule). There are a lot of in-between situations (like the 9th Schedule, where earlier laws which violated fundamental rights were immunised against a constitutional change, but which now can stay in the schedule only if the Supreme Court so decides). What is more, and worse, the times of distress (for individuals and groups) often do not even constitute times of stress for the dominant majorities, or public institutions.

Judicial review powers are designed to meliorate these times. There occur extraordinary times when constitutional miracles on a large scale get performed (like basic structure and essential features of the Constitution doctrine that ushers in limits to amendatory powers) and social action litigation which invents new forms of jurisdictional powers and new rights and remedies. Judicial and juridical everydayness, in contrast are the routine acts in which judicial powers are exercised  incrementally, without raising large questions concerning the scope and sway of parliamentary sovereignty or the limits of judicial review powers. The everyday judicial review responds to small acts of power that limit fundamental freedoms in small ways. Both the extraordinary moments and everyday administration of justice work together to produce a constitutionally desired order or organise its amnesia as when “reasonable” restrictions on basic rights and freedoms approved so far as to facilitate overweening regulation which crushes even residual rights and fundamental freedoms. Judicial powers reinforce both the pillars of regulation as well as those of emancipation. In this sense, the extraordinary and everyday invocations and deployments of judicial power decree a kind of political fate for citizens. Altogether, this is an  awesome set of powers that can do with a lot of  injection of justice!

In this everyday sense, Justices Mohan M Shantanagoudar and R. Subhash Reddy (March 8, 2021) articulated a superogatory “constitutional duty of this Court to quash criminal proceedings that   were instituted by misleading the court and abusing its processes of law, only with a view to harass the hapless litigants”. No doubt, such powers were articulated before: for example, in Rafiq Masih (2014)and Monika Kumar (2008).In the latter case, the Supreme Court asserted “inherent power to quash criminal proceedings where the proceedings are instituted with an oblique motive, or on manufactured evidence”. But in the former, it invoked Article 142 powers to do complete justice which “empowers us to give preference to equity and a justice oriented   approach over the strict rigours of procedural law”.

Conceptually, and historically, the two powers are different and distinct. The power to do complete justice is a constitutional power, while the inherent powers, provided by Section 482 of the Criminal Procedure Code, are statutory. Both militate against criminal proceedings “instituted after great delay, or with vengeful or malafide motives”. Both these may result in quashing of such motivated charges. But no court in India, excepting the apex court, has Article 142 powers. The power of quashing charges and prosecution dwells in other courts as inherent powers under the relevant law. Any amendment of the CrPC will not raise questions of basic structure because only the Supreme Court may decide the constitutional validity of legislative change under the amending Article 368.

What is, however, of compelling significance is not the nature of power but the question of application of mind (not acting mechanically and without due care, as the administrative lawyers would say). Affirming the earlier rulings on the “high degree of responsibility” upon the trial  judge, the Supreme Court avers that the judge “has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the   fullest extent, the powers conferred…”.

Where does this duty arise from? The Court says that the duty is derivable from Section 165 of the Indian Evidence Act,1872, which empowers the judge to “order production of material and put forth   questions of any form at any time”. It says that incidental “truth finding” powers in the Evidence Act mark the “influence of inquisitorial processes in our legal system”.This proposition may not be quite sustained by a close historical analysis of the common law administration of justice that India has adopted and subsequently developed.

A second proposition is that standards of fairness, developed in the sphere of administrative law doctrines, may not apply to the administration of criminal justice. It is eminently arguable that questions of life and liberty involving the determination of crime and punishment should be responded to only by the complete code of criminal law—the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act—and the standards andprinciples developed by the ever-changing flux of administrative law apply primality to the conduct of administrators and not justices administering criminal law. Indeed, it may be cogently maintained that the core standards of criminal law have influenced the later development of rule of law-oriented administrative law explosion.

It is incontestable to say that avoidance of abuse of judicial process is a paramount judicial duty of all courts in India. This duty is ingrained in the common law principles evolved over time and also arise out of the constitutional provisions and purpose.The present decision may be read as just saying this, despite its dwelling somewhat on the arcane details of “inherent powers” and Article 142 authorisation to do “complete justice”.

In any event, the judicial message pertaining to quashing of charges is stark and simple: judicial duty[1] requires that charge should not be framed casually or arbitrarily with partisan motives or results but with due diligence and responsibility by police, prosecution and the judiciary. Such diligence should be exercised by all at the start of criminal trial and  may not be left to the labyrinthine processes of appeal and cross appeals, which may in manifest situations eventually lead to quashing of charges by the appellate court. Fair trial conceptions developed by the apex court itself require that judicial officers scrupulously avoid judicial practices that comprise a “fly now, pay later” mentality. An important jural postulate of a civilised society is that prosecution shall never degenerate into persecution; this is happily now also a constitutional prescription.[2]

The salutary ruling in Pepsi Food (1998) is rightly underscored by the learned Justices. It held: “The order of the Magistrate summoning the   accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto”. Further: “It is not that the Magistrate is   a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the   truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed…”

Why is it that the magistrates do not follow these clear and cogent prescriptions? Is it the case that the Supreme Court arrives at quashing decisions without a careful scrutiny of facts which may justify the framing of the charge? After all, abdication of judicial duty is a very serious stricture. But the Court here dwelt with all the facts of the case and pointedly drew attention to the “the plight of a litigant caught in the cobweb of frivolous proceeding”.

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It quoted further from Subrata Roy Sahara (2014), which pointedly drew attention to “an innocent sufferer on the other side” of “every   irresponsible and senseless claim”. Such a person “suffers long drawn anxious periods of nervousness and restlessness …without any fault…” and “pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault”, spending “invaluable time briefing counsel and preparing   them”—time which could have been “spent at work, or with his family, is lost, for no fault” of the accused. Noting that “7 years hence”, there has “still been no reduction in such plight”, the Court further said that a “falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society”. The consequences are very serious as they entail the loss of “a part of …self”.

Although the factor of over-delayed judicial appointments at trial and appellate levels does not enter the realm of quashing charges, this too must form an aspect of due judicial diligence. In this context, I am reminded of a Patna High Court decision in Anurag Baitha (per Sandhawalia, N Singh, S Abidi JJ) which in early 1987,referred to  the “yawning gap” of three years between 1983 murder appeals which can only can be listed (barring the specially ordered cases) and “heard in the ordinary course”. Justice Sandhawalia was referring to the “inherent limitations or inability of the court of appeal in hearing and disposing of the substantive appeal within a reasonable time. What was then regarded as a “yawning gap” has now virtually become an abyss in judicial appointments.

The Court there valiantly confronted the question whether the “inherent justice of the law can permit incarceration of the appellant in jail even after conviction for an inordinately long period of time when he is ready and indeed insistent for the hearing of his appeal but the delay is caused by the Court’s own limitations”. As it put it “tersely and not mincing matters, the question is as to the appellant’s right vis-a-vis the court’s own default”. This was an appeal against conviction and denial of bail which the court was ill-equipped to hear. The epidemic of proverbial judicial delays has now turned into a veritable pandemic.

The Court recalled the apt observations of Justice O Chinnappa Reddy (in T.V. Vatheeswara, 1983): “Procedure established by law does not end with the pronouncement of sentence’ alone. It would indeed be no satisfaction to the citizen, if an illusory speedy trial is then hung up in the balance by an inordinately delayed appeal hanging perpetually over his head.” Here, the appellant was in jail for 13 years and 43 days; and the Bench referred to “horrifying” and “traumatic” experience” which resulted in a decision of acquittal of “a convict only to find that he has already undergone the maximum sentence on a capital charge or a substantial part thereof”.

One does not need to dilate further on the vicissitudes of the constitutional right to speedy trial caused by case overload in trial and appellate courts. But the apex court needs to devise an effective policy on wrongful charging, wrongful prosecution, and wrongful incarceration within the now accepted, but not constitutionally or socially acceptable, framework of over-delayed judicial appointments. Quashing decisions remain merely a tip of an iceberg; only a stringent regime of adequate compensation for this cascading series of wrongfulness will mark the beginnings of a much-needed  systematic judicial  overhaul.

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

[1]I have never tired of recommending one book(of little over 700 pages!) to national and state judicial  academies– ae painstaking analysis of judicial duty in the evolution of the common law by Phillip Hamburger, Law and Judicial Duty (Cambridge. Harvard University Press, 2008; also published India by the intrepid Universal Book Company, Delhi).

[2]See, Upendra Baxi, “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial’, Journal of Human Rights Commission, 18:1-22 (2020). I there develop ten jural postulates of administration of criminal justice for a well ordered society.

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