Citation(2013) 25 SAcLJ 714
Date01 December 2013
Published date01 December 2013

A View from India

This essay offers an overview of how ideas of constitutionalism, rule of law and fundamental rights contributed to the development of criminal law in India. Various courts, and the Supreme Court in particular, have summoned these broad constitutional concepts to understand, interpret and develop criminal law doctrines. But they are also drawing on these concepts to increasingly address “structural” issues of the criminal justice system — the very apparatus responsible for implementing the doctrines.

I. Introduction

1 The Indian Penal Code 18601 (“IPC”), the Code of Criminal Procedure 19732 (“CrPC”) and the Indian Evidence Act 18723 (“IEA”) together make up the general law of crimes in India.4 Until 1950 these three pieces of legislation were also “supreme” in their respective fields.5 The inauguration of India's written Constitution with an entrenched Bill of Rights changed that. No longer the highest law, these colonial pieces of legislation had to meet the tests of constitutionality to remain valid thereafter. This essay explains how constitutional doctrines affected the development of criminal law and procedure in India. It has three main parts. The first part offers an overview of the constitutional provisions that have a direct bearing on the law of crimes, along with

some references to procedural and evidentiary rules. The second part is a discussion of select provisions of the IPC, and the constitutional challenges some of them endured. The third part offers a quick glimpse of some of the structural issues that plague India's criminal justice system, and the Supreme Court's increasing reliance on the idiom of human rights to address these matters.
II. Constitutional basics

2 The Constitution of India (“Constitution”) is relatively sparse on criminal law matters. Only three provisions — Arts 20, 21 and 22 — make general references to crime. Articles 20 and 21, at least textually, deal with “punitive detention”; Art 22 deals with “preventive detention”.6 The analysis in this essay is limited to doctrines of “ordinary” criminal law; the special category of preventive detention will therefore be avoided. Article 20 offers three distinct protections. Article 20(1) guarantees against ex post facto criminal laws (“[n]o person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a [greater] penalty”); Art 20(2) protects against double jeopardy (“[n]o person shall be prosecuted and punished for the same offence more than once”); and Art 20(3) incorporates the right against self-incrimination (“[n]o person accused of any offence shall be compelled to be a witness against himself”). Guarantees of such kind are frequently found in constitutional democracies, but their specifics often vary.

3 In India, the prohibition against ex post facto laws applies only against substantive criminal law. Persons cannot be convicted for acts that were not crimes on the date of their commission, but Art 20(1) does not create a vested right in any particular procedure.7 Nor does the provision apply to the retrospective operation of legislation that creates civil liabilities including deprivation of business permits, forfeiture of properties or cancellation of administrative orders.8 Also, the provision only bars additional or higher penalty; substituting a penalty for another, however, is not prohibited by Art 20(1).9 Similarly, the protection of Art 20(2) applies only after a person has been “prosecuted and punished” for an offence before a court or judicial tribunal.10 But when the ingredients of the offences in the previous and subsequent trials are

distinct, Art 20(2) has no application. In fact, a subsequent prosecution may emerge out of the same facts and the same complaint, but must engage with distinct ingredients. For example, an offence and a conspiracy to commit that offence, the Supreme Court has concluded, are sufficiently distinct.11 And as with the “civil liability” exception in Art 20(1), here too administrative actions — non-payment of increments, bar against promotion or dismissal on disciplinary grounds — do not count as “punishments”.12

4 In contrast to the relatively narrow reading of Arts 20(1) and 20(2), the Supreme Court has offered more expansive protections under Art 20(3). In Selvi v State of Karnataka13 (“Selvi”), the petitioner challenged the constitutionality of three investigative mechanisms — polygraph, narco analysis and brain mapping — as violative of the right against self-incrimination. After an exhaustive review of the science underlying these methods, leading US and other foreign decisions and references to relevant provisions of the CrPC and IEA, Chief Justice K G Balakrishnan concluded that the involuntary administration of these procedures violates Art 20(3). The guarantee against selfincrimination, he explained, exists first to ensure “reliability of the statements made by an accused”, and second, to “ensure that such statements are made voluntarily”.14“Accused” in this context has a non-technical meaning; a formal accusation or chargesheet is not a prerequisite.15 But to meaningfully protect the right without unduly impairing investigative efforts, the Chief Justice drew two distinctions. First, he distinguished between evidence that is intended for comparison with facts that are already known, and evidence that leads to the discovery of new facts relevant to an ongoing investigation. Second, he distinguished between “physical” evidence — blood, hair, sweat, semen, handwriting samples, etc— and “testimonial” evidence — including oral or written statements about the specific events, and psychiatric examinations. In keeping with earlier precedents, physical evidence, he concluded, may be compelled,16 but not testimonial evidence.17 In particular, he held that the three investigative techniques amounted to testimonial evidence, even though at least two of them (polygraph and brain mapping) involved only “physiological” responses.18 This is because such methods could produce “communicative” gestures that

could lead to new information, and potential charges.19 Perhaps the decision's importance lies in the fact that it draws attention to the underappreciated relationship between criminal procedure and fundamental rights, and in particular to the connection between investigative techniques and the right to fair trial.

5 The other provision on punitive detention — Art 21 — is more general. It states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. By a series of incremental interpretations in the 1970s, the Supreme Court lent new meaning to the provision. Two innovations were key to this. First, the meaning given to “life” expanded. It became the repository of wide ranging rights, many of which were directly linked to the administration of criminal justice.20 The right to life, Judge Bhagwati explained in Francis Mullin v Union Territory of Delhi,21 includes “the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms”.22 Lawful incarceration abridges some of them, but prisoners, he clarified, continue to enjoy other rights, including in the context of the immediate facts, the right “to have interviews with the members of his family and friends” subject to reasonable restrictions.23 Second, the State could no longer deprive persons of their life or personal liberty merely by prescribing “any” procedure. Procedures must have certain ethical — or moral — properties. And to meet the demands of Art 21, they must be “just, fair and reasonable”, not arbitrary or fanciful.24 These two innovations, taken together, created a “new” Art 21 which in due course had profound effects on the development of legal doctrines in India.

6 In fact, much of the early “newness” of Art 21 was explained in the context of criminal justice issues. In M H Hoskot v State of Maharashtra,25 the petitioner was convicted of forgery and served out his sentence. He later claimed that he was denied legal aid and therefore was unable to appeal his conviction. Relying on the Maneka Gandhi v Union of India26 reasoning, Judge V R Krishna Iyer concluded that the right to legal aid was a necessary aspect of the right to life and personal liberty.27 Lawyers' services are an “ingredient of fair procedure”, he said,

and making such services available is “the State's duty”.28 This was repeated in Hussainara Khatoon v Home Secretary.29 Judge Bhagwati clarified that “free legal service is an unalienable element of ‘reasonable, fair and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice”.30 The immediate facts of the case had to do with under-trial prisoners, some of whom had been detained for periods longer than their possible sentences. In that context, the court also clarified that the right to speedy trial was part of Art 21, and undue delay in clearing the docks amounted to a grave violation.31

7 A more general principle was laid down soon after in Sunil Batra v Delhi Administration.32 The petitioner was on death row, and had been kept in solitary confinement pursuant to s 30 of the Prison Act 1894.33 Rejecting the claim that such “men … are so desperate that they will commit more murders if facility offers itself ”, Judge Krishna Iyer concluded that while “the operation of Articles 14, 19 and 21 may be pared down for a prisoner”, they cannot be “puffed out altogether”.34 He read down the scope of that provision, adding that “if wars are too important to be left to the generals, surely prisoners' rights are too precious to be left to the jailors”.35“Freedom behind bars”, he...

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