THE crisis of legitimacy which assails the criminal justice system, the intolerance of violence introduced into the law by the women’s movement, and militancy and terrorism have together been at work redefining and giving new meaning to crime and punishment.

In a dramatic judicial moment in 1979 the Supreme Court acknowledged that ‘law had become… an instrument of injustice’ in which the poor are ‘helpless and despairing victims of the callousness of the legal and judicial systems.’¹ ‘The time has come,’ the court said, ‘when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy.’²

This outburst was provoked by an investigative report in a national daily showing that an alarmingly large number of men, women and children were incarcerated in Bihar prisons, not convicted but waiting for their trial to begin. They had spent long years in prison, and in some cases, the pre-trial detention exceeded the potential sentence that a conviction may have brought. There were those who continued to inhabit the jail because they did not have what it takes to avail of bail; there were women in ‘protective custody’ – a euphemism for those imprisoned because they were victims, or were needed as witnesses; there were children who accompanied the adults, especially women, into jail.

Some years later, another category of prisoner – the ‘non-criminal lunatic’ – was found within prison walls, with the criminal justice system treating prisons as ‘places of safe custody’. One had to wait till 1993 before the practice was outlawed.³ This blatant disregard of the primacy of personal liberty instigated early calls for fundamental changes to be brought in the law, legal process and the functioning of the criminal justice system.

In 1986, Justice Bhagwati in his Law Day address declared: The judiciary is on the verge of collapse. The backlog of cases, the inordinate delay in deciding matters before the courts, and the inevitable collapse of evidence in the time that it takes to reach trial and judgment has led to a decline in credibility. The corruption among the police, the prison system and the judicial process has done little to shore up the reputation of the system.

It is this background of inefficiency and overload, and erosion of faith in the capacity of the criminal justice system to deliver, which has prompted and influenced much of what has happened since in criminal law.

 

Criminal law is best understood as an instrument of control that the state uses against its citizens and other persons within its territory. This becomes apparent in the way a state defines an offence. One illustration of this axiom is the resistance of the state to enact enforced disappearances, fake encounters and genocide into the law. In contrast is the power the state has arrogated to itself through the Prevention of Terrorism Act 2002 (POTA) to declare an outfit as a ‘terrorist organisation’, impacting the potential to prosecute and outlaw. Since laws often get enacted in response to pressure from groups outside government, or to make a political statement, the difference that the law makes depends on how it gets enforced and used, reaching beyond its enactment. The Dowry (Prohibition) Act 1961 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 can be cited in explanation.

 

Over the past couple of decades, a hierarchy of offences have been institutionalised in law. It is instructive to identify the traits that mark the order in this hierarchy. The statement of severity may be found in:

* The punishment prescribed for the offence. The Terrorist and Disruptive Activities (Prevention) Act (1985 and 1987), POTA, the Narcotic Drugs and Psychotropic Substances (Prohibition) Act (NDPS) (1985 and 1989), kidnapping for ransom with a threat to cause death or hurt (1993), abetment of sati (1987) – all carry the death penalty as a potential sentence. Though in 1980 the Supreme Court had, after much deliberation, declared that the death sentence should be given only in the ‘rarest of rare cases’, yet the number of legislations that prescribe the death sentence has expanded so significantly that the death penalty has become commonplace in law.

In 1983, the Supreme Court had held that a mandatory sentence of death without room for the exercise of judicial discretion would be unconstitutional, being harsh, oppressive, unjust and arbitrary. S.303, IPC, which would punish murder by a convict under a sentence of imprisonment for life with a mandatory death sentence, was then struck down. Yet in 1989, the NDPS was amended to introduce a mandatory sentence of death for a repeat offender where the quantity of drugs was beyond the amount set out in the act. Since then, L.K. Advani and Chandrababu Naidu have severally promised to bring in the death sentence for the offence of rape as a demonstration of how horrendous they thought the crime to be. It was only when activists and feminists called the bluff on the hollowness of this promise – that could well be a threat – that the proposal was dropped. Dr Mashelkar and Sushma Swaraj then did their bit, demanding the death sentence to those adulterating drugs as a statement of how serious they thought that crime to be.

* The whittling away of basic rights. The right against self-incrimination is under threat from recent moves to amend the criminal law. The invasion of privacy, where a magistrate may permit a policeman to obtain ‘samples of handwriting, fingerprints, footprints, photographs, blood, saliva, semen, hair, voice of any accused person’ was first introduced in s.27 of POTA. It now finds itself routinised in the Criminal Procedure Code 1973 (Cr.PC) in its amended version in 2005. An ‘adverse inference’ – a legalistic way of saying that guilt may be presumed – will be the consequence of refusal to give samples. Medical practitioners too have been drawn into this net of coercive power, where they may be called upon to derive the samples. Note that the complicity of the medical profession has been presumed in the law though, of course, there is little evidence that the profession has even recognised, far less taken a position on, what ethics are required of practitioners in this situation. Similarly, the extraordinary power to intercept mail, telephone calls and communication is justified by the extraordinary nature of the crime. And as is likely, once it has served a spell as the extraordinary, it gets legislated into the normal and routine.

* The establishing of ‘special courts’. Designated courts were first set up under TADA. They were termed Special Courts in POTA. This classified treatment was intended to hasten the process of trial and punishment so that the purpose of deterrence was served, and the capacity of the state to deal with terrorism proven. Set up to try alleged ‘terrorists’ as part of the structure established to deal with terrorism, there is a clear tendency to believe accusations of terrorism that is found in the decisions of these special courts. It is difficult otherwise to explain the conviction and sentence handed down to the 26 accused in the Rajiv Gandhi assassination case: the Supreme Court acquitted 19 of them while confirming the conviction and sentence of death on four of the 26 accused. The NDPS Act introduced special courts for drug related offences so that ‘speedy trials and harsh punishments would help prevent and combat abuse of and illicit traffic in narcotic drugs.’⁴

* The impossibility of getting bail. TADA, NDPS and POTA have all enabled the state to hold people in prison for long years without bail once they are arrested under these laws. Matters had gotten so bad that the Supreme Court had to use the guise of interpretation to reduce the stringency of the law through a judgment in 1994, by which time the prison population had swelled with alleged drug offenders. The current position is that for offences under the NDPS Act, punishable with a maximum imprisonment up to 10 years, the accused may be released on bail if half the maximum sentence prescribed has already been served as pre-trial detention. Even though this constitutes a negation of the right to personal liberty, it does provide a pragmatic answer to some of the problems of an inefficient state. And unless struck down as unconstitutional, unlikely at the present moment, it will stay on the statute books.

When TADA lapsed because of sustained protests from the human rights community, the National Human Rights Commission (NHRC) and segments of the political classes, thousands who had already spent years in jail, continued to be detained, waiting for trials that never commenced. Though most were released in spurts and driblets, the occasional case has survived to trial, and death sentences and severe terms of imprisonment are sporadically meted out. The judicial philosophy underlying these punishments is unclear, overlaid on occasion with references to 9/11, decontextualising it from the time and motive of the crime being tried.

* The latitude in the definition of crime. Offences classed as ‘terrorist acts’ are indicative of this width of definition. For instance, being found in ‘unauthorised possession’ of arms or ammunition in a ‘notified area’ makes the accused guilty of a ‘terrorist act’ under TADA and POTA, even if such possession demonstrably has nothing to do with terrorism. Any person ‘who is a member of a terrorist gang or a terrorist organisation’ which is involved in terrorist acts, may be imprisoned for life. Knowledge or intention or volition is not relevant to constitute the offence, at least not by definition, despite this being an inversion of the principles of criminal law.

* Confessions to police officers being made admissible as evidence. The Evidence Act 1872 expressly excludes from the trial confessions made to police officers. The power that the police has over an arrested person, and the regularity with which torture is used, accounts for this distrust of such ‘confessions’. Sceptics who discount accounts of police torture as exaggerated, and torture itself as constituting the exception, only need to see the escalating figures of deaths in police custody reported to the NHRC year after year. In the 1994-95 Annual Report of the NHRC, for instance, 111 cases of deaths in police custody were reported. It was 136 cases in 1995-96, 188 in 1996-97, 193 in 1997-98 and 183 in 2002-03. This statistic of deaths in police custody is evidence of institutionalised deployment of custodial violence in ‘investigation’ and ‘solving’ of crime and should discredit any confession made to a police officer. Note that when the Supreme Court upheld the validity of TADA and endorsed the admission of confession to a police officer as evidence, it was still compelled to acknowledge that ‘day in and day out we come across…news of bloodcurdling incidents of police brutality and atrocities.’ Yet, in prioritising the crime, the validity of confession as evidence was left intact.

 

The proliferation of laws that authorise preventive detention is an integral part of this extraordinary landscape. These laws not only authorise executive detention but exempt executive authorities from the processes that hedge in arrest and detention in criminal cases, including the requirement that every person arrested be produced before a magistrate within 24 hours of being detained. This is, simply stated, a jurisdiction of suspicion, where apprehension about what a person is can lead to deprivation of liberty which may legally run for years. The ease with which such laws have been passed in state after state, and the range of activities that are included as threats to ‘public order’ warranting this extraordinary power, should take one’s breath away. Constitutionally sanctioned, this power has not been challenged successfully in the court, and hardly at all outside of it.

In contrast, domestic violence and dowry related violence had for long been relegated to the ‘private’ domain. Till the 1980s, rape, including custodial rape, had all too often found the victim woman implicitly arraigned in the trial as if she were an accomplice. The women’s movement had to work at bringing changes in the law, and these too have considerably altered the bases of criminal law. That these crimes against women are unlikely to have direct evidence, alongside the improbability of witnesses being present at the scene of the crime, seems to have influenced these developments in criminal law.

 

The crime of ‘dowry death’ is perhaps the most out-of-the-ordinary statutory construction of an offence. Where a woman dies of ‘burns or bodily injury that occurs otherwise than under normal circumstances within seven years of her marriage’, and if it is shown that she had been treated cruelly or harassed ‘by her husband or any relative of her husband for, or in connection with, any demand for dowry …such husband or relative shall be deemed to have caused her death.’

Criminal law is generally microscopic in its interest, that is, a criminal court is trained to concern itself with the act or omission which directly results in the offence that has been committed. Abetment, conspiracy and instigation are distinct offences – each of them determined in the context of a more direct, defined crime. Dowry death constitutes an exception to the rule. This is not about circumstantial evidence pointing to the commission of the crime. It is about the existence of circumstances – of harassment and demands for dowry – requiring the court to assume that a crime akin to murder, perhaps murder itself, has been committed. The shield that the privacy of the home provided to those committing murder within the home has been sought to be broken by this definition of ‘deemed offence’. Its impact on criminal law is yet to be reckoned.

The presumption raised in the law where dowry death occurs is also carried into cases where a woman commits suicide within seven years of marriage and there is evidence of cruelty. In 1983, the Evidence Act was amended to presume the absence of consent ‘where sexual intercourse by the accused is proved’ and the woman ‘states in her evidence before the court that she did not consent.’

The incapacity of the law to recognise and punish the violence practised on women even to the extent of causing death, and the inherently reduced possibilities of arriving at a conviction for the crime of rape, trivialised these offences within the criminal justice system. It was this that had the women’s movement battling to take the burden away from the women victims. True that this ‘presumption’ does not do away with the prosecution having to prove the offence, and the connection of the accused with the offence. But it does dilute the presumption of innocence.

When this shift in the onus of proof was first mooted in the early ’80s, legal scholar Lotika Sarkar cautioned that the state could well hijack this change in the law to arm itself with more power and control. TADA, POTA, and the Maharashtra Control of Organised Crime Act, 1999 suggest that that is indeed what happened. It is, however, moot that with the extraordinariness that the state allowed itself in making these laws, it did not need a precedent to fall back on.

 

The state has at one level responded to protest at the failure of the state to act when violence and violation visits women by making new laws. If Mathura (which, if not for the iconisation, should have been justly called ‘Tukaram and Ganpat’, the two convict-policemen in the case) led to amendments to the IPC to introduce the crime of custodial rape; ‘bride burning’ led to an enactment of the offence of ‘dowry death’; an anti-sati law was enacted after the Deorala episode, and so on. And in recognition of the gravity of the offence, they have been made cognisable, non-bailable and non-compoundable, such as with s.498-A. This, however, has had two distinct effects. One, it has resulted in a delegitimation of the everyday violence that women in fact experience in their homes, because of allegations of misuse of the law. Simultaneously, it has led to courts ‘compounding’ these offences, especially where closing the case becomes a part of the package that includes divorce. Neither of these consequences was beyond anticipation, but evidently it seemed more important to make a political statement to the women’s movement than focus on the details of the law itself. In the recasting of the law that is now being attempted, it would be important to keep deterrence and reparation in place. The Domestic Violence Act 2005 goes some distance in this direction, and could well be the complement s.498 A needs.

 

It is not only in the recognition of the definition of crimes against women, and in introducing presumptions, that the women’s movement has influenced criminal law. It is in sentencing too. The enactment of a ‘minimum sentence’, where a court has to give special reasons for sentencing a convict to less than the minimum, has become the standard in many of the laws that have been legislated in response to the demands of the women’s movement. There is now a new move. Jail manuals and executive instructions have increasingly decreed that persons convicted of certain offences will not be entitled to remission which is an integral aspect of the reformative theory in criminal jurisprudence.

In 2003, the Supreme Court upheld the constitutionality of a notification that ‘excluded such convicts (from remission) who had been convicted for the offences of rape, dowry death, abduction and murder of a child below 14 years, unnatural offences, robbery, persons sentenced under the NDPS Act, TADA, the Foreigners Act, the Passport Act, persons detained under the detention laws and convicts found guilty of violation of the jail manual.’⁵ Unfortunately, this has not been publicly debated, in fact is not even commonly known, especially since this is a jurisprudence that is locked away in the prison system and hardly ever reaches the courts.

 

In the last two decades, a combination of the collapse of the criminal justice system, terrorism and the legislated status of crime against women has produced extraordinary laws. There were other areas too in which the law shared the characteristic of these laws; yet they have been so hemmed in by briar, bramble and plain prejudice as to cast them into the cask of futility. For years, corruption was an offence occupying a place in the IPC. Since 1947, a separate law to try the offence of corruption has been on the statute books. In 1988, the offence of corruption was slipped out of the IPC altogether and the Prevention of Corruption Act was passed into law. The stated purpose was to ‘make the provisions more effective in combating corruption among public servants.’ Special judges, enhanced punishment, a rebuttable presumption that when a public servant accepts ‘gratification other than legal remuneration’ it is corruption, have all been built into the law, placing it among the extraordinary laws.

Yet the fortress of protection built up over the years – ever since the British law brought the ‘good faith’ clause to India where anything done by a public servant is to be presumed to have been done in good faith – has not been breached by this law. In keeping with this presumption of good faith, every prosecution requires the previous sanction of the government; therein lies the rub. The making of extraordinary laws, this law demonstrates, does not itself mean a prioritised offence or set of offences; the system must want to use the law to effect. Thus, unless sanction as a threshold requirement is renegotiated, the law can only amount to a tolerance of corruption.

The Scheduled Caste and Scheduled Tribe (Atrocities) Act 1989 is yet another instance of the prescription revealing priority, even as its working renders it nearly null. The technicalities of the law have assisted it into oblivion, at least in the first 15 years of its existence, but it is prejudice too that may need to be considered. Sample this: ‘In the instant case,’ the Rajasthan High Court said in 2000, ‘the only evidence is that the accused appellant Pappu Khan committed rape on Mst. Lakshmi knowing that she is a lady belonging to scheduled tribe, but there is no evidence that he committed rape on her for the reason that she belonged to a scheduled tribe. He raped her without prejudice of caste to which she belongs only to satisfy his sexual desire.’⁶

 

When cases are prosecuted under TADA, many extraordinary provisions, including allowing confessions to a police officer to be admitted as evidence, have been used even where it was found that the accused could not be found guilty of a TADA offence but only of a penal offence in ordinary law. Yet, when it is the matter of the rape of a woman belonging to a scheduled tribe, the court does not consider the logic of protection and deterrence that the Atrocities Act was meant to provide; nor does it acknowledge that the law was a response to the vulnerability that belonging to a caste or tribe brought with it.

 

This is where the law stands, wherever law has been enacted. After the Bhopal gas disaster in December 1984, it would appear that the case for recognising corporate criminality had been made. In recent years, however, it remains a struggle to find corporate crime in the penal code. In 2003, two judges of the Supreme Court found it difficult to punish corporations for serious crime: ‘If imprisonment is a mandatory sentence in law,’ they held, ‘an entity that cannot be imprisoned cannot be convicted of the offence. If fine is the sentence (and fine is generally an alternative punishment for the lesser crimes), then a corporation may be tried, convicted and sentenced for that crime.’ One judge demurred.⁷

The next year three judges reversed this ruling, holding that corporations can indeed be convicted even if the mandatory sentence of imprisonment cannot be imposed on them, and two judges dissented.⁸ The discomfort with serious crime being outside the law while the less severe finds place within the law, explains this reversal. In both cases, the dissent reveals discomfiture with adopting a ‘purposive construction’ to make up for the inadequacies of the law, especially criminal law. Parliament ought to have acted by now, but it has not.

In the meantime, the United Kingdom has attempted to legislate on ‘corporate manslaughter’ and international law is struggling to develop to hold corporations liable for their acts of omission and commission. In India, all we have managed is a decision stating that breach of regulatory laws like the Factories Act 1948, which deals with health, risk and safety, constitute ‘absolute offences’; unlike penal offences, it is not intention, mens rea or knowledge that counts, but the fact of the breach that constitutes the offence. It is for those in control within premises that harbour potential risk to prevent lapses, and the buck has to stop somewhere within the chain of authority to ensure that this happens.

The anti-Sikh riots and the Gujarat carnage have shown up the weaknesses of the law in dealing with mass crime. Indian criminal law traditionally focuses on the crime, and the individual perpetrator. Mass crime which is communal, stoked by religious or caste animosities or hate, finds no resonance in the law. Recent attempts outside the government at making law to deal with communally inspired riots have tended to replicate some of the prescriptions that the state has enacted into the extraordinary laws. Experience with these laws – the excess of power they invest in the state, the erosion of fair trial standards, and the potential for selective application where the state decides who to prosecute and with what seriousness – suggests that they may not hold the answers where mass crime is committed.

Casting off impunity, which the statute for the establishment of an International Criminal Court sought to do in international law, is not possible as the law stands, and state power, including its abuses, continues to be shielded by the law and its use. Defining the crime, identifying the criminal, and providing a punishment that is just and not merely retributive, requires thinking about criminal law to go beyond the contours that have been set by extraordinary laws.

 

Footnotes:

1. Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81 at 84.

2. Ibid.

3. Sheela Barse v. Union of India (1993) 4 SCC 204.

4. (1994) 6 SCC at 736.

5. State of Haryana v. Jai Singh (2003) 9 SCC 114.

6. Pappu Khan v. State of Rajasthan (2000) 1 Rajasthan Law Weekly 551.

7. Asst.Commr., Assessementt (II)v. Velliappa Textiles (2003) 11 SCC 405.

8. ANZ Grindlays Bank v. Directorate of Enforcement (2004) 6 SCC 531.