The exercise of discretion by executive and judicial officers in the pre and post-trial stages within the criminal process must be regulated by Constitutional values if the discourse of rights is to have any meaning within our criminal justice system, writes ABHINAV SEKHRI.
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ON paper, the centrepiece of the Indian criminal process remains the criminal trial. The censure of being declared guilty of committing a crime (which is sanctioned through imprisonment) is permissible by way of the trial. How this trial will take place is catered for by two sprawling codes of criminal procedure and evidence.
The Criminal Procedure Code specifies that the purpose of investigations by police is to collect evidence for trials, and spells out various powers of officers to gather this evidence by way of investigations, not to mention detailed procedures on how to run the trial itself. The idea of what material might become ‘evidence’, with extensive rules detailing what is relevant and admissible for the court to consider, is the subject of the Evidence Act.
All available evidence shows that, outside of the books, trials are not the mainstay of the criminal process. It is all that happens around a trial which matters a great deal more for all concerned in the criminal process — arrest, bail, and the conditions of incarceration. Judicial delays at the trial courts have been rising consistently over the past three decades, at unimaginable levels, standing at over two crore cases now. Powers of arrest remain unchecked — frivolous arrests are encouraged to satiate political and other vested interests rather than to advance the aims of investigations. This combination has seen the share of under-trial prisoners in India’s prisons consistently rise and average at around 70 per cent today. And these overpopulated prisons have, barring some notable exceptions, been such a non-priority so as to render all aspirations of reformation illusory (to say the least).
So, if the Constitution did not specifically speak about arrests, through Articles 14 and 19, it did provide for some regulation.
What does this mean for constitutional regulation of the criminal process?
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Matters of design
This focus on the trial can be seen in the Constitution and its guarantees of individual rights. Part III rights, to the extent they pertain squarely to the criminal process, are all connected with the trial.
Article 20(1) proscribes double jeopardy, but only prohibits subsequent conviction and punishment and not a trial itself. Article 20(2) prohibits the imposition of retrospective penalties, again linked to the trial. Article 20(3) guarantees a right against compelled self-incrimination, which bears relevance (mainly) for excluding evidence at the trial. A trial-centric approach also describes how constitutional courts have, by and large, interpreted these clauses.
When we look for what the text of the Constitution has to say about the parts of the criminal process surrounding the trial — investigations and prisons, primarily — what we are met with is mostly silence. Article 22 provides some guarantees in respect of the pre-trial process: a right to be defended by counsel of choice, and to be produced before a magistrate within 24 hours of arrest. But that is all — it says nothing about the power of arrest itself, the right to bail, or limits to pre-trial detention. There is absolutely nothing in the text about prisons and punishment.
The Constituent Assembly Debates confirm that it was an active choice not to address more of the pre-trial or post-trial elements of the criminal process through the Constitution directly. It was contested bitterly at that time as well, and understandably so — abuse of arrest powers, lengthy pre-trial detention caused by no clear right to bail amidst mounting judicial delays, and overpopulated prisons, were all serious problems in 1950 itself.
Many members would have had personal experience of these problems, either on account of their professional commitments or having suffered arrest under colonial rule. Eschewing the notions of ‘Due Process’ at the time from the fundamental rights chapter during later stages of the drafting process was seen as ridding whatever indirect scope of regulation that might have subsisted after excision of specific rights against police powers during initial stages of the drafting process itself.
The concerns were not fully allayed, but the procedural, trial-centric fairness of Articles 20-22 in the Constitution of India was complemented by a more substantive notion of fairness imbibed by Articles 14 and 19. These clauses sought to create a zone of protected activity which neither the Parliament nor the executive could interfere with, and they created such a zone of protection with more precision than a vague due process notion as limits were engrafted within the text itself. So, if the Constitution did not specifically speak about arrests, through Articles 14 and 19, it did provide for some regulation.
Also read: Need for reform to avoid wrongful prosecution
Matters of choice
Design choices alone offer only a part of the picture – the Constitution is a living document and its text has been infused with meaning beyond its purported original intent through decades of litigation on its terms before the constitutional courts. The same is true for the criminal process.
The answer given by the Supreme Court was, predictably, deferential to the decisions of the legislature — if the law suggested that this decision would have to be made by the boots on the ground, then it was improper for the Court to question the wisdom of this choice and insert some fetters to the exercise of discretion by the police.
In the first decades of the Republic, the Supreme Court practically eliminated whatever potential was held by the fundamental freedoms guaranteed under Article 19 towards regulating the pre-trial and post-trial parts of the criminal process.
A broad reading of the exclusion clauses was arrived at in the very first constitutional case brought before the Supreme Court. The hearings, which was less than a year since the debates around the exclusion of due process, saw the Court swayed by the argument that the judiciary should not create arbitrary restrictions upon the powers of Parliament, and substitute its views for that of the legislature.
In respect of Article 19, the following issue arose: the limits to this fundamental freedom were crafted under the Constitution, allowing legislatures to frame laws which could curb protected acts so long as these were in the interests of achieving certain objects. Could the legislature delegate the task of determining when any conduct had crossed the line and was liable for sanction to the police and other executive officers? If so, then would this delegation require some checks and balances to secure fairness, or was wholesale devolution of powers permissible?
This question was critical to the criminal process even though it was not flagged as such. For much of the legislation curbing the exercise of fundamental freedoms under Article 19 took the shape of penal statutes which would be enforced by police officers. If this delegation required additional safeguards, it meant more curbs on police powers. If not, it meant that my freedom of speech was, in effect, subservient to what an officer viewed was within the realm of legality or not.
If you say I have a right to speedy trial, does it mean much if you do not clarify what might lead to a breach, and what relief a breach of this right might entail? If I have a right against arbitrary arrests, does that mean anything beyond what the statute already provided? It is not that big a surprise, then, to find that the number of undertrial prisoners has not dramatically dwindled since the Court recognised these guarantees were part of Article 21.
Who decided whether conduct had breached public order in the heat of the moment was, therefore, critical to determining the real-world impact of Article 19. The answer given by the Supreme Court was, predictably, deferential to the decisions of the legislature — if the law suggested that this decision would have to be made by the boots on the ground, then it was improper for the Court to question the wisdom of this choice and insert some fetters to the exercise of discretion by the police.
The Court actually went one better and reified the idea of conferring vast amounts of discretion with the police, reasoning that the various situations which an officer might face on ground that involve a breach of public order could not be spelt out and thus it was too hazardous to place any pre-emptive fetters upon police power. Ultimately, it was best for courts not to substitute their views for those of the legislature, and of the officers upon whom legislatures had delegated their powers to curb the fundamental freedoms of Article 19 as well.
If the conversation thus far appears to be focused on, largely, the pre-trial element, this is because the Supreme Court had declared that those in prison had no claim to Article 19 rights in the first place. Even if there was some conflict regarding this declaration, this is how it was understood by subsequent courts. Since there was no other dedicated source of constitutional regulation of prisons or punishment, exclusion of Article 19 from prisons meant that, for most parts, prisons were outside the constitutional conversation, beyond challenges on grounds of equal treatment or arbitrary transfers, among other things.
This dialling-down of Article 19 as a potential avenue for regulation was later followed by the judiciary conferring new meaning to areas of textual silence within the Constitution. The Supreme Court, through Article 21, recognised the pre-trial and post-trial phases as sites for constitutional rights adjudication. Arbitrary arrests infringed the fundamental right to life and personal liberty, as did an unfair investigation, an inordinately delayed trial, protracted pre-trial incarceration, and unfair treatment of prisoners through solitary confinement or by placing unnecessary fetters upon their person.
The expansion of Article 21 did not rewrite the old positions and the judiciary remained reticent to overturn precedent and place new fetters on the powers of legislature or the police. Nevertheless, the years since have certainly witnessed more litigation challenging statutes and police practices on the touchstones of due process, both from within Article 21 as well as the fundamental freedoms. More than once now, the Court has struck down statutes on these grounds, and has offered guidance on exercising police powers with a measure of restraint.
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‘Vibes’ not ‘rights’
We began with a question — what constitutional regulation is there of the criminal process to secure individual rights? The constitutional design suggests that the primary focus was trial-centric. Limits on the powers of legislature and executive to create and enforce criminal laws could be discerned in how the document earmarked zones of freedom through Article 19, and also a guarantee of equal treatment through Articles 14 and 15.
This purported original intent was interpreted rather differently by constitutional courts. It resulted in giving us a regime where today alongside the textual, trial-centric, regulation, we have some constitutional regulation of the pre-trial and post-trial elements by means of the broad remit of the fundamental right to life and personal liberty. That this ad-hoc regulatory tool of using Article 21 has not lived up to the task is evident from the statistics referred to at the start of this piece. Let’s now turn to understanding why.
While the Constitution remained silent on the rights of individuals in the pre-trial element of the criminal process, these issues were the subject of statutory regulation, primarily through the means of judicial supervision of executive action. A person aggrieved of arrest and subsequent custody could always challenge the arrest or seek bail, where a court would have adequate discretion to decide claims. One had to trust judges to exercise their discretionary powers judiciously. The lack of guidance in exercising this discretion naturally contributed to a measure of arbitrariness in outcomes. However, it was argued that one mustn’t bemoan this arbitrariness, but treat as a necessary cost of doing justice.
If we are willing to question the logic that courts will do the right thing, it becomes clear that regulating the pre-trial process, therefore, requires not only some fettering of police discretion but also some fettering of judicial discretion — thus, take back not only the power of arrest, but also that of arbitrary denial of bail. This offers a fulsome guarantee to an idea of rights in this space. How can this happen? It need not happen by placing any fetters on how courts decide bail. Rather, both objectives could be met by mandating a stricter scrutiny of the kinds of offences where arrest without warrant is possible and bail is not a matter of right.
A degree of seriousness is missing from the total lack of regulation on the scope of police powers and pre-trial custody, primarily because it is thought that courts retain some oversight to correct any injustice that might occur. But on closer look there is only a degree of difference between unbridled discretion to arrest by police, and the unbridled discretion to deny bail by courts.
It should be clear what going down this path entails — a clean break with earlier norms of excessive deference to legislative decisions and delegations of power, even if these resulted in a restriction in the sphere of individual rights. This is precisely what the Court chose not to do. Instead, what the Supreme Court has done in the guise of conferring ‘rights’ through Article 21, is not to call for stricter scrutiny of the unbounded discretion that is vested with police and courts, but to further entrench the role of discretion in the pre-trial and post-trial phases of the criminal process.
Article 21 does not confer rights, but benefits which are contingent upon this discretion. No remedies or limits are clearly identified for these chimerical rights, but instead it is left open for the court to do justice on its terms in each case, leading back to inconsistency and arbitrariness. If you say I have a right to speedy trial, does it mean much if you do not clarify what might lead to a breach, and what relief a breach of this right might entail? If I have a right against arbitrary arrests, does that mean anything beyond what the statute already provided? It is not that big a surprise, then, to find that the number of undertrial prisoners has not dramatically dwindled since the Court recognised these guarantees were part of Article 21.
Also read: From punishment to rehabilitation: The need for prison reforms
The elephant in the room
If we are serious about securing individual rights and improving regulation of the pre-trial and post-trial aspects of the criminal process, evidently its most relevant parts, then it is necessary to properly recognise and deal with the elephant in the room – an excessive deference to exercise of discretion, on all fronts.
The Constitution confers rights, but these are paper tigers, cowering before the opinion of a police constable who is given the broadest possible sphere of discretion to make this opinion. This is not specifically spelt out within the text but is a result of how the Supreme Court imagined the balance of powers to be in the 1950s.
That there is such a broad sphere of discretion is down to the broad remit conferred upon the Parliament to prescribe limits upon the fundamental freedoms in the first place. This starts with legislatures being allowed to frame penal statutes designed to purportedly secure the limits to Article 19 by simply copying the broad language of the constitutional text. It extends to the legislatures having unbridled powers to decide just which of these penal statutes will confer powers of arrest without warrant to police officers, with no concomitant right of bail to individuals, to enforce the mandate of these laws.
Again, it is not the Constitution which says that legislatures may pass such statutes, this is how constitutional courts have chosen to read the text. These choices are not cast in stone, and it would be foolish to treat them as such. Especially in the face of how Part III rights have fared for the most part over the last seventy years, suffering indiscriminate abuse at the hands of patently illegal exercises of discretion by the boots on the ground.
Last, but far from the least, is the unbridled discretion in respect of personal liberty that is wielded by courts. A degree of seriousness is missing from the total lack of regulation on the scope of police powers and pre-trial custody, primarily because it is thought that courts retain some oversight to correct any injustice that might occur. But on closer look there is only a degree of difference between unbridled discretion to arrest by police, and the unbridled discretion to deny bail by courts. Not to mention how the government, through reverse burdens in bail, is modelling this exercise of discretion to suit its ends across a variety of contexts.
This is no doubt a difficult conversation given the halo around judicial discretion. An easy solution to kill two birds with one stone still exists by way of stricter scrutiny of the contexts in which the power of arrest might be conferred to police without any concomitant right to bail. For instance, should there be stricter scrutiny of such offences where it entails curbs on Article 19?
If we are willing to entertain such a difficult conversation, and muster the requisite courage, then considering constitutional regulation of judicial decisions is on the cards. In theory, as someone recently reminded me, courts are also falling under Article 12. No regulation of the judiciary through Part III was not a matter of design, but a choice made by the judiciary itself. Perhaps, it may be time to revisit the soundness of that decision to secure the letter and spirit of the rights to equality, and to life and personal liberty.
Final word
This piece explained that the constitutional framework of individual rights regulates the criminal process as well as square pegs would fit in round holes. Even if we assume that in 1950 the trial was the focal point of the process, it is more than apparent that this no longer is the case in 2022. The exercise of discretion by executive and judicial officers outside the trial is what has come to bear most importance to the life and personal liberty which are imperilled by criminal law, and the existing constitutional framework provides paltry, if any, regulation of it.
If the discourse of rights, as against the discourse of trusting exercise of discretion by officers, is to have any meaning again in the criminal process, it requires the Constitution to shed its role of passive onlooker, and assume its rightful place at the heart of the criminal process in the Indian republic.
(Abhinav Sekhri is a lawyer practising in Delhi who focuses on criminal law and procedure. The views expressed are personal.)
