JUDICIAL ACTIVISM IN THE FIELD OF CRIMINAL LAW
By K. T. S. Tulsi,
is no doubt about the fact that criminal justice system in India, is in
shambles. While on the one hand, we have witnessed 294% and 431 % increase
respectively in the number of murders and rapes in the country, on the
other hand, we have to bear with steep decline in the rate of convictions.
In 1961, 20% of the persons arrested, were convicted. The rate has fallen
to 6.4% in 1994. Several legislative, executive and judicial measures
have been experimented with to stem the rot. The legislature has endeavoured
to tighten the screws on the food adulterators, corrupt public servants,
terrorists etc., by prescribing minimum sentence, stringent bails and
presumption of offences on proof of certain facts etc. None of these have
helped. In fact, the rate of convictions is still lower in case of offences
under the Special Acts. The executive has tried its best to avail of the
special legislative provisions like in TADA, but experience has shown
that stricter penal laws created a hue and cry against massive misuse
of the provisions at the hands of unscrupulous politicians and officials,
in whom the responsibility for enforcement of the special laws has necessarily
to be vested.
In the matter of innovation in dealing with the critical situation prevailing
in the field of criminal law, the judiciary has not lagged behind. Of
late, it has taken to direct monitoring of investigation, because even
orders directing transfer of investigation from one agency to another,
failed to inspire confidence amongst the public. Today there are hundreds
of petitions pending in the Supreme Court, and in various High Courts
in the country, where the Judges are undertaking the onerous task of scanning
through police diaries, scrutinising the statements made by the accused
in custody and guiding the direction which the investigation must pursue.
In this article it is my endeavour to examine whether the new-found activist
role adopted by the Supreme Court and the High Courts of venturing into
the field of investigation, is procedurally appropriate, constitutionally
permissible, judicially desirable and socially productive or not.
BACKGROUND OF PUBLIC INTEREST
The concept of judicial activism in the field of Public Interest Litigation
(PIL) was first proposed and tried in the United States of America, in
the sixties. Since then, it has undergone various changes and modifications,
but its net result has been dilution of strict requirements of locus standi.
The activist phase in the Commonwealth countries took the form of legal-aid
programmes. The seed of PIL in India was sown by Justice Krishna lyer,
in 1976, in the case of Mumbai Kamgar Sabha Vs. Abdulbhai
Faizullabhai - (1). Soon thereafter, PIL was defined by Justice
Bhagwati, in one of his articles entitled, "Social Action Litigation;
the Indian experience", in the following words :
"The judiciary has to play a vital and important role, not only in
preventing and remedying abuse and misuse of power, but also in eliminating
exploitation and injustice. For this purpose, it is necessary to make
procedural innovations...... The summit judiciary in India, keenly alive
to its social responsibility and accountability to the people of the country,
has liberated itself from the shackles of Western thought, made innovative
use of the power of judicial review, forged new tools, devised new methods
and fashioned new strategies. ......"
This opened the chapter of judicial activism in the judicial process.
For the first time, the term Public Interest Litigation was used in the
case of Fertilizer Corporation Kamgar Union Vs. Union
of India - (2) It was the phase of judicial activism, in which
the Supreme Court enlarged the scope of habeas corpus, making available
the fundamental rights of the prisoners (Sunil Batra Vs.
Delhi Administration - (3)) and enforcement of rights of inmates
of protective homes (Upendra Baxi. Vs. State of U.P. -
(4) yet it refrained from interfering in investigation of criminal
INTERFERENCE IN INVESTIGATION IN CRIMINAL OFFENCES
Right upto 1 992, in the case of Janata Dal Vs. H.S. Chaudhary
- (5), the Supreme Court endorsed the law
laid down by the Privy Council, that the statutory power of police to
investigate cognizable offences could not be interfered with by the courts,
(King Emperor Vs. Khawaja Nazir Ahmed - (5A))
and (Jehan Singh Vs. Delhi Administration -(6)).
The same view was endorsed by Justice Chandrachud in the case of Kurukshetra
University Vs. State of Haryana (7) and by Justice Desai, in State
of Bihar Vs. JAC Saldanha (8) where it was reiterated that investigation
of criminal offences, was a field exclusively reserved for the Executive,
through the police department, the superintendence over which, vested
in the State Government. This Court further held that the Court and judicial
process should not interfere at the stage of investigation.
In the case of State of Haryana Vs. Chaudhary Bhajan Lal
- (9) Justice Pandian laid down as follows:
"Investigation of offences is a field exclusively reserved
for police officers whose powers in that field are unfettered so long
as the power to investigate into the cognizable offences is legitimately
exercised.........the courts are not justified in obliterating the track
of investigation ....... The Magistrate is kept in the picture at all
stages of the police investigation but he is not authorised to interfere
with the actual investigation or to direct the police how that investigation
is to be conducted......"
Justice Sawant went a step further, in the case of Kekoo
J. Maneckji Vs. Union of India (10) and held that the law of this
country did not permit even the accused to control or interfere with the
collection of evidence. The Court approved the law laid down by the seven
Judges of Full Bench of the Allahabad High Court, in the case of Ram
Lal Yadav Vs. State of UP (11) that the power of the police to
investigate into a report is unfettered and cannot be interfered with,
by the High Court, in exercise of its inherent powers under section 482
of the Code of Criminal Procedure.
The question of maintainability of PIL, at the instance of third parties,
was sought to be given a given a quietus in the case of Janata
Dal - (5) Justice Pandian expressed his views strongly, when he
said "Even if there are a million questions of law, to be deeply
gone into and examined in a criminal case of this nature, registered against
specified accused person, it is for them and them alone, to raise all
such questions, and not for third parties, under the garb of public interest
This view was endorsed by Justice Ahmadi, in the case of Simranjit
Singh Mann Vs. Union of India - (12) and by Justice Verma, in
the case of Krishna Swami Vs. Union of India-(13)
THE ACTIVIST PHASE
The activist phase, in its present form, started from the necessity felt
by the Supreme Court, to secure impartial investigation into the allegations
of fake encounters, custodial deaths, and police torture. While initially
the Judges were content to direct inquiries by the local District and
Sessions Judges, subsequently in several cases, the Court directed investigation
by the CBI directly (Shiv Sagar Tiwari Vs. Union of India
(14), Punjab & Haryana High Court Bar Association
Vs. State of Punjab (15), Paramjit Kaur Vs. State of
Punjab (16), Ranieet Kaur Vs. State of Punjab (17),
PUCL Vs. U.O.I. (18)). Still the
Court did not interfere in investigation. The real activist phase, however,
started in April 1995, in the case of Vineet Narain -
(19),where Justice Verma held as follows :
advantageous not to hear the matter through, and issue a Writ of mandamus,
leaving it to the authorities, to comply with it, to keep the matter pending,
while investigations were being carried on, ensuring that this was done,
by monitoring them from time to time, and issuing orders in this behalf."
When inspite of monitoring by the Supreme Court, of several cases, a number
of accused were discharged by the High Court, the court, in the final
Judgment in Vineet Malayan, said that "either the investigation
or the prosecution or both, were lackin." ln another order, the
Supreme Court recorded "a scheme, giving the needed insulation
to the CBI or the Executive, is imperative." The justification
for this procedure was disinclination of the agencies to proceed with
the investigations, whenever someone powerful was suspected to be involved
in the offence.
There is no denial of the fact that the investigation and prosecution
of criminal offences is lackadaisical. Yet the question to be considered
is whether monitoring of investigation by Supreme Court or the High Courts
is the appropriate remedy. Apart from the fact that monitoring of investigation
invariably makes the judicial pyramid virtually stand on its head, it
has larger connotations. The foremost consideration is, as to whether
it is likely to result in denial of fair trial to the accused, and whether
it amounts to adoption of a procedure^which is unreasonable and is capable
of falling foul of Article 21.
Article 21 is a reflection of deep faith of the Constitution-makers in
the human rights. Personal liberty of a man is at the root of Article
21, and each expression seeks to enhance human dignity and its value.
The Constitution has recognised the existence of this right in every man.
It has not to be guaranteed or created. It inheres in everybody by birth.
This right has never been permitted to be curtailed by the Supreme Court.
If the State has been restrained from interfering in the freedom of life
and liberty, which has been considered literally and expansively, can
the judiciary itself take resort to a procedure, which is likely to create
hostile environment in the trial of offences, to be conducted by the courts,
subordinate to the Supreme Court or the High Courts? If the legislature
or the executive is not permitted to fiddle with this guarantee, will
the courts adopt a procedure which may cast a shadow on the brilliance
of the glorious content of Article 21 and discolour the fairness of procedure,
in accordance with which the accused is to be tried.
Another aspect of monitoring of investigation is that it is conducted
in the absence of the suspect or the accused, whose fate is ultimately
to be determined in the trial. Some of the Courts have afforded an opportunity
to hear the affected persons. But is that opportunity of hearing, not
an infringement of protection against self-incrimination under Article
20(3) If no-one can be considered to commit out of his own mouth, how
else will the accused place his viewpoint in front of the monitoring bench
in the High Courts or the Supreme Court? Privilege against self- incrimination
has been held to be a part of the right to life, which reflects one of
the foremost fundamental values of being unwilling to subject those suspected
of crime, to the cruel and inhuman treatment of self-accusation. The Supreme
Court has held time and again that this protection may be a shelter or
shield to the guilty, but its deprivation by the executive or the legislature
is unacceptable. What is unacceptable at the hands of the executive or
the legislature, cannot become tolerable or just and fair, at the hands
of the judiciary itself.
This procedure also raises the question of creating prejudice in the mind
of the courts against the accused, who is facing trial, pursuant to a
chargesheet filed at the instance of the monitoring bench because the
trial courts are expected to decide the guilt or innocence of the accused
without any bias towards one side or the other (Gullapalli
Nageswara Rao Vs. A.P. State Road Transport Corpn. - (20)).
'Bias', as a principle of natural justice, is determined from the point
of view of litigant. For ensuring the absence of bias, the Judge is not
to look at his own mind and ask himself, "Am I biased ?", but
to look at the mind of the parties before him. There should be no doubt
about the purity of the administration. Any person who is to take part
in it should not be in such a position that he might be suspected of being
biased. (Allinson Vs. General Council of Medical Education
and Registration - (21))
The Courts look at the impression which would be given
to the other people. Even if the Judges are impartial, if reasonable persons
would think that there was a real likelihood of bias, natural justice
is breached. Judges have to submerge their private feeling on every aspect
of the case, but the common man does not understand this (Metropolitan
Properties Co. (FGC) Ltd. Vs. Lannon - (22)): Public
Utilities Commission of the District of Columbia Vs. Pollak - (23)).
Pre-disposition to decide for or against one party, without proper
regard to the true merits of the dispute is bias. (Secy,
to Govt., Transport Deptt.. Vs. Munuswamv Mudaliar - (24))
Persons accused of offences, pursuant to monitoring by the superior judiciary,
may legitimately gain an impression that the trial court would be more
pre-disposed to decide against them, because the charge-sheet itself,
has had the approval of the higher courts.
On the question of bias, the Supreme Court itself, has held that it is
difficult to prove the mind of a person. Thus, what has to be seen is
whether there is a reasonable ground for believing that a Judge was likely
to have been biased. In deciding the question of bias, human probabilities
and an ordinary course of human conduct are taken into consideration.
Judges cannot function as computers, and bias invariably operates in a
subtle manner (G. Sarana (Dr) Vs. University of Lucknow
Authorities on the subject have oscillated from one extreme to the other,
and analysis of various cases of bias, shows that a rather slender element
in the mosaic of facts is capable of influencing the outcome of cases.
It is for this reason that the Supreme Court has followed the view of
Prof. S.A.De Smith, in his Judicial Review of Administrative Actions,
that there is a good reason for adopting a liberal view (Institute
of Chartered Accountants of India Vs. LK. Ratna - (26)).
Just as the Government cannot be a Judge in its own cause (G.M.
North East Frontier Rly. Vs. Dinabandhu Chakraborty - (27)). it
can create an impression as if the accused, whose case was monitored by
the Supreme Court or the High Court was oither investigated or prosecuted
by the judiciary.
In my view, whether this procedure violates Article 20 or 21 or not, in
any case, it is not effective. The experiment in one of the cases in which
this procedure was adopted by the Supreme Court has proved its futility.
The conventional wisdom, on account of which, the courts refrained from
interfering in investigation, was that the opinion of the Investigating
Officer was not binding upon the courts. Defects in investigation could
be rectified by the trial Judges, by summoning other persons, found to
be connected with the offences under section 319 of the Code of Criminal
Procedure. The dignity and honour of the Courts would be better preserved,
if they maintain the traditional distance from the Investigating agencies.
This is not to say that the investigation and prosecution is not required
to be geared up. Several steps are required to be taken to bring investigation
under the control of the District Attorney at the District level and Advocate-Generals,
at the state level. Apart from that, the concept of Independent Counsel,
as evolved in USA, is worth emulating.
In the end, it needs to be realised that investigation is a specialised
job, which has to be conducted in the field, by persons adept at it. Various
techniques and strategies are adopted by the Investigating Officer, and
the task of ascertainment of truth, is long, arduous and painful. The
Courts' continued insistence on modernisation of investigative techniques
and upgrading the tools of technology, by deploying scientific methods
of investigation, are the only means that may succeed in the long run.
Judicial monitoring of investigation is an aberration and the sooner it
ends, the better it is for the administration of criminal justice system.
- K.T.S. Tulsi
Sr. Advocate, Supreme Court of India
(1) 1976 (3) SCC 832 Back
(2) 1981 (1) SCC 568 Back to
(3) 1980 (3) SCC 488 Back to
(4) 1983 (2) SCC 308 Back to
(5) 1992 (4) SCC 305 Back
(5A) AIR 1944 PC 18 Back
(6) 1974 (4) SCC 522 Back
(7) 1977 (4) SCC 451 Back
(8) 1980(1) SCC 554 Back to
(9) 1992Supp(1)SCC335 Back
(10)1980 Cr.L.J. 258 (Bom) Back
(11) 1989 Cr.LJ. 1013 Back
(12) 1992 (4) SCC 653 Back
(13) 1992 (4) SCC 605 Back
(14) 1996 (6) SCC 558 Back to
(15) 1996 (4) SCC 742 Back to
(16) 1996 (7) SCC 20 Back to
(17) 1995 (2) SCALE 373 Back
(18) 1995 (2) SCALE 102 Back
(19) 1996 (2) SCC 199 Back to
(20)1959 Suppl SCR319 Back to
(21) (1894)1 QB750 Back to Article
QB577 Back to Article
(23) 343 US 451 Back to Article
(24)1988SuppSCC651 Back to Article
(25) 1976 (3) SCC 585 Back to Article
(26) 1986 (4) SCC 537 Back to Article
(27)1971 (3) SCC 883 Back to Article
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