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By K. T. S. Tulsi, Senior Advocate

There 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.


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 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 litigants....."

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, 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 :

"It was 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 - (25)).

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
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(2) 1981 (1) SCC 568
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(3) 1980 (3) SCC 488
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(4) 1983 (2) SCC 308
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(5) 1992 (4) SCC 305
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(5A) AIR 1944 PC 18
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(6) 1974 (4) SCC 522
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(7) 1977 (4) SCC 451
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(8) 1980(1) SCC 554
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(9) 1992Supp(1)SCC335
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(10)1980 Cr.L.J. 258 (Bom)
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(11) 1989 Cr.LJ. 1013
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(12) 1992 (4) SCC 653
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(13) 1992 (4) SCC 605
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(14) 1996 (6) SCC 558
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(15) 1996 (4) SCC 742
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(16) 1996 (7) SCC 20
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(17) 1995 (2) SCALE 373
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(18) 1995 (2) SCALE 102
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(19) 1996 (2) SCC 199
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(20)1959 Suppl SCR319
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(21) (1894)1 QB750
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(22) (1969)1 QB577 Back to Article

(23) 343 US 451
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(25) 1976 (3) SCC 585
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(26) 1986 (4) SCC 537
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(27)1971 (3) SCC 883
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