Editor 2 – P39A Criminal Law Blog

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Editor 2 — Mon, 18 Aug 2025 17:18:22 +0000

Lakshmi

Snehal

The Prevention of Money Laundering Act (‘the Act’) was enacted in 2002 in accordance with India’s obligation to its international commitments to tackle the global problem of money-laundering. The main aim of the act is to prevent money-laundering by laying down special procedures for investigation, different from those provided under the Code of Criminal Procedure, 1973. As per the Act, the offence of money-laundering, requires the existence of a predicate offence and projection of tainted property earned from the proceeds of crime of a predicate offence, as untainted property. The scope of predicate offence has increased manifold, and currently from a list of 6 legislations, the list of predicate offence has increased to 30 legislations including offences under the Copyright Act and Trademarks Act. The Act also provides extensive powers of arrest and investigation to the Enforcement Directorate (a financial investigation agency under the Department of Revenue).

The earliest case challenging the provisions of the Act dates back to 2014, when the director of Zoom Developers Pvt Ltd, Vijay Madanlal Choudhary, challenged certain provisions of the Act. Subsequently, around 200 petitioners filed around 80 petitions challenging various provisions of the Act. In the beginning of 2022, the Supreme Court’s bench comprising Justice AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard the challenge on a day-to-day basis for almost a month and reserved it for judgment. Currently, the judgment in all these petitions is awaited, and expected to be pronounced tomorrow before the date of retirement of Justice AM Khanwilkar from the Supreme Court.

In this article, we have identified key issues which arise from the challenge and their implications for the criminal justice system at large.

1. Regime of Special Statutes

One of the definitional and preliminary challenges raised against the Act is its broad scope, insofar as the Schedule of the Act has been amended over the years to include a variety of offences as a ‘predicate offence’. In the context of money laundering, a ‘predicate offence’ refers to an act, criminalized under any other legislation, from which proceeds are generated. Use, possession, and / or concealment (i.e. ‘laundering’ of money) of the proceeds generated from such predicate offences then becomes the subject of the impugned Act.

The Schedule to the Act currently lists a wide variety of offences as ‘predicate offences’, ranging from the serious (crimes related to narcotics trade, terrorism, explosive substances) to the more mundane (offences relating to copyrights, trademarks, and environmental pollution). This list has been challenged as being ‘overtly broad’, and a deviation from the original intent of the Act to combat proceeds arising from narcotics trade and organized crime. The crucial question, expected to be settled by the Court now, is the exceptional procedure to which any and all sorts of crimes are now being subjected.

The expansion of the Act is not an anomaly but fits well within the pattern of special criminal legislations that have come to populate the Indian criminal justice system. With almost any criminal issue that captures the national imagination, the inevitable State response is to enact a special statute to deal with the same, such as the POTA or POCSO. Little to no penological justification is given for the necessity of a special statute, which has the consequence of diluting procedural safeguards assured to an accused under the CrPC. The ubiquitous defence for removing safeguards has been two-pronged: (a) the ‘exceptional’ or ‘unique’ threat posed to the nation or its sovereignty by such offences cannot be combated by general criminal law; and (b) the exceptional procedure of such legislations has narrow scope and application.

Judicial recognition of the ‘exceptionalism’ of offence that underlies special criminal statutes was granted in the limited context of terror offences in 1994. With the abundance of special laws however, one may begin to question if the dilution of safeguards is actually exceptional or has become the new normal. This era, in some ways, reached its epitome in the amendment of the Act in 2013, whereby a whole range of predicate offences (irrespective of their severity) are subjected to the diluted procedural safeguards within the Act.

The State, as it has argued in the present proceedings, may possess the prerogative to criminalise and develop special procedures for offences as it deems fit. However, with questions being raised regarding the extent to which such ‘exceptionalism’ and its associated dilution of safeguards can be stretched, the ball is squarely in the Supreme Court.

2. Presumption of Innocence

One of the core principles of any criminal justice system is the ‘presumption of innocence’. Although its position in the context of the Indian constitutional scheme remains inconsistent (while some courts have recognized it as a fundamental right rooted in Article 21, other courts have merely recognized it as a human right), it threads through various aspects of the criminal procedure. Two important ways in which this right is asserted are: (a) bail; and (b) burden of proof.

Prior to conviction, bail secures the freedom of the accused who is presumed to be innocent. ‘Bail, not jail’, the pithy rule laid down by Justice Krishna Iyer, is the basic rule for investigations. The raison d’etre for this rule is that an accused is innocent until proven guilty, and thus, the deprivation of liberty that occurs by way of pre-trial detention may not be imposed, with certain exceptions where the accused is likely to abscond or interfere with the criminal investigations. Similarly, the burden of proving the guilt of an accused is put squarely upon the prosecution in ordinary criminal trials, as even during trial a person is presumed to be innocent.

With special statutes, the presumption of innocence is subverted. On the one hand, onerous conditions requiring one to prove their innocence are imposed on bail, and on the other hand, the burden of proof is reversed by placing the onus on the accused to prove their innocence during trial. Over the course of decades and multiple challenges along these lines, the Supreme Court has upheld the constitutionality of onerous conditions for bail in view of the gravity of offences charged, and similarly condoned reversal of burden clauses provided it is triggered after ‘foundational facts’ have been proved by the prosecution.

In the context of the Act specifically, however, it has been argued that presumption of innocence has been entirely inverted, and instead, a regime of ‘punishment by process’ has been incorporated. In proceedings initiated by the ED, an accused is often put in jail before the trial, and no material beyond vague ‘grounds of arrest’ is supplied to them. In such a situation, the accused is expected to participate in a pre-trial trial and prove their innocence against unknown enemies. The petitioners have additionally argued that the trial proceedings are similarly biased against the accused, as the ED is not even required to establish ‘foundational facts’.

The idea of ‘punishment by process’ is antithetical to the presumption of innocence, but is acknowledged often as an inevitable by-product of an inefficacious and overburdened system. With the Act, however, it appears to be a stated objective. The State has specifically argued that the onerous conditions are necessary in order to deter the commission of money-laundering. Using deterrence as a reason for depriving the liberty of a person whose guilt has not yet been adjudicated, blurs the line between innocence and guilt: pre-trial detention itself becomes the punishment rather than a necessity created for the needs of investigation or a fair trial.

The Supreme Court is now expected to adjudicate on the acceptance of ‘punishment by process’ before the trial, and the reversal of burden of proof without requirement of proving foundational facts. The dictum on these issues will have consequences for how far a criminal justice system can devalue the presumption of innocence, and still maintain a just, fair, and reasonable procedure.

3. Arbitrariness of Power Exercised by the State

Another important issue which the Supreme Court is seized with is – the nature and scope of the powers exercised by the Enforcement Directorate (ED). The power to investigate the offence of money-laundering is entrusted to the ED. The State argued that ED is bound by the procedure laid down under the Act and not the Code of Criminal Procedure (u/s 65). The procedures laid down in the act in relation to commencement of investigation, arrest, summons search and seizure, attachment of property etc. are in stark contrast to the procedure laid down in the Code of Criminal Procedure (CrPC). While providing the police wide powers to investigate, CrPC also provides sufficient safeguards to balance the rights of an accused person against the actions of the State.

An investigation under the Act commences at the time an Enforcement Case Information Report (ECIR) is registered. Even though the ECIR is akin to the FIR in content, a person accused of an offence under the Act is not provided a copy of the ECIR at the time of investigation. The Petitioners argued that since the individual’s liberty is at stake once an ECIR is registered, necessary safeguards should be made available to him by providing information regarding the allegations against him. Additionally, due to non-availability of the ECIR, an individual is not aware of whether he is in the character of a witness or an accused person when he is summoned u/s 50 of the Act and this in turn violates his right against self-incrimination in cases where he is compelled to provide incriminating statements.

The Petitioners argued that the Act has completely done away with the procedure of Magisterial oversight at the time of search, seizure and investigation. The main object for Magisterial oversight is to check the powers of the investigating agency. By doing away with Magisterial oversight, the ED is provided with extensive and unchecked power to investigate as per its subjective satisfaction.

Such extensive and arbitrary powers provided to the Enforcement Directorate is justified by the State by arguing that the offence of money-laundering is a sophisticated and grave offence having far-reaching implications on the country’s economy.

The Supreme Court vide the present challenge will have to assess whether such deviation in procedural safeguards envisaged by the Act and justified by the State warrants curtailment of individual’s right of liberty and fair investigation to such an extent.

Conclusion

In the last ten years, the ED has recorded almost 5500 cases under the Act and more than Rs. 1,00,000 crores worth of property has been attached. On the other hand, only twenty three persons have been convicted under the Act since the ED took jurisdiction. These statistics form the backdrop in which the Supreme Court must balance the rights of an individual accused of money laundering and the threats posed by money laundering to the economy of the country.

As we await the verdict of the Supreme Court on the standards of proportionality of and excessive State encroachments into individual rights in the context of the Act, it is inevitable that the final holding will have serious consequences for the operation of the penal institution in India above and beyond mere money-laundering.

Justice in the Digital Age

Editor 2 — Mon, 18 Aug 2025 17:05:36 +0000

Arnav

INTRODUCTION

The current era is characterised by a technological revolution, pervasively impacting every facet of our lives. It has granted us unfettered access to information and facilitated social connectivity. However, this rapid technological progress has engendered newfound challenges for the legal world, particularly concerning cybercrimes, such as the Non-Consensual Dissemination Of Intimate Images (NCII).

This paper aims to establish a precise and comprehensive definition for the criminal act that accurately depicts the nature and severity of the offense. In doing so, it scrutinizes the use of the term “revenge porn” as an informal definition and highlights its inadequacy. Furthermore, the paper argues for the adoption of the term NCII as the preferred means of defining this crime, while emphasizing the need to draft a specific provision that considers its unique characteristics.

Next, the paper analyses the legal framework of India and compares it with other jurisdictions to understand the diverse approaches adopted to tackle this crime. The digital triad comprising the Right to privacy, Right to be forgotten, and NCII is also examined.

Finally, the paper sheds light on various considerations that must be taken before drafting a specific provision for NCII, emphasising a victim-centric approach.

The primary objective of this paper is to raise awareness and advocate for reform in the criminal justice system to address and tackle NCII, specifically focusing on adults.

RETHINKING REVENGE PORN: WHY THE LABEL FALLS SHORT

Anti ‘revenge porn’ advocates propose replacing the term ‘revenge porn’ with a more intricate terminology. Before advancing this argument, it is crucial to decode the term ‘revenge porn.’

THE ILLUSION OF ‘REVENGE’

Using the term ‘revenge’ implies that the victim has committed an offence or an act that warrants retribution. However, this assumption is frequently unfounded, as individuals who disseminate intimate imagery may do so for various motives, such as financial gain, voyeuristic tendencies, or the desire to exert dominance.

Individuals engage in the NCII to gain power, known as a ‘logic of outing,’ hidden behind the veil of vengeance. Social norms that blame the victim, especially women, create a permissive atmosphere that allows individuals to indulge in ‘outing’ without guilt leading to physical, psychological, and economic harm.

THE INACCURACY OF ‘PORN’

The term ‘Porn’ in the nomenclature is misleading and problematic regarding both the true meaning of ‘pornography’ and the crime itself. Employing the term ‘pornography’ in the context of non-consensual creation, distribution, and consumption of intimate imagery can inadvertently implicitly endorse such acts. Furthermore, it could lead to unjustifiable inferences, where all ‘porn’ is categorised as ‘non-consensual,’ thereby tarnishing the reputation of legitimate pornography.

The conflation of private visual material with publicly available content engenders a perilous blurring of the boundary between reality and fiction for viewers. They cannot differentiate between genuine scripted scenes and non-consensual intimate imagery. In addition, viewers are often ignorant of whether the individuals portrayed in the visual material have consented to be recorded and distributed.

Another implication of the ‘Porn’ tag is that it perpetuates the acceptance of its consumption. Mary Anne Franks has noted that society has devolved into a culture of ‘Peeping Toms,’ where individuals can indulge in their most extreme fantasies without regard for the consent of the individuals being watched. Such terminology could endorse the consumption of intimate imagery created and disseminated without consent unlike legitimate consensual pornography, a recognised industry and profession in various parts of the world.

THE LINGERING EFFECTS OF LANGUAGE

The consequences of the misnomer and inaccurate labelling extend beyond the theoretical realm, having tangible impacts on the victims of the crime.

The term ‘revenge’ ingrains a punitive mindset in law enforcement authorities, often blaming the victim for allowing themselves to be filmed. The continued use of victim-blaming terminologies in mainstream media has developed public awareness campaigns advising women not to share intimate content altogether, which, in turn, further perpetuates the victim-blaming culture. The mere threat of their intimate images being leaked involves many people curtailing their online activity.

Moreover, by oversimplifying a complex spectrum of harms, the term ‘revenge porn’ has led to the creation of narrow legislation that focuses exclusively on the vengeful motives of the perpetrator rather than the issue of consent.

In essence, the terminology we use has the potential to either obfuscate or elucidate the issue at hand. In this case, the continued use of the term ‘revenge porn’ has led to a limited understanding of the various harm inflicted upon victims, resulting in ineffective legal and social responses. Therefore, it is crucial to adopt a more nuanced terminology that acknowledges the multifaceted nature of this crime and prioritises consent.

BEYOND ‘REVENGE PORN’: PROPOSING A MORE ACCURATE TERM

This article proposes to adopt a different approach to address the semantic inadequacies of ‘revenge porn’ by furthering the lexicon of ‘Non-consensual Dissemination of Intimate Images’ (NCII). For the purpose of this piece, the understanding of NCII is limited to adults only.

This term captures the essence of the crime comprehensively, providing a nuanced understanding of the grave consequences of the crime. The terminology has several salient features distinguishing it from the problematic ‘revenge porn’.

Firstly, the term ‘non-consensual’ is a necessary reminder that the central issue is the lack of consent rather than the content itself. This avoids stigma and victim blaming attached to sharing intimate images

Secondly, the word ‘dissemination’ covers a broader range of activities, such as publishing, transmitting, conveying, or publicly sharing an individual’s intimate image or video without their consent.

Finally, the term ‘intimate images’ is broad enough to encompass various forms of visual material taken in a private/public setting.

Therefore, the adoption of NCII provides a paradigm shift in the legal and social understanding, providing a more accurate and comprehensive way to address the harms experienced by survivors of this crime. This terminology can aid in developing more inclusive and effective laws to prevent, punish, and redress NCII while reducing the stigma and victim-blaming.

EXAMINING THE LEGAL LANDSCAPE
INDIAN PENAL CODE

§292 IPC deals with selling, letting to hire, distributing, publicly exhibiting, or putting into obscene circulation materials; however, this section fails to address the electronic means of dissemination and, more importantly, the violation of privacy and dignity of the victim, which is a crucial aspect of NCII.

§354C IPC deals specifically with voyeurism, which includes “private acts” that show a victim’s private body parts. However, it does not explicitly mention publishing, conveying, morphing, or transferring pictures of women, which are integral elements of NCII. Moreover, §354C of the IPC is gendered in its application. It limits its scope to male offenders and female victims, similar to §4 and §6 of the Indecent Representation of Women (Prohibition) Act, 1986.

§499 IPC defines the act of defamation as a person intending to harm or having a reason to believe the same would harm an individual’s reputation or character. The offence of defamation focuses on the harm caused to an individual’s reputation. However, the harm caused by NCII goes beyond mere reputational harm and includes emotional distress, violation of privacy, and harm to personal and professional relationships.

§509 IPC punishes those who insult a woman’s modesty by using words, gestures, objects, or intruding upon her privacy. However, NCII involves the non-consensual creation, distribution, or publication of intimate images, which goes beyond the scope of insults to modesty. Additionally, it is limited to cases involving women as victims, whereas NCII can affect individuals of any gender.

INFORMATION TECHNOLOGY ACT

§66E IT Act penalises transmitting images depicting a person’s private areas, defined as “the naked or undergarment-clad genitals, pubic area, buttocks, or female breast.” Although this provision is gender-neutral and covers aspects of NCII, its narrow definition of “private areas” could limit its applicability in cases where the victim is captured in an intimate position without showing those particular areas.

§67A IT Act punishes publishing or transmitting “material containing sexually explicit acts, in electronic form,” which could effectively penalise perpetrators. However, this section could also lead to the possible prosecution of the victim, who may have voluntarily taken the pictures or videos and sent them to their partners, a situation commonly observed in NCII cases. This inherent contradiction in the current legal system when addressing NCII is problematic since the same section the victim relies on to obtain legal relief could be used to prosecute them.

CASE LAWS

State of West Bengal v. Animesh Boxi is the first case of NCII in India. After their relationship ended, Animesh Boxi was found guilty of distributing intimate images and clips of his ex-partner without her consent. The Court sentenced Boxi to imprisonment and called the victim a ‘rape survivor.’

The case highlighted the need for a victim-centric approach to NCII, similar to that adopted in cases of sexual violence. The ‘rape survivor’ tag for appropriate compensation was not an ideal solution and echoed a call for a more comprehensive legal framework.

Subhranshu Rout v. The State of Odisha involved a refusal to grant bail to the perpetrator of NCII, with the Court making clear its view that permitting such objectionable material to remain on social media without the victim’s consent constituted a direct affront to a woman’s modesty and Right to privacy. Additionally, the Court emphasised the importance of the “Right to be Forgotten” in the context of privacy rights, noting that permanently deleting photos from servers was crucial to protecting these rights.

Therefore, Indian laws contain several provisions that could address specific NCII aspects, but as analysed above the provisions fall short of comprehensively protecting victims from this heinous crime.

THE DIGITAL TRIAD: THE INTERLINKAGES OF RIGHT TO PRIVACY, RIGHT TO BE FORGOTTEN, AND NCII

In KS Puttuswamy v Union of India, the Supreme Court of India affirmed the fundamental Right to privacy, stating that an individual’s Right to control their data is encompassed by the Right to control their own life, including their presence on the internet. This landmark decision laid the groundwork for the recognition of the Right to be Forgotten, as individuals are entitled to privacy and can choose the publicly available information about them. While no formal legislation in India explicitly recognises this Right, the judicial precedent has paved the way for its acceptance.

Notably, the Indian government has recently proposed the Personal Data Protection Bill, which seeks to give citizens greater autonomy over their data. The Bill reflects the principles underlying the EU’s General Data Protection Regulation and aims to establish a framework for protecting personal data, including the Right to be forgotten.

NCII directly relates to the Right to Privacy and the Right to be Forgotten. It violates an individual’s Right to privacy and autonomy, as their intimate images are circulated without consent. The recognition of the Right to Privacy as a fundamental right in India has opened up possibilities for victims of NCII to seek legal recourse and claim compensation for the harm caused.

GLOBAL OUTLOOK

In the UK, Section 33 of the Criminal Justice and Courts Act 2015 carries a maximum sentence of two years imprisonment. In Australia, each state and territory has introduced similar laws. Scotland’s Abusive Behaviour and Sexual Harm Act 2016 also criminalises the disclosure or threat of disclosure of such images. The Films and Publications Amendment Act 11 of 2019 in Africa makes revenge porn illegal, with violators facing fines and imprisonment. Israel’s Prevention of Sexual Harassment Act prosecutes offenders as sex offenders and recognises victims as sexual assault victims. The Philippines’ Anti-Photo and Video Voyeurism Act of 2009 punish photo and video voyeurism with imprisonment and fines.

A global wave of legislation has emerged, aiming to tackle the pernicious issue of NCII in various forms. Therefore, it is imperative to establish a precise and distinct definition for NCII in India and to update existing laws to address this problem effectively. This will equip prosecutors with a more precise and cogent legal framework, heightening the probability of securing successful convictions against offenders and ultimately ensuring justice for victims.

CLOSING THE LEGAL LOOPHOLE: ENSHRINING PROTECTION AGAINST NCII
FACTORS

Drafting a provision to criminalise the disclosure of NCII requires careful consideration of several factors:

The provision must explicitly outline the elements of the offence, including knowing disclosure without consent.
It should not be overly broad or narrow, and exceptions should be included for specific scenarios.
The law must apply to all individuals, not just current or former partners.
There should be provisions for removing NCII from online platforms, and appropriate sentencing guidelines should be established.
In determining the appropriate punishment for NCII, reviewing provisions from various jurisdictions and establishing minimum and maximum sentences and fines is vital. It is crucial to ensure that perpetrators are held accountable while avoiding overly punitive measures that could discourage victims from reporting the crime.
PROPOSED PROVISION

The following provision can be included in Chapter XVI of the Indian Penal Code as S.354E, which may be inserted after S.354D (stalking)

Any person who publishes, transmits, conveys, or publicly shares an intimate image or video, through any mode of communication, of an individual without their consent with the intent to cause harm and with knowledge or belief that such action is likely to cause harm, shall be guilty of the offence of ‘Non-consensual Dissemination of Intimate Images.’
Upon conviction, the perpetrator shall be subject to imprisonment for a term of not less than one year but may extend up to three years and shall be liable to pay a fine of not less than one lakh rupees and reasonable compensation to the victim and may order the perpetrator to perform community service.
In addition, the perpetrator must remove offensive content from all digital platforms. The investigating officer shall immediately contact the relevant platform to remove the content upon being informed of the offence by the victim or anyone on their behalf.
This section does not apply to (1) Images involving voluntary exposure in public or commercial settings; or (2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct or the legal and standard practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

This provision embodies a robust and comprehensive legal framework that aspires to hold accountable those who perpetrate the heinous act of NCII in India. It is tailored to reflect the singular and pernicious nature of this emerging form of cyber harassment and abuse. It endeavours to bestow greater lucidity, deterrence, and succour to the aggrieved. By providing a transparent and definitive recourse to justice, this provision aspires to engender a milieu of dignity, safety, and harmony in the digital realm, thereby paving the way for a more equitable and compassionate society.

CONCLUSION

In the digital age, upholding justice is crucial, specifically in cases of NCII, where the current legal framework and terminology inadequately address the complexities, ultimately resulting in a lack of justice.

Complainants of NCII-related crimes, face various obstacles in navigating the criminal justice system. Thus, it is crucial to establish secure and safe channels for complainants to register complaints and conduct trials that prioritize their privacy and comfort while simultaneously developing accurate terminology and updating Penal codes.

The global outrage that erupted in response to NCII has spurred concrete actions in various countries. India has no reason not to follow suit and can do so more efficiently.

Therefore, the need of the hour is to champion human rights and forge a safer, more equitable digital landscape by addressing the Non-consensual Dissemination of Intimate Images.

Old wine in a new bottle? Examining the Supreme Court’s recent prioritisation of reformation in capital sentencing

Editor 2 — Thu, 14 Aug 2025 02:20:05 +0000

Lakshmi Menon

Recent developments in the Indian Supreme Court’s death penalty jurisprudence (see here and here) suggests a shift in approach towards recognising the centrality of reformation in sentencing. While these developments may suggest that the Court is beginning to develop a better grasp over reformation and rehabilitation, its substantive engagement with the concept remains as deficient as ever. Even as the Court undertook a momentous shift towards reform in sentencing in 2021 and 2022– by seeking reports on the accused’s jail conduct and psychological assessment, and by directing trial courts to elicit such information, the Court in the same year (2022) imposed life imprisonment barring the possibility of remission- a punishment incompatible with reformation and rehabilitation- as the commuting sentence throughout all 7 commutations. Using these statistics as an example, I argue that the Court’s approach to reformation and rehabilitation as a concept (required to guide the meaningful development of its capital sentencing law) remains as piecemeal and deficient as ever. These developments are in face of the fact that a Constitution Bench (cognizant of the lawlessness and arbitrariness of capital sentencing) is set to frame guidelines for a ‘real, meaningful and effective’ capital sentencing process, and the time required at sentencing to fulfill the same- 42 years after Bachan Singh v. State of Punjab had laid down ‘broad guidelines’ to guide the same. However, persisting deficiencies on the Court’s conceptualisation of reformation and rehabilitation are a cause of concern for the overall direction that future developments may take.

A brief history of the Court’s engagement with reform in death penalty sentencing

The constitutionality of the death penalty had been upheld in Bachan Singh v. State of Punjab by a Constitution Bench of the Court in 1980, subject to the requirement that courts would impose death sentences in adherence to the Court’s guidelines. Reformation formed a central aspect for these guidelines, where the decision placed the burden on the State to demonstrate the improbability of reform in the accused. A subsequent decision of the Court interpreted the Bachan Singh requirement (that life imprisonment was “unquestionably foreclosed”) to mean that the purpose of choosing life over death was for cases where reform was possible. This requirement was taken a step further in 2018, when the Supreme Court tied the foreclosure of life imprisonment in capital cases to the possibility of reform, rehabilitation and ‘social integration’.

Empirical and doctrinal research has located and criticised the Supreme Court’s Bachan Singh decision for its vagueness, and for leaving several questions on the substance of its guidelines and the procedures to be adopted in capital sentencing unaddressed. Crucially, these gaps have led to a crisis of lawlessness in capital sentencing across India’s courts, where there is no consistent approach or principled framework guiding the imposition of the death penalty. Pertinently, empirical evidence regarding the demographics of prisoners sentenced to death were unavailable until 2016. A study published in 2016 reveals that these death sentences (imposed as they are in an unprincipled and lawless manner) have overwhelmingly been imposed upon people hailing from communities marginalised by caste, religion and economic status.

Yet, it was not until 2021 that the Court actively acknowledged the gap in information at sentencing to assess the probability of reform. Thus, in 2021, the Supreme Court issued multiple orders directing social workers and psychologists to prepare life history reports of the accused, and directed the State to provide jail conduct reports. In a much lauded decision, the Court in Manoj v. State of Madhya Pradesh (2022) passed a series of directions to trial courts, requiring them to collect jail conduct and psychological examination reports as part of assessing reform. Although this was seen as a welcome move, I argue that the Court’s ever increasing imposition of life imprisonment without remission sentences (“LWOR”) demonstrates both inconsistency from its newly professed commitment to reformation and rehabilitation, and the ever persisting deficiency in its understanding of reformation.

The Supreme Court and life imprisonment without remission

Death penalty commutation decisions at the Supreme Court require the court to undertake a two step process. In its first step, the Court must decide whether or not to confirm the death sentence itself. Amongst other considerations, the Supreme Court is required to assess the probability of an accused’s reform and in the face of such a probability, the Court must select the alternative punishment of life imprisonment. In the second step, the Court must either choose between life imprisonment with the possibility of remission (simple life for brevity) or exclude remission (which may be for a fixed term, or may extend to the remainder of the prisoner’s life) (hereinafter “LWOR”).

The Supreme Court’s sentencing law in the second step of this commutation process- of choosing LWOR over simple life – remains wholly deficient. While the Court has often commuted the majority of death sentences that it hears, it had begun to commute these sentences to life imprisonment barring the possibility of any remission or release (see here and here) at the turn of the century. In 2008, the Court in Swamy Shraddhananda v. State of Karnataka found that High Courts and the Supreme Court could curtail the State’s remission powers whilst commuting a death sentence to that of life imprisonment. The validity of this category of sentences was later upheld by the majority in a Constitution bench decision in Union of India v. Sriharan.

Both decisions fail to provide any guidance whatsoever in deciding which prisoners may be eligible for LWOR. Sriharan and Shraddhananda focus solely on offence based considerations (such as its gravity and impact). Furthermore, whilst the former justifies this sentence on deterrence related considerations, Shraddhananda does so on the grounds that some offences may not warrant death, but a life sentence with the possibility of remission would be “disproportionately inadequate”. Whilst accounting for the possibility of the prisoner’s reform at sentencing is mentioned but altogether dismissed by Sriharan, Shraddananda does not mention rehabilitation at all. Secondly, the Court’s failure to account for an offender’s circumstances whilst imposing LWOR dismisses any consideration of reformation and rehabilitation, given that this question is tied to the prisoner and their circumstances. Through these decisions, the Court (without legislative backing) effectively introduced LWOR as a punishment in India, wherein the court was free to impose the same without principled guidance, and in a manner where reformation could be completely shrugged off during sentencing. This state of affairs at sentencing is taken a step further by the fact that LWOR, as a punishment, characteristically undermines reformation.

Multiple paths towards reformation and rehabilitation

Reform and rehabilitation have become central considerations at sentencing with the rise of behavioural science disciplines and with the global shift towards corrective approaches to punishments that sought to change an offender’s course to law abiding behaviour. However, coherent conceptualisation(s) of reformation and rehabilitation as a penological goal at sentencing has remained deficient, as has been observed by Forsberg and Douglas. Conceptualisations of reformation and rehabilitation have instead developed in an offshoot manner, with significant divergences. While one approach views the same as a tool serving other normative ends (crime prevention, harm reduction), a second approach views it as a normative end in itself. Even in this second approach, the characterisation of these ends significantly differ as well. Reformation and rehabilitation may be seen as a goal which either seeks to “treat” offenders, or improve their moral choices, or provide the resources to assist them in restoring their status in society (both in terms of moral relations and socioeconomic conditions). Specific conceptualisations have been criticised previously- for instance, those which treat offenders as a “diseased” person to be fixed undermines their agency. Similarly, rehabilitation based on improving offenders morally treats them as people with inherent moral deficiencies. Consequently, determining the relevance of reformation as a sentencing, and overall goal of punishment, then requires in-depth policy engagement with the substantive meanings given to reformation and rehabilitation.

LWOR and the dismissal of reform

Scholars studying criminal law and prisons have long agreed that life sentences barring remission come with a range of issues such as cruelty, risks with assessing future dangerousness, heightened burdens on prisons and the undercutting of rehabilitation. For the purposes of the argument it sets to make, this piece shall focus only on LWOR’s engagement with rehabilitation.

One, the very design of LWOR presupposes the absolute improbability of an offender’s reformation and rehabilitation and the consequences that this punishment bears on prisoners further undercut the same. Firstly, LWOR (termed as a modern day equivalent of banishment) denies further membership in society to the prisoner altogether, signifying a rejection of their personhood and humanity, as opposed to imposing punishment for an act i.e the offence. Such denial amounts to a form of excommunication and carries a message- it defines the person using their offence alone, thus debasing their overall identity, as opposed to furthering a reflective process over their offences. Secondly, emotions such as hope, and the eventual access to community and societal institutions play key roles in rehabilitation. However, LWOR extinguishes hope in prisoners to be able to connect with their families and societies ever again- an emotion which is necessary to facilitate reformatory change towards lawful behaviour, given the prospect of eventual reintegration with society. Thirdly, it takes away access to crucial avenues for reform which can be enabled only through community engagement, and thereby, through different forms of release.

Alternatively, LWOR sentences become redundant in a situation where prisoners have successfully undertaken reformatory and rehabilitative arcs. Findings from other jurisdictions demonstrate the meaninglessness of the continued incarceration of LWOR prisoners despite their lawful conduct and ability to reintegrate easily with society. What emerges is that within the Indian context, the imposition of LWOR sentences rests upon a wholly deficient sentencing framework for commutations in death penalty cases, and uses such a process to subject prisoners to a punishment which undercuts reformation and rehabilitation.

The Court’s recent orders and judgments, which emphasise the collection of information to assess reformation and rehabilitation, is often accompanied by the imposition of LWOR sentences (that too, with little to no reasoning whatsoever despite the reformation information which had been available to the Court to commute the death sentence). But why should the high rates of LWOR imposition (which had a 100% rate in 2022 at the Supreme Court) be a cause of concern over the Court’s recent developments in death penalty sentencing? After all, these developments (which emphasise reform by way of seeking jail conduct and psychological evaluation reports) were meant to guide the Court’s decision making in the first step (whether or not to confirm the death sentence) and are not geared towards helping the Court make its decisions in the second step (in choosing an appropriate commuting sentence).

However, this inconsistency within the Court between these two steps in its commutation decisions speak to larger gaps and contradictions in the Court’s conceptual understanding and use of reformation and rehabilitation in the capital sentencing process. For instance, in Manoj v. State of Madhya Pradesh, the Court, on the basis of information placed before it, found that the three prisoners were amenable to reform and hence could not be sentenced to death. In the same judgment, the Court then proceeds to impose LWOR on the prisoners without providing any reasons, despite finding their amenability to reform. This gives rise to three considerations. First, it demonstrates the uncomfortable manner in which the Sriharan framework sits with capital sentencing developments which have begun to prioritise reformation. Second, imposing LWOR even as the Court identifies reformation once again undercuts the relevance of reformation as a penological goal, thus undoing its own professed commitment towards recognising the same as a penological goal that guides the capital sentencing process as a whole.

Third, the Court’ imposition of LWOR sentences, coupled with its lack of reasoning over why LWOR was chosen over simple life, indicates hesitancy to substantively engage with the conceptualisations of reformation and rehabilitation. Such developments, in the absence of engagement with the scope and content of reform and rehabilitation as a penological goal, takes us back to the same problems that riddled Bachan Singh. Prior to the developments in 2021 and 2022, Bachan Singh had been criticised for failing to clearly identify and articulate the penological goals of the capital sentencing process. Although subsequent developments suggest that the Court may now be filling some part of these gaps by at least identifying reformation, I argue that merely naming/identifying reformation as an important penological goal does little to change the status quo. In the face of the manifold conceptions of reformation and rehabilitation, which envision different yardsticks as to what constitutes reformation or rehabilitation, a bald assertion of the same as a penological goal is at best hollow. At worst, it provides space for serious inconsistencies in the manner in which reformation of accused persons are assessed. In other words, the Court will not only need to reassert reformation as a penological goal that the sentencing process is geared towards, but also provide meaning to the term reformation through a closer examination of its various conceptualisations.

Gearing towards reform at sentencing?

The imposition of unreasoned LWOR sentences in judgments that make concrete findings to a prisoner’s amenability for reformation indicates the overall quality of the Court’s recent developments towards reform in capital sentencing law, and reveal serious concerns, both by way of its inconsistent treatment of prisoners’ reformation in the death penalty commutation process, and through its overall lack of conceptual clarity over the same. This contradiction is explained by the fact that Manoj’s attention to reform is entirely based on formulating bright line procedural requirements, with scant attention to what reformation and rehabilitation actually mean, and what a substantive assessment of the same should entail. The Court’s concern in the case was primarily focused on the lack of information before trial courts to gauge reform before imposing death, as opposed to the absence of doctrinal clarity over reformation (a requisite in assessing such information) and its relevance at sentencing.

The highlight of the Supreme Court’s developments in 2022 had been the Court’s referral order in its suo motu writ, convening a Constitution Bench to formulate guidelines for a meaningful and effective capital sentencing hearing. While this effectively provides the Court the chance to rectify Bachan Singh’s errors, the continuing inconsistency and deficiency in the treatment of reformation and rehabilitation signals much cause for concern, and leaves one to wonder whether the Court can really utilise this opportunity to rectify normative gaps in its capital sentencing law effectively.

Lakshmi Menon is an Associate (Sentencing) at Project 39A, National Law University, Delhi. The author would like to thank Gale Andrew for her valuable suggestions.

South Africa v. Israel – International Court of Justice [Summary of Arguments by Israel | Part 2/2]

Editor 2 — Sat, 13 Jan 2024 05:44:27 +0000

Below is a summary of arguments put forth by Israel against South Africa’s Request for indication of provisional measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)

Introduction

On 29th December 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice [“ICJ”], concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide [“Genocide Convention”] in relation to Palestinians in the Gaza strip.

South Africa claims that Israel has breached its obligations under the Genocide Convention by committing genocidal acts with specific intent against Palestinians in Gaza; by failing to prevent genocide against Palestinians in Gaza; and by failing to prosecute public incitement to genocide. As immediate relief, South Africa has requested the ICJ to indicate certain provisional measures to ensure Israel’s compliance with its obligations under the Genocide Convention to not engage in genocide and to prevent and punish genocide. South Africa has also requested that the ICJ direct Israel to preserve relevant evidence so that its claim of genocide can be adjudicated fairly. South Africa’s application instituting proceedings before the ICJ is available here. South Africa presented its preliminary submissions before the ICJ on 11th January 2024, whereas, Israel presented its submissions on 12th January 2024. A summary of Israel’s submissions is as follows:

Israel’s Submissions – An Overview

Israel made five main arguments. First, the ICJ lacks prima facie jurisdiction, as South Africa did not show any dispute between itself and Israel at the time the application was submitted. It further claimed that South Africa misled the Court into believing that a dispute existed. Second, South Africa did not meet the condition of having plausible rights to be protected in the current circumstances. Third, the events under consideration are contextualized within a war initiated by Hamas, operating under the legal framework of international humanitarian law; that they do not fall within the scope of the Genocide Convention. Fourth, the standard of irreparable harm and urgency is deemed unmet. It is argued that Israel is actively taking steps in collaboration with others to address the humanitarian situation in Gaza. Fifth, the provisional measures sought by the applicant are unwarranted and prejudicial.

Opening Remarks

Co-agent for Israel, Mr. Tal Becker opened Israel’s arguments. Citing the Holocaust’s impact on its history and ratifying the Convention without reservation, Mr. Becker reaffirmed Israel’s commitment to the Genocide Convention. He asserted that the allegation of genocide against Israel, as invoked by South Africa, is a distortion of the reality of the ongoing conflict with Hamas. He asserted Israel’s inherent right to self-defence, and the need to protect its citizens against the acts committed by Hamas on October 7th 2023. Mr. Becker contended that South Africa’s portrayal omits crucial details, such as Hamas’ use of civilian infrastructure for military purposes and the organization’s disregard for ceasefire and international law. He asserted that Israel is fighting against Hamas, not the Palestinian people, and argued that the application by South Africa and its request to indicate a provisional measure should be dismissed.

Oral Arguments

Prima Facie Jurisdiction and the Preservation of the Rights of the Parties

Mr. Malcolm Shaw denied South Africa’s claim that the acts of genocide must be considered in the broader context of Israel’s conduct towards Palestinians for 75 years and asserted that the correct context of the conflict is Hamas’ October 7^th attack. Mr. Shaw reasserted Israel’s acts of self-defence and argued that the threat or use of force cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention. He argued that according to Article IX of the Genocide Convention, the ICJ’s jurisdiction is conditional on the existence of a dispute related to the interpretation, application, or fulfilment of the Convention.

Mr. Shaw criticised South Africa’s claim of genocide against Israel, pointing out a lack of evidence for a genuine dispute and insufficient diplomatic exchanges between the parties. He noted the challenges in determining whether a prima facie case exists given the standard of proof is not negligible at the provisional measures stage. He asserted that intent is not entirely dismissed at the provisional measures stage, and the acts complained of may only be considered within the Genocide Convention if specific intent is present. He argued that South Africa misinterpreted statements from Israeli politicians asserting the absence of genocidal intent and failed to demonstrate prima facie jurisdiction of the ICJ. Mr. Shaw argued that the ICJ’s power to grant provisional measures is aimed at preserving the respective rights claimed by the parties during the case and Israel’s right and obligation to defend itself. The Court does not need to definitively establish the existence of the claimed rights but must find them plausible.

Facts on the Ground

Challenging the accusations of genocide, Ms. Galit Raguan argued that Hamas, the governing authority in Gaza, employs tactics that intentionally place civilians at risk. Examples include using civilian structures for military purposes, launching rockets from civilian areas, and hiding weapons in hospitals. She contended that civilian casualties often result from Hamas’ actions rather than Israeli attacks.

Asserting that Israel’s actions demonstrate a commitment to minimizing harm to civilians in a complex and challenging conflict, Ms. Raguan highlighted advance warnings of attacks, coordination with international organizations, and dissemination of information for civilians to evacuate. She disputed the claim of these efforts being genocidal, rather noting that they align with international humanitarian law. She also noted the role of Israel’s military unit, COGAT, in coordinating with international organizations, facilitating aid entry, and reinforcing medical services. Ms. Raguan contended that allegations of genocide are untenable in the face of Israel’s humanitarian efforts.

Lack of Risk of Irreparable Prejudice and Urgency

Mr. Omri Sender argued that the conditions of irreparable harm and urgency, necessary for indicating provisional measures, are not met in the current situation. He challenged the applicant’s assertion that Israel’s actions pose a risk of irreparable harm, emphasising the decreasing scope and intensity of hostilities. He highlighted Israel’s ongoing humanitarian efforts, including the provision of food, water, medical supplies, and other aid to Gaza, aiming to address the needs of Palestinian civilians. Mr. Sender pointed out that Israel’s actions align with the legal test of concrete measures recognizing and ensuring the rights of Palestinian civilians.

Mr. Sender presented two key factors to contest the urgency claimed by the applicant. First, he highlighted a diminishing intensity of hostilities, citing statements from Israel’s Defence Minister and the military spokesperson about transitioning to a less intense phase of the conflict. Second, he drew attention to UN Security Council Resolution 2720 of 22 December 2023 addressing the humanitarian situation in Gaza, emphasising that it is actively being implemented, with a senior coordinator appointed.

Unwarranted and Prejudicial Provisional Measures Requested by South Africa

Addressing the first two provisional measures sought by South Africa, which demand the immediate suspension of Israel’s military operations in Gaza, Mr. Christopher Staker asserts that South Africa’s requests go beyond what is necessary to protect rights on an interim basis and lack a link with the rights sought to be protected. Mr. Staker iterated principles which are applied when requesting provisional measures – avoiding irreparable prejudice to the respondent, ensuring proportionality, and avoiding any impression of bias. Additionally, he argued that Hamas is considered to be a terrorist organisation, noted its recent attacks and the international recognition of Israel’s right to self-defence, and Israel’s commitment to international humanitarian law and efforts to alleviate the humanitarian situation.

Mr. Staker argued that the third measure’s wording is not confined to current military operations in Gaza and is expressed to apply in relation to the Palestinian people generally. He asserts that the measures seek a special mandate to act internationally on Palestinian issues. He also objected to the fourth measure, claiming it seeks an implied ruling on the merits and uses problematic language. The fifth measure was criticised for lack of necessity and potential misinterpretation. Whereas, the sixth measure was contested for referencing irregular armed units without justification. The seventh measure is questioned for asserting concerns about evidence destruction without evidence. The eighth and ninth measures are deemed unnecessary, lacking justification. Mr. Staker concluded by stating that these specific measures requested by South Africa are inappropriate.

Conclusion

Mr. Gilad Noam summarised and concluded the arguments. He asserted that the applicant portrays Israel falsely as a lawless state and challenges this portrayal, emphasising Israel’s commitment to international law. He argued that Israel has a robust legal system and mechanisms for accountability. He also addressed the broader implications of the case, warning that entertaining the applicant’s request could weaken the commitment to preventing and punishing genocide. He concluded by urging the ICJ to reject the request for provisional measures and remove the case from its list.

South Africa v. Israel – International Court of Justice [Summary of Arguments by South Africa | Part 1/2]

Editor 2 — Fri, 12 Jan 2024 09:06:07 +0000

Below is a summary of arguments put forth by South Africa in its Request for indication of provisional measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)

The summary of Israel’s arguments will be uploaded on 13th January, 2024.

Introduction

On 29^th December 2023, South Africa filed an application instituting proceedings against Israel before the International Court of Justice [“ICJ”], concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide [“Genocide Convention”] in relation to Palestinians in the Gaza strip.

South Africa claims that Israel has breached its obligations under the Genocide Convention by committing genocidal acts with specific intent against Palestinians in Gaza; by failing to prevent genocide against Palestinians in Gaza; and by failing to prosecute public incitement to genocide. As immediate relief, South Africa has requested the ICJ to indicate certain provisional measures to ensure Israel’s compliance with its obligations under the Genocide Convention to not engage in genocide, and to prevent and punish genocide. South Africa has also requested that the ICJ direct Israel to preserve relevant evidence, so that its claim of genocide can be adjudicated fairly. South Africa’s application instituting proceedings before the ICJ is available here.

South Africa’s submissions – overview

South Africa claims that Israel’s military campaign violates Art. II of the Genocide Convention because it is targeted to systematically eliminate Palestinians in Gaza with specific intent. Before the ICJ finally decides on this claim, South Africa has requested that the court indicate certain provisional measures to ensure immediate relief for Palestinians in Gaza, in light of the ongoing conflict. For the ICJ to accede to South Africa’s request, South Africa must demonstrate that the ICJ has (i) prima facie jurisdiction, (ii) that South Africa’s claims are at least plausible, and that there is an (iii) urgent and imminent risk of irreparable prejudice. South Africa’s legal representatives argued each of these claims before the ICJ on 11 January, 2024.

Oral arguments

Agent for South Africa, His Excellency Ambassador Vusimuzi Madonsela, opened South Africa’s case against Israel. Describing Israel’s recent actions in Gaza as an ongoing nakbah, Mr. Vusi Madonsela asserted that Israel’s occupation of Gaza has historically denied Palestinians the right to self-determination and right to return. He asserted that Israel’s acts since October 7^th 2023 are part of a continuum of illegal acts and violence perpetrated against Palestinians since 1948. As such, South Africa locates Israel’s genocidal actions against Palestinians in the 75-year apartheid, a 56-year occupation, and a 16-year siege of the Gaza strip. After these preliminary observations, Hon’ble Mr. Ronald Lamola, Minister of Justice and Correctional Services of South Africa, delivered substantive opening remarks for South Africa. Although Mr. Lamola unequivocally condemned Hamas’s actions on 7^th October 2023, he asserted that no armed attack, regardless of its severity, can justify a breach of the Genocide Convention.

Opening remarks

Israel’s acts of genocide

Dr. Adila Hassim argued that Israel is in breach of Art. II of the Genocide Convention because it has engaged in mass killing of Palestinians in Gaza [Art. II(a)], causing serious mental and bodily harm to Palestinians in Gaza [Art. II(b)], and imposing conditions calculated to destroy the Palestinian national, racial, and ethnic group [Art. II(c)]. Dr. Hassin argued that the ICJ need not finally decide the merits of South Africa’s claim against Israel while indicating provisional measures, for at this stage, it is sufficient to establish that at least some of the acts may constitute genocide under the Convention.

She argued that Israeli forces have killed over 23,000 Palestinians since October 2023 and that 7,000 more Palestinians are missing, presumed dead. Nearly 60,000 Palestinians are wounded and maimed, the majority of whom are women and children. Palestinians in Gaza are subjected to relentless bombing wherever they go: in their homes, shelters, mosques, churches, hospitals, and schools; with up to 6000 bombs a week, and on over 200 occasions, with 2000-pound bombs that spread indiscriminate devastation. Israel’s military campaign and siege has forcibly displaced Palestinians from their homes in Gaza, denied them food, water, shelter, sanitation, and medical care; all of which is geared towards bringing about their destruction as a group.

Israel’s genocidal intent

Adv. Tembeka Ngcukaitobi argued that an extraordinary feature in the case is that Israel’s political leaders and military commanders have publicly declared their genocidal intent against Palestinians. On 28th October 2023, Israel’s Prime Minister Benjamin Netanyahu invoked Amalek, which refers to the historical destruction of a group of people by Israelites, as Israeli forces prepared their ground invasion of Gaza. The Deputy Speaker of Knesset, Israel’s Parliament, called for the erasure of the Gaza strip from the face of the earth and the Israeli Minister of Defence referred to Palestinians in Gaza as “human animals”. Adv. Ngcukaitobi urged that this language of dehumanization reveals Israel’s genocidal intent.

Through audio-visual clippings, Adv. Ngcukaitobi demonstrated that this genocidal rhetoric spurred the Israeli ground offensive. Israeli soldiers repeated these statements as they celebrated their destruction of Gaza. On December 7^th, 2023, Israeli soldiers used their Prime Minister’s message of Amalek to justify the killing of civilians and children. Adv. Ngcukaitobi rejected the claim that Israeli officials did not truly mean what they said, or that Israeli soldiers misunderstood these statements. Israeli officials gave orders to destroy and maim what could not be destroyed – directions issued by those in command that reflected state policy. Adv. Ngcukaitobi emphasized that several other countries and UN officials have also warned that Israel’s actions in Gaza constitute a genocide in the making.

ICJ’s prima facie jurisdiction

Prof. John Dugart argued that at the stage of issuing provisional measures, it is enough to show the existence of a prima facie dispute over Israel’s obligations under the Genocide Convention. He located the ICJ’s jurisdiction under Art. 36 of the ICJ Statute and under Art. IX of the Genocide Convention.

He also argued that the prohibition against genocide is a universal rule that no state can violate, and that the Genocide Convention obligates states to take measures to prevent genocide. Prof. Dugart argued that states owe this obligation to prevent genocide to the international community as a whole. He explained that unlike other treaties, the Genocide Convention does not require states to enter into negotiations before submitting a dispute to the ICJ. If a state party is believed to be indulging in genocide or not meeting its obligation to prevent genocide, another state party can bring the issue before the ICJ.

Nature of rights requiring protection and their link with provisional measures sought

Prof. du Plessis argued that at this stage, South Africa need only show that the rights claimed by South Africa, for which it seeks provisional measures, are at least plausible. This does not require the court to definitively find that the right sought to be protected by South Africa exists. Rather, it must be grounded in a possible interpretation of the Genocide Convention. Palestinians, he submitted, have a right to exist. Israel’s occupation and violence in Gaza violates this right.

He emphasized that at this stage, Israel’s actions are capable of being described as at least plausibly genocidal, considering the clear intentionality reflected in statements of Israeli soldiers and officials. This can also be inferred from Israel’s pattern of violent conduct against Palestinians in Gaza. He also submitted that it is at least plausible that Israel has failed to prevent genocide in Gaza. Considering the gravity of the situation in Gaza, Prof. du Plessis highlighted the importance of the court’s powers to issue provisional measures. He implored the court to consider its responsibility to the international community and not limit its own jurisdiction by denying South Africa’s request.

Urgent and imminent risk of irreparable prejudice

Ms. Blinne Ni Ghralaigh contended that there is an urgent, real, and imminent risk of irreparable prejudice if the ICJ denies South Africa’s request for provisional measures. She demonstrated this urgency by relying on statements and reports by UN agencies that describe Gaza as a crisis of humanity, a living hell, a bloodbath, and a situation of utter deepening and unmatched horror. She flagged Israel’s repeated attacks on hospitals and other medical infrastructure in Gaza, the systematic denial of food and water to Palestinians in Gaza, and Israel’s elimination of swathes of villages, towns, and refugee camps in Gaza from the map. With UNSC resolutions calling for humanitarian assistance remaining unimplemented and UNGA resolutions calling for ceasefire being ignored, Ms. Blinne Ni Ghralaigh argued that the need for provisional measures would not be more urgent.

She demonstrated that the scale of destruction and violence in Gaza is unprecedented. Refusing to indicate provisional measures would be a departure from the ICJ’s jurisprudence. Ms. Blinne Ni Ghralaigh powerfully closed her submissions by reminding the ICJ that in this case, the very reputation of international law, and its ability to bind and protect all peoples, hangs in the balance.

Provisional measures

Prof. Lowe argued that any future undertaking by Israel at this stage would not mitigate the risk of irreparable harm. There would be no end to the destruction of Gaza without an unambiguous direction to Israel to halt its military activity. Prof. Lowe also preempted Israel’s claim of acting in self-defence under Art. 51 of the UN Charter. He argued that Israel is an occupying power in Gaza and that it exercises effective control over the region. A claim of self-defence cannot be invoked by an occupying force. He argued that in any case, no matter how egregious a provocation or how appalling an attack against Israel, genocide can never be a permissible response under international law. Every use of force, whether in self-defense, as an exercise of police powers, or as enforcing an occupation; must be within the limits set by international law. The rule against committing genocide permits no exceptions. Prof. Lowe submitted that the ICJ should certainly not make any exception in a hearing for provisional measures, and permit a state to violate its obligations under the Genocide Convention.

Old wine in a new bottle? Examining the Supreme Court’s recent prioritisation of reformation in capital sentencing

Editor 2 — Tue, 19 Dec 2023 10:01:42 +0000

Lakshmi Menon

A brief history of the Court’s engagement with reform in death penalty sentencing

The Supreme Court and life imprisonment without remission

Multiple paths towards reformation and rehabilitation

LWOR and the dismissal of reform

Gearing towards reform at sentencing?

Lakshmi Menon is an Associate (Sentencing) at Project 39A, National Law University, Delhi. The author would like to thank Gale Andrew for her valuable suggestions.

Bharatiya Nyaya (Second) Sanhita Bill, 2023, Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023 and Bharatiya Sakshya (Second) Bill, 2023: Analysis of Key Changes

Editor 2 — Thu, 14 Dec 2023 05:43:42 +0000

Click here for the analysis.

On 12 December, revised criminal law bills were introduced in the Lok Sabha, viz. Bharatiya Nyaya (Second) Sanhita Bill, 2023, Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023, and Bharatiya Sakshya (Second) Bill, 2023. This document highlights the key changes proposed.

Unlocking Devices and the Protection against Self-Incrimination

Editor 2 — Tue, 12 Dec 2023 11:36:16 +0000

Pulkit Goyal

In October 2023, the electronic devices, such as phones, tablets, and laptops, of multiple journalists affiliated with the online news portal ‘newsclick’ were seized. The safeguards concerning seizure such as providing a seizure memo or generation of hash values (electronic fingerprints of records which speak to a record’s integrity) were not followed through. Pursuant to this, prominent journalists authored a letter addressed to the Chief Justice of India asking for urgent action and guidelines against abuse of investigative powers of the police. A case captioned Ram Ramaswamy v Union of India is pending before the Supreme Court urging the Court to pass guidelines regulating seizure of electronic devices. This raises an important question: can the state coerce individuals to unlock their devices or is the same prohibited by the constitutional guarantee against self-incrimination? A second question raised is what exactly can be attributed to an accused who unlocks a device, i.e., can an accused be attributed with the knowledge of all the contents of a device to which the accused knows the password?

The first question has seen some litigation in the High Courts and District Courts of the country. On 29 January 2022, the Kerala High Court approved, as a condition for bail, that the person accused provide complete access to the investigating agency to his mobile phones. This judgment in turn depended on a 2021 Karnataka High Court judgment which compelled an accused person to cooperate with an investigation against him by unlocking his phone. However, on 29 October 2022, a Delhi CBI Special Court refused to pass an order compelling an accused person to unlock their phone.

The principal issue that arose in these judgments, apart from that of privacy, was that of the protection against self-incrimination. Can the police force an accused to unlock electronic devices and deliver digital evidence? All three judgments have referred to the same set of precedents, Selvi and Oghad, to justify the two different outcomes that they reach.

As Sekhri explains, the police enjoy wide investigating power under the Code of Criminal Procedure, 1973 (“CrPC’). Specifically, under section 91 the police are empowered to issue summons to any person for the production of documents or anything that the police considered necessary or desirable for the investigation. If it is suspected that a person will not comply with a summon under section 91 CrPC, the court is empowered to issue a search-warrant under section 94 CrPC. A warrant under section 94 CrPC can also be issued where it is not clear whether the item, being searched for, is in the possession of the concerned person or not or where “the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection”

Further, section 165 CrPC empowers the police to enter any place and conduct a warrantless search for investigation in order to avoid undue delay. It seems uncontroversial, then, whether in the exercise of their powers, the police can seize electronic devices if they consider it necessary for investigation. However, given the above contradictory judgments, it is unclear whether the police can compel an accused to unlock their electronic devices. This article argues that compelling accused persons to unlock their devices violates their constitutional guarantee against self-incrimination.

Before beginning with the above two inquiries, it will be useful to provide a small account of the two principal ways of unlocking devices. Devices are unlocked either by the use of a password or a biometric measure. Passwords are referred to by various names such as passcodes, pins, etc. They all involve a sequence of alphabets, numbers, special characters, or any combination of them which when entered unlocks a device and allows a user to access its contents. Biometrics on the other hand involve some physical measures such as fingerprints, retinal and face-scans, which are compared against stored biometric data to unlock devices. Most devices do not allow users to just have a biometric lock and require a password along with a biometric key. The password, and not the biometric key, is required to be entered on numerous occasions such as when the device is rebooted, updated, etc. In essence, a biometric rarely functions without a password.

The next section of the article outlines the law and how it has been (mis)applied in cases of passwords and biometrics by the Kerala and Karnataka High Courts and forwards the view adopted by the CBI Delhi Special Court with some reservations and modifications. The third section discusses the extent of the right against self-incrimination that is available with respect to digital devices. The fourth section discusses the evidentiary significance of unlocking a device under section 27 of the Evidence Act.

Law and its (mis)applications

The right against self-incrimination is present in Article 20(3) of the Constitution. It protects an accused from being compelled to be a witness against themselves. Sections 25 and 26 of the Indian Evidence Act (“the Act”) operationalise this right and render inadmissible, confessions made to police officers or confessions made in police custody respectively. Section 27 of the Act renders statements made by an accused to the police admissible in case a fact is discovered as a consequence of the information provided, i.e., the statement leads to the discovery of a fact. This provides a narrow exception to the general principles provided in sections 25 and 26 of the Act

It is worth mentioning, for the accurate exposition of the law, strictly speaking, section 27 does not act as an exception to the right against self-incrimination present in the Constitution. In Oghad, a 11-judge bench of the Supreme Court specifically held that, to read section 27 in a manner such that the provision is constitutional, if the original statement is compelled then it will be inadmissible under section 27 also. [How this is operationalised is a different story and outside the purview of this article]

In analyzing the contours of the right, it will be helpful to reproduce the article here:

Article 20

****

(3) No person accused of any offence shall be compelled to be a witness against himself.

The critical phrase for interpretation in this provision is “to be a witness”. The Supreme Court has interpreted the phrase to mean giving testimony which requires communicating something in personal knowledge. Testimony need not be oral but even actions, including involuntary stimuli, which communicate something in the personal knowledge of the person amount to testimony. So, in Selvi, a 3-judge bench of the Supreme Court held polygraph tests, which rely on taking physical measurements and interpreting them to figure out whether a person is lying were, amount to testimony and were prohibited under article 20(3). This can be contrasted with the taking of thumbprints for the purposes of comparison, which was held to be excluded from the protection of Article 20(3) in Oghad. A qualifier to “be a witness” is it should be against the person themselves, i.e., it should be self-incriminatory. It can be incriminatory directly or even derivatively by providing a link in the chain of evidence.

Importantly, as Selvi holds, this protection is available not only at the stage of trial but even at the stage of investigation. So, evidence cannot be compelled from an accused at the stage of investigation even if it is then excluded at the stage of trial. Compulsion was defined in Oghad to mean:

“a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore extorted.”(emphasis supplied)

The crux of the matter lies in the involuntary nature of statements made. Further, the extension of the right to the stage of investigation also relates to the prohibition of the derivative use of compelled testimony as well. Testimony is said to be used derivatively when it leads to inculpatory evidence but is not in itself inculpatory, i.e., it provides a link in the chain of evidence. Lastly, even though the prohibition is on inculpatory testimony, at the stage of investigation it is for the person providing the testimony to decide whether it is inculpatory or not because a judicial determination can happen only post facto and post facto determination would render the guarantee meaningless. In Selvi, the court held “[I]t is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.”

The question essentially before the Kerala and Karnataka High Court was whether handing over a password was analogous to communicating something in personal knowledge or to providing physical measurements for the purposes of comparison. The Karnataka High Court held (positively cited later by the Kerala High Court):

“Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion?

14.1. As regards the contention that providing of the password/pass code will amount to testimonial compulsion, I am of the considered opinion that there is no testimony which is given by the accused by providing the said password, passcode or biometrics by which the document is being accessed by the Investigating officer.

14.2. The XI Judge Bench of the Apex Court in Kathi Kalu Oghad’s case has categorically held that providing of a thumb impression or impression of the palm or foot or fingers or specimen in writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion. Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of Law by following the applicable Rules of evidence.”

***

14.5. A direction to provide a password, passcode, biometrics would not amount to testimonial compulsion. It is only in the nature of a direction to produce a document. Mere providing access to a smartphone or e-mail account would not amount to self- incrimination since it is for the investigating agency to prove its allegation by cogent material evidence.

Importantly, the Karnataka High Court also laid down guidelines to be followed to ensure preservation and proper handling of data present on a device. This included requiring professionals from forensic labs and not police officers to handle the device, keeping the device running to ensure Random Access Memory is not erased, making a note of the networks the device was connected to etc.

While the judgment also recognized the privacy interests inherent in dealing with electronic devices such as phone, the guidelines did not reflect it. There was no requirement laid down for narrowly tailored searches or search-warrants which specifically identifies the digital devices and digital objects being searched for in order to protect the privacy of the accused. As Krishankumar has noted “where data is concerned, there is a higher likelihood that a non-particularised or vague order would result in the collection of exponentially more information than a similar order applied in the physical domain.” Further it contained no guidelines for noting down the hash values of the evidence secured to ensure that it is not tampered with or providing the accused with the hash values to enable them to potentially challenge any evidence that is recovered from the device. Both of these requirements are recognized best practices for digital evidence. (For privacy law implications of digital evidence see here)

Further, the reasoning of the Court, as it emerges from the extracts, is flawed on three accounts. First, after noting that body measurements are not protected under Art 20(3), it equates passwords with body measurements and states that protection is not to be granted. This line of reasoning does not note, as Bhatia has argued, that body measurements were excluded only for the purposes of comparison and not as a whole. In fact, in the case of polygraph and BEAP (Brain Electrical Application Profile) tests, bodily measurements or physiological responses such as heart rate, blood pressure, perspiration, etc., which communicated something in the personal knowledge of the person were held to be protected under Article 20(3). Second, the logic that evidence gathered would have to be proved in a court as per rules of evidence misses the point that the guarantee applies at the stage of investigation as well and not just at trial. Third, as held in Oghad and reitterated by a 5-judge bench in State of Gujarat v. Shyamlal Mohanlal Choksi, the guarantee against testimonial compulsion extends to production of documents as well. [Sekhri notes this here as well]

Noting the first flaw the Delhi CBI Special Court (Rouse Avenue) held that passwords are protected under Article 20(3) and refused to pass an order compelling an accused person from handing over passwords. Interestingly however, in light of the Criminal Procedure (Identification) Act 2022, the Special Court held that body measurements must be distinguished from testimonial acts and the former would not be protected by Article 20(3), therefore fingerprints used to unlock a phone or other electronic device would not be protected under Article 20(3). However, since this was not directly a question before the court, the court did not pass any order as to this.

This line of reasoning puts the cart before the horse as a parliamentary law cannot make taking of thumbprints to unlock phones constitutional if taking of thumbprints to unlock phones itself violates Article 20(3). Further, given that the Criminal Procedure (Identification) Act 2022 is broadly phrased as it mandates taking of measurement for the “purpose of investigation”. There is ample scope for interpretation and it must be interpreted in a constitutional manner, i.e., as this article argues, excluding taking of thumbprints to unlock a device.

The test should’ve been, in line with Selvi: whether the act is communicative and not just for the purposes of identification. In fact, the Court, in Selvi, relying on the SCOTUS decision in Schmerber v California, recognised that the distinction between physical evidence and testimonial evidence, though useful, may break down and cannot unproblematically be applied to each fact situation before the court. The Court in Selvi thus stressed on the consequences of the compelled activity to determine whether acts are testimonial or not. As Sekhri notes the court here is essentially applying the American standard of functional equivalence. The CBI Special Court has been criticized for ignoring this standard in its judgment. Thus, the test remains essentially whether the evidence communicates something within the personal knowledge of the person or not.

Application to Passwords and Biometrics

Giving a password vocally or in writing amounts to communicating something in the personal knowledge of the person giving the password. This can be contradistinguished from material evidence which involve bodily substances or physical objects. The real trouble starts when we consider biometrics. The article argues that biometrics used for unlocking devices are testimonial in nature and not mere physical evidence. Biometrics here perform the same function as passwords which, as has been argued above, are testimonial in nature. In fact, most phones do not allow biometrics to be the sole mode to open a device and require it to be coupled with a password which can be used alternatively (and in certain situations mandatorily). To borrow from American jurisprudence on the subject, biometrics here are functionally equivalent to passwords. As observed in Selvi, the SC has used a function or purpose-based test for deciding whether a piece of evidence is protected by Article 20(3) or not.

Secondly, and independently, unlocking a phone with biometrics communicates, perhaps even more strongly than in the case of passwords, that the person stands in some connection with the device. A biometric lock will only open if it previously had stored information about the biometric used. This necessarily implies that the person at some point fed their biometric into the device and thus communicates that the person stands in some relationship with the device.

Lastly, opening such a device can be incriminating especially in light of the position that the guarantee against self-incrimination extends to derivative use of evidence as well. Opening a device can give the investigating agencies access to material which is incriminatory. Even when the police know that the device contains incriminatory material, opening it places the accused in some connection with the device and is directly incriminating in such scenarios.

From the above arguments, it is concluded that unlocking devices should be protected under Article 20(3) since it is a testimonial and incriminating piece of evidence. Further, it also is in line with the purpose of the right against self-incrimination. It ensures reliable evidence and deters the police from coercing accused persons into giving evidence and encourages independent and reliable methods of investigation. The next part discusses the extent of this protection in light of section 27 which allows information given to the police, by an accused, to be treated as admissible evidence in case it leads to a subsequent discovery of fact.

Digital Evidence and Section 27

Section 27 makes information given to the police admissible to the extent that the information relates to facts discovered as a consequence of that information. The fact discovered in consequence is the knowledge of the person of the state of affairs and not the thing discovered in consequence of the information, as was held in Pulukari Kottaya. E.g., if an accused says “I have hidden a knife under a particular tree with which I killed the deceased” and the police go and discover the knife, the fact discovered here is not the knife but the knowledge of the accused that there was a knife hidden under a particular tree. This is what is made admissible under section 27.

So, the extent section 27 allows inferences to be made is dependent on what exactly is communicated by the accused. When an accused opens a device, they communicate either (1) that they stand in some connection to the device or (2) that they stand in connection to the device and its contents. There are two reasons to prefer (1) over (2).

First, as the case of Rona Wilson, an accused in the Elgar Parishad case, demonstrates electronic evidence is not inherently reliable. Thirty two months after Rona Wilson’s arrest, an independent digital forensics science investigation of the accused’s (Wilson’s) laptop by the American forensic expert firm Arsenal Consultancy in the Elgar Parishad case concluded that the accused’s laptop had been compromised over 22 months before his arrest. The report states that a malware in the nature of a remote access trojan was installed on Mr Wilson’s laptop. This malware connected it to a command-and-control server using a virtual private server. This was used to deliver incriminating evidence to the accused’s laptop into a hidden folder. The report further states that there is no evidence to show that any of these incriminating files were ever legitimately opened or used by the accused. Therefore, inference (2) is not necessarily true whereas inference (1) suffers from no such anomaly.

Second, in India especially, people share devices frequently among family members. So, it would be artificial to draw an inference in the nature of (2). Therefore, based on these reasons, a person who unlocks a device only communicates (1) and not (2). Therefore, in line with section 27, if the accused unlocks a device for the police by communicating their password or through biometrics, the fact discovered is the knowledge of the accused of how to unlock the device.

Regardless of the statement being made, the contents discovered on the device will be admissible evidence, except where the device was unlocked using coercive methods. Where coercion is used to unlock the device, any derivative evidence found is also rendered inadmissible as per the ratio in Oghad and Selvi. Section 27, here, only decides what inference can be drawn from unlocking a device and discovery of objectionable material. Thus, the prosecution will still have to prove what is the position of the accused vis a vis the objectionable material.

Conclusion

It is concluded that unlocking a device, regardless of the method (password or biometrics) is a testimonial act. While giving a password is directly testimonial, opening devices using biometrics also communicates something about the connection between the device and the person and is thus testimonial in nature. Further, unlocking a device can be incriminating either directly or derivatively. In either case, as per the ratio in Selvi, it is for the accused to decide whether what is being communicated during investigation is incriminating or not. Since both the requirements of Article 20(3) are fulfilled, it is argued that an accused cannot be compelled to unlock an electronic device as that is protected by the right against self-incrimination.

Once a person unlocks a device, the extent of protection, in terms of what legitimate inferences can be drawn from unlocking a device, is controlled by section 27 of the Evidence Act. The article has argued that under section 27, no inference can be made about the connection between the accused and the contents of the device. This does not affect the use of the contents as evidence by the police. However, in case the original unlocking was coerced, no inference can be drawn at all and neither can the contents of the device be used as evidence as it is derivative of unlocking the device as per the law laid down in Oghad and Selvi.

Pulkit Goyal is a IVth year student at National Law University Delhi interested in questions of investigation and criminal justice.

Foundational Validity in Forensic Evidence: Issues with the Indian Approach

Editor 2 — Mon, 04 Dec 2023 11:55:14 +0000

Abhineet Maurya

The idea that the opinions of an ‘expert’ are relevant facts that the law should weigh in its deliberation of the facts of any case has an important assumption underlying it. Namely, that there exist some independent methods or processes, which are in the special knowledge of a person called an ‘expert’, through which we can achieve a semblance of objectivity concerning some aspects of the natural or human world which become necessary for the adjudication of some cases. These methods or processes may pertain to art as well as science. Forensic sciences constitute some of the most frequent uses of ‘expert’ evidence in criminal jurisprudence and in adjudication more broadly.

What makes evidence based on scientific theory probative is the associated scientifically rigorous nature of these methodologies employed, producing verifiable and reproducible results. The goal of this article is to ask, how do Courts judge whether or not the methodology through which a piece of evidence is presented is scientific or not (i.e. how does a Court make a determination about the foundational validity of scientific evidence)? What separates something like DNA evidence, in which our judicial system puts such high faith, from narco-analysis, which is generally deemed to be unreliable? The article is divided into six parts. The first section introduces the idea of ‘science’ and discusses what separates scientific from unscientific or pseudo-scientific knowledge. The second section relates the idea of scientificity to law through the idea of the ‘foundational validity’ of forensic evidence. The third section introduces the distinction between the Frye and Daubert standards for foundational validity as it exists in the US. The fourth section looks at the Indian practice concerning expert evidence, where no formal test exists to evaluate foundational validity. The fifth section argues that not evaluating forensic evidence on the touchstone of foundational validity at all is arguably inconsistent with the doctrine laid down by the Supreme Court, where a standard similar to Frye can be observed. The sixth section argues as to why we need to move from deference-based standards like Frye to deliberation-based standards like Daubert.

Science and Scientific Knowledge

‘Science’ is a term that the Indian Evidence Act, 1872 (“IEA”) uses but does not define. There is disagreement in philosophical literature about what exactly constitutes science and what could be classified as scientific knowledge. However, propositions by philosophers over the years highlight some important principles of scientific knowledge.

David Hume characterised science as a form of inductive reasoning. This means that science makes general claims by collecting specific evidence which supports the general claim. This implies that science can never make claims to absolute truth, as inductive reasoning itself never makes an absolute causal link between the claim and the evidence, but only makes the claim more probable with more evidence. Logical empiricists like Carnap and Schlick argued that for a claim to be scientific, it needs to be verifiable through empirical evidence. Karl Popper, in a similar vein, argues that what separates a scientific claim from a non-scientific one is that the former can be falsified, i.e., they can be discovered to be false based on evidence.

Stress is being laid down here on criteria like ‘verifiability’ and ‘falsifiability’ to make the point that there is a difference between a claim being ‘untested’ and ‘unscientific’. An untested hypothesis may or may not become a scientific theory. However, if the claim is ‘untestable’ in that no matter what empirical evidence is provided, the claim cannot be verified or falsified, then the claim is ‘unscientific’.

Foundational Validity and the Truth-Seeking Function of the Law

Science, therefore, cannot yield absolute truth. However, it can be argued that the law does not seek it either (p. 3). It only seeks to provide the most optimal and fair context within which a verdict can be given. To obtain this context, the evidence presented in the Court should be probative, and the claims that experts make should be grounded in scientifically valid practices. The 2016 report of the US President’s Council on Science and Technology titled ‘Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods’ (“PCAST report”) characterises validity of forensic evidence into two types: Foundational Validity and Validity as Applied. When we speak of challenging the validity of forensic evidence as applied, we assume that the scientific principles on which an expert has given an opinion are valid, but the manner in which they have been used is incorrect. Challenging the foundational validity itself means claiming that the principles on which the expert has made the determination are themselves unscientific and lack probative value. This becomes relevant given the problematic history India has had with patently unscientific ‘truth-seeking’ techniques like narco-analysis, brain-mapping, etc. These unscientific practices may also be deeply linked with the prejudices of society. An example of such practice is the two-finger test banned a decade ago by the Supreme Court which is based on patriarchal notions of ‘virginity’ and a woman’s ‘habituation to intercourse’ as being not only relevant but also verifiable facts.

The focus of this article is on forensic evidence which is of dubious scientificity, probative value, and foundational validity. This includes techniques like analysis of bite marks, footprints, voice, fingerprints, etc. which have caused a lot of anxiety in recent times. A good illustrative example of such evidence in use would be the case of State of Georgia v. Sheila Denton (2020). Denton had been convicted for the murder of one Eugene Garner based on bite mark evidence or forensic odontology. However, years after the conviction, the scientific opinion on bite marks changed as studies revealed that bite marks are not as unique as previously thought and identification based on forensic odontology possesses far less certainty than originally thought. These studies were picked up by the PCAST report (p. 83-87) and were the basis of the revision of the bite mark identification guidelines of the American Board of Forensic Odontology (“ABFO”) in 2018. Based on these new findings about the reliability of bite mark evidence, the conviction of Sheila Denton was overturned in 2018, and she was finally acquitted in 2020. The treatment of bite mark evidence in India, as in Mukesh v. State of NCT Delhi (2017), has been less than inspiring. The Court went on to state:

“Forensic Odontology has established itself as an important and indispensable science in medico-legal matters and expert evidence through various reports which have been utilised by the courts in the administration of justice. In the case at hand, the report is wholly credible because of matching of bite marks with the tooth structure of the accused persons and there is no reason to view the same with any suspicion.” [242]

The decision in Mukesh and Sheila Denton came around the same time, which makes the juxtaposition between them interesting. Both had access to literature indicating the problematic nature of bite mark evidence. While it is true that Sheila Denton also had the benefit of examining the revised guidelines on bite mark evidence, the scientific literature as well as the PCAST report were available in both cases. It is my contention that the difference in their findings is rooted in the way how the Courts in India and the US have historically understood expert evidence and used it in practice.

Foundational Validity in the US: A Tale of Two Standards

In the US, the Federal Rules of Evidence, 1975 (“Federal Rules”) are quite clear on what is required of experts furnishing evidence in Court. Clause (c) of Rule 702 mandates expert testimony to be based on “reliable principles and method” (foundational validity) while clause (d) requires the expert to have reliably applied the principles and methods to the facts of the case (validity as applied).

However, the first rule for determining the foundational validity of expert opinion in the US predates the Federal Rules. The standard laid down in Frye v. United States in 1923 continued to be the defining standard for judging the validity of expert testimony for seven decades. The matter related to the validity of the systolic blood pressure deception test as evidence. The Court laid down the “general acceptance” standard stating that “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” On the basis of this standard, the Court stated that the deception test had “not yet gained such standing and scientific recognition among physiological and psychological authorities” so as to justify the use of the test as evidence in expert testimony.

While this test did lay a baseline for foundational validity, it had its issues. The source of the issues with the standard stemmed from the fact that the test was merely formal, looking at the general acceptance of a methodology by the scientific community. It did not have, for instance, the ability to take into account new, however, scientifically strong evidence produced through rigorous scientific study, merely because its novelty prevented it from having the status of ‘general acceptance’.

This problem was sought to be addressed by the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals in 1993. The petitioners in the case alleged that they were born with serious birth defects owing to the respondent’s drug ‘Bendectin’. The point of contention was that established scientific literature did not find a causal link between Bendectin and birth defects. However, new studies based on different methodologies did show such a link. The question was whether these new studies could be accounted into evidence, despite being barred by the ‘general acceptance’ standard. Claiming that with the coming of the Federal Rules, the Frye standard had been superseded, the Court laid down the following factors in considering whether the methodology is valid:

whether the theory or technique in question can be and has been tested;
whether it has been subjected to peer review and publication;
its known or potential error rate;
the existence and maintenance of standards controlling its operation; and
whether it has attracted widespread acceptance within a relevant scientific community.

Note that in Daubert widespread acceptance is only one of the many factors that the Courts have to consider while evaluating the validity of an expert’s methodology. The Daubert test goes beyond looking at acceptability and pierces into the scientific rationality of the methodology. Quoting Karl Popper, the Court goes on to state that “[s]cientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” This enables the Court to look into new, emerging and yet scientifically sound studies in relation to forensic evidence and incorporate them into evidence.

Daubert standard is the current standard used by US Federal Courts and several State Courts in relation to scientific and technical evidence, while some State Courts continue to use the Frye standard.

Expert Testimony: Indian Courts in Practice

Indian Courts do not have a developed standard to judge the foundational validity of expert evidence. While evaluating expert testimony, the Courts usually look at two things: the qualifications of the expert, and the principled nature of the testimony (Ramesh Chandra Agrawal v. Regency Hospital Ltd., 2009, [11]). In the former test, the Court looks at whether the expert has experience with the particular issue in question. For instance, in State of HP v. Jai Lal (1999), the Court did not consider it enough that the expert witness had a general qualification in horticulture, stating that the expert was required to have expertise in the particular issue, that is, assessing apple crops. In the latter test, the Court examines whether the opinion is principled and supported by logical reasoning or it is based on ad hoc judgment. For instance, in the case of a handwriting expert, the expert should be able to give an opinion on how to differentiate two near identical handwriting samples without having them in hand (Manu Sharma v. NCT of Delhi, 2007 [71]).

The role of the expert is not to be a witness of a fact, but merely to furnish the necessary scientific criteria to test the accuracy of the conclusions so that the Judge can form his independent judgment by applying these criteria to the evidence in the case (State of HP v. Jai Lal, 1999). However, what is the criteria for the validity of the principles themselves, it is unclear. The practice of the lower Courts is clear in that no such standard is actually used to cross-check the scientific and foundational validity of the evidence presented in Courts. However, the question remains whether an argument for such a standard can be made within the Indian framework of expert evidence.

Searching for Foundational Validity in the IEA

As stated earlier, Section 45 of the IEA does not define the term ‘science’. The Courts themselves have also not undertaken such a discussion, presumably because the poor drafting of the provision gives no impetus to such an exercise. However, some standard of scientific validity can be read into the way that the Courts have interpreted the second leg of the validity of expert evidence.

In Ramesh Chandra Agrawal v. Regency Hospital Ltd. (2009), the Court stated that the principles used by the expert need to be ‘reliable’ and the expert needs to be from a ‘recognised field of expertise’. The Court, however, never defines or attempts to explain what these terms mean. In State v. SJ Choudhary (1996), a Constitution bench of the Supreme Court, while examining the admissibility of the evidence of a typewriting expert, made a similar observation. The Court stated that the opinion formed by the expert should be based on “recognised principles” regulating the scientific study. However, the precedential value of this holding is unclear as the Court, in a confused construction, ended up recognising typewriter evidence as valid not because of the scientific nature of the methodology used to analyse it, but rather based on it being analogous to handwriting evidence, which is explicitly mentioned in Section 45.

The closest the Court comes to having a substantive discussion on the issue of foundational validity is in an obiter in Selvi v. State of Karnataka (2010). While the question of law in the case concerned the issues concerning the narco-analysis test vis-a-vis self-incrimination, it did touch upon the questionable scientific validity of the test. The Court stated that for any scientific technique to be valid, it should have been subjected to rigorous independent studies and peer review. The Court quoted the Daubert standard to describe how the validity of the methodology or a scientific technique can be assessed. However, there is little precedential value to this statement given that the scientific validity of the narco-analysis test was not a question before the Court.

The strongest case for the foundational validity of scientific evidence in India can be made from the holding of the three-judge bench of the Supreme Court in Veer Pal Singh v. Ministry of Defence (2013) where the question of the judicial review of the report of an expert body came into issue. The case concerned the disability pension of an armed forces personnel, with the prime question of fact being whether or not the schizophrenic reaction of the appellant was aggravated by the service. The Armed Forces Tribunal found that the condition of the appellant was “constitutional and not aggravated by military service” based on an earlier assessment by a psychiatrist who had characterised the appellant’s “quarrelsome, irritable and impulsive” behaviour as signs of a schizophrenic reaction. In this case, the Court castigated the Tribunal for mechanically accepting the finding of the expert. It stated that the Tribunal should have looked at medical literature and dictionaries. The Court further analysed the scientific literature on schizophrenia to decide that observations of the expert were substantially incompatible with the scientific literature on the issue and hence the decision must be set aside.

Moving from Deference to Deliberation: The Way Forward

While the Courts in India do not have an elaborate standard for judging the foundational validity of scientific evidence, it is the argument of the author that, drawing from the above discussion, the Courts have laid down a standard that is similar to the one laid down in Frye. The terms used in these cases mirror the terminology used by the Court while laying down the Frye standard in the US, and there is no substantive analysis of the scientificity of the nature we observe in Daubert.

The pertinent question then is, whether India should expand on the general acceptability standard or evolve a substantive standard for reviewing the methodology of scientific evidence as observed in Daubert. Common law jurisdictions like the United Kingdom, New Zealand, and Canada have adopted the Daubert standard. The problems with the Frye standard mainly pertain to the fact that it substitutes deference to knowledge as a substitute for rational deliberation, which is considered a reproach to the deep aspirations of the legal system to obtain rational results. However, the Daubert standard too has its detractors. The principal one among them being Chief Justice Rehnquist himself, who, along with Justice Stevens, authored the dissenting opinion in Daubert. Rehnquist’s objection to the Daubert standard was that it is not exactly clear what is meant by the ‘falsifiability’ of a theory, or what the criterion of ‘refutability’ or ‘testability’ entails. He believed that federal judges have neither the obligation nor the authority to become ‘amateur scientists’ while trying to determine the admissibility of expert testimony. The other set of detractors believe that Daubert did not go far enough. The model that these critics propose is that expert testimony should be treated like any other testimony. The judge and the jury should be educated on the relevant matters, and that process of educating the fact finder about the topics in these scientific matters would itself reveal the weaknesses and falsities in the evidence. However, the objection to this model is the high costs involved in terms of time and training. It may or may not be possible to execute such a system in the West. It will certainly be a serious challenge to implement it in India considering the huge resource constraint in law enforcement.

Regardless of the model that India chooses to employ, it is clear that there is a need for a concrete standard for judging the admissibility of expert testimony. The substantive and rational nature of the Daubert standard makes it an attractive option. It is suitable to take into account the scientific developments which bring into doubt the foundational validity of evidence, despite their hitherto general acceptance by the scientific community.

Conclusion

The interpretive strategy that the Indian Courts need to adopt in order to rationalise the system of forensic evidence in India is to define the term ‘science’ used in Section 45 of the IEA. Defining the term ‘science’ would have an effect similar to laying down a standard of scientificity or foundational validity, except that the standard here would be of legislative origin rather than judicial. This definition must include a term that does not merely defer to general acceptance, which, arguably is the standard espoused by the doctrine as it presently stands, albeit not enforced in practice. The definition should have a substantive definition of ‘science’, which clearly separates scientific from non-scientific methodologies or the methodologies which, as a consequence of further scientific evidence, have been deemed unscientific. This will ensure that rational deliberation and the truth-seeking function of the law are preserved in the way forensic evidence is appreciated in India.

Abhineet Maurya is a student at the National Law University, Delhi.

Criminal Law Bills 2023 Decoded #23: Admissibility of Electronic Records

Editor 2 — Wed, 15 Nov 2023 12:09:10 +0000

This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.

This post analyses the implications of the changes proposed to the provisions pertaining to the admissibility of electronic evidence under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.

Similar to s.65B IEA, Cl.63 BSB provides a specific procedure for the admissibility of electronic records. However, it introduces the following changes to the other provisions relating to primary and secondary evidence, that would impact the evidentiary nature and admissibility of electronic records:

Cl.2(c) BSB which replaces s.3 IEA, defines documents to also include ‘electronic or digital records’. Accordingly, separate references to electronic records have been deleted in certain provisions.^[1]
Cl.57 BSB, which replaces s.62 IEA, introduces explanations 4 to 7, which expand the meaning of primary evidence to include electronic or digital records. These explanations introduce the following changes:

Any electronic file which is created, or stored simultaneously or sequentially in multiple files (which would include copies) would be primary evidence.
If the proper chain of custody of electronic or digital records is produced, then it would be primary evidence.
Any video recording which is transmitted, broadcasted or stored in another device would be primary evidence.
If an electronic record is stored in multiple storage spaces in a computer, then each automated storage, including the temporary files, would be primary evidence.
Cl.62 BSB, which replaces s.65A IEA, states that electronic records must be proved as primary evidence, unless mentioned.
Newly introduced Cl.61 BSB, prescribes that the admissibility of electronic records cannot be denied on the basis of their nature as electronic records and their legal effect, validity and enforceability shall be at par with paper records.

Notably, Cl.63(4) BSB introduces the stage at which the certificate regarding the electronic record must be submitted. Further, it proposes changes to the authorship of such certificates, which may include the person in charge of the computer or communication device and an expert that retrieves the electronic record. Lastly, it also introduces a format for a two-part certificate to be submitted. Part A of the certificate should be filled by the party, who owns, manages or maintains the computer device from which the electronic record is retrieved. Part B of the certificate should be filled by the expert who retrieves the electronic record from the device. Currently, due to a lack of format for a certificate under s.65B IEA, there is no uniformity in the information that may be present in such certificates.^[2]

I. Background

Information Technology Act, 2000 amended IEA inter alia, to recognise electronic records as documentary evidence under s.3 IEA and provide a special procedure to govern their admissibility under ss.65A and 65B IEA.

There were contrary judicial opinions about the applicable procedure for the admissibility of electronic records. On the one hand, courts held that ss.65A and 65B IEA are merely clarificatory, and do not bar the applicability of general provisions for adducing documentary evidence, i.e. ss.63 and 65 IEA, to electronic records.^[3]On the other hand, special provisions under ss.65A and 65B IEA were considered to be a complete code applicable to electronic records, and therefore, adherence with the requirements under s.65B IEA was necessary for the admissibility of electronic records.^[4] In Arjun Panditrao Khotkar,^{^[5]} the Supreme Court resolved this conflict in judicial opinion in favour of the latter interpretation.

The Court clarified the following aspects regarding the admissibility of electronic records:

The non obstante clause (‘notwithstanding anything contained in this Act’) in s.65B(1) IEA makes it clear that the admissibility and proof of electronic records must necessarily follow the special procedure therein.
The general provisions regarding documentary evidence under ss. 62 to 65 IEA have no relevance for the admissibility and proof of electronic records.
S.65B(1) IEA differentiates between the ‘original’ document – which would be the original electronic record contained in the computer, in which the original information is first stored – and the copies made therefrom.
S.65B(1) IEA creates a deeming fiction that copies of electronic records shall be deemed to be a document if the conditions specified in s.65B(4) are satisfied. The deemed document would be admissible in evidence without production of the original document.
The original document being primary evidence would be admissible on producing the same without any requirements under s.65B; whereas copies of the original document being secondary evidence would be admissible only on satisfaction of conditions specified in s.65B IEA.

II. Removal of distinction between Originals and Copies of Electronic Records

Electronic or digital records are susceptible to alteration, transposition and modifications. These changes may occur either through manual intervention or even as unintended digital artefacts. Recognising this, s.65B IEA was introduced as a safeguard to ensure the authenticity of the copies of electronic records. It prescribes conditions for ensuring the lawful custody and operability of the computer from which it was originally produced and the chain of custody of such records. Therefore, the distinction between original and copies of electronic records is essential, as the latter should be admissible only if the requirements under s.65B IEA are met. However, explanations 4 to 7 in Cl.57 BSB remove the distinction between the original and copies of electronic records, by treating both as primary evidence. This may permit the admissibility of copies of electronic records, without the application of safeguards under Cl.63 BSB (equivalent of s.65B IEA).

As per explanation 4, any copies of electronic records, which may be sequentially stored in multiple files, would also be considered as primary evidence. For instance, this means that any electronic file such as CCTV footage, which is stored in a digital video recorder (DVR) and thereafter transferred to a USB drive, the footage in USB drive would also be primary evidence. This is despite the fact that the footage in the USB drive is a copy of the original DVR footage. Similarly, as per explanation 6, television broadcasts which are recorded by the users would also be primary evidence.

Further, it is unclear whether the explanations 4 to 7 are to be read together or separately. For instance, there may be electronic records which are covered within explanations 4, 6, or 7, but may not meet the requirement under explanation 5, due to lack of proper chain of custody. In this case, it is unclear whether such electronic records that lack proper custody would be considered as primary evidence.

III. Uncertainty regarding the procedure for Admissibility of Electronic Evidence

As discussed above, the explanations 4 to 7 to Cl.57 BSB, consider both originals and copies of electronic records as primary evidence. Therefore, it is uncertain whether copies of electronic records would be governed by the special conditions specified in Cl.63 BSB or would be directly admissible as primary evidence under Cl.57 BSB.

a. Option 1: special procedure may continue to govern Admissibility

In view of the non-obstante clause (‘notwithstanding anything contained in this Adhiniyam’) in Cl.63(1) BSB, the ratio of Arjun Panditrao Khotkar may continue to be good law. Therefore, the procedure prescribed in Cl.63(1) BSB would continue to govern the admissibility of copies, irrespective of whether they come within the purview of primary evidence as per explanations 4 – 7 to Cl.57 BSB.

b. Option 2: general provisions regarding Admissibility of Documentary Evidence may be applicable to Electronic Records

Unlike s.65A IEA which specified that contents of electronic records would be proved in accordance with special provisions under s.65B; Cl.62 BSB marks a significant shift as it prescribes that electronic records may be proved in a similar manner to other documentary evidence under Cl.59 BSB. Further, Cl.61 BSB, which also begins with a non-obstante clause, mandates that the admissibility of electronic records shall be at par with paper records.

These changes may be interpreted to mean that copies of electronic records within the purview of explanations 4 to 7 to Cl.57 BSB, may be proved as primary evidence, without following the special procedure in Cl.63 BSB. This may resurrect the view taken by the Supreme Court in Navjot Sandhu and Shafhi Mohammad, that the general provisions governing the admissibility of documents may also apply to electronic records. In these judgments, the Supreme Court held that the special procedure in s.65B IEA is not mandatory, and can be relaxed, for instance if the electronic record is produced by a party not in possession of the device.

IV. Changes to the conditions specified in Cl.63 BSB

Cl.63 BSB makes three broad changes to the conditions specified in s.65B IEA for the admissibility of electronic records.

Firstly, the definition of computer output in Cl.63(1) BSB has been expanded to include output from any communication device. It also adds that information in an electronic record may be ‘stored, recorded or copied in any electronic form’ to be covered within this provision. Similarly, Cl.63(3) BSB provides that computer output may be produced by computers or communication devices working standalone or in any system or network, including those managed by an intermediary such as telecom service providers, social media services etc.

Secondly, unlike s.65B(4) IEA, which does not clarify the stage at which the certificate must be submitted,^[6] Cl.63(4) BSB mandates that such a certificate shall be submitted along with the electronic record for admission. This is a positive change as it may ensure more meaningful compliance with the admissibility requirements under Cl.63 BSB.

Thirdly, Cl.63(4)(c) provides that the certificate shall be signed by ‘a person in charge of the computer or communication device and an expert (whichever is appropriate)’ as per the format specified in the schedule. This marks a change from the position under s.65B(4) IEA which specified that the certificate may be signed by a person in an official position in relation to the operation of the device or in the management of relevant activities. The proposed changes under Cl.63(4)(c) may help ensure only those persons directly in control of the device, irrespective of their official position or designation, who may be better suited to certify the operability of the computer and the authenticity of the electronic record are permitted.

However, the use of the terms ‘whichever is appropriate’ creates uncertainty regarding whether the certificate should be issued by both the person in charge of the device and an expert or whether it merely indicates the type of expert that may issue the certificate. This interpretation would be significant since Part A of the prescribed format of the certificate, which must be filled by the person in charge of the device, varies from Part B which has to be filled by the expert. Only Part B of the certificate carries the requirement to state that the computer device was operating properly and to specify the hash value of the file, which is essential for authenticating the electronic record.^[7] Therefore, in case submission of Part A of the certificate filled by the person in charge of the computer or communication device is sufficient, then the proper operation of the device and the hash value of the file may not be specified.

[1] References to electronic records in Cls.20 and 54 BSB, which replace ss.22 and 22A, and s.59 IEA respectively, have been removed.

[2] Courts have attempted to close this gap by laying down guidelines for investigating authorities for information to be included in a certificate under s.65B IEA. These guidelines emphasise that the details of the computer devices, storage devices or software for making copies of electronic record (including make and model, serial number) and hash value of the electronic record must be mentioned; Saibunisha (died) & Syed Jameel v. The State represented by the Inspector of Police CBCID Madurai Town and Ors. (2023) Madras High Court Crl. A. (MD). No. 423 of 2019 and 181 of 2021 [39], <https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/899140>, last accessed on 20.10.2023; Yuvaraj v. The State, represented by the Additional Superintendent of Police CBCID Namakkal District & Ors. (2023), Madras High Court, Crl.A.(MD).Nos.228, 230, 232, 233, 515, 536 &747 of 2022 [206]-[208], <https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/883500>, last accessed on 20.10.2023.

[3] State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600; Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178; Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801.

[4] Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473.

[5] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC 1.

[6] Arjun Panditrao Khotkar [52]-[59]: The Supreme Court held that considering the absence of stage for production of certificate under s.65B IEA, the trial court may allow its submission at any stage before the conclusion of the trial.

[7] Yuvaraj [206]-[208].