Interviews – P39A Criminal Law Blog

Piecemeal Justice: Inadequacy of Equating Punishment with Justice for Victims’ Families

Editor 2 — Tue, 27 Jun 2023 05:52:28 +0000

Dr. Penelope Tong (Fieldwork Supervisor, Tata Institute of Social Sciences) discusses her doctoral research on the needs of families of murder victims in Mumbai, with Baljeet Kaur (former senior mitigation investigator at P39A).

Dr. Tong’s research finds that most cases of murder arise due to escalation of interpersonal conflicts, particularly in socio-economically impoverished communities. Though the police are often approached at the first instance of strained interpersonal dynamics, they are ill-equipped to resolve and prevent further conflict. Further, in the aftermath of murder, victims’ families are forced to navigate emotional distress, alienation and an inaccessible legal system. For victims’ families to heal and move forward, a holistic recognition of their needs and a conception of justice that goes beyond punishing the offender, is required.

Can the criminal justice system, as it stands today, address such complex needs and treat families of victims justly? In this podcast, Dr. Penelope Tong and Baljeet Kaur discuss the need for the criminal justice system to expand its imagination of justice for families of murder victims.

Terror Trials: Life and Law in Delhi’s Courts

Editor — Fri, 12 May 2023 10:34:37 +0000

In this podcast, Project 39A’s Director (Sentencing) Neetika Vishwanath speaks to Dr. Mayur Suresh (Senior Lecturer, SOAS University of London) on his recently published book ‘Terror Trials: Life and Law in Delhi’s Courts’. The book is an ethnographic study of Delhi’s Tis Hazari court over 14 months during which Dr. Suresh followed 18 terrorism trials. In this conversation, Dr. Suresh reflects on the relevance of ethnography as a method of legal research and the value of studying everyday life in trial courts. Looking beyond the exceptionalism framework in academia that is often used to describe terrorism laws and trials, ethnography allowed Dr. Suresh to capture ways in which terror accused use legal procedures and technicalities to engage with the law.

The Mandatory Death Penalty for Drug-Trafficking in Singapore: Effective or Excessive?

Baljeet Kaur — Fri, 30 Sep 2022 21:10:34 +0000

In this episode of the 39A Podcast, Neetika Vishwanath is in conversation with Kirsten Han, journalist and anti-depth penalty activist based in Singapore. In the backdrop of an alarming rate of executions in Singapore in 2022, Kirsten gives the listeners a first-hand account. The Podcast discusses the anti-drug trafficking law in Singapore, the 2012 amendment and its problematic implementation, discriminatory use of the death penalty, and hefty fines on death penalty lawyers. Kirsten also reflects on Singaporean government’s unverified assumption that the death penalty deters the use of drugs.

The Supreme Court’s PMLA judgment: Perspectives on the frailties of the PMLA

Baljeet Kaur — Fri, 02 Sep 2022 12:41:17 +0000

Apart from the specific concerns the Supreme Court’s recent judgment on the Prevention of Money Laundering Act, 2002 raises, there are broader issues raised by this decision which need to be addressed. What is the purpose of having special laws like PMLA in the first place? Are these purposes served by the current framework? Maneka Khanna gets in conversation with Shri Singh to explore these questions.

While the issues with the judgment remain, it is true that the judgment provides some guidance to litigators and puts to an end a lot of uncertainty concerning the Act. However, the expanding scope of the Act brings us back to the same question: is the law serving its noble purpose? Mr Singh is of the opinion that not enough academic rigour has gone into enquiring whether the procedure and the substance of special laws like PMLA have met their objectives. Has the enforcement and the overall legal effect of PMLA met the threshold of functional equivalence it was supposed to meet? Unless these standards are met, the effects of the law will fall short of India’s international commitments. For this, and more, please listen to the conversation!

The Supreme Court’s PMLA judgment: Undermining the right against self-incrimination?

Baljeet Kaur — Mon, 22 Aug 2022 13:42:41 +0000

In this episode concerning the recent decision of the Supreme Court concerning the Prevention of Money Laundering Act, 2002, we narrow our focus to the specific issue of self-incrimination addressed in the judgment. Are provisions of the PMLA violative of Article 20(3) of the Constitution? Aditya Mehta talks to Aabad Ponda, Senior Advocate, who argued before the Supreme Court concerning this specific issue.

Article 20(3) of the Indian Constitution gurantees an accused person a right against self-incrimination. The challenge in the present case was restricted to cases where the person is summoned in the character of the accused. In the scheme of PMLA as it stands, a person summoned in the character of the accused are penalised for non-compliance with the provision mandating cooperation. Mr Ponda addresses the decision of the Court in this matter. He further goes on to dicuss the status of persons not summoned in the character of an accused. Section 63(2) of the PMLA provides a fine up to 10,000 rupees in cases where a person refuses to answer a question in relation to summon. But what happens when such questions pertains to an answer which may incriminate such person? As per the PMLA judgment, non-compliance would still attract the penalty of Section 63(2). Mr Ponda respectfully disagrees with the findings of the Supreme Court and takes us through several judgments of the Supreme Court concerning the right to self-incrimination as well as the nature of special offences. He is of the opinion that ignoring the issues decided in larger benches of the Supreme Court like Ramanlal Bhogilal Shah and the ground realities of the implementation of the Act, the judgment opens itself to challenge. For this and more, please listen to the converstaion!

Note: The relevant sections and cases referred to in the podcast are listed below.

Legal Provisions:

Constitution of India

Article 20(3) – Right against self-incrimination
Article 21 – Right to life and personal liberty

Prevention of Money Laundering Act, 2002

Section 50 – Powers of authorities regarding summons, production of documents and to give evidence, etc.
Section 63 – Punishment for false information or failure to give information
Section 69 – Recovery of fines

Evidence Act

Section 24 – Confession caused by inducement, threat or promise, when irrelevant in a criminal proceeding
Section 25 – Confession to police officer not to be proved

Foreign Exchange Regulation Act, 1973 (erstwhile)

Section 40 – Power to summon persons to give evidence and produce documents

Customs Act, 1962

Section 108 – Power to summon persons to give evidence and produce documents

Judgments:

Ramanlal Bhogilal Shah v D K Guha & Ors (1973) 1 SCC 696
Poolpandi v Superintendent, Central Excise & Ors (1992) 3 SCC 259
Dalmia Cement (Bharat) Limited v Assistant Director of Enforcement Directorate 2016 SCC Online Hyd 64
State of Bombay v Kathi Kalu Oghad AIR 1961 SC 1808
M P Sharma v Satish Chandra, District Magistrate, Delhi (1954) SCR 1077
Nandini Satpathy v P L Dani (1978) 2 SCC 424
Selvi v State of Karnataka (2010) 7 SCC 263
Renu Sharma v Collector of Customs 45 (1991) DLT 642

Supreme Court’s PMLA Judgment: Insights for Defence Lawyers

Baljeet Kaur — Thu, 18 Aug 2022 13:30:00 +0000

The recent dismissal of the challenges to the provisions of the Prevention of Money Laundering Act, 2002 has given grounds for much criticism. Irrespective of the controversy surrounding the judgment, it stands to be the law on the question of money laundering for now. In this conversation between Harsh Srivastava and Arshdeep Singh Khurana, we take a detour from the critique and address how the judgment may be used as part of a defence strategy in money-laundering cases.

What are the implications of the judgment for a defence lawyer? One of the many problematic aspects of the PMLA is that a copy of the ECIR, which is akin to an FIR in a PMLA case, is not provided to the accused. Mr Khurana explains how this makes the criminal procedure extremely opaque for the accused. However, a silver lining that defence lawyers can look to is that the judgment establishesa strict relation between the elements of money laundering and the commencement of proceedings. Unless the ED shows the existence of a scheduled offence, the proceeds of the crime, and a link between the two, no case can be made out. The standards and parameters are different for each stage (discharge, acquittal, quashing), and Mr. Khurana discusses the judicial process and timelines underlying these stages. Mr Khurana further elaborates on the implications of filing of a closure report in a PMLA case. He speaks of the need for defence counsels to ensure that the proceedings under ECIR and scheduled offences are clubbed. He further discusses the dilution of the bail conditions by the Supreme Court vis-a-vis the right to fair trial under Article 21. While anticipatory bail has become an illusory concept under the Act, Mr. Khurana explains how lawyers can press for bail for arrested persons in the absence of investigation into scheduled offences. He also takes us through the question of attachment of property. Under what circumstances can property be attached? What is the difference between attachment and confiscation? For this, and more, please listen to the conversation!

Note: The relevant sections and cases referred to in the podcast are listed below.

Sections:

Prevention of Money Laundering Act, 2002

– Section 2(u) – Definition of “proceeds of crime”

– Section 3 – Offence of money laundering

– Section 5 – Attachment of property involved in money-laundering

– Section 8 – Adjudication

– Section 44 – Offences triable by Special Courts

– Section 45 – Offences to be cognizable and non-bailable

Judgments:

1. Satender Kumar Antil v. Central Bureau of Investigation, 2022 SCC OnLine SC 825

2. Sujay U Desai v. Serious Fraud Investigation Office, Crl. App. No. 1023 of 2022

3. Jainam Rathod v. State of Haryana, Crl. App No. 640 of 2022

The Supreme Court’s PMLA Judgment: The Paths Not Taken

Baljeet Kaur — Thu, 11 Aug 2022 19:23:08 +0000

What went wrong in the Supreme Court’s recent decision concerning the Prevention of Money Laundering Act, 2002? Was it a faulty interpretation of the provisions of the Act? A misplaced application of precedent? A general lack of clarity concerning the principles at play? Shivani Misra of Project 39A speaks to Senior Advocate Aman Lekhi on what the Supreme Court could have done differently while balancing the rights of the individual against the State’s power.

The judgment of the Supreme Court, while upholding the constitutional validity of the PMLA, has proven to be controversial in many aspects. In this conversation, Mr. Lekhi alludes to the various lacunae in the judgment. He demonstrates how in construing the meaning of “money laundering” the rules of interpretation were not properly followed and the scope of the provision was widened. He states that Explanation to Section 3 of the PMLA added in 2019 is contrary to the substantive portion of the provision as it completely alters what the provision mandates.

While stating that reverse burden clauses are not per se unconstitutional, Mr. Lekhi argues that the Court should have explicitly clarified that the legal burden would not shift to the accused. In the context of the PMLA, the Court should have examined the nature of the burden, checked whether the accused can discharge such a burden and whether it is a proportionate interference to the rights of the accused. Mr. Lekhi also speaks about the twin conditions of bail and also provisions of search under the PMLA.

His overall argument is that a statute does not have isolated silos. While dealing with the vires of a statute it is obligatory on the Court to see the consequence of the interpretation of specific sections on other provisions. For this, and more, please listen to our podcast!

Note: The following are the relevant sections and case laws referred to in the podcast

Sections

– Section 3 – Offence of money laundering
– Section 19 – Power to arrest
– Section 24 – Burden of proof
– Section 45 – Offence to be cognisable and non-bailable
– Section 50 – Powers of authorities regarding summons, production of documents and to give evidence

Judgments referred

Sanjay Dutt v. State through C.B.I., Bombay (1994) 6 SCC 86
Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1
Tofan Singh v. State of Tamil Nadu 2020 SCC OnLine SC 882
Barkat Ram v. State of Punjab (1962) 3 SCR 338
Balkishan A Devidayal v. State of Maharashtra (1980) 4 SCC 600

Access to Safe Abortions in India: A Fraught Reality

Baljeet Kaur — Mon, 08 Aug 2022 17:52:28 +0000

In light of the Supreme Court quashing the Delhi High Court judgement disallowing the termination of pregnancy after 24 weeks; Anupriya Dhonchak speaks to Dr. Aparna Chandra about the undue barriers that hinder access to safe abortion in India.

In the backdrop of the US Supreme Court’s reversal of Roe v. Wade, this conversation considers the impact of paternalistic state policies in undermining the bodily integrity and personal autonomy of women, and argues for locating the right to abortion within the framework of substantive equality.

Women’s Liberation and the Carceral Project

Baljeet Kaur — Tue, 28 Jun 2022 17:00:34 +0000

Hrishika Jain and Prof. Aya Gruber discuss the carceral form of feminism’s engagement with sexual violence, its implications for victims and feminism’s own transformative goals, and the unfulfilled promise of the #MeToo movement as an alternative form of feminist politics.

Intellectual Disability and the Death Penalty

Baljeet Kaur — Thu, 26 May 2022 17:26:46 +0000

In this episode of the 39A Podcast, CP Shruthi speaks to Professor Marc Tassé, from the Department of Psychology and Department of Psychiatry and Behavioral Health at The Ohio State University. He is also the Director of the Ohio State Nisonger Center, a University Center for Excellence in Developmental Disabilities.

Professor Tassé’s clinical interests include the diagnosis of intellectual disability (ID), the assessment and treatment of problem behaviour and psychiatric disorders in individuals with ID or Autism Spectrum Disorder. In this episode, Shruthi speaks to Prof Tassé about what intellectual disability is, who can diagnose it, the evolution of jurisprudence on Intellectual disability in the US and the challenges associated with presenting Intellectual Disability in court in the Indian context. The podcast is relevant for Judges, lawyers, mental health professionals and other specialists working on cases involving death sentences or death-eligible offences.