Turning criminal justice on its head

I started teaching criminal procedure about six years back after spending a decade teaching substantive criminal law. I would invariably start my criminal procedure course by underlining the constitutional foundations of criminal procedure.

I would argue that the substantive law, which deals with proscribed conduct is debated and deliberated very minutely on various aspects – defining the contours of that offence, ingredients necessary to constitute the offence, the punishment following a principle of proportionality and so on and so forth. Procedural law, on the other hand, is transsubstantive – general – that is, it includes police powers and processes, procedure of adjudication, etc. and these aspects do not differ from one offence to the other.

The distinction may be that of petty and serious offences, summons and warrant cases etc.. So how does one deal with this generality? How do you circumscribe the procedure? These are very important introductory questions for students of criminal law.

The procedure is conceived at a high level of generality and it is the Constitution and international human rights instruments which guide the interpretation of this generality.And being general, it is amenable to more than one interpretation.

But since the justicing power flows from the Constitution, the Indian judiciary became the protector of the individuals against the might of the state. The Constitution of India guarantees civil liberties to individuals and hence is a restriction on the power of the state.

The individual pitted against the powerful state has the protection of moving the court in case of any interference with her part III rights. Hence the criminal procedural law stands firm on constitutional foundation, in the sense that the criminal procedure cannot surpass Constitutional guarantees with unbridled powers.Despite the huge potential of affecting people’s liberty, criminal law is thus reined in by Constitutional principles.

Article 20 and 21 along with other rights in part III are a guarantee against state excesses. Article 21 read with clauses (1) and (2) of article 22 underline the importance of rights of the accused. The accused is assured procedural safeguards against the state (that is why criminal law is part of public law). From this, inter alia, flow provisions such as special protection to the accused, fair trial, burden of proof, the presumption of innocence etc.

The presumption of innocence has no bearing on the actual guilt and innocence of the accused. As Herbert Packer reminds us, presumption of innocence is not opposite to presumption of guilt but is a direction to the officials, the executive, on how to proceed in the case and has no bearing on the prediction of outcome! It is normative and is a limitation on official power. And the Indian judiciary has by and large upheld the sanctity of this in most of the cases barring terrorism etc.

However, a new trend is setting in where the judiciary is putting all faith in the state and leaving the individual to God’s mercy. The PMLA judgment of the three judge bench of the apex court has exempted the state from the rigor of due process of law and rule of law as a normative resource.

The State, post this judgment, can now use rule of law as a power resource by resorting to the ambiguous ‘compelling state interest’. This judgment has shaken a constitutional foundation, which I was taught, was unshakeable! What is left to be seen is how the larger bench would decide in Rojer Mathew regarding whether some of the amendments to the Act could not have been enacted by the Parliament by way of a Finance Act.

Though it will have a larger bearing on the Act, the current decision assigning more unbridled powers to the State reflects a significant backtracking from fundamental criminal law principles.