It is now well settled that compelling the taking of voice samples from an accused for the purpose of an investigation does not amount to a violation of Article 20(3) of the Constitution. In other words, seeking voice samples from an accused does not amount to compelling an accused to be a witness against herself
But the question that still remains is: which statute or legal provision provides the power to compel the accused to provide a voice sample? In the last decade, 5 Judges of the Supreme Court (over three different opinions) have attempted to locate this power within the law. And, well, none of them have succeeded.
Justice Ranjana Prakash Desai in Ritesh Sinha v. State of U.P., acknowledged that there is no specific legal provision under which the Magistrate can authorise the investigating agency to take voice samples. Justice Desai then proceeded to painstakingly identify provisions that could be purposively interpreted in order to empower the Magistrate to authorise the collection of voice samples.
For this purpose, the Court began the quest to find such authority in the Identification of Prisoners Act, 1920 — a legislation aimed at securing the identification of an accused person.
Previously (and before the matter landed before the Supreme Court in 2013 in Ritesh Sinha case), in this context, the Bombay High Court in CBI v. Abdul Karim Ladsab Telgi (Telgi), has held that measuring the frequency or intensity of speech sound waves can be considered to be “measurement” as defined under the Identification of Prisoners Act. Therefore, the Magistrate who is empowered under Section 5 of the Act to order a person to be “measured”, may compel the accused to provide their voice sample.
However, the Delhi High Court in Rakesh Bisht v. CBI, disagreed with the Bombay High Court and ruled that the purpose of Section 5 of the Act was only to identify the accused person after the investigation was complete.
Though the Delhi High Court’s logic in Rakesh Bisht appears to be more sound, Justice Desai followed the reasoning of Telgi, without providing any reason to disagree with Rakesh Bisht.
In his dissent in the same judgment, Justice Aftab Alam recognises that even if – by some interpretive gymnastics — a voice sample can be considered “measurement” under the Act, that would lead to the unseen consequence that even the police (without magisterial authorisation) may be empowered to compel the accused persons to provide the voice sample. This is because Sections 3 and 4 of the Act empower the police to take measurement of convicted and non-convicted persons.
Apart from the Identification of Prisoners Act, Justice Desai also examined various provisions of the Evidence Act, 1872 and the Criminal Procedure Code, 1973 (CrPC). Section 73 of the Evidence Act, which deals with “comparison of signature, writing or seal with others admitted or proved”, only enables the court to compare these writing/signature specimens. It does not empower the court to direct the accused to provide such samples to the investigating agency for the purpose of investigation. While, Parliament attempted to correct this anomaly by the inserting Section 311-A CrPC, the problem still remains. This is because Section 311-A of the Code deals only with specimen signatures and handwriting and does not empower the Magistrate to authorise the taking of voice samples.
Having ruled out these provisions, the Court then examined Sections 53 and 54-A CrPC. Section 54-A provides that where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court having jurisdiction, may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit. Surprisingly, the Court has consistently overlooked Section 54-A without providing any justification. In our opinion, a possible reason for this could be that Section 54-A relates to only arrested persons and not all accused persons.
Having examined the various provisions, Justice Desai eventually located the power of the Magistrate under Section 53 CrPC. Section 53 CrPC deals with “examination of accused by medical practitioner at the request of police officer”. According to the Explanation to this provision:
“examination” shall include the examination of blood, bloodstains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and fingernail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.
A bare perusal of this section and its genealogy would reveal that it was never meant to apply to voice samples.
Position elsewhere in the world
Elsewhere in the world, a similar question came up before the Supreme Court of Appeal of South Africa, in Levack v. Regional Magistrate, Wynberg. Even though the power to obtain voice samples was not explicitly mentioned in South Africa’s Criminal Procedure Act (51 of 1977), the Court provided a purposive interpretation to Section 37 of the South African legislation and held that the police was empowered to obtain voice samples as under this section they retained the power to take steps as they might deem necessary to ascertain the characteristic or distinguishing features of the accused.
Adopting a similar approach, Justice Desai applied the rule of ejusdem generis to the Explanation to Section 53 CrPC and held that voice samples were covered under “such other tests”. However, Justice Alam disagreed with this conclusion, as according to him, “such other tests” is to be decided by the medical practitioner and not the police.
More importantly, Justice Alam disagreed with the judicial exercise to purposively interpret statutes in order to locate the Magistrate’s power to authorise the collection of voice samples. According to him, such power must be explicitly granted by Parliament. The 87th Law Commission Report had made recommendations to provide statutory power to collect voice samples. Parliament’s non-implementation of the Report and other similar suggestions only add weight to Justice Alam’s reasoning, that the court should not legislate, when the Parliament is itself apprehensive about making law. Thus, unable to reach a consensus, the quest to discover the power of the Magistrate to compel the production of voice samples was now passed on to a three-Judge Bench of the Supreme Court.
Making law, instead of finding it
The problem that 2 Judges could not solve was – strikingly – now totally avoided by 3 Judges in Ritesh Sinha v. State of U.P.(Ritesh Sinha 2). In the interregnum, before the matter was heard by the 3-Judge Bench, in a well-reasoned judgment, the Gujarat High Court painstakingly examined various provisions of the Code but also failed to locate the statutory powers of the Magistrate to compel the accused to submit to a voice spectrograph test.
The 3-Judge Bench of the Supreme Court, instead of considering the applicability of various provisions including Section 54-A of the Code, appears to have decided that it would rather make the law, than find it. The Court observed that:
… we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.
The judgment of the Court was premised on the principle that “procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. Therefore, instead of dealing with this procedural thorn in the State’s right to investigate, the Court invoked its extraordinary powers under Article 142 of the Constitution and gave a carte blanche to the investigators without laying down any safeguards against the abuse of this power, or laying down the modalities of exercise of this right.
In our humble opinion, this is deeply problematic. The Court ought not to use its discretion under Article 142 in a manner that may infringe and violate the inalienable fundamental rights of the citizens. While the issue of Article 20(3) is no longer res integra, it is pertinent to note that compelling voice samples from an accused may also raise right to privacy concerns. The Court acknowledged this concern but dismissed it without any analysis by stating that:
… the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.
The Court may have dodged the bullet but the silence has only compounded the problems. For instance, the Punjab and Haryana High Court, has placed reliance on the abovementioned observation of the Supreme Court to dismiss any and all privacy concerns vis-à-vis the collection of voice samples. Apart from the issue of privacy, many other crucial questions remain unanswered.
What is most problematic is that while the 3-Judge Bench has allowed the Magistrate to authorise the collection of voice samples, the Court has provided absolutely no guidelines or procedure by which the Magistrate must exercise these powers. While, the power has finally been identified/granted, the dilemma on implementation or exercise of the power remains:
How should the voice samples be collected?
Should the Magistrate direct and oversee the collection of voice samples?
Can the legal representative of the accused person oversee and supervise the collection of the samples?
How long should the sample be?
Can the Magistrate direct the investigating agency to use the voice samples only for a specific purpose?
Can any and all police officers be authorised to collect samples?
Who decides the transcript of the voice sample?
What, if at all, is the quality control and how can false positives be avoided.
Procedural issues/issues of implementation
Some of these questions have already reached courts. For instance, in Sudhir Chaudhary v. State (NCT of Delhi) the accused person consented to providing a voice sample, but raised an issue with the transcript that was provided by the investigating agency. It was argued that the transcript contained serious inculpatory statements. This was problematic, since a sample of the inculpatory statements would be similar to a testimonial confession. Compelling a voice sample does not violate Article 20(3) because the sample is to be matched with the evidence. But the sample itself cannot be a confession or a testimony. On the other hand, science demands that the transcript must incorporate the language of the recorded evidence, to ensure best results. Such cases drive home the point that issues of science and policy, which require specialised training and understanding, cannot be comprehensively resolved by a court of law on a case-by-case basis or an ad hoc decisional basis and need a more nuanced response. In this case, the Supreme Court while balancing the right of the accused under Article 20(3) and the interest of the State to prosecute, directed that the proposed passage which the accused person shall be required to read out for the purpose of giving their voice samples shall use words, but not the sentences from the inculpatory text.
While, this safeguard is laudable (particularly since the judgment has been followed by a few High Courts) it is crucial that the Court acknowledges that the numerous unanswered questions reflect a dire need to provide more such protections to the accused persons. Doing complete justice, would not only be to recognise or grant powers to the courts/investigators but also provide an instruction manual on how such power must be exercised, for the process to be just, fair and reasonable.
† Bharat Chugh is a former Judge and independent counsel.
†† Siddharth Shivakumar is an advocate and a counsel at the Chambers of Bharat Chugh. They can be reached at firstname.lastname@example.org.
On the legality of compelling an accused to disclose his smartphone/laptop password, or open his phone through face scan, or fingerprint and the constitutional protection against self-incrimination.
Our smartphones are an extension of our minds and souls. Our deepest desires. Our darkest secrets. Our smartphones know it all. You remember that smartphone ad where the manufacturer said something on the lines of, “your phone knows all about you, but not us”. They were not lying. Your smartphone indeed knows everything about you. Knows way too much – in fact.
It, therefore, comes as no surprise that smartphones can offer up a wealth of evidence as far as criminal investigations are concerned. An accused’s phone reveals not only where the accused was, at a given time, but also who did she text or speak with. It tells us, what did she google and what did she buy online. It also demonstrates the trends and history of her financial dealings. When coupled with a smart watch, a smart car, or even a smart refrigerator, it offers even deeper insights both into the criminal, as well as the crime. It offers much more evidence than a house/office search ever has or will.
Smartphones are, therefore, a great aid in crime detection and investigation and their importance can hardly be emphasised enough.
Our notoriously arcane procedural laws, however, were not designed with the smartphone in mind. Therefore, there is little guidance in our laws, on whether an accused can be compelled to deliver up/produce his smartphone/laptop/email password, in the course of a criminal investigation.
Let us assume that, in a given case, a smartphone/laptop (being “property” or “thing” within the meaning of Criminal Procedure Code, 1973), is seized by the police. However, that – by itself – is not the end of the matter. After that arises the issue of retrieving evidence from that electronic equipment or mailbox. This is what brings us to the elephant in the room.
If the seized smartphone/laptop is locked (as they are likely to be – in almost every case), how do the investigators access the contents of the smartphone/laptop/mailbox and retrieve evidence?
Can the accused be compelled to provide his password, or give his face scan/fingerprint?
Would that violate the constitutional protection against “being compelled to be a witness against oneself”? [Article 20(3) of the Constitution of India.]
And, secondly, is there a provision in our procedural law that permits the investigators to seek disclosure of passwords, face scans, etc.?
The Court’s ruling in Virendra Khanna
These were precisely the questions that arose for consideration in the recent case of Virendra Khanna v. State of Karnataka.
The facts of the case were fairly straightforward. The accused was charged for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The investigators claimed that the accused’s smartphone and email account contained crucial incriminating evidence, and since the same were locked, the investigating officer sought Court’s intervention in this regard.
To further its case, the prosecution argued:
Disclosure of phone or computer password is not in the nature of personal testimony. (Reliance in this regard was placed on State of Bombay v. Kathi Kalu Oghad.)
Such an order does not violate the fundamental right to privacy as the right to privacy is not an absolute right and can be curtailed in case:
(a) It is sanctioned by law.
(b) It serves a legitimate State interest/compelling State interest; (prevention and investigation of crime, in this case).
(c) It is proportionate; in the sense that there is a rational nexus between the object (the discovery of truth in a criminal investigation) and the means adopted to achieve the said object. (The “means”, therefore, should not be excessive and the object sought to be achieved should be so important and time sensitive – so as to justify the making of inroads into someone’s privacy.)
(d) In order to satisfy the requirement of “sanction of law”, the prosecution argued that Section 139 of the Evidence Act, 1872, Sections 54-A and 311-A CrPC empower the court to direct the accused to disclose his password/face scan, etc.
(e) Analogy was drawn to permissibility of “identification” of the accused, and taking of DNA samples, specimen signatures/handwriting samples, and voice samples.
The accused, of course, resisted this on the ground of this amounting to “compulsion to testify against himself”, and a violation of his right to privacy. Further, this, it was argued, amounted to a denial of his right to silence and rights under Articles 20 and 21 of the Constitution.
In this background, the Court framed and decided the following issues:
Court’s decision and reasoning
Can a direction be issued to an accused to furnish the password, passcode, or biometrics in order to open the smartphone and/or email account?
Yes. The investigating officer (IO) can always issue directions for “furnishing of information, material objects or the like”.
Can a court issue a suo motu order to the accused to furnish a password, passcode or biometrics?
No. Investigation is the domain/prerogative of the IO. Court is not supposed to be investigating itself, and can act only on an application filed by either of the parties.
In the event of a direction being issued and the accused not furnishing the password, passcode, or biometrics, what is the recourse available to an investigating officer?
IO can approach the court seeking directions to the accused to provide the same and/or “carry out search of the smartphone or electronic equipment”.
What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?
It is open to courts/IOs to issue a notice under Section 91 CrPC to the accused to produce a “document” or “thing” which would include a smartphone, a laptop, etc.
Section 92 CrPC may permit the IO and/or the court to seek documents from a “telegraph authority”.
Section 93 permits the court to issue search warrants w.r.t. a “place”.
These provisions empower the search and seizure of things from a “place” and smartphones, computers, servers, etc. may construed as “places” for the purposes of this section.
Further, Section 100 CrPC requires a person in charge of a closed place (analogy to a phone, laptop or a mailbox) to permit and facilitate a search ordered by the court.
In emergent circumstances, powers under Section 102 CrPC may also be exercised by the IO to seize electronic equipment, and under Section 165 CrPC a search/seizure can be carried out even without a warrant.
Further, Section 69(1) of the Information Technology Act, 2000 also empowers specified officers to pass orders compelling decryption of any information generated, transmitted, received or stored in a computer resource.
Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?
Depends. Data gathered from the accused’s phone/laptop, etc. would be like any other property/evidence gathered during investigation. What would be the weight attached to such evidence is a fact-intensive exercise and a matter of appreciation of evidence, in the light of specific facts and circumstances of each case.
Would providing a password, passcode or biometrics amount to self-incrimination or testimonial compulsion?
No. Given the law laid down in Kathi Kalu Oghadcase, such information does not amount to accused being compelled to be “a witness against oneself”. Merely providing one’s password, passcode, biometrics, does not amount to making an “oral statement” or a “written statement”. Therefore, it cannot be said to be a “testimonial compulsion”.
Article 20 and Section 161 CrPC are, therefore, not violated.
Would providing of password, passcode or biometrics violate the right to privacy of a person providing the said password, passcode or biometrics?
No. The case comes within the exceptions carved out in Puttaswamy case. The IO, however, should not disclose this information to third parties without the permission of the court and deal with it in a manner conducive to the accused’s right to privacy.
What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or biometrics of that person?
In default of accused providing his password, the court can draw an adverse inference against the accused under Section 114 of the Evidence Act, if password is not provided or a wrong password is provided.
In such a case of non-cooperation of the accused, the IO may reach out to the manufacturer to access such information and in case of manufacturer not facilitating such access, the IO can, with the permission of the court, “hack into the smartphone and/or email account” with, of course, the necessary expert assistance.
What are the protection and safeguard that the investigating officer would have to take in respect of the smartphone and/or electronic equipment?
No proper rules formulated in this regard. Pending such formulation, Court laid down some broad guidelines, such as inclusion of qualified forensic examiners in such endeavours and preparation of proper chain of custody documents, etc.
The judgment must be lauded for addressing a gaping hole in our procedural law and introducing some semblance of a method to the process.
Having said that, the judgment falls short on a few counts. For instance, it fails to engage with the issue of right to privacy in sufficient detail, in general and specifically, the requirement of proportionality.
While the court permitted search/seizures of electronic equipment and it added a caveat that when the court is issuing search warrants it should tailor the order narrowly and with precision so as to “preserve the privacy of the concerned” (para 12.22) but, unfortunately, it did not elaborate on this further. More specific directions in this regard would have been apt for the guidance of the courts and the investigators, and would have prevented misuse.
Further, the requirement of any transgression into right to privacy being “sanctioned by law” was not sufficiently examined. Though the judgment must be credited for interpreting “place” (used in CrPC) as applicable to a device/electronic equipment/mailbox, (which is a fairly modern and technocratic interpretation), it fails to engage adequately with the other sections relied upon by the prosecution – including Sections 54-A and 311-A CrPC, for instance.
Further, the judgment, when it sources the power of seeking passwords to Section 91 CrPC (as tantamount to seeking “documents”), commits another fallacy. It ignores a line of decisions where Section 91 CrPC has been held to be inapplicable in case of an accused. (See, for instance, State of Gujarat v. Shyamlal Mohanlal Choksi and M.Kalanithi Maran v. State.) These cases categorically hold that a notice under Section 91 CrPC cannot be issued to an accused as the same amounts to compelling the accused to be a witness against himself. The effect of these decisions has not been considered while sourcing the power to Section 91 CrPC.
Another aspect that has not been considered is the fact that, in some jurisdictions, the courts have made a search warrant mandatory in such cases, with a view to ensure some judicial scrutiny. The desirability of having such a safety valve has not been considered adequately.
Another aspect of practical importance is the issue of rights of the accused upon seizure. For instance, greater clarity is needed on whether the accused would be able to seek a cloned copy of the smartphone/laptop seized, with a view to be able to use it, and to find out and rely upon exculpatory evidence, if any.
We hope a future decision would go into these aspects. Given how vexed the issue is, this is certainly (and hopefully) not the last that we read on this issue.
All said and done, the decision is a crucial one. Indeed, there are privacy-related concerns when it comes to smartphones/laptops, etc., but a narrowly tailored right with the investigators to seek such information is the need of the hour. The judgment would hopefully lead to a more nuanced discourse on balancing of the competing imperatives of a proper investigation, on one hand, and the accused’s right to privacy on the other.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
Who is the master of them all? The written letter of the law, or the subjective whim of an investigator?
This is the question that Section 447 of the Companies Act (CA, 2013) poses.
Section 447 makes fraud a penal offence. Prior to introduction of Section 447, provisions under the Penal Code, 1860 (IPC) such as Sections 406, 420, 465, 477-A, etc. would normally be pressed into action in such cases. But, given the complex nature of corporate frauds, their sheer impact, and the heightened need to investigate and punish them more effectively, the need for a special provision was felt.
This is the genesis of Section 447 of the CA, 2013. So far so good.
The definition of “fraud” under CA, 2013, however, leaves a lot to be desired. In fact, it is a definition that fails to define. Let us see how. Section 447 reads:
Punishment for fraud.—Without prejudice to any liability including repayment of any debt under this Act or any other law for the time being in force, any person who is found to be guilty of fraud involving an amount of at least ten lakh rupees or one per cent of the turnover of the company, whichever is lower, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to ten years and shall also be liable to fine which shall not be less than the amount involved in the fraud, but which may extend to three times the amount involved in the fraud:
Interestingly, the section itself does not define what fraud is. This is what takes us to the Explanation.
Explanation.—For the purposes of this section—
(i) “fraud” in relation to affairs of a company or any body corporate, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss;
On a mere glance, two things immediately stand out:
There is no definition of fraud in the main provision. It is the Explanation to the section that seeks to define what fraud is. The definition in the Explanation is – and wait for it – an inclusive one. It is merely illustrative. Simply put, this means that the section does not define fraud exhaustively and there can be other acts which may qualify as “fraud”, over and above those stated in the section.
Finally, the last part of the section which renders culpable the act of injuring of the “interests” of “any other person” is simply too wide.
Let us unpack each of the above briefly:
First things first, the definition comes out of the Explanation and not the section itself. There is substantial jurisprudence on the purpose of an “Explanation” to a provision. An Explanation is supposed to clarify. But here the Explanation does just the opposite. It obfuscates. It does illustrate what would qualify as “fraud” but leaves the door wide open. Put differently, it says “x, y, and z” would be fraud, but, wait a minute, there may be other things that may qualify as “fraud” too. Now, this is where the problem lies. Who decides what those other things may be? The investigator? And that too post facto. This is not how criminal laws are supposed to work.
The provision is astonishingly open ended, and in my humble opinion, unconstitutionally vague. It is an established legal position that there cannot be blurred signposts to criminality. There is a constitutional requirement that a criminal statute be precise, specific, and unambiguous. The idea being that a citizen cannot be kept guessing about what is criminal and what is not and should be able to understand as to what exactly constitutes a crime. Criminal laws which do not explicitly and definitively state which conduct/omission attracts criminal sanctions – may be challenged on the ground of being void for vagueness. This is because vague statutes can lead to arbitrary and discriminatory prosecutions and concentrate too much power in the hands of the investigators.
A definition such as the one for fraud that we saw above would leave the investigators with way too much latitude to, mean what they mean out of the term. Such breadth may lead to over-criminalisation and abuse.
… a penal statute [must] define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) in a manner that does not encourage arbitrary and discriminatory enforcement.
Closer to home, in Shreya Singhal v. Union of India2, the infamous Section 66-A IT Act was struck down for over-breadth and held to be unconstitutionally vague. Similarly, in State of M.P. Baldeo Prasad3, the Court struck down a law criminalising “goondas” on the basis that it did not really define who a “goonda” was. In this case, the definition of a goonda laid down by the Central Provinces and Berar Goondas Act, 1946, was of an inclusive character, and indicated no definitive tests for deciding whether the person was a “goonda” or not.
Section 447 of the CA, 2013 suffers from a similar anomaly.
The way it is worded and the kind of discretion it gives an investigator reminds one – of what Bentham calls – dog law:
“Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog….”
This cannot be the way laws are made for men, especially in a jurisprudence governed by the rule of law, and not the rule of men. And, for greater reason, when personal liberty is at stake.
The vagueness of what “fraud” is under Section 447 of the Act is further compounded by the use of expressions such as: acts/omissions injuring the “interests” of “any other person”. Now what are these “interests” and who all can fall within the scope of the expression “any other person” are left to the investigator, and then – the court. The inclusive nature of the definition and both these expressions are capable of too wide a meaning, and add to the vagueness of the section, and possibility of abuse.
Given the above, there is a need to either read down, or statutorily amend Section 447 of CA, 2013 and tailor it narrowly – and with precision and clarity. In the present shape, the section is unconstitutionally vague, subjective, open ended and prone to misuse and over-criminalisation. In our enthusiasm to check the scourge of white-collar crime and corporate frauds, we must not cut corners with fairness and due process. A just, fair and reasonable criminal justice system mandates clear signposts to criminality. In other words, what we need is: the rule of law, and not the rule of the investigator.
There is hardly anywebinar on the effects of the pandemic that gets concluded without the wise panellists exhorting us – in Churchill’s words not to, “let a perfectly good crisis go to waste”. The intent, of course, is for us to gather newer skills and keep reinventing ourselves, in order to stay relevant. While we may or may not learn, white collar criminals seem to know this better than anyone else and they are not letting this crisis go to waste.
Hate to sound like an alarmist, but the truth is white collar crime (WCC) is on the rise and it is further expected to grow – by alarming proportions – in the next few months and years. A crisis is often followed by a rise in the number of financial crimes. We are already seeing a huge rise/spike in cases relating to cybercrime, employee fraud, illegal profiteering, accounting malpractices, money laundering, corruption in the grant of government contracts, bailouts, stimulus packages, and so on. A large amount of money is being pumped into economies worldwide to alleviate the crisis.
We all know that it was not really the best of all possible worlds – financially, even before Covid, but the pandemic really made it worse. It has given rise to a vicious triangle (known as the fraud triangle); a deadly cocktail of pressure, opportunity and rationalisation which has always provided a great breeding ground for WCC.
Let us see how:
Pressure: A rising tide is known to lift all boats, but, it is only when the tide goes out that you learn who has been swimming naked.1 A crisis such as a pandemic offers not only a great motivation for all sorts of financial chicanery but also lays bare the real financial position of a lot of entities. Because of the financial downturn, businesses are under tremendous pressure to make (or at least appear to make) their financial targets/numbers. Most companies are missing their financial targets and that leads to enormous pressure. This is made worse by the kind of compensation incentive structures that we have. Executive compensation, as we all know, is mostly linked to profits, and the bottom line, unfortunately, is the only thing that separates success from failure in the cut-throat world of business. An unprecedented situation of pressure such as this, often yields itself easily to falsification of accounts, accounting malpractices, market manipulation, fraud and other financial shenanigans.
Opportunity:What has further exacerbated the situation is the presence of a great opportunity for people prone to such acts. With priorities elsewhere, internal controls, compliance and supervision have become somewhat lax. Travel-related restrictions and physical closure of offices have created gaps in regulation and oversight. Attention for the most part, is diverted to somehow keeping businesses afloat and saving jobs. Internal controls and incisive due diligences do not appear to be the top priority at this moment.
What provides an even greater opportunity is the fact that Governments across the world are pushing in trillions of dollars into the economy as stimulus packages and bailouts. Further, the Governments are procuring (especially in sectors such as healthcare) like never before and, since time is of the essence, the usual safeguards in the process in public procurement (both in terms of pricing and quality) are being bypassed. Extraordinary circumstances indeed require extraordinary measures but the extents to which we are ready to make departures from best and healthy procurement practices are quite disconcerting.
Times such as these yield themselves easily to corrupt practices. And in this, we may do well to remind ourselves that – even historically, most anti-corruption laws owe their genesis to crisis, wartime procurement, and the resultant corruption. Everyone seems to have let their guard down. This, as history tells us, is a terrible idea.
Rationalisation: This is another important element in understanding WCC. The people who usually commit WCC are intelligent and sharp people (usually decision-makers at the higher rungs of organisations and companies) who are very good at rationalising (though terrible at being rational). This rationalisation is nothing but a distortion of facts to make things appear better than they really are.
To illustrate this, the thinking of most white collar criminals mostly is, “It is just a change of numbers on a spreadsheet; we are not killing anyone”, or “We are doing this to save jobs, and we will push the money back in, once times are better.”
This deadly cocktail of rationalisation and short-term thinking is extremely problematic and is further compounded by a tendency to want to remain in “denial” – often despite all evidence to the contrary. There is no one as blind as the person who does not want to see, right?
A crisis – in fact, is time to introspect but not many companies (and that is true across the world, and across times) have successfully engendered a culture of radical honesty where anyone can tell the emperor that “he has no clothes…”. Rationalisation and wilful blindness are rampant; meetings often mere echo chambers. This is even more problematic in times of crisis and needs to change.
The fact that the victims of WCC often are a body as diffused and abstract as “shareholders”, “investors”, “taxpayers”, “employees” and not a single visible person – such as an 80-year-old widow, makes it easier for the perpetrators to rationalise. Since one cannot see the immediate victims, as one may – in a conventional crime such as murder, one finds it easier to rationalise and have less (or no) moral compunctions about one’s acts. The importance of putting a face to the victim cannot be emphasised enough. We need to ensure that victims of WCC do not remain invisible.
“If I look at the mass, I will never act. If I look at the one, I will.” This statement by Mother Teresa provides a great insight into human nature and reminds us that we are most likely to act charitably to the suffering of “one” who is before us, but the suffering of an abstraction such as “humanity”, “investors”, “shareholders” or “pensioners” fails to conjure up any humanity in us.
So, the point is made: given the circumstances, white collar crime needs to be taken seriously. In case of a company, indeed a company has “no soul to be damned and no body to be kicked”, but, under our legal system, a company can still be prosecuted and face massive and often debilitating fines. There is, therefore, a need to understand the risks and keep a few things in mind. Here are a few suggestions:
(i) Recognising that this is not the time to drop our guard: Compliance departments in organisations should, in fact, be working in overdrive. There should be frequent checks and training/hygiene drives should be ramped up too, especially for those organisations which do business in areas having a lot of government interface, and areas which are tightly regulated and considered high risk traditionally – such as healthcare or defence. The same is also true for organisations dealing with sensitive personal data, take – for instance, companies in the fintech space.
One needs to be wary of the risks. This is not the time to cut down on in-house legal/compliance staff and external legal advice. Cutting corners with the law with a view to save up some money is extremely short-term/myopic thinking. The regulatory backlash and consequences would often far outweigh the compliance costs – for most high to moderate risk areas of work.
(ii) Putting in place “adequate procedures” to ensure that corrupt practices do not take place. These “adequate procedures” are nothing but proper compliance and anti-bribery programmes. These commonly include:
(a) Exercises for identification of corruption risks; assessment of controls/checks and balances.
(b) Developing and ensuring compliance with proper policies and codes of conduct.
(c) Regular anti-bribery, anti-corruption training programmes for all relevant stakeholders.
(d) Proper vigil mechanism incentivising whistle-blowers to raise their concerns.
(e) Rules regarding maintenance of proper documentation to ensure illegal practices are ruled out.
(f) Investigation of suspected instances of illegality/corruption with a view to fix liability of individuals concerned.
(g) High-risk areas can be monitored with the help of data analytics. The compliance teams should have access to all the important data streams in order to boost efficiency.
The above procedures may not only help in preventing illegal practices but, in the event of a possible prosecution of the organisation, also afford a legally tenable defence to the company. Having “adequate procedures” in place (to check corruption) is a specific defence for companies under the new Prevention of Corruption Act, 1988 (POCA) where – for the first time – even commercial organisations can also be prosecuted for corruption, and not just errant individuals. Marking a departure from the earlier legal position, POCA also makes bribe-giving an offence. There is, therefore, a need to be extremely careful.
(iii) Introducing expedients such as creation of “ethical hotlines” that provide an anonymous, safe and easy reporting mechanism.
(iv) Change in corporate culture: A strong corporate culture of zero tolerance of corrupt practices. Merely detailing the rules on the company website or portal is simply not enough. There should be a cultural shift within the organisation in order to ensure that everyone understands why a strong stance against financial crime is important and why doing business ethically is always a better idea. (In other jurisdictions, courts are increasingly looking into “corporate culture” while deciding as to whether, in a given case, acts of employees/agents can be attributed to a corporation, or not and whether a company can be criminally liable in a case.)
(v)Protection of whistle-blowers and better incentives: “Show me the incentive and I will show you the outcome.” This quote by Charlie Munger really sums up the central force driving human behaviour, across countries and across times. We, as a legal system, (and as organisations) really need to get our act together on not just protection of whistle-blowers but also their incentivisation; whistle-blowers and witnesses – after all – are the eyes and ears of the system. Most white collar investigations are complex and require “someone on the inside” to spill the beans, help and assist the investigation. But we have not done much to incentivise such assistance. Also, barring tax laws and some law on insider trading – no Indian law currently incentivises whistle-blowers. We, as human beings, function on incentives and having better incentives and protection for whistle-blowers will go a long way in strengthening corporate compliance, and ensuring that cases of white collar crime are caught early.
(vi) Prompt internal investigations/enquiries: Once a company learns of a potential fraud, proper fact-finding investigations should be undertaken at the earliest. Steps should be taken to preserve all the relevant data and information, to prevent obliteration of crucial evidence. A forensic investigator may also be engaged at the earliest to identify and plug-in any leaks and external counsel should be consulted to examine risk(s) and duty to report, if any.
(vii) Data backups and cybersecurity: Given the huge spike in cybercrime, corporations should be cautious of threats to their infrastructure both from the inside as well as outside. Data backups should either be centralised or stored in a warehouse and IT Departments should be on the constant lookout for any cyberattacks/ransomware attempts and vulnerabilities.
(viii) Insider trading: An unhinged economic environment can provide motivation to an employee to look for short-term gain, and capitalise on non-public price-sensitive information. Companies should promptly update their insider trading policies and reinforce the same by way of audits, seminars and trainings to remind the employees of their legal obligations as well as the risks associated with insider trading.
All of these would go a long way in checking the risk of WCC. But more than anything else a rethinking of “incentives”, checking loopholes which may provide opportunities for cutting corners with law, encouraging radical honesty and disagreements in decision-making, and broadly, effecting a change in corporate cultures, may go a long way in checking, or at least mitigating, the risk of WCC.
Mr. Bharat Chugh, who is currently working as a Partner at L&L Partner. In 2013, Mr. Chugh secured first rank in Delhi Judicial Services Examination and became the youngest Civil Judge in his batch. He has also trained both at the Delhi and National Judicial Academy and served in various civil/criminal assignment in three and half years of judgeship. He has been interviewed by EBC/SCC Online Ambassador Vijaya Singh Gautam who is currently pursuing law from RGNUL.
Refer to the Link below for the Podcast of the interview
PART 1: Click HERE for Conversation with Bharat Chugh on his definition of “Good Resume” and much more
PART 2: Click HERE for Conversation with Bharat Chugh on Art of Legal Writing, implications of pandemic on Legal Proceedings and much more
How do you define good legal education if one is aspiring to practice litigation or serve judiciary?
It is a common notion that it is very difficult to get into certain law schools and if you manage to get into those by cracking the very difficult entrance examination then there is a presumption of merit. This is not always unfounded and there is a certain amount of merit to this thinking. But this is not all.
No law school is better than the other, it always boils down to the individual merit of the candidate to what the candidate has done in terms of law schools- internships, publications, moot courts etc.
Individuals make the institutions. The important thing to notice is sometimes it takes only a certain number of students to put your law school on map. Personally, I have helped recruit many worthy candidates at the law firm without going by the traditional notion and looking at the candidate rather than the institution.
What do you expect from a good resume in order in case of attaining internship or employment?
In the initial years, everyone should endeavor to experience everything and on the basis of the experience accumulated, must decide the path that suits him/her. We live in an era of specialization and therefore, one must focus on the areas in which recruiter will have interest. The idea is to be able to fill a vacuum in the market; fulfill a need; that’s the only way to stay relevant. But before one specializes, one should experience everything. Therefore, initially, broad based internships and work(which translates into a broad understanding of first principles of law and broader lay of the land) which slowly gravitates to the subject area work really well for me personally. As one masters in any field, he/ she becomes the knowledge base of the firm or the ‘go to person’ on that subject and people approach him/her for any consultation on the subject matter. It develops your credibility and reputation as a lawyer not only in the firm but generically also in terms of clients & all who start trusting you.
I personally have a bias for publications as it reflects prowess at language; skills such as how you speak, draft and also language which is reflected a lot in your communication. It also helps a lot in network building which is very important in this era. Words, as I always say, are the only stock in trade of a lawyer and the importance of the ability to communicate cannot be emphasized enough.
Also, simplicity is very crucial so the idea is to write something easily comprehendible, witty and interesting. I believe, if you can’t state it simply enough, you haven’t understood it well enough. And, if you can’t say out aloud what you’ve written, don’t write it either. It has paid great dividends to me as well.
Law cannot be studied in a vacuum so if the candidate is well read on economics, sociology etc gives him/ her upper edge.
To have better dialogue and conversation with judges or clients, policy makers, business leaders, you need to have a world view and being well-read definitely helps.
Someone said the difference who reads and who doesn’t read is of a mason and an architect.
For example, if you are given to work on economic policies, you cannot limit yourself to bare acts but need to have an overview of other relevant factors also and their impacts. Law is inter-vowen with so many other disciplines and having an interdisciplinary knowledge not only ensures a more well-rounded personality but also an ability to strategize better. Hence,one must have an inter-disciplinary approach. One must read extensively – sociology, history, philosophy, critical thinking, anthropology; all go on to make one a better lawyer/judge.
Also, sometimes the resume is not final word or correct determinant. One should not judge a book by its cover. So, we try selecting resumes on the basis of personalized well written cover letter. Because, even if an interview is an equalizer or a leveller, getting that opportunity is sometimes not easy because of the sheer number of resumes that recruiters get, and in order to get that opportunity – the resume/cover letter should catch the attention of the recruiter. It should have things that make the candidate stand out; convince the recruiter that this candidate will add value and is at very cutting edge of his/her specialization or area of interest.
Where do you get this sort of clarity while working hard for the judiciary to crack it and then leave it for another unplanned opportunity? Do you ever think about the road not taken?
Through my personal life experiences and some of them are already in public domain. I started working in an early age and that gave me a great exposure to law. It definitely helped me realize a lot about life, especially the injustices meted out on people on daily basis; the plight of people who are marginalized, who don’t have access to resources, how they are possible given a rough deal by the system; how difficult it is for a common man to get justice and how important is sensitivity in judicial decision making.
My father ended up losing his own house as a matter of fact when he came as a refugee to India due to the lawyer not showing up in the court.That’s when – my dad took the pledge of fighting for the disfranchised. Slowly and gradually, my father rose from selling tea to a typist at Tis Hazari Court, who would go back in the evening to study law, after a hard day at work typing out documents. He finally completed his law and started his legal practice at Tis Hazari and did a lot of pro bono work. He wanted me to start from the very court, but as a judge. He wanted me to be a judge because as a judge, you have the power to do a lot for the people and to do justice on a day to day basis. I ended up preparing for judiciary in my final year of Law College. I was always passionate about law and really enjoyed the time of preparation. I was fortunate to have made it in my first attempt and really enjoyed my stint as a judge. Ended up getting to do a lot of good. But somewhere along the line, I realized that I really missed the feel of being a lawyer. My dad was lawyer; I’ve personally always connected-to the idea of being a lawyer more than anything else. That’s who I really am. That’s what I associate more with. I’ve always loved arguing & persuasion, and on a balance , I thought – I am more suited to being a lawyer than a judge, atleast in my initial few years where the experience at bar is crucial and goes a long way in shaping one’s self. Also, I thought a litigation would give me a wider canvas to work with, at least in my initial few years. I also love to write and grappling with legal issues that one doesn’t have exposure to, at least, in the initial few years of judgeship. This was the thought behind leaving judgeship and there’s never been a moment of regret, ever. I have had the great fortune of working on some of India’s most complicated and biggest cases in the last three and a half years and there’s never been a dull day or a day of regret. Being a Lawyer is challenging, fulfilling and extremely rewarding.
In India even after several Pay Commissions, Judges are not paid considering the amount of work load they have in courts? Do you think it was one of the major reasons for you to leave judiciary?
No. As I said, I am passionate about the practice of law and that was what weighed with me when I took up lawyering. Judgeship is something that can never be measured in terms of compensation. Plus, I am a man of very limited needs. My biggest expense a decade back and even now is on Books and judges are paid well enough to buy them. Therefore, money was never a consideration though the practice of law, if you’re good at it, is extremely rewarding. On a broader point, I agree compensation of judges in India is not at par with the work-load and India is amongst one of the nations where post-independence, the salary of judges have actually gone down relative to the rest of the world. Indian judges are one of the most poorly paid judges in the world. Despite that we tend to attract good talent from the bar. To attract and continue to attract the best minds, we need to pay them better.
Consultancy Services being barred by Bar Council to provide Legal Services? What is your view on it?
It is the need of the hour to have some regulation in order to regulate Consultancy Services in India but in the wider picture, opening market for the big law firms or foreign law firms can increase healthy competition and can create more employment opportunities. Competing with the best brains (and brains from diverse fields) can benefit the legal fraternity at large. The legal sector as whole and the client both benefit with this cross fertilization. I have never been in favour of closing down the market but talking about protecting the interest of the lawyers, it should be done in a regulated fashion,and we can balance the pros and cons for betterment and growth.
Quoting a phrase from your profile ‘you have had the experience of facing 12 criminal appeals in a day’ and you have excelled the art of cross examination. You are also very well known for your talks and writings on the art of judgment writing. How do you cope with the humongous work pressure? Also, how can one maintain mental health and well-being while pursuing a career as competitive as law?
I consider myself blessed to have a big team of bright young lawyers to work with and it will be unfair to take the entire credit. Arguing 12 criminal appeals in a day and balancing the work is intellectually stimulating and I strongly believe time management was the key to this as it is the key to pretty much everything in life. One should be very jealous of their time and should not waste time at any cost. Distractions are faced by each one of us and therefore, it is important to master the art of self-control.
The Stanford Marshmallow Test concluded that people who are good at self control have better chances of being successful than people who are not as they can let go of the instant gratification.
The emotional toll that long working hours take on you can be mitigated with a sound support system which can exist in the form of your family, friends & peers, or even something that you totally enjoy doing for instance, reading, painting or playing the piano. Also, it is always advisable for one not to get too emotionally attached to one’s case because not only does that limit your objectivity but even the judges lose the confidence in you if you are too emotional about your brief. Your and the judge’s compass should be aligned. The Judge should trust you as an officer in the court and that trust is earned by being objective about one’s case and making fair concessions whenever appropriate. That way – courts start trusting you as an officer of the court. Even otherwise, it is a good idea to be emotionally balanced. In fact, speaking from a personal experience, cultivating hobbies help in overall development and helps one get through tough times.
We would like to know some of your interesting cross examinations instances.
I have shared multiple criminal cross examination instances and talked about. Let me talk about a civil case where I was trying to get an email admitted in a case of misrepresentation. I was representing a foreign client where a startup company, through a series of misrepresentations, had convinced my client into buying it. Since it was nothing but a sham, my client wanted a reconsideration of the sale deal and return of the consideration. It was important for me to prove certain emails that were denied by the opposite party:
When I was cross examining the party had already denied the email throughout the course of the case. It was an old mail and we couldn’t call the service provider as we were in an advance stage of the case. There was no way really to prove the email if this witness denied it even during cross examination. I had to get that admission out of him someway or the other. I was careful not to ask an open ended question but keep the witness on a tight lease by asking close/leading questions. So, the question I ended up asking the witness was somewhat on the lines of : “why you didn’t escalate the email to your Board of Directors” not “did you receive the email or not?”
My question was somewhat loaded (which may not always be permissible) and presumed that the witness had received the mail; I deflected attention to the reason of not forwarding it to the board of directors. I took it as a given that he received it and the guy took the bait and starting explaining the reasons for not forwarding. The witness was well into his justification before he realized that he had ended up conceding the fact that he got the email.
In the same case, the witness claimed selective amnesia/forgetfulness of certain facts; in order to overcome that, I starting by asking the witness self serving details from his distant past, all of which he could recollect with ease. To establish that he had a robust memory. This laid a great foundation for my case as – as I gradually moved to more damaging aspects of the case, he could not claim forgetfulness as a defence as the same would not be trustworthy.
In light of the current pandemic, what as per you will the ramifications be on the legal proceedings, on students graduating this year and the corporate culture?
Currently, each one of us is grappling with pandemic. There is also a silver lining to things depending on whether you see the glass half full or empty. Personally, I see it as half full as it has made us capable of working remotely, building technological infrastructures and we are becoming more efficient in doing things. It all depends on our approach to this – how we are taking and how willing we are to grow.
In hindsight, Bill Gates sometimes in 2015 warned us about this and we have failed in our duty of preparing better.
But sometimes, we learn the hard way. It is important for us to learn lesson and adapt once over. For young graduates, anxiety due to employment prospects is growing. Most lawyers and law firms have kept up their commitment of hiring and providing virtual internships. Many lawyers and partners have decided against taking their equity in order to pay the dues and to provide their employees with pay. Fortunately, people continue to show empathy and concern towards each other in these difficult times.
Few years ago, people thought that the M & A sector wasn’t doing too well, people thought economy has taken a down turn. People were not investing and businesses were failing. NPAs were rising. Even in that state of financial doldrums, there was IBC which came up as a big practice area; financial fraud/white collar crime also saw a huge rise and flourished as a practice area.
Litigation/legal work will continue till human species exist. The work form and nature may change but opportunities will always be there and we lawyers are a resilient species and are great at adapting and evolving.
Do you think ADR mechanism in these times will emerge as a savior in tackling the backlogs of cases?
Yes, I absolutely believe it will emerge as a savior. It is a more efficient method of resolving dispute which is why people are slowly turning away from the traditional civil processes/suits. I do think COVID-19 will help accelerate this process of motivating people to go for not only arbitration but also pre-mediation and other ADR mechanisms as well.
How can we overcome the gaps created by virtual hearings on cross-examination or how is it different from the traditional hearing set up? Also,how will it impact on the evaluation of factors such as body language and emotional sense of the witness/ accused who are being cross-examined virtually?
Personally, I am not a huge fan of cross examining someone virtually. Demeanor is a very important element in appreciation of evidence and virtual hearing makes it very difficult to calculate factors such as sweaty palm, tapping of feet etc. Another problem with the virtual cross-examination is the possibility of the witness sitting in a jurisdiction where he may not be subject to the laws of perjury.
Ultimately, it poses a greater challenge; when video conferencing was introduced in India, the courts, as a matter of prudence expounded that the witness must be present in a country with which India has an extradition treaty and under whose laws of perjury are punishable. Even beyond benefits such as: observation of demeanour of witness and prevention of perjury, traditional hearings have other advantages too; very often, just by being in each other’s presence, the parties approach each other during coffee and lunch breaks and the matter gets resolved amicably without resorting to further litigation.
In my opinion, if the current situation demands virtual hearings, then it is incumbent upon us to evolve more effective methods and make use of better technology such as well defined cameras, better view, more oversight etc.
Please throw some light on how can one improve upon judgment writing or any legal writing for that matter?
What’s true for any legal writing, is true for judgment writing as well. I’ve written extensively on this and those interested may visit my earlier pieces on this. In short, one must go by the Rule of CRAM when writing facts. Facts have to be written Chronologically and must focus on Relevancy, Admissibility and Materiality. I have also often recommended young aspiring judges to firstly follow the Rule of ‘WDWDW’ (WHO DID WHAT TO WHOM) while writing judgment. If your judgment does not say this, in the first few paras, then it does not catch the reader. One may follow this formulation in order to give all necessary information that the reader needs. Secondly, in our writings and our briefing notes/preparation,we should always seek to address the necessary questions such as: Who? When, Where and How, What and Why? All of this helps the senior/reader/judge to understand what happened, what was the dispute about, how did the dispute come to this situation; also ‘What’ part articulates what the party seeks from the Court; and finally ‘Why’addresses the question as to why should the court decide in that particular way The last part is very important from the perspective of pleadings as it tells the court the reasons why should the court should decide in a particular way. But the golden rule in the judgment writing is that
“If you can’t say it aloud – don’t write it.”
Many times, judgment writing is not an exercise of coming to a point or deciding a law but rather a show of the literary genius of the writer. I believe, the factual part of the case must be clear and the losing party must be provided with adequate reasoning so that if need be, an appeal could be filed. As it is said, justice shall not only be done but seen to be done. The litigant must understand what is written and done.
We have judgments with 180 paragraph with 140 paragraphs just being a narration of history. Quoting Rig-Veda in a judgment is unnecessary. Nobody needs to be told in a gender justice judgment that we ought to respect women because a historical document says so. Our constitution is good enough framework. This would help with managing the bulk of a judgment which puts many students-off reading them while not taking away anything from its legal reasoning. Use of visual aids, maps, clear conclusions, key take away should be adopted more to make judgments more understandable. Ultimately, we need to remember that judgments constitute law – and ignorance of law is no excuse; in this background, it seems a bit odd and unfair that many judgments are simply not readable and the citizen can’t understand them.
It has always been my advice to young aspirants to write less as it is not the quantity but the quality which sets well-written judgments apart. Finally – whenever writing any legal brief, remember:
The shortest distance between two points is the straight line. Be straight in your writing.
Also, “less is more” and in order to practice the ability to pack a lot of punch for our briefings we often try and prepare our cases as Elevator Pitches, and the practice allows us to be able to summarise our cases or atleast the key points in the time that it takes for a person to go from the ground floor to the 9th floor; this helps us cultivate the skills of ‘separating the chaff from the grain’ and also focus on the most important ideas/arguments of our case and distill our thoughts.
We have Colonial Laws due to which at times, judge faces moral dilemma? Do the judges have the power to subside law and follow the moral principles?
Yes, some of these dilemmas are faced by the young judges all the time. I had faced one by myself.
To answer this question, I want everyone to remember that a judge does not only do justice but he does the same in accordance with law and not on the basis of his conception/idea of justice which may be very subjective. There are different ways of looking at any given situation and the idea of justice usually varies from person to person. However, as a judge, justice has to done solely on the basis of law. This ensures rule of law and sanctity of justice and not rule of individual men. Principled judicial decision making is important.
However, where the judge is of the opinion that a given law is colonial and may not be constitutional, a civil judge or a magistrate cannot declare the law as unconstitutional but there are enough provisions allowing the judge to make a reference; formulating the question on constitutionality and referring it to higher bench competent to deal with constitutional challenge matters. CPC and CrPC allow judge to make such references.
There is a huge perception that these references are not appreciated by the Higher Courts. I don’t agree with that perception at all and strongly believe that if there is question in which the need to check its constitutionality is felt, it must be referred to the Higher Courts as the law allows you to do so. The Law grants the judge the power to do so.
Another approach would be to find out a creative way to interpret law. For example, I had the opportunity of ruling on a provision in Railways Act which prohibits anyone from selling anything in the train any without the permission of the Railway Authorities and doing so is a punishable offence. When I started as a Judge, this was one of the first issue which came to me.
I glanced at these people, who sold tea, water bottles and trinkets and they stood in front of me as if they have committed some heinous crimes. They had been projected as a threat to national security where in reality they have been struggling to make ends meet and provide for their families.. We have to also consider that this is not the choice that they have made, rather they are force to work like this due to lack of opportunities. So, if State cannot create enough employment opportunities, then we don’t have any moral right to punish them.
That was my instinctive response to the issue came in hand. And with my research, I came to the conclusion that “basic necessity knows no law”. I was really inspired by some of the foreign decisions which said that in a particular circumstances, , stealing bread is not a crime. Of course, it does not legitimize stealing; otherwise it would have been anarchy.
I was also inspired by Delhi High Court judgment which talks about the Decriminalization of Begging where the court went on with a similar logic that we need to get rid of the poverty but not the poor and gave defence of necessity to beggars who begged out of circumstantial necessity.
The social media platform is currently buzzing with opinions on bois locker room which is an Instagram chat room sharing objectionable views on girls and their morphed pictures. How do you see this act as abuse of freedom of speech and expression on social media platform? What are the legal actions that can be taken to prohibit such activities from happening again in the future?
We have enough laws in terms of IPC and cyber acts to handle the situation. Freedom of Speech is not an absolute right and as we call know:
Freedom of speech is not the right to say fire in an open theatre or freedom to say something which incites violence, cause public disorder etc. which is sufficiently entrenched in the system.
Certainty of application of the existing laws is a better response than enacting more laws. There cannot be a pre-censorship and we cannot go that way. I strongly believe better application of existing laws and good investigation can bring the offenders to the book and will act as deterrent to others.
How important is legal research and how can one ace the art of legal drafting?
It is a very important question to address as legal researching holds paramount importance in winning the trust of the client and as that of a judge. The entire profession is based on knowledge assyemtry; knowing or understanding something that the opposite side doesn’t and thriving on that. We don’t sell anything except what we know and how we think, right?
A client comes to you because you know something which he does not.You win a case by knowing something that your opposite side does not and by convincing the judge and persuading him.
It is not only important to know how to do research conventionally; we need to go a step beyond to be outstanding. It is very important that young lawyers do not start their research on Google directly.Rather go with bare act – understand the language of the bare act and illustrations, the standard commentaries based on the subject. One should know the legislative history, evolution of law, the Parliament debates, Constituent Assembly debates and other primary materials to help you understand the law the law in depth. It is also important refer portals like SCC, Journals and other sources to look for precedents. When you build up a case, go with the research ina particular order and use the credible sources only. It should be primary sources more than hearsay or what somebody’s personal opinion is.
…it is on us to help the judges to make a better decision. With the help of a good research, you help them and yourself by convincing them for making a decision in your favor.
What inspired you to not stop and kept you moving forward in life?
You learn from everyone and everything. Ones failure also gives the biggest lesson and we learn from our mistakes and failures as well.. I looked up to a lot of judges as my role model such as Justice Krishna Iyer, Justice Bhagwati, Justice Kuldeep Singh, Lord Denning, Lord Atkin as they have redefined judicial system and done justice in a way which improved the life of the people at the ground level. . On the practice side, there are other great inspirational figures such as Mr. Nariman, Dr. Ambedkar. Looking up for the few people and learning and emulating from those giants and standing up is very important. When you read, you get inspiration, not only in the field of law but also in the other field and people like Leonardo da vinci, Steve Jobs can be quoted as a great inspiration for the fact that they stood for making a dent in the world and were so passionate about what they did. They almost always let the perfect be the enemy of the good (not always recommended) and stood out for their fantastic contributions to the world.
In India, one cannot advertise legal services. In such a case, the most effective way to solicit client as a young lawyer is to –
Focus on the case in hand, put your heart and soul and do it really well. Your efforts will manifest into clients over a period of time.There have been so many times when we have got cases from the court after successful arguments in a case; That’s how you build a reputation.
Where do you see yourself in the next 10 years or what is your next 10 year plan?
I know broadly in terms of what I am going to do but it is not specific. Firstly, I feel guilty about leaving judgeship for personal ambition when I did. Not guilty in the sense that I have any regrets but guilty in the sense that I do not continue to give back the way I possibly used to do or the way which I used to do.
We do pro-bono cases but, I feel that I’m still not giving back enough. So, I provide training to young judges and IPS officers at various academies; I also try to work with judicial service aspirants, try to guide and help them traverse their journey from studying to judging – and from judging to justicing.
As I love to say I get to live vicariously through judges who I’ve had the opportunity to working-with and teaching, at some point or the other. That gives me a lot of satisfaction. Having contributed to nation building by helping make good judges.
Currently, I am working on a book related to “What and how is it to be a young judge, and what is judge’s life”, the idea is to put young students into the judges driving seat and share everything that I can on preparation, exam process, the expectations from a young judge, the kind of work and how to deal with it, both pre-preparation and post selection. This will not only help the young lawyers to decide being a judge or not but also help them along the way..
I am always keen to work on my cases; it is an exciting times to be a lawyer; my practice of law straddles practice areas as diverse as : White collar crime, International Commercial Arbitration and Tech law, with a bit of advisory thrown in. It makes for a interesting blend and though it always keep us on our toes, it is also extremely rewarding individually to be able to work at such a wide canvas and contribute. Also, super excited about my involvements with legislative discussions, law reform, law enforcement training’s, etc.
We are acquainted with your love for poetry! It would be nice if you could share with us, the one, which is closest to your heart.
I like to call myself a ‘closet poet.’ And once you hear me – you’d agree that’s where I should be – because it’s not good at all.
But since you insist, here’s something I wrote on the Juvenile Justice System.I strongly felt on the issue of Juvenile Justice and lack of enough measures for the children which are in conflict with law. I strongly opposed the amendments which came in the Juvenile Justice Act a couple of years back which treated children of age between 16 to 18 years as adult in some cases.
Nobody taught me to speak-therefore, I can’t mince words,
I also have to tell, rather quickly my tale, for time doesn’t stop and the guillotine doesn’t fail;
I can hear the shouts of the crowd, people who’ve gathered about, The civilised society is baying for my blood; my young scarlet blood; upper-middle class children would be made to drink from it, I am told-it lulls the demons inside.
That’s what the priests say: “it kills juvenility”; really, that’s what they say, but let me not get ahead of myself, and begin where it all began:
The setting is a one room house-in a slum in north Delhi,
where I was conceived, in Dickensian poverty
I was at peace with not-living, I was free,
before a young couple decided to have me;
people call them my mother and father; none, of course, took my consent,
and thus, I began the journey of life, unwilling, reluctant and angry;
No wonder – I caused my mother much pain, first, because of my desire not to be born,
second- since there was never any food inside of her,
I kicked & gnawed at her insides, she wailed in vain, just for her not to have me, but she didn’t budge.
I caused her to nearly die, while she gave birth to me,
You see, that was an act of protest, against introduction into this world,
this inhospitable sphere of exploitation and injustice;
I was raised on my impoverished mother’s thin milk- the toxic gruel of poverty, exploitation, desperation & disease.
For my parents- My introduction into this world –
was an act of triumph of unmitigated hope, or callous thoughtlessness to the
consequences of their action; This lack of control of impulse,
would go on to be the defining feature of my life, legal battles, television debates would be fought and lost over it, my dear friends – it would have a bearing –
on the course my life would take –
and the choices I would make.
I was raised on staple diet of violence, abuse and hunger- no wonder, I never knew control,
I’d flung myself to the first sight of bread crumbs, leftover rice, or on a good day, sour curd; the lack of control would come back to haunt me, as we would see later.
I was abused by countless men, multiple times, don’t ask when and how; to the point, that I started valorising my own violators.
I stopped fighting back, in this resignation was a realisation that I deserve it, and all those, who are weaker, those who’ve lost the ovarian lottery, and have had poor mothers for fate.
I never knew mercy, compassion-
a hungry child is incapable of empathy; incapacitated for emotional telepathy,
the exercise of placing one in someone else’s shoes? you must be kidding; he never knew any shoes,
and can hardly see the world for himself, for what runs in his system is not blood, he is nourished with envy running through the course of his being,at the injustice of this world,
at its monstrous inequities.
No wonder I never knew, the finer aspects of living, of civilisation;
of the rules set by men, who had either abused, or watch me being abused, while they fed, clothed their children with a nourishing touch, a benign sort of love.
No wonder when I found somebody even weaker, I couldn’t resist,being on the winning side of the power equation, for the first time – the abused turned an abuser.
Now, they are gunning for my head, they’d like me to die a judicial death; but they don’t know – children like me exist on the penumbra of life as you know it, banished from civilisation.
They don’t care much. Rules matter to those who have a chance to win. They don’t know – I never wanted to be born and I am quite indifferent to living. And I have one thing to say to them:-
Since I never had a childhood – don’t treat me as a child – Punish me, make me free !!