LAW & SOCIETY
Criminal Laws and Civil Rights
Alok Prasanna Kumar
I
n the past few weeks, constitution
benches of the Supreme Court have
struck down Section 377 of the
Indian Penal Code (IPC) (Navtej Singh
Johar and Ors v Union of India 2018) and
Section 497 of the IPC (Joseph Shine v
Union of India 2018), partly upheld the
Aadhaar (Targeted Delivery of Financial
and other Subsidies, Benefits and Ser-
vices) Act, 2016 and partly struck it down
(K S Puttaswamy v Union of India 2018),
and held that the rules in Kerala which
prevented women from entering the
Ayyappa temple at Sabarimala were
unconstitutional (Indian Young Lawyers
Association v State of Kerala 2018). These
are important judgments that have tan-
gibly advanced the cause of women’s
rights, LGBTQ (Lesbian, gay, bisexual,
transgender, and queer) rights, and the
right to privacy, even if these are baby steps
in relation to the larger causes. However,
it would be a mistake to assume that
these are the only kinds of cases that
advance or diminish important civil and
political rights in India. Less discussed
are those judgments where the Supreme
Court is interpreting criminal laws: the
all-important trifecta of the IPC, the
Code of Criminal Procedure (CrPC), 1973,
and the Indian Evidence Act, 1872.
Even though their origins lie in colo-
nial rule, they do contain valuable legal
rights for an accused in a trial and those
facing state action. To the modern
observer, it may seem odd that the
Constitution of India does not explicitly
enshrine some of the most important
rights of an accused in a criminal trial:
the right to be represented by a lawyer,
the non-admissibility of extrajudicial
confessions, the right to be confronted
with charges, and the right to cross-
examine witnesses or lead evidence.
Rather, the rights guaranteed under
Article 20 of the Constitution were
already provided for in the then Code of
Criminal Procedure, 1898, the Indian
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Evidence Act, and in English common
law as applied to India.
Interestingly, the Constituent Assem-
bly did debate whether there was a need
to enshrine certain rights in respect of
criminal trials in the Constitution itself.
On the question of whether the right to
cross-examine witnesses should be in
the Constitution itself, B R Ambedkar
does not think it necessary. He says,
The right of cross-examination is already
there in the Criminal Procedure Code and in
the Evidence Act. Unless a provincial Gov-
ernment goes absolutely stark mad and
takes away these provisions it is unneces-
sary to make any provision of that sort.
Defending includes cross-examination … If
you can give a single instance in India where
the right of cross-examination has been
taken away, I can understand it. I have not
seen any such case.1
Thus far, Ambedkar’s expectations
have not been belied, and even though
the CrPC was revamped in 1974, none of
the key rights of an accused in a trial
have been taken away.
This does not mean that these rights
are fixed forever in time or should be
assumed to be fixed in the absence of
legislation. Every day, these laws are
being interpreted by the Supreme Court
and the high courts, and are being
applied by the trial courts in numerous
ways, affecting the rights of the lakhs of
people facing trial in the Indian criminal
justice system. These judgments some-
times escape notice or at least do not
enjoy the kind of exposure that constitu-
tion bench cases interpreting the Consti-
tution do, but that does not diminish
their importance. Sometimes, important
civil rights may be won or lost in the
most unlikely of cases, two recent exam-
ples of which I discuss here.
Punishing Custodial Deaths
According to the Asian Centre for Human
Rights, there were 1,674 custodial deaths
in India between 1 April 2017 and 28 Febru-
ary 2018 (ACHR 2018). This is a figure that
OCTOBER 20, 2018
has risen over the years, notwithstanding
the Supreme Court’s attempts in D K
Basu v State of West Bengal (1997) and
other cases to put an end to custodial
torture and deaths. Very few police per-
sonnel face consequences for such
deaths and it is, therefore, refreshingly
surprising when the Supreme Court
comes down as hard as possible in an
instance of proven custodial death.
In Yashwant v State of Maharashtra
(2018), the Supreme Court has, for the
first time ever, enhanced the punish-
ment awarded to nine policemen who
had been convicted of causing a custo-
dial death. These nine policemen had
picked up an innocent man, Joinus
Adams Yellamatti, under the guise of
“investigating” a case, thrashed him in
the police lock-up, and left him there
overnight, only to find that he had died
in the morning. Convicted by the trial
court and the Bombay High Court, the
nine policemen had been given relatively
light sentences of three years of rigorous
imprisonment each. When they still per-
sisted with an appeal in the Supreme
Court, not only did the Court dismiss their
appeals, it enhanced their sentence to the
maximum possible in this case, to seven
years of rigorous imprisonment each.
Even though the events go back as far
as 1993, the Court does not show any
leniency towards the policemen, and its
anger—at the way an entirely innocent
man (whom the police knew was inno-
cent and still wanted to frame him for an
offence)—is palpable. The Court intends
to send out a message. Far too often,
courts have been happy to indulge in
rhetoric on this matter without seeing it
through with proper action and, for
once, the Supreme Court has done the
absolute right thing. One can only hope
that rhetoric and law laid down in
Yashwant v State of Maharashtra (2018)
percolates their way downwards in the
judicial system as custodial death cases
work their way up.
Victim’s Right to Appeal
In Mallikarjun Kodagali v State of Karna-
taka (2018) a three-judge bench of the
Supreme Court was called upon to decide
vol lIiI no 42 EPW Economic & Political Weekly

whether the victim of a crime had the
statutory right to file an appeal in the High
Court of Karnataka against the acquittal
of those accused of attacking him.
The majority judgment, with Justice
Madan B Lokur writing on behalf of
himself and Justice Abdul Nazeer,
decided two important points: one, that
irrespective of when the complaint was
made, so long as the trial court judg-
ment was delivered after 2009 (when
Section 372 of the CrPC was amended to
allow victims to file an appeal), an
appeal by a victim would be maintaina-
ble; and two, such an appeal did not
need to seek the “leave” of the high
court. In this way, the majority judg-
ment harmonised the multiple contra-
dictory views taken by division benches
of high courts across the country on
these two issues.
Justice Deepak Gupta, however, dis-
sents only on one point: that an appeal
should be allowed only with the leave of
the high court. Looking at the text of the
CrPC, he finds that Section 372 simply
grants the right to appeal, but does not
prescribe the procedure by which such
an appeal is to be filed. For that, he looks
at Section 378(3), which mandates that
all appeals filed by the government
against an acquittal must require leave
of the high court, and, likewise, Section
378(4) insofar as appeals by a complain-
ant are concerned. Hence, he concludes,
there is no reason for the appeals filed by
the victim to be on a different footing.
He offers another very important rea-
son for interpreting Section 372 thus:
that criminal law deems that all offences
are offences against the state, no matter
who the victim is, and that it is only in
exceptional cases where the state fails
that a victim may approach the court in
a criminal case. Similarly, when it comes
to appeal, an acquittal, he points out,
strengthens and “fortifies” the presump-
tion of innocence of the accused and that
the criminal justice machinery should
not be further used to keep the matter
alive simply for the asking. He does not
necessarily dispute the majority’s thinking
that where the state may, for mala fide
reasons, refuse to file further appeals,
the victims should not be left remedy-
less. Rather, he tries to strike a healthy
Economic & Political Weekly EPW OCTOBER 20, 2018
balance which, in his view, would
prevent criminal law from becoming a
mechanism for revenge.
The two judgments try to address two
of the failings of the criminal justice sys-
tem. On the one hand, Justice Lokur
finds that the victim of the crime is ren-
dered voiceless and can sometimes be
let down by a state that is captured by
influential criminals. On the other, Jus-
tice Gupta is well aware that the malaise
is not just with the state, but also with
litigants who may use the criminal jus-
tice system to settle scores. Both have in
mind a very different type of “victim:”
one, a victim of the crime, and the other,
the victim of the criminal justice system
itself. It is hard to say exactly how the
law should balance the interests of the
two, but one cannot help but feel that
Justice Gupta has struck a better balance
than Justices Lokur and Nazeer.
Conclusions
Civil and political rights are not always
fought over and debated upon in the
Supreme Court or even in the high
courts on a daily basis. It is not the writ
petitions asking for the striking down of
precolonial laws or post-independence
ones that are necessarily the most
important battles when it comes to
guarding fundamental rights. Every
time that an accused is produced before
the magistrate, every time that a magis-
trate is called upon to decide on a ques-
tion of bail, and every time that an
accused fights to prove the absence of
evidence, these are all small but signifi-
cant battles in the larger war. Regretta-
bly, instances of magistrates believing
that they are mere rubber stamps of the
state seem to be increasing, for example,
the almost casual way in which transit
remands were granted by magistrates in
EPW Index
An author-title index for EPW has been prepared for the years from 1968 to 2012. The PDFs of the
Index have been uploaded, year-wise, on the EPW website. Visitors can download the Index for
all the years from the site. (The Index for a few years is yet to be prepared and will be uploaded
when ready.)
EPW would like to acknowledge the help of the staff of the library of the Indira Gandhi Institute
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RD Tata Trust.
vol lIiI no 42
LAW & SOCIETY
Delhi and Gurgaon when the Maharash-
tra police came knocking on the doors of
activists accused of ludicrous charges in
the Bhima Koregaon case (Jain 2018). It
is a different matter that superior courts
stepped in, in both cases, to remedy the
obvious injustices, but it is a reminder
that we cannot always take for granted
that the first tier of the judiciary will
necessarily do its job without fear or
favour. If, however, the higher judiciary
sets the tone, by understanding the
implications of its judgments even in the
most mundane of cases, perhaps, the
message will get through.
Alok Prasanna Kumar (alok.prasanna@
vidhilegalpolicy.in) is a senior resident fellow
at Vidhi Centre for Legal Policy, and is based
in Bengaluru.
Note
1 B R Ambedkar, speech, Constituent Assembly
Debates, Volume 9, 16 September 1949, http://
cadindia.clpr.org.in/constitution_assembly_
debates/volume/9/1949-09-16.
References
ACHR (2018): “Torture Update: India,” Asian
Centre for Human Rights, June, http://www.
achrweb.org/wp-content/uploads/2018/06/
TortureUpdateIndia.pdf.
D K Basu v State of West Bengal (1997): SCC, SC, 1,
p 416.
Indian Young Lawyers Association v State of Kerala
(2018): SCC OnLine, SC, 1690.
Jain, Akanksha (2018): “Bhima Koregaon Case:
Delhi HC Brings Gautam Navlakha’s House
Arrest to an End, Holds Order Granting Transit
Remand Unsustainable,” Live Law, 1 October,
https://www.livelaw.in/breaking-delhi-hc-
orders-release-of-gautham-navlakha-holding-
his-arrest-and-remand-illegal/.
Joseph Shine v Union of India (2018): SCC OnLine,
SC, 1676.
K S Puttaswamy v Union of India (2018): SCC
OnLine, SC, 1642.
Mallikarjun Kodagali v State of Karnataka (2018):
Criminal Appeal Nos 1281–82 of 2018, Supreme
Court judgment dated 12 October.
Navtej Singh Johar and Ors v Union of India (2018):
SCC OnLine, SC, 1350.
Yashwant v State of Maharashtra (2018): SCC
OnLine, SC, 1336.
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