A tradition of this blog has been to chronicle the tenures of Chief Justices at the time of their retirement. Limited exceptions to this tradition have discussed the tenures of specific judges. This post adds yet another entry to that list of exceptions, discussing the tenure of Justice M.R. Shah, who retired on May 15, 2023.Justice Shah was an extremely prolific member of the bench (by one account the most prolific thus far) and it is beyond my competence or ability to engage with all of his contributions in various fields of law. Instead, I attempt to engage with his forays in the realm of criminal law and procedure, which were not insubstantial either.Constitutional lawyers ignore criminal law adjudication at their own peril. The frontiers of criminal law are the frontiers of personal liberty, and there could be no dearer value within a constitutional setup which respects human dignity and autonomy. Looking at how courts and judges deal with criminal law issues, then, offers us a lens into their overall thinking on issues of personal liberty vis-a-vis state power.A spectrum of approaches is on offer. At one end of the spectrum is an approach emphasising the ‘culture of justification’ embodied in a constitutional setup that demands strict justifications for state action depriving, or imperilling, personal liberty. At the other end, there is an approach which pays deference to state power and instead assumes its justified nature, placing the burden of exhibiting otherwise upon the individual, and only intervening when an exceptionally strong case is made out.Where would we place Justice Shah’s judicial approach within this spectrum? This post argues that the philosophy of deferring to, and unconditionally trusting, state power and judicial discretion in the criminal process shines through his approach in matters of criminal law. This meant adopting a default position of trusting the state’s case as well as expanding judicial discretion (at the cost of ‘bright-line’ procedural safeguards for accused individuals), in order to secure what are felt as ‘correct’ outcomes. It is not as simple as terming the approach ‘anti-liberty’ or ‘anti-bail’ and moving on.Granted, personal liberty was an obvious casualty in an approach based on not questioning state power, but what Justice Shah embodied is a classic belief in the correctness of state power and judicial discretion: any deprivation of individual liberty that might be caused in the process was, therefore, justified.In this, he continued the views of a long line of judges, the most outstanding exponent of the tradition probably being Justice M.H. Beg, exhibited by the “motherly care of detenus by the state” remarks made in ADM Jabalpur while upholding the exclusion of the right to enforce fundamental rights during the Emergency. Or even – going further back – all eleven Justices in Kathi Kalu Oghad, who held that ‘mere’ questioning by police cannot be presumed as carrying an element of coercion.On matters of procedureJustice Shah delivered some notable decisions in the realm of criminal procedure. Besides rulings on specific issues – which I will turn to in a bit – I want to first flag a general theme of his decisions in this arena. I would label this the ‘standard of review’ line of thought, which we see in his engagement with appeals from high court orders granting/rejecting bails, quashings, or acquittals.On the one hand, Justice Shah (often while sitting with the then-Justice Chandrachud) frequently set aside orders granting bail/anticipatory bail, finding those to be insufficiently reasoned, and sent the accused back into custody. The insufficiency was, predominantly, on grounds of the merits of the case: that the judicial orders granting bail either did not consider the serious offences involved in the case, or did not do so in their proper perspective [see here, here, and here].As he notes in an interview in response to a question about his approach to bail, it is his belief that murder cases or serious frauds are not those where bail should ordinarily follow. On the other hand, at the same time, Justice Shah set aside orders that had quashed criminal proceedings on grounds that too detailed an examination of the merits had taken place by the courts below, as such an approach short-circuited the trial process [see here and here]. He, much like many predecessors, strongly emphasised that the scope under Section 482 of the Criminal Procedure Code for the high courts to stay investigations or quash cases was minimal, going so far as to narrow it even for quashing cases following settlements between parties [see here, here, and here].Two features of such an approach deserve highlighting. First, its unyielding support for the cause of judicial discretion, and that too only at the apex level. The only winner here is litigation at the Supreme Court, because nobody knows how to judge whether the factual engagement by the courts below was too little, too much, or just right – apart from the Supreme Court itself, of course. The second is that the approach is an inherently inconsistent one: it involves looking at facts in one preliminary setting (bail) but not another (quashing).The interpretive choices only make sense when we place them within the broader preferences of trusting state power and using judicial discretion to do justice in each case rather than be hemmed-in by any perceived rules (many of which are – as indicated above – bright-line procedural safeguards meant to protect accused persons from State power, including – it appears – discretionary judicial power!)This brings us to the judgments on specific issues. Justice Shah wrote the opinion for a Constitution Bench in Mukesh Singh which resolved a short conflict in the law that came up in 2019. The issue here was the impact on the fairness of investigations, where the official who was the first informant (say, where the officer lays a trap) continues the investigation. A three-judge bench in 2019 held that such a circumstance would vitiate proceedings on grounds of perceived bias, going against earlier decisions which required some proof of bias or prejudice to be shown [for a longer discussion, see here].In tune with an approach that is built on trusting state power and retaining judicial discretion at the cost of bright-line procedural safeguards, the unanimous constitution bench opinion authored by Justice Shah held that such a circumstance by itself would be insufficient to vitiate proceedings without some other facts showing prejudice (which would be judged by the Court).Then there was the stay and eventual reversal of acquittals awarded by the Bombay high Ccurt to Prof. G.N. Saibaba, amongst others, on grounds that there was no proper sanction to have conducted the prosecution in the first place. The final order is in the nature of a concession by parties and ought not to be looked at independently of the first order which had kept the acquittal in abeyance and, arguably, resulted in that concession. The circumstances in which that first order was passed have been chronicled on this blog. Here, I want to present the issue from the lens of Justice Shah’s judicial philosophy.The choice was between supporting an acquittal in a case involving serious allegations of terrorist acts, without even considering these facts but adopting a strict rule-based reading of procedural law (i.e., that an absence of proper sanction to prosecute vitiates the case and must result in an acquittal), as against an approach which treated any procedural non-compliance as one instance in a panoply of factors including the merits of the case, and leaving sufficient room for the judge to decide (and, in the process, push through his own convictions). There was only one outcome.Also read: Judiciary in the Modi Era: Shielding the State and Leaving the People VulnerableMore recently, Justice Shah delivered two opinions in the field of custody and bail which strongly reflect the underlying philosophy I identified. First, there was Vikas Mishra, a case involving allegations of corruption and money laundering. As per an earlier decision of the Supreme Court, police custody remand could only be granted during this period of the first 15 days after an arrest.In Vikas Mishra, the state challenged orders denying police custody remand outside of this period, claiming that the cunning accused had been admitted to hospital for the first fifteen days, and citing the deleterious impact it cast on an investigation which pertained to serious offences. Not only did Justice Shah grant the request agreeing with the state’s contentions that the medical ailments appeared a convenient development designed to frustrate the police custody remand, he went ahead to recommend revisiting the earlier case law which projected a bright-line rule of no police custody beyond the first fifteen days of arrest.Finally, there is Gangi Reddy, where Justice Shah allowed a request by the state to cancel ‘default bail’ that had been granted in a murder case. Default bail refers to a species of bail which accrues as an indefeasible right to an accused who is arrested and detained during an investigation, and police fail to complete the investigation within 60 / 90 days (time limits depend on the alleged offence). It does not matter what the alleged offence is – if the time limit is crossed, the person must be released (if she is willing to comply with some basic conditions).In Gangi Reddy, the state requested for cancelling default bail on ground that a chargesheet had been filed and it carried serious allegations against the accused (as if a chargesheet would contain non-serious allegations, but that is besides the point!). Using pre-existing ambiguity in the standard for cancelling default bail — there must be ‘strong reasons’, whatever that meant — the Court allowed the request [discussed in detail here].While doing so, the judgment highlighted the hallmarks of Justice Shah’s judicial approach. The rule-based setting of default bail which was agnostic to the seriousness of allegations had often been diluted in the past. Justice Shah took that line of thought much further in Gangi Reddy by suggesting that any default bail would forever remain contingent upon the seriousness of allegations disclosed in the chargesheet, whenever it was eventually filed.Moreover, he emphasised the harms of any rigid approach which excluded discretion: what if default bails for serious crime like murder were secured by corrupting police into delaying the investigation? That default bail entailed necessary loss or life and liberty for 60 / 90 days was, presumably, a minor detail and justified cost to secure the sanctity of the process and make the right call.On matters of substantive lawJustice Shah, to my knowledge, did not author many judgments exploring the boundaries of substantive criminal law. His most important contribution in the field was authoring the lead opinion in the Three Justices’ review of Arup Bhuyan (there were separate concurring opinions as well).In an earlier time, when the practice of law was perhaps less insecure about foreign precedent (or less pompous about Indian jurisprudence), the Supreme Court in Arup Bhuyan, Raneef and Indra Das had considered judgments from other jurisdictions to point at the unfairness of an expanded doctrine of guilt by association which arose on a plain text reading of Section 3 of TADA, Section 10 of the UAPA, and other allied offences. These judgments had held that it would require establishing an ‘active’ association to prosecute and convict a person on allegations of membership in a banned organisation, and mere membership would be insufficient.Also read: Full Text | Indian Judiciary Has Become an Instrument of the Executive: JaffrelotThe Arup Bhuyan (Review) reversed this position concluding that there was no such requirement. While doing so, it laid great emphasis upon the perceived in-built check that the law only punished association after an organisation had been banned, which meant giving an opportunity for persons to sever ties and avoid facing prosecutions.There are many missteps in this opinion [see here] but something that deserves attention is how the Arup Bhuyan (Review) gives us a brief glimpse into Justice Shah’s approach to questions of substantive criminal law and the relationship between the state and the individual. For him, it was not a problem that ‘membership’ as a concept went undefined in the statutes. Nor was it a problem for him to prosecute persons for such an undefined nature of association with an organisation. What mattered to him was the fact that, at some point of time, a competent authority had made a decision designating a certain organisation as dangerous.Not your run-of-the-mill dangerous, but dangerous because of its threat to the unity and sovereignty of the state. The seriousness of state interests at play warranted broad offences potentially criminalising any membership rather than restricting the scope of offences at the outset. For Justice Shah, it was wrong to assume that the state would misuse powers flowing from broad-based offences by launching false prosecutions, because state power had to be trusted. Furthermore, any dangers of such action were mitigated by the robustness of the legal process where an accused had a chance to lead defence evidence to prove her innocence before a judge.The criminal process, on this reading, is not an interaction between a set of unequal actors; nor is criminal law with its sanction of imprisonment a domain which ought to be limited by way of culpability requirements (‘active’ as opposed to ‘mere’ association) because of the grave prejudice that may be caused by wrongful prosecutions and convictions. Instead, criminal law and procedure are reflections of state power, and state action deserves our trust, especially where it is used towards defending critical national security interests.Conclusion – a mirror for the conflict at the heart of the constitution and criminal justiceTo conclude, I return to the looming elephant in the room: the caricature of Justice Shah’s legal philosophy being overwhelmingly pro-state and anti-liberty. What I attempted to show is that it is a simplistic rendition of what is a more complicated, but hardly novel, judicial approach that Justice Shah remained faithful to in his engagements with criminal law and procedure.This approach was built upon (almost) unconditionally trusting the exercise of state power, and maximising the scope for judicial discretion within the criminal process, at the cost of criminal procedure rules that sought to protect the rights of the accused by establishing bright lines and minimising judicial discretion.If anything, Justice Shah’s approach mirrors a conflict that remains at the heart of the Indian Constitution and the criminal process. The former framework is built upon ideas of empowering citizens to question exercise of state power, while the other requires citizens to trust and defer to it. Hoping that the constitution would somehow transform the criminal process without addressing this conflict was nothing but attempting to fit a square peg in a round hole. More often than not, whenever push has come to shove and courts have had to pick, the choice has been to show deference to state power rather than enforce the constitutional logic of justifications that is at the heart of the transformative ideal of India’s constitution.Until that very fundamental conflict is resolved, the popularity of the judicial philosophy espoused by Justice Shah is unlikely to dim anytime soon.This article was originally published on the Indian Constitutional Law and Philosophy blog.
