Lack of transparency and the concept of ‘Fair Disclosure’ - The Red Carpet


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Monday, October 11, 2021

Lack of transparency and the concept of ‘Fair Disclosure’


Lack of transparency and the concept of ‘Fair Disclosure’

The aim of an investigation being the discovery of truth, it is not only illegal but highly unethical for a law enforcement officer to resort to concoction, padding and fabrication of evidence — all serious offences under the law — even to bring a known predator to justice. The aim of an investigating officer is “to collect evidence” and not to create it. 

Unfortunately, some unscrupulous officers, even including some in upper echelons still seem to think that if the culprit is really known, there is no harm in creating some evidence or supplying the missing links in the chain of evidence to secure his conviction for the sake of protection of society from his depredations. This is queer logic.

If fabrication of false evidence were to be justified because of the so-called laudable motive of punishing a known culprit, the worst criminal on earth could have also justified the blackest crime on ground of good motives. Good end can never justify bad means. As Gandhiji said. “end and means must both be clean. Thus the police must appreciate that investigation has a moral and philosophical content which is, perhaps, of greater value than even its legal formulation.

Whatever may be the difficulties in tracking down criminals there cannot thus be any evasion of the Human Rights or violation of the Fundamental Rights guaranteed to the accused both under the U.N. Charter and the Constitution of India. And as Justice Holmes has observed, “We have to choose, and for my part I think it is a less evil that some criminals should escape than the Government should play an ignoble part”.  Indeed, the standard of a country's civilisation can be measured not only by the treatment its police doles out to a man in custody but also by the transparency and fairness of methods it adopts in unravelling the mysteries of a crime under investigation.


Instances of wrongful prosecution are not a rarity in the Indian criminal legal system. The arena of wrongful prosecution due to absence of fair disclosure by the prosecution has been a twilight zone for a long time.


In the American Criminal System, the landmark case of Brady v. Maryland [1963 SCC OnLine US SC 100], decided by the US Supreme Court, laid down the contours of the fair disclosure principle. It was stated by the Court that non-disclosure of information is to be construed as a violation of the due process right of the accused. The following three parameters were also laid down to constitute as checkboxes to qualify information as relevant, if it is shown that the information:

1.     Was not disclosed by the prosecution; 

2.     Is favorable to the accused; and 

3.     Is material either to guilt or punishment.


Unlike the United States, there hardly exists any sort of mechanism to prevent the prosecution from placing only self-serving facts and from concealing exculpatory material in India. India follows an adversarial form of justice system. Here the role of a judge is not that of an investigator, but merely of a facilitator in justice dispensation. This characteristic feature poses a threat of concealing relevant information by the prosecution, which can be helpful in disproving some or all charges framed against the accused. There is no governing mechanism in place in the Indian judicial system to fill this lacuna.


Section 239 of the Criminal Procedure Code, 1973 (CrPC) enables the magistrate to discharge the accused after considering the charges in the charge sheet, filed by the police under Section 173 of the CrPC after investigation. On the basis of the submitted charge sheet, the magistrate decides whether a case can be established against the accused or not. Section 173 of the CrPC does not mention revealing all the relevant details, including the self-serving and exculpatory material which can favor the accused or render a new dimension to the case.


Section 91 of the CrPC allows the defendant to present his/her side or defend himself/herself, but only after the charges have already been framed against the accused. Also, the accused generally don’t have required means and resources to gather or pull out information or evidence to supplement his or her claim. The apex court in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568] has held that in the pre-trial procedure, it is the discretion of the prosecutor to provide the material that has the potential to exculpate the accused. Thereby, the prosecution is unintentionally bestowed with the unquestionable right to produce selected evidence, witnesses, and documents.


Moreover, the present arrangement is troubling because the investigating officer is the sole authority that has the prerogative in producing the evidence before the magistrate. The relevance of the information obtained during the stage of investigation and the selection of the information that goes into the charge sheet is decided by police authorities only. The entire foundation of a case is based on the discretion of the investigating officer. The accused has thus no absolute “right” to pre-trial disclosure.


The American principle of fair disclosure finds its genesis in the legal reasoning that suppression of relevant information seems to be at direct cross with the due process rights of the individual. In India though, there are no legislative provisions for due process rights. However, a somewhat similar interpretation can be derived from the phrase procedure established by law under Article 21 of the Indian Constitution.

Justice Krishna Iyer, in Maneka Gandhi v. Union of India [(1978) 1 SCC 248], observed that law prescribing a procedure for deprivation of life and personal liberty in Article 21 could not be any sort of procedure. It had to be one that was neither arbitrary, nor unfair, nor unreasonable. Thus, the due process concept is read under Article 21 as articulating that “procedure established by law” must be fair, just, and reasonable.

Justice Krishna Iyer, in Sunil Batra v. Delhi Administration [(1978) 4 SCC 1994], pushed that, even though the ‘due process’ is not mentioned in the Indian constitution, after Cooper Case and Maneka Gandhi v. Union of India, the effect is same. He further added that Article 21 is the counterpart of procedural due process in the United States.


In Nitya Dharmananda v. Sri Gopal Sheelum Reddy [(2018) 2 SCC 93] the due process doctrine in its essence has been used to carve out an exception in the criminal procedure. In the case, it was pronounced by the apex court that material beyond police report can be considered, if:

-  Police/investigating authority has withheld the same and not filed it along with the police report such material is of ‘sterling quality’. 

-  Unfortunately, the position is unsettled, as the decision was delivered by a division bench vis-à-vis the full bench judgment of Debendra Nath Padhi case.


The Law Commission of India in its 277th report has incorporated the request by the Delhi High Court, in Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, to consider the issue of compensation and rehabilitation of the victims of wrongful prosecution. The report advocates for amendments in the CrPC to provide relief in monetary and legal terms to the victim of wrongful prosecution. The report, in order to meet India’s commitment to International Covenant on Civil and Political Rights (ICCPR), recommends the enactment of separate legislation to that effect. Provision for compensating the victims through monetary relief is appreciated. However, in the absence of mandatory fair disclosure, there will always be cases of wrongful prosecution. This will result in a burden on the exchequer to compensate victims. Further, the loss of years in incarceration can never be compensated.


To introduce mandatory fair disclosure in the CrPC, the Indian lawmakers can draw vital inspirations from the Director of Public Prosecution Act, 1986 (DPPA) and Criminal Procedure Act, 1986 (CPA) of New South Wales. Section 15A of DPPA imposes obligation on investigating police officers to disclose to the Director all relevant information, documents, or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. 


The required amendment to CrPC to include mandatory fair disclosure can be made on the lines of Sections 3 and 7A of the Criminal Procedure and Investigations Act 1996 (UK) (CPIA). Section 3 of the CPIA deals with the duty of the prosecutor:


Section 3

(1) The prosecutor must—

a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or

b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).


(2) For the purposes of this section prosecution material is material—

a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused.


Section 7A of the CPIA ensures that if, at any time during the trial and before acquittal or conviction or discontinuance of the case by the prosecutor, the prosecution finds any material that is capable of undermining the case of the prosecution that has not been disclosed to the accused, the duty of the prosecution to disclose continues.


Another proposition is the imposition of sanctions for non-compliance of pre-trial disclosure requirements, the essence of which can be derived from Section 146 of the CPA. The aim is to have a double-fold disclosure by both the prosecutor and the police.


By superseding A.K Gopalan’s ruling, we as a legal system have shifted from the “procedure prescribed by law” to the concept of “due process of law.” The absence of a provision in the Indian criminal justice system mandating fair disclosure is a major blind spot in the realization of the due process of law. A fair and just trial is the premise of criminal jurisprudence, and not providing fairest opportunity to the accused to prove his innocence is contrary to the very premise of criminal jurisprudence. The principle running at the core of Indian criminal justice system is “innocent until proven guilty,” not vice versa.






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