On November 4, 1948, the Constituent Assembly of India, while discussing the proposed form of administration in the draft Constitution, witnessed the introduction of the phrase - "constitutional morality". Babasaheb Ambedkar introduced the phrase and called it a non-natural sentiment, something that has to be cultivated in the Indian society, a society that he referred to as "essentially undemocratic". By calling it a non-natural sentiment of society, Babasaheb drew a line of conflict between constitutional morality and societal morality. The line still exists. The undemocratic nature of the society is often reflected in the legal machinery and assumes its worst shape in the field of criminal law. Theoretically, it is understood that the right to fair trial is amongst the most fundamental tenets of a criminal justice system. In practice, however, this fairness often becomes a victim of societal realities, the realities which are born out of the prevailing standards of morality and which reflect in various elements of a criminal proceeding, as we shall see.
A criminal proceeding is constituted by both trial as well as the pre-trial stage. Though on a comprehensive view, they constitute a cohesive unit, for the ulterior effect of improprieties committed during the pre-trial stage also falls upon the fairness of the trial. Strictly speaking, a trial is staged inside a courtroom. However, what eventually gets staged inside the courtroom is, directly or indirectly, controlled by events outside the courtroom. The testimony of witnesses, securing appearances, personal examination of accused under Section 313 Cr.P.C., fairness of prosecutors, police discipline during investigation, successful production of evidence, role of bar, media reporting of proceedings etc. are certain facets of a criminal trial that are controlled by pre-trial developments outside the courtroom. Precisely thus, pre-trial events with potential to cause prejudice cannot be treated casually. Their probable impact upon the fairness of a trial needs to be examined. We have shunned any such examination thus far.
The expression "pre-trial prejudice" is a borrowed one. Borrowed from Rideau v. Louisiana, this expression is largely used to refer to jury prejudice in criminal trials. The jury system involves few members of the community in the adjudication of guilt or innocence of the accused and since these members come from the community (and are not professional judges), they come with certain social prejudices. When such social prejudices adulterate their decision making ability, it becomes a case of pre-trial prejudice. The inclusion of the phrase "pre-trial" before the word "prejudice" indicates that such prejudice emanates from their social and community experiences before they were called upon to be a part of the criminal trial. By virtue of Indian Jury Act, 1826, the jury system was introduced in India and was continued (arguably) till the enactment of 1973 Code. The country witnessed a living demonstration of jury prejudice during the famous Nanavati trial, wherein the jury recommended acquittal by 8-1. Judge R.B. Mehta, Sessions Judge, while submitting the case for review to the High Court, had famously remarked "I feel our whole law is on trial".
However, the jury system, as it turned out, was not the only cause of pre-trial prejudice. It was one of the many possible causes and though we abolished the jury system, the other causes continued to reign. Today, the criminal justice system in India is facing the threat of informational prejudice. Illustratively, there is no law in India to protect the identity of the accused. Right from the stage of information of crime, a wave of media reportage runs parallel with the stages of investigation and enquiry. The ensuing discourse outside the courtroom soon starts adversely affecting the proceedings inside. Let's explore further.
Prejudice in practice
In order to understand this phenomenon, one must understand the elements that join together to build a criminal proceeding. In reaching upto a decision, a judge ought to be assisted by professional lawyers, fair prosecutors, untainted witnesses and disciplined investigating officers. The professionalism of a judicial officer would be of little value if she is not adequately assisted in the process. The pursuit of justice is a collective task. Let me illustrate.
An accused charged with sedition for giving a speech which is circulated, twisted and talked about extensively on the internet is more likely to end up with a charge-sheet and not with a closure report. An accused arrested on the charge of a widely reported heinous rape is more likely to be subjected to custodial violence after arrest, not only by the police but also by other inmates.
The Hyderabad encounter of 4 "suspects" of gang rape was a textbook example of how extreme pre-trial prejudice could result from excessive discourse in the community. The 4 suspects, with their pictures, names and details of family members revealed, are prejudiced for life. Did the police wait for conducting their identification before publishing their information? No. The police felt the need to satisfy the society with immediate action.
Furthermore, what are the chances for a medical officer, himself outraged at a widely reported rape, to truly report custodial violence injuries on the body of the accused, arrested in relation to the said offence and brought to him for inspection?
Let's see some more illustrations. A witness living in a regressive community is less likely to fearlessly testify in the court against an incident of honour killing if it has been a subject of heavy discussion in the community. We live in a society where bar associations pass resolutions to refrain the lawyers from defending those accused with popular crimes. Such bar associations feel one with the local sentiment to punish. Would it, then, be an exaggeration to say that such accused are less likely to be defended by a legal practitioner of their choice in the court? The emphasis comes from Article 22, a fundamental right guaranteed to all by the Constitution. I wonder,
Aren't these instances of pre-trial prejudice?
Aren't they more likely to result from excessive information?
Wouldn't they go on to revolt against the fairness of trial (assuming the stage of trial comes)?
The illustrations discussed above would reveal that there is no uniform phenomenon of prejudice. Some plausible explanation, however, does exist. It begins with excessive information at a premature stage. When heinous crimes in a largely uninformed society are met with extraordinary media coverage without protecting the identity of the accused, the whole community starts sharing the trauma of victims and starts believing that nothing less than the harshest of punishment would be acceptable as the outcome of the criminal proceeding. What acts as a final nail in the coffin of fairness is the absence of basic legal knowledge, more importantly of the presumption of innocence, both in the media and citizens. The impact is unimaginable and unexplored. I feel compelled to borrow words from Judge Matsch, who, in U.S. v. Mc Veigh, expressed that "the entire state had become a unified community, sharing the emotional trauma of those who had become directly victimized".
What gets collapsed under this collective zeal to punish is the impartiality and free will of those who play a role at various stages - police, witnesses, doctors, experts, lawyers, prosecutors etc. They feel the need to pass societal expectations with flying colours and end up becoming the weak links in a trial. Local sentiment prevails over constitutional sentiment. Understandably, the causes are continuously evolving. In fact, it is this complexity of causes that has allowed these glaring improprieties to escape the clutches of law. We consider them a part of the "chalta hai" doctrine.
Pre-trial prejudice is not targeted against the accused only. Victims also face the music every now and then. Let's venture into the monotony of Bollywood and recall the story of gangrape of a poor village girl by a few rich men of the community. The incident is followed by abduction of witnesses, suppression of evidence and denial of legal assistance. The local media reports it as a suicide and creates enough sentiment for the witnesses and police to toe the 'right' line. The question here is - Are the trial courts open to such victims on the same terms as they are to others? An even bigger question is - Are our trial courts equipped enough to remedy this pre-trial fiasco?
In Sheppard v. Maxwell (1966), it was observed that "Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused". I propose to replace the word "jurors" with other constituents of a trial - police, witnesses, media etc. - and call upon an urgent need for the trial courts to effectively control what precedes the stage of trial. Lest, the trial itself will become a sham because the balance of power is increasingly being weighed against the accused in our system.
What does law offer?
The remedy against most of the evil scenarios illustrated above lies in higher courts in India- either through writs under the Constitution or appeals under the criminal procedure. Whereas the former is largely inaccessible to the majority, the latter comes at such an advanced stage that the vindication of what is lost before the trial becomes impossible. The criminal procedure and law of evidence in India lack preventive tools against such prejudice. They provide for remedial measures and put a heavy burden upon the accused to prove "failure of justice" before providing any remedy in appellate courts.
More challenges emerge when we understand our jurisprudential approach towards the concept of "prejudice". For instance, in Mohd. Hussain vs. The State (Govt. of NCT) Delhi, the Court observed, ".... 'Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope."
It is high time that we recognize the possibility of prejudice even beyond the traditional stages of investigation or trial. The limited meaning of "investigation", as we adopt, has the effect of excluding a myriad set of circumstances having the potential to prejudice the case. It is time that law circumscribes such circumstances within its reach.
The call of the hour is to empower the trial courts, to enable them to independently examine the question of pre-trial prejudice during the trial- irrespective of its cause - and rule upon procedural improprieties. For the strong foundation of a trial, a trial court must be able to effectively counter such out-of-court prejudices. Leaving such questions for appellate forums leads to loss of spontaneity, continuity and above all, loss of faith in the system of criminal justice. Because not every prejudice is capable of being traced, identified and cabined in a category after it has played its role and damaged the trial. Its effect can not always be proved as a failure of justice at the appellate stage. It is also high time that a provision akin to Section 228A of IPC is crafted for the accused for protection of identity. An accused is entitled to "informational privacy" and fair trial under Article 21, even if it demands some curbs in the competing right to press. The balance, in my opinion, tilts towards the former. The ever evolving causes that lead to prejudice need to be trapped before the law itself becomes a subject of trial.
Views are personal only.