A Charter For Reform In Procedural Criminal Laws Ensuring 'Justice" In The Criminal Justice System

Bharat Chugh

16 Aug 2020 9:21 AM GMT

  • A Charter For Reform In Procedural Criminal Laws Ensuring Justice In The Criminal Justice System

    Nothing affects our lives and our liberty more directly than criminal law, and yet, nothing has been treated with greater disdain as far as law reform is concerned. We've talked about it a lot indeed. It has just not been important enough to implement, for some reason. We've forgotten that what separates a 'Criminal System' from a 'Criminal Justice System' ("CJS") is Justice and an antiquated...

    Nothing affects our lives and our liberty more directly than criminal law, and yet, nothing has been treated with greater disdain as far as law reform is concerned. We've talked about it a lot indeed. It has just not been important enough to implement, for some reason. We've forgotten that what separates a 'Criminal System' from a 'Criminal Justice System' ("CJS") is Justice and an antiquated CJS can't be expected to do justice.

    Criminal law, I've always argued, should be an area of greater concern, and its reform – the top-most priority. Unfortunately, CJS reform in India, historically, hasn't received the attention that it really deserves. At least not until recently. Arguably, the primary reason for this disdain is the fact that most people who find themselves in the throes of the CJS are people who don't really have much of a voice. Also, certain vested interests have always gained from the system being weak, lest it starts questioning them and bringing them to justice. Whatever may be the reason, we can all agree that there is a lot to be done. CJS reform has been in the news lately. A committee has been formed to look into this. This was long over-due and is surely a welcome step.

    In a three-part series, I seek to share my views on the changes that are urgently needed in our CJS. This part is dedicated to recommendations in the context of Procedural Criminal Laws. Why so much attention to the procedure, you ask? Well, as a Magistrate, and now as a defence lawyer, I've often seen procedure becoming the handmaid of injustice, instead of justice – as it is really supposed to be. Procedure and design can defeat or serve justice. It can frustrate or protect due process. This column is an attempt to just put some ideas out there; things that I feel would ensure that the CJS really protects due process while, at the same time, not impacting the pursuit of truth. Here are some thoughts:

    1. Reconsideration of the higher threshold for Bail in certain laws – Some acts require the accused to practically prove innocence in order to be entitled for bail and before the matter goes to trial. They require the accused to demonstrate that there are "no reasonable grounds to believe" that the accused is guilty of the offence alleged. (See: Section 212(6) of the Companies Act, 2013, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS"), Section 21 of Maharashtra Control of Organized Crime Act, 1999 ("MCOCA"), and earlier, Section 45 of The Prevention of Money Laundering Act, 2002 ("PMLA")). Anyone with even an elementary understanding of criminal jurisprudence and constitutional due process would scoff at this; these provisions are constitutionally suspect as they put the burden on the accused to establish her innocence – that too – at the time of bail; at a stage where the accused is structurally incapacitated from leading evidence in his defence. These provisions turn the presumption of innocence right on its head and place an often-insurmountable burden on the accused to prove prima facie (or even more than prima facie) innocence at the stage of bail. Fortunately, Section 45 of the PMLA has been held to be unconstitutional by the Supreme Court. Other provisions mentioned above should be reconsidered too, if bail hearings are not to be turned into verdicts before trials.
    2. Introduction of mandatory notice to the victim/complainant for all crimes. As of writing this article, there are no provisions requiring mandatory notice to the informant, except in Sexual Assault/ Protection of Children from Sexual Offences Act, 2012/Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 cases, etc. This is important. Victims should be given a say even in cases of other prosecutions.
    3. Scope of a bail hearing: The scope of a court's jurisdiction at the time of deciding a bail application needs to be laid down with precision and clarity. For instance, it needs to be clarified that bail in a case cannot be denied solely on the ground of alleged 'gravity' of the case; this is for the simple reason that an accused is entitled to presumption of innocence, especially when the other factors are in favour of the accused and there is no chance of accused running away from law or otherwise tampering with evidence. I'd further stick my neck out and suggest that it needs to be clarified explicitly that inadmissible evidence cannot be relied on in order to make a finding as to the seriousness of the case and deny bail on that ground.
    4. Alternatives to monetary bail: Alternatives to monetary bail should be considered seriously; for instance, GPS monitoring of the accused is a possible option which can be explored. It is extremely disconcerting that most inmates in prisons are under-trials, many of whom, given our dismal conviction rates, would ultimately be acquitted. How do we plan to repay them for the time spent behind the bars as an under-trial. Under-trial incarceration should be avoided, as far as may be. The use of lookout circulars, passport suspension, and other supervisory orders, ought to be preferred to an altogether denial of bail. Further, to make a better assessment of the risks of abscondment, at the time of bail, the judge should have a Risk Assessment Study which would help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and community safety. All with an aim that: As long as participation in investigation and trial can be secured through other means, police/judicial custody ought to be avoided. Some jurisdictions have tried using AI systems and integrated data across departments to help the judge make better bail or jail judgments.
    5. Time limit for disposal of bail applications: Bail matters, since they involve personal liberty, ought to be taken up at priority and disposed-of within a time-bound manner, and in no case, more than a week from filing of the bail application. Laying down – with greater precision, the scope of the hearing would help us achieve this and prevent the bail hearing from degenerating into a mini-trial.
    6. Regulating the practice of sealed envelopes: The Supreme Court recently in the case of P. Chidambaram v. Directorate of Enforcement[1]has denounced the practice of routinely introducing evidence in opposition of bail applications in sealed envelopes. This seriously undermines accused's right to know the charges against him and answer them appropriately. Given the possible mischief and prejudice, their use ought to be minimised, by legislative intervention, and confined only to the most extreme cases and allowed after due application of mind. If redacted information is provided to the accused, redactions also should be kept at the bare minimum and justified in each case.
    7. Anticipatory Bail to Juvenile: The position regarding the availability of Anticipatory Bail ("AB") to juveniles needs to be clarified. Given the absence of legislation & any pronouncement by the Supreme Court on the issue, various High Courts have taken conflicting views on this. As a result – Jury is still out on the question of applicability of Section 438 of The Code of Criminal Procedure, 1974 ("CrPC") in case of a Juveniles. In Kamlesh Gurjar v. The State of Madhya Pradesh[2] the court held that, in the absence of any specific provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015 ("JJ Act"), a juvenile is not entitled to move an application under Section 438 of the CrPC seeking AB, and JJ Act is a self-contained law in relation to juveniles. Other High Courts have taken a different view holding that S. 438 is offence agnostic and, being a beneficial provision, should not be unduly limited and should equally apply to JJ Act offences. The Rajasthan High Court, for instance, has held that merely because S. 10 of the JJ Act provides for apprehending a child in conflict with law and not for arresting him, it cannot be held that an application u/s 438 by him or her is not maintainable.[3] Semantic differences need not limit a substantive right. This needs to be clarified. It also needs to be clarified as to where such an application would be required to be filed; this is important since, as per S.438, the power vests in the Sessions Court or the High Court, but otherwise, a juvenile is to be dealt with in a non-stigmatising juvenile justice board, for all purposes. Need some guidance here.
    8. Clarity on which court can grant Anticipatory Bail: Doubts remain as to which court has the jurisdiction to grant an AB. The courts of the place where the accused resides (and apprehends arrest), or it is only the court with the jurisdiction to actually try the offence that must entertain an AB application. Though most of the High Courts have taken the view that the courts of the place where the accused apprehends arrest indeed has the power to grant AB, but an amendment to Chapter XXXIII (Dealing with Bail) is needed to clarify this. Chapter XIII in CrPC, which otherwise deals with jurisdiction, kicks-in only at the stage of inquiry and trial and not at the stage of bail and may not apply here. The position of law in such cases needs to be clarified.
    9. Proper intimation of rights of arrestee and videography: The process of arrest, explanation of due process rights – such as the right to have a lawyer, protection against self-incrimination, medical examination, right to bail, must all be read out in the clearest language and in vernacular to the accused, and all of this should be videographed and open to inspection by the Magistrate concerned.
    10. Presence of a lawyer during interrogation: The presence of a lawyer should be mandatory at the time of interrogation. Without the presence of a lawyer, rights such as the right to silence/protection against self-incrimination are all rendered nugatory and illusory. For the informed exercise of these, a person needs to have proper legal counsel, from the very start itself. Section 41-D of the CrPC needs to be amended to that extent. If a person cannot afford a counsel, a remand counsel ought to be provided not just at the stage of first remand/production before the court but soon after arrest, and at the police station level itself. These measures would help check police arbitrariness and cases of custodial torture/excesses.
    11. Safeguards from illegal arrest to be extended to sexual minorities and senior citizens. Section 46(4) of the CrPC, which provides for arrest by women officers and no arrest after sunrise and sunset (without a special order) should be extended to certain sexual minorities (who identify as such/being a woman). The safeguard in the context of the time of arrest should also be extended to senior citizens.
    12. Section 91 of the CrPC to be amended to respect privilege: Section 91 of the CrPC, in the shape that it is currently, does not respect privileges such as 'attorney-client communication'. In the present shape, only Sections 123 and 124 of the Evidence Act constitute exceptions to a request u/s 91 CrPC. There is no reason as to why other privileged information should not similarly be exempt from disclosure. A privilege would be worth very less if the same is compelled to be disclosed to the police but privileged during trial. Privilege should extend from investigation right till trial. This is important because it has been seen recently that sometimes investigators seek information shared between client and counsel in a notice u/s 91 of the CrPC. Any defence of privilege is not entertained at the stage of investigation simply because only S.123 and S.124 of Evidence Act (providing for privilege to information as official acts/affairs of state, etc) have been carved out as exceptions (See S.91(3). This presents an ethical conundrum to the lawyer who is bound under the Bar Council Rules (over and above the Evidence Act) to respect privilege but otherwise compelled or compellable to disclose things to police. In a nutshell, Section 91 of the CrPC ought to be amended to carve out other privileges too, within S.91 by amending subsection (3). Such questions need to be addressed during investigation itself and need not await trial, when the court determines the question of admissibility.
    13. Mandatory Video recording of all statements u/s 161/164 of the CrPC: This is long over-due. There should be mandatory video recording of all S. 161 and 164 statements. There is absolutely no justification for not doing it, except so-called budgetary constraints. Budgetary and logistical constraints are not justified. CJS needs to be prioritised. Nothing affects life and personal liberty more intimately than CJS.
    14. Digitisation of court proceedings and records: All court proceedings including statements of witnesses under Sec. 161/164, all examinations in chief, cross examinations and all other documents relied on by either side should be digitised and uploaded on an online portal which can conveniently be accessed by the accused and his counsel so that an effective defence can be prepared. A central case docket, especially in times such as these, is imperative.
    15. Magisterial power to supervise investigations: A lot of investigative lapses and excesses can be checked by more pro-active magisterial involvement right from the start. We must legislatively implement the judgment of the SC in Sakiri Vasu v. State of UP[4] and lay down -with precision and clarity, the power of the Magistrate to supervise the investigation and the kind of orders that the magistrate can pass to make investigations more effective, fair, impartial and objective.
    16. Empower the magistrate to record 164 statements suo motu: We must empower the Magistrates to pro-actively record statements u/s 164 of the CrPC – suo motu, and not just statements of only those witnesses who are proposed/forwarded by the IO, which is the case currently. For instance, a witness who may offer sterling exculpatory evidence should also be examined u/s 164 of the CrPC and not just witnesses deposing as to incriminating facts and supporting the police case. Further, SC has already ruled that statements of all eye witnesses ought to be recorded u/s 164 of the CrPC (to give them corroborative effect at trial) [5], however, the implementation leaves a lot to be desired. Implementing this in the statute itself is going to be apposite.
    17. Section 164 Statements should be allowed to be used in trial as examination in chief: Further, Section 164 statements, if recorded properly by the Magistrate and duly video-recorded, should be permitted to be used as statements in lieu of examination in chief. The current system of an eye-witness/victim deposing at least thrice (S.161 statement before police > S. 164 statement before magistrate > Examination in Chief before trial court) by the time matter comes to trial, is too onerous and hardly satisfactory. Many people are put-off at the idea of being witnesses and we must treat them better and make it easier for them. We need to take care of the 'eyes and ears' that these witnesses are to the system.
    18. Witness Protection Law– Witness protection guidelines, made law by SC through its judgment in Mahender Chawla v. Union of India[6]ought to be implemented and writ into the CrPC itself. Anything else would mean that they would continue to be disregarded, by and large.
    19. CCTV footage in police stations: This-again- has been needed for long. CCTV in police stations and supervision by the Magistrate is imperative to minimise/rule out chances of custodial torture and, along with, video recording of statements would ensure transparency in the investigation. This is presently being examined by the Supreme Court in Paramvir Singh Saini v. Baljit Singh.[7] Further, the Magistrate should be empowered to visit and inspect police stations within his jurisdiction at any time. The looming fear of a "Magistrate's Inspection" can keep a check on custodial torture and the rampant practice of 'off the record arrests'.
    20. Prompt delivery of occurrence report: Email of Occurrence Report/FIR, within minutes of registration, to the Magistrate concerned to bring in magisterial supervision at the earliest.
    21. Process u/s 82 CrPC during the investigation: CrPC may be tweaked to allow issuance of Non-Bailable Warrants ("NBWs") and Process for Proclamation u/s 82 CrPC against an absconding accused, to be issued even during investigation, with a view to assist the Investigating Officer ("IO") in the apprehension of the accused. Sometimes, an NBW/Process u/s 82 CrPC is needed by the IO to initiate issuance of Red Corner Notices, etc, and apprehension of the accused. There is a currently a divergence of judicial opinion here. Some decisions opine that NBWs/Process u/s 82 of the CrPC ought to be issued only for the purpose of securing the appearance of the accused at the time of trial, while others permit issuance of NBWs/Process u/s 82 CrPC at the stage of the investigation itself. Latter appears to be a more practical way of looking at things.
    22. Power to take voice samples: Supreme Court has already ruled that an accused can be compelled to give voice samples during the investigation.[8] CrPC must be amended to implement this legislatively, with the necessary safeguards.
    23. Compulsory Psychological evaluation of arrestee as part of Medical Examination: There should be a compulsory psychological evaluation of the person arrested as part of standard medical examination. This would ensure that a better picture of the accused's psyche is captured, right after the crime when the same is still afresh. This would be helpful not only in assessing culpability but also assist the court while deciding the appropriate sentence for the accused, at the final stage of the case.
    24. Clarity on power to compel disclosure of passwords/fingerprints: This requires some thought but I'd still put it out there. Mobile phones, these days, have become an extension of the human mind. They are privy to our darkest secrets and our deepest desires. Our phones possibly know us better than our families and friends, and arguably, better than we know ourselves. Everything that we do on our cell phone: from liking cute cat videos, navigating to a location on GPS, to shopping online, we are leaving digital footprints everywhere. All of this also constitutes crucial evidence. Now in this context, picture this: a suspect in a criminal case is compelled to provide his fingerprint or a face scan or his password to unlock his phone. Can he be so compelled? What about the constitutional protection of not being compelled to be a witness against herself? Does disclosure of a person's mobile password or getting a face scan amount to compelling a person to be a witness against herself? What about the right to privacy implications? We need to regulate this. Simply speaking, providing a fingerprint to unlock one's phone may not amount to being compelled to be a witness against oneself, given the fact that one's fingerprint may not really be something 'testimonial' in nature, and, therefore, arguably, not protected by Article 20(3) of the Constitution. But would the answer be different if, instead of a fingerprints, it is a password instead. Also, privacy concerns remain. Given these concerns, this needs to be well thought out. I'd leave that to better minds to ponder this. All I would say is, if implemented, there should be safeguards to ensure that the investigation remains focussed and search narrowly-tailored, so that privacy concerns are respected and phone searches do not become roving enquiries and fishing expeditions.
    25. Codify the prosecutorial duty of disclosure within CrPC. Section 173 and 207 of the CrPC should be recast. There should be a duty on the IO and prosecution to collect and disclose all evidence that is material to the case and not just incriminating evidence that the 'prosecution seeks to place reliance on'. This would be in line with the prosecutorial duty of disclosure as outlined under the Bar Council Rules and various judgments such as Manu Sharma[9], V K Sasikala[10], Nitya Dharmananda[11], etc. Further, if the IO has spoken to any witnesses who are not made prosecution witnesses, for whatever reason, that also should be disclosed to the defence with a view to give them a fair opportunity. These safeguards and disclosures are important because an accused does not have the benefit of the investigative apparatus of the State to dig out evidence and put up a good defence and complete disclosure would help the accused make out a fair defence case. We need to help ease the information asymmetry between accused and the prosecution and provide level playing field.
    26. Proper disclosure of electronic records: In cases where prosecution relies upon electronic record evidence; for instance, a hard disk; a clone copy or image should be provided, and not just a backup. In other words, an exact clone is what the accused should get, in the interests of fullest disclosure and so that he can extract exculpatory evidence from the same too, if posssible. S.173/207 CrPC, therefore, may be amended in that regard adopting the ruling in Dharambir vs Central Bureau of Investigation[12] (Also see : Gopalakrishnan v. State of Kerala[13])
    27. Legislate and streamline the process of mediation in compoundable cases. Currently, the area of law is governed by the judgment of the High Court in Dayawati v Yogesh Kumar Gosain[14], in so far as cases u/s 138 of the NI Act are concerned. (Full disclosure: The undersigned, whilst serving as a Magistrate, made the reference to the Hon'ble High Court leading to the above decision). We need to amend S.320 of the CrPC and provide for mediation specifically as a mode of resolution and compounding. We must provide for serious consequences of non-compliance of mediation agreements. Currently, a mediation settlement leads to an acquittal (as the case stands compounded by virtue of Section 320 of the CrPC), however, where the accused reneges on the settlement later on (for instance, in a case of the amount required to be paid in several instalments), since an acquittal already stands recorded, the court cannot revive the trial and the only option available to the court is to recover the settlement amount as an 'amount directed to be deposited by the court' by virtue of Sections 421 r/w 431 of the CrPC. Though this is the best option available in the present legal regime, however, in some cases, it is shown to have limitations. The real deterrent for compliance of a mediation settlement agreement is the revival of the case and possible prison sentence. Section 320 may be amended to provide for the revival of trial in case a mediation settlement/terms of compounding are violated.
    28. The meaning and import of "assistance" by a victim's counsel: CrPC provides that the victim can only "assist" the prosecution and not conduct the prosecution itself. The scope and meaning of what assistance means needs to be laid down with precision, right from the stage of opposition of bail, right till the sentence hearing.
    29. Legal assistance to the investigators during the investigation: An overwhelming number of cases fail on account of (totally avoidable) defects in the investigation. Either due to lack of proper training of investigators, heavy case load, or simply, an attitude of general apathy to rules and procedural requirements. Failure to maintain proper records, improper management of documentary evidence, and delay in recording witness statements are some of the factors afflicting the investigative process. Most, if not all, of these infirmities, can be corrected by timely intervention on behalf of the prosecutor who should carefully handhold & advice an investigator (who is not usually a trained legal mind) in investigating properly. The prosecutor, or at any rate a legally trained lawyer/advisor, while not investigating the case herself, must be involved in the investigative process and not just after the filing of the charge-sheet. The Investigator should have the option of seeking legal advice from the prosecutor/legal advisor as and when the need arises. Crown Prosecution Service ("CPS") in the UK does that. This would ensure that the prosecutor is not incapacitated in the prosecution of the case due to the terrible quality of an investigation and not handed a fait accompli each time. Timely interventions by the prosecutors may go a long way in ensuring qualitative investigations and better results/outcomes. This would require legislative/policy changes. What is notable in this regard is that, recently, under the directions of MHA/GOI, the Delhi Police vide order dated 23.04.2020 has resolved to set up a separate Directorate of Prosecution for Delhi Police tasked with the responsibility of rendering legal assistance to Investigating Officers during the investigation. Prior to this, the police would usually forward the charge-sheet to the prosecutor concerned for his views. This exercise, in my opinion, was bereft of legal sanction and not in consonance with CrPC, as it stands.
    30. Streamlining and codifying the process of E-Service of summons: Ad-hoc judicial decisions permitting this lead to inconsistency. The provisions relating to service of summons may be amended to provide for service through email/SMS. Having said that, instead of being relegated to the parties, this should be carried out by the administrative office attached to the court and with the unique digital signatures provided to each court. The process needs to be streamlined. The practice of parties sending summons through email and then later filing an affidavit of compliance is, at best, a stop-gap arrangement and not entirely satisfactory.
    31. Making substituted service gender-neutral: In case the person on whom the summons are to be served is unavailable, the statute provides for service through adult "male" member of the family u/s 64 of the CrPC. The same must be amended to mean "any adult family member" so as to be gender-inclusive and consider non-cisgender identities respecting the spirit of National Legal Services Authority vs. Union of India[15] and Navtej Singh Johar v Union of India.[16]
    32. Allow petty cases, attracting only fine to be conducted online: For cases involving fine not more than a few thousand rupees, we must make them triable online by amending the chapter in CrPC dealing with summary trials. We must let the accused plead guilty on the court portal and deposit fine through debit card/credit card and, only if the accused seeks to contest – should the matter come to court.
    33. Widening the definition of the term "wife" of purposes of maintenance: The term "Wife" under section 125, CrPC may be amended to include a de-facto wife. This has already been laid down in Badshah vs Sou. Urmila Badshah Godse & Anr[17] Also, like provisions for maintenance in the Hindu Marriage Act, this also may be made gender-neutral.
    34. Mandatory Victim Impact Assessment and Crime Impact Assessment Reports at the earliest stages of the case, so as to assist the court pass appropriate bail and compensation orders.
    35. Mandatory Admission and Denial: Provide for mandatory admission/denial of evidence in criminal trials, to ensure that witnesses, whose testimony is not in dispute, are not needlessly called. This would greatly expedite trials. A lot of time is wasted in repetitive evidence of formal character. More pro-active use of Section 296 CrPC to receive evidence of formal witnesses on affidavit and use of Section 294 of the CrPC to record admission and denials would be desirable. Section 294 CrPC may be mandatorily worded, on the same lines as the provision in CPC.
    36. Amend s. 309, CrPC to allow for the imposition of real/actual costs on the party who causes delay in proceedings.
    37. Provision of leniency/tender of pardon to a corporation: Indian investigators have been seen to be reluctant in the more pro-active use of 'approvers' and 'accomplices' in making out a good prosecution case. Complex white-collar investigations require that the investigators take the help of insiders and companies' rabbis to guide them through the transactions. Since even the smartest 'outsiders' are unable to make sense of or rely on the documents, they almost always have to get someone from the inside to flip and that can happen only when this 'insider' is provided proper protection and the right incentives. Making a company 'insider' capitulate and turncoat is of profound importance in a white-collar crime investigations, given the nature of the crime and the sophistication with which they are committed and considering how carefully they are hidden. We also need to put in place robust leniency/pardon mechanisms for companies willing to disclose any criminality on their part (or on the part of any of their executives), and willing to make amends/restitution. A similar mechanism for disclosure for companies is already there in the competition law regime. We need a parallel here in criminal law. The existing system of tendering pardon to an accused (under the CrPC)- with a view to get a true and fair disclosure from her about the case – may be unsuited in its application to a corporation.
    38. Introduce a provision on discharge during summons trials in the CrPC. Currently, the Summons trial chapter in the CrPC does not contain a provision for discharge. The Delhi HC has, however, in R Narayanan vs. State[18] commented on the possibility of discharge but did not pass an order on the same. A reference to this effect is pending with the Delhi High Court.[19] Section 251 of the CrPC only provides for communication of substance of accusation to an accused and not discharge. This is unlike Warrant trials/Court of Sessions Trials where discharge is possible u/s 239/227 of the CrPC. The differential treatment was called for because at the time Section 251 was conceived, it was thought, and for good reason, that summons trials are an abridged form of trial (given the maximum sentence in such cases is 2 years) and there is no need to have an elaborate discharge hearing, which is going to only delay matters, without contributing much. Well, this view does not hold true anymore when summons trial remain pending for pretty much as long as any other trial. They are an abridged form of trial only on paper. Also, a two-year sentence cannot be called that short also that one makes serious inroads into a vital safeguard that the accused has: that is seeking discharge – in the nature of a threshold challenge. Discharge in summons case needs to be introduced statutorily.
    39. Arbitrary Conditions on Grant of Bail: Circling back to bail again. Bail conditions such as planting of trees, condition of apologizing for a tweet, condition of depositing money with the court, especially in economic offences, condition of not saying "anti-national" things, condition of marrying the complainant, in a domestic law case etc. may not be appropriate conditions that may be imposed at the time of bail. Some of these conditions are punitive in nature and do not have nexus with bail and the need to ensure that the accused does not abscond from the process of law.
    40. Protection to Whistle-Blowers: In order to encourage whistle-blowers to come forward, a robust and inclusive statute is required to ensure that a safe environment is provided to the whistle-blowers. The Whistle Blowers Protection Act, 2014 has not yet been enforced and as per some reports might get dilute before it sees the light of day. We need to properly incentivise whistle-blowers who risk their own lives to blow the whistle on crimes within large organisations and government departments. After all, the key reason why whistle-blowing is successful in the US is its incentive scheme. With organisations like The Securities and Exchange Commission and The Internal Revenue Service having given out incentives running into millions of dollars, it is no surprise that the scheme works as well as it does. Some Indian agencies do provide for a rewards scheme for informants which can be adopted for white collar crimes. E.g. – The Informants Rewards Schemes used by the Central Board of Direct Taxes ("CBDT") or the provisions for Informant Reward under the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015 ("PIT"). It must be kept in mind, however, that the need to provide incentives is over and above the protection that a whistle-blower should be provided. The remedy lies in proper incentives and protection. The fate of the Whistle Blowers Protection Act, 2014, which is yet to come in force and might get diluted, shows the legislature's lackadaisical approach towards providing a safe harbour to whistle-blowers. Further, except a few provisions under the CA which protect employees from dismissal during an investigation conducted by the Serious Fraud and Investigation Office and provide safeguards against victimisation of employees and directors, there is nothing in any other law providing similar protection.

    This is by no means an exhaustive list. Just some points to kindle an active debate. Discussing these, I feel, is important. Some points are consciously framed so as to be assaults on our senses and the status quo, which, I feel, is unsatisfactory in many respects and ought to be re-examined and made better.

    Views are personal only.

    (The Author is a Former Judge, Delhi, currently practising as an Advocate in Delhi) 

    *A huge shout-out to Shreyash and Rohit for their valuable inputs.

    This article was first published here

    [1] P. Chidambaram v. Directorate of Enforcement, 2019 SCCOnline SC 1549

    [2] Kamlesh Gurjar v. The State of Madhya Pradesh MCrC 10345/2019

    [3] Sagar Through Guardian v. State of Rajasthan, SB Crl Misc Bail Appln No. 11432/2019

    [4] Sakiri Vasu v. State of UP (2008) 2 SCC 409

    [5] Doongar Singh vs The State Of Rajasthan (2018) 13 SCC 741

    [6] Mahender Chawla v. Union of India (2019) 14 SCC 615

    [7] Paramvir Singh Saini v. Baljit Singh SLP (Crl) DN 13346/2020

    [8] Ritesh Sinha v State of UP (2019) 8 SCC 1

    [9] Sidhartha Vashisht @ Manu Sharma vs State (NCT Of Delhi) AIR 2010 SC 2352

    [10] V K Sasikala v. State (2012) 9 SCC 771

    [11] Nitya Dharmananda v. Gopal Sheelum Reddy (2018) 2 SCC 93

    [12] Dharambir vs Central Bureau Of Investigation 148 (2008) DLT 289

    [13] Gopalakrishnan v. State of Kerala AIR 2020 SC 1

    [14] Dayawati v Yogesh Kumar Gosain 243 (2017) DLT 117

    [15] National Legal Services Authority vs. Union of India AIR 2014 SC 1863

    [16] Navtej Singh Johar v Union of India AIR 2018 SC 4321

    [17] Badshah vs Sou. Urmila Badshah Godse & Anr (2014) 1 SCC 188

    [18] R Narayanan vs. State 2019 CriLJ 1761

    [19] Court on Its Own Motion vs. State Crl.Ref. 4/2019

    [20] Soman v. Kerala (2013) 11 SCC 382

    [21] State Of M.P vs Bablu Natt AIR 2009 SC 1810

    [22] State Of Punjab vs Prem Sagar & Ors (2008) 7 SCC 550

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