Shaurya Mahajan
The Indian criminal legal framework has recently been overhauled, from the centuries-old Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) to the new Bhartiya Nyaya Sanhita (BNS) and Bhartiya Nagarik Suraksha Sanhita (BNSS). This shift is an effort by the Parliament to decolonise the criminal law framework and make it more citizens’ rights-centric. However, despite this noble intention, the Acts are characterised by mostly cosmetic changes and fail to fulfil their promise of transforming the Indian criminal law landscape. While the intention of this change is to modernise the legal framework, it fails to fill a critical gap in the system – the lack of a fair disclosure requirement. A glaring example emerges from the failure to incorporate the Draft Rules on Criminal Procedure formulated by the Supreme Court (‘SC’) within the new framework, instead choosing to retain the previous framework verbatim. This move comes despite the Court’s endorsement and a strong recommendation for adopting the Draft Rules.
A key element that was recognised and sought to be remedied was the lack of a requirement for fair disclosure of exculpatory evidence to the accused as a part of the accused’s right to a fair trial. Under the current legal regime, the prosecution has an obligation only to disclose documents relied upon to the defence and, therefore, does not include all documents and evidence available with the investigating authority, especially any that supports the innocence of the accused. This starkly contrasts the recommendation made by the Draft Rules, which, through Rule 4, mandates the disclosure of both relied-upon and non-relied-upon evidence to the accused.
This post examines the disclosure requirements under the current legal regime and highlights the lack of a fair disclosure requirement at the pre-trial stage. The post highlights the nexus between the fair disclosure requirement and the accused’s fundamental right to a fair trial in consonance with natural justice. It proceeds with discussing the judicial expansion and partial incorporation of the fair disclosure principle through the formulation of the Draft Rules and delineation of the prosecutor’s role. Lastly, it looks at the Brady Rule in the US as a model for incorporating the fair disclosure requirement and shifting the focus to exculpatory evidence. Accordingly, the post argues for the statutory incorporation of the fair disclosure requirement at the pre-trial stage and notes the lack of change in the BNSS as a missed opportunity.
Understanding the Current Regime
The current legal regime with regard to disclosure requirements is governed by two sections – Section 173 and 207 CrPC (Section 193 and 230 BNSS). Section 173 CrPC provides for the filing of the chargesheet by the police, and only after the filing of the chargesheet does the court determine whether it is a fit case and decide to take cognizance of the matter. It mandates the police to forward all documents and other evidence that the prosecution intends to rely upon. Section 193 BNSS retains the general scheme of Section 173 and only adds a clause for expedited investigation in cases of sexual offences. Section 207 CrPC gives the accused a right to be provided with copies of all documents supplied by the investigating authority to the magistrate. This includes the chargesheet, statements of witnesses the prosecution plans to examine, and any other documents the prosecution relies on. Section 230 BNSS also retains the framework provided by Section 207 but introduces a maximum period of 14 days for the prosecution to supply the documents. While Section 91 CrPC provides the accused an opportunity to present his side, this is only possible after the framing of the charges and not at the pre-trial stage.
The critical commonality in both these provisions (and their new counterparts) is the focus on evidence the prosecution is planning to ‘rely upon’ or ‘proposes to examine’. This confers upon the prosecution the authority to determine the relevance of the evidence collected and decide what evidence would be forwarded to the magistrate as part of the charge sheet. Given the adversarial relationship between the prosecution and the defence, this excludes from the requirement of disclosure any evidence that does not favour the prosecution’s case – any evidence that supports the innocence of the accused. This allows the prosecution to legally suppress any evidence that would weaken the prosecution’s case and casts a burden on the accused to gather evidence on his own to prove his innocence – a burden that is very hard to discharge.
The statutory grant of discretion to the prosecution in determining the relevance of evidence has been affirmed by the Supreme Court in State of Orissa v Debendra Nath Padhi, wherein it was held that it is up to the prosecution’s discretion to decide the evidence at the pre-trial stage. While the court has taken a divergent view in Nitya Dharmananda v Sri Gopal Reddy, the legal validity of this decision remains unsettled due to its deliverance by a division bench as opposed to the full bench judgement in Debendra Nath. Therefore, pre-trial disclosure is entirely within the discretion of the prosecution, and the accused has no real right to pre-trial disclosure of evidence. The wide discretion with the prosecution and the lack of real right to disclosure with the accused often leads to the suppression of evidence, a practice that undermines the fairness of the justice system.
This grant of discretion in the Indian system exists in stark contrast with the right to fair disclosure under the Brady Rule operational in the United States. This contrast becomes pressing in light of the centrality of due process and rights of the accused in both jurisdictions.
Looking at the Brady Rule
The Brady Rule is the fair disclosure requirement established in American jurisprudence by the SCOTUS decision in Brady v Maryland. The court applied the 14th Amendment of the US Constitution to hold that non-disclosure of information by the prosecution amounts to a violation of the due process rights of the accused. The court specifically formulated this right to include exculpatory evidence, i.e., evidence favouring the accused’s innocence. Failure to disclose information by the prosecution amounts to a Brady violation and, therefore, prosecutorial misconduct. The Brady Rule confers a positive obligation on the prosecution to disclose all material discovered by the prosecution during the investigation, and the lack of disclosure of any evidence favourable to the accused amounts to a Brady violation. It is also worth noting that the court has classified the Brady violation as one which frustrates a fair trial and, therefore, allows the court to vitiate the trial proceeding and declare a mistrial.
The court has laid down the three-factor test to determine whether the prosecution was obligated to disclose a particular piece of information. Firstly, the information should not have been released by the prosecution. Secondly, the information is favourable to the accused. Thirdly, information would result in either the acquittal or create doubt as to the accused’s guilt. The satisfaction of these three factors confers an obligation on the prosecution to disclose the information before the court. As noted, this expressly covers exculpatory evidence and is applicable at the pre-trial stage.
The court focuses on the element of exculpatory evidence to determine the existence of a violation because the prosecution already has the responsibility to disclose evidence they rely on. This effectively incorporates the fair disclosure principle and mandates the disclosure of all evidence available by the prosecution to the accused – even at the pre-trial stage. This allows the accused to benefit from the evidence even before the trial starts and saves him from the burden of collecting evidence on his own – a burden that is seldom discharged easily due to real-world inequalities. The Brady Rule provides valuable insight into shifting the focus from evidence relied upon by the prosecution to exculpatory evidence as a requisite for a rights-centric framework. The emphasis on pre-trial disclosure of exculpatory evidence serves as a helpful model for India, where the lack of such obligations often leaves the accused at a disadvantage.
Principle of Fair Disclosure – Nexus with Fair Trial and Natural Justice
The principle of fair disclosure, with its theoretical underpinning in American jurisprudence, provides for the disclosure of all relevant information by the investigating authority to the accused – irrespective of whether it has been relied upon by the prosecution. It holds the suppression of any information pertinent to the guilt (or innocence) of the accused to be incompatible with the guarantee of due process. This requirement prevents the misuse of investigative processes and suppression of evidence by the investigating authority and ensures that the accused gets a fair trial. Only with fair disclosure is a fair trial possible. As the discussion on the Brady Rule showed, non-compliance with the disclosure requirement has the potential to vitiate a trial and constitutes a non-curable defect in the trial. This underscores the important place disclosure requirements occupy a central position in the criminal justice framework. It finds itself rooted in the fundamental assumption of ‘innocent until proven guilty’ and serves as the lynchpin in balancing the competing claims of individual rights and investigative demands. In the Indian context, it finds itself situated at the intersection of fair trial and natural justice and forms a part of the expansive interpretation of Article 21 of the Constitution.
The principle was first discussed in the Indian context by the Privy Council in Pullukuri Kottaya v. King Emperor, wherein it was held that fair disclosure forms an integral part of a fair trial. Article 21 of the Constitution provides a right to life and liberty and includes within its ambit the right to a fair trial and, post the SC’s judgement in Maneka Gandhi v Union of India, the right to due process of law. The expansion of the ‘procedure established by law’ to ‘due process’ by the SC in Maneka Gandhi and affirmed in Sunil Batra v Delhi Administration forms the groundwork for a fair disclosure requirement. The right to due process finds at its core the right of the accused to know all information gathered by the investigating authority and is imperative for ensuring a fair trial. The SC in Siddharth Vashisht v NCT Delhi has upheld fair disclosure as a necessary requirement for a fair trial. Further, in Sasikala v State, the court held that the accused had a right to access papers submitted to the court but not exhibited by the prosecution.
Fair disclosure also constitutes a part of the principle of natural justice, audi alteram partem recognised by the SC in Maneka Gandhi, and forms a part of the Indian constitutional scheme within articles 14 and 21. The Gujarat High Court has held in Jayeshbhai Khemchandbhai Patel v. State of Gujarat that this includes the right to evidence available with the prosecution that supports the innocence of the accused. The SC has also recently in Mohd. Rahim Ali v State of Assam, while deciding a matter of citizenship, recognised the principle of fair disclosure as a necessary element of natural justice even within the realm of administrative law and held it to be the duty of the state to provide the accused with all available information. This recognition makes fair disclosure an integral part of natural justice.
Judicial Intervention: Partial Incorporation
Through subsequent decisions, the judiciary has enlarged the scope of the disclosure rights available to the accused under the statute. This expansion has come through a two-pronged approach by the courts – formulation and endorsement of the Draft Rules and delineating the role of prosecutors in criminal trials. The court’s expansion comes from a liberal interpretation of the statute and the need to balance the provisions with the fundamental requirement of fair trial. A liberal interpretation of the right to a fair trial has led to courts recognising the importance of a fair disclosure requirement and have thus attempted to incorporate them through judicial intervention, albeit only partially.
The SC has sought to harmonise the principle of fair disclosure with statutory obligations and, in Manu Sharma v NCT Delhi, discussed in detail the right of disclosure and its nexus with fair trial. However, the court only reiterated the current position of law and retained the focus on disclosure of documents “relied upon” by the prosecution. The court in T. Takano v. Securities and Exchange Board of India has held disclosure of documents to be an inextricable part of natural justice and the requirement to satisfy three fundamental principles – Reliability, Fair Trial, Transparency and Accountability. The court has also noted the gap between ‘relied upon’ and ‘non relied upon’ documents in Sasikala v State and discussed the possibility of non-disclosure of documents supporting the accused by the prosecution.
Taking notice of this issue and the limitation imposed upon the current statutory framework, the SC in Re v. State of Andhra Pradesh & Ors formulated the Draft Rules, which under Rule 4 provides for a list of un-relied upon documents to be provided to the accused. The court in Manoj v State of Madhya Pradesh has endorsed the Draft Rules and held it to be a right of the accused to be supplied with a list of “documents, objects and exhibits” not relied on by the investigating authority. Further, P. Ponnusamy v. The State of Tamil Nadu has strengthened this right by holding that failure by the State to implement the Draft Rules does not prejudice the right of the accused and to ensure that no material evidence is withheld from the magistrate. While these judgements expand the scope of the right by supplying the accused with a list of un-relied evidence, they restrict the operation of this right to the trial and appellate stage – in clear contradiction with the Rule itself.
The implementation of a fair disclosure requirement is inseparably tied to the prosecutor’s role as a custodian of justice. The SC in Shiv Kumar v Hukam Chand has held that the prosecutor should not vehemently seek the accused’s conviction and must be “couched in fairness” to both the court and the accused. The court further held it to be the prosecutor’s duty to make available to the accused any information that provides him with a “legitimate benefit”, even if the defence has overlooked it. This interpretation aligns with the BCI Rules, which under Rule 16 prescribe that suppression of any evidence capable of proving the innocence of the accused should be “scrupulously avoided”.
Providing a list of un-relied upon documents to the accused is meant to allow him to seek access to these documents if required. However, the text of Rule 4 only provides the list of un-relied documents and is silent regarding the supply of the actual documents. This has raised an important question regarding the scope of this right and opened the door to legal ambiguity. Despite the proactive initiative by the SC in preparing the Draft Rules, divergent decisions have been delivered by different High Courts across the country. The Delhi HC in CBI v. M/s INX Media Pvt Ltd granted the accused’s application seeking access to the un-relied upon documents. Notably, the court also held this right to be operational at the pre-trial stage. However, the challenge in R. P. Goyal v. Directorate of Enforcement has unsettled this position. The P&H HC has taken a more consistent view by holding in Kalyani Singh v. CBI that the magistrate must provide the accused with the un-relied upon documents upon application. The court has even gone a step ahead and, in Ashok Solomon vs Directorate of Enforcement, has held it an obligation on the investigating authority to provide the list of un-relied upon documents in the absence of a specific application by the accused.
A Missed Opportunity and The Way Ahead
The Indian position in the context of disclosure requirements remains unchanged with the arrival of the BNSS. The lack of a fair disclosure requirement renders the accused vulnerable at the hands of the state and damages the very spirit of the fundamental rights framework enshrined in our Constitution. The Supreme Court has repeatedly stressed the nexus between the principles of fair disclosure and fair trial, holding the former as an inextricable part of the latter. The principle goes to the heart of our criminal jurisprudence and the fundamental assumption – Innocent until proven guilty. The Draft Rules formulated by the Supreme Court and their subsequent adoption have opened the door to the fair disclosure requirement. But this opening is only partial because it only provides for supplying a list of the un-relied documents and remains silent regarding providing access to the actual documents. This silence has led to divergent rulings by courts, which has created legal ambiguities.
The failure of the Legislature to incorporate the Draft Rules within the BNSS represents a missed opportunity to bring in a much-needed change. While the Court has opened the door towards a fair disclosure right, statutory incorporation remains the only way to provide for an unambiguous and effective right, and it is high time that the government recognised this. The Brady Rule provides instrumental guidance in reframing the focus towards exculpatory evidence and effectuates the creation of a rights-centric framework. It also demonstrates the need for the prosecution to incorporate a proactive disclosure approach as opposed to the wide discretion conferred by the BNSS. What is required is an amendment to the statute providing a uniform framework for fair disclosure at the pre-trial stage with a focus on exculpatory evidence. Legislative adoption of the Draft Rules in line withthe creation of a framework similar to the Brady Rule is the need of the hour. Only then can our legal system emerge from the dark age of legal suppression into the light of fair disclosure.
Shaurya Mahajan is a second-year B.A. LL.B. student at Jindal Global Law School.