<p>Last month, the Supreme Court (SC) in Munnesh vs State of UP, while hearing a Special Leave Petition (SLP) seeking bail for an offence of murder, rejected the petitioner’s application owing to non-disclosure of ‘criminal antecedents’ including one conviction for theft. The Court introduced a new procedural rule that anyone who files an SLP for bail must reveal their criminal history along with providing complete details about all their cases and their current status. Further, it added that non/incomplete disclosure could be treated as a ground for dismissal of the petition until the SC rules are formally amended in compliance with previous orders. This case has brought attention to the oft-used category of ‘criminal antecedents’. It is crucial to unpack this expansive category which is a common feature within the criminal legal system, for adjudicating questions of liberty in bail and other matters.</p>.<p>The term ‘criminal antecedents’ is not defined in criminal law. Subsequent judgements by High Courts and the SC have interpreted the term criminal antecedents to include pending cases, convictions and even acquittals. The Delhi High Court in the Prayas Tyagi case (citing the SC’s judgement in the Avatar Singh case) in a case of reliance on criminal antecedents for employment held that one must consider the nature of acquittals whether it is ‘technical’ or ‘clean’. Tyagi’s acquittal was not deemed a ‘clean’ acquittal given that it was based on a lack of corroborative evidence leading to the cancellation of his candidature despite being exonerated. Categorising an acquittal under criminal antecedents subverts the purpose and process of a criminal trial by inflicting a punishment despite proof of innocence. </p>.<p>Also, typically, in any criminal proceeding, the onus is on the prosecution to provide information regarding antecedents. This reversal of burden through Munnesh’s order is especially detrimental for the liberty of accused persons, particularly those deemed habitual offenders (HOs) who are unaware of being implicated in multiple criminal cases. In bail matters, these antecedents are consistently relied upon by courts to deny bail without delving into the merits of the cases being cited as antecedents.</p>.<p>The SC in the Neeru Yadav case set aside the bail order reiterating that history-sheeters involved in heinous offences cannot be granted bail without thorough judicial scrutiny. In criminal proceedings, the categories of HOs, rowdies, history-sheeters etc are used synonymously with criminal antecedents. While appellate courts have emphasised the need for exercising judicial discretion in antecedents borne out of heinous offences, it is observed that bail is denied even in cases when the antecedents comprise petty offences or those punishable by imprisonment of less than seven years. The police have historically enjoyed wide discretion in the kinds of offences that comprise the criminal record of an accused person. Therefore, a significant number of arrests by the police are made for petty offences under laws such as the Excise Act and Public Gambling Act.</p>.<p><strong>Overreliance abets discrimination</strong></p>.<p>A study of the Madhya Pradesh High Court bail orders for offences under the MP Excise Act undertaken by the CPA Project revealed that several bail applications of women from the denotified Kuchbandiya community were dismissed merely stating they were habitual offenders. The orders use HOs as a catch-all phrase, without delving into the merits of the antecedent cases or providing any other reasons for the rejection of bail. The FIRs were either registered under Section 34(2) of the Act for illegally manufacturing over 50 litres of mahua – a traditional Adivasi liquor – coupled with the sale of liquor unfit for human consumption, under Section 49A of the Act. It is crucial to underscore that both offences are punishable by imprisonment of three years and two years, respectively. This is despite the Supreme Court on multiple occasions reiterating its directions issued in the Arnesh Kumar case where it held that arrest by the police is <br>not mandatory for offences punishable by less than seven years including reprimanding police officials for <br>acting in violation.</p>.<p>Criminal antecedents have now acquired digital form through the Interoperable Criminal Justice System (ICJS) designed to facilitate their ‘seamless exchange’ by the police with prisons and the judiciary. Through the Model Prisons Act, history sheets maintained by the police have now been rebranded as ‘history tickets’ that through the ICJS allow for criminal antecedents to be merged with other personal data about HOs. This information is made available to judges during bail hearings and along with the final report submitted by the police following the completion of the investigation.</p>.<p>The centralised digital storage, and sharing of antecedents through the ICJS, has made the liberty of an accused in a criminal legal system heavily contingent upon ‘antecedents’. The casteist colonial history of the category of HOs through the criminalisation of Denotified Tribes by the police and criminal legal system is well-documented. Recent judgements of the SC have also taken cognisance of this historical continuity between the repealed Criminal Tribes Act, HO Acts, and history sheets. Yet, this overreliance on criminal antecedents only aggravates the discriminatory practices set into motion by the police. It is time the SC tapped into its wisdom on criminalised communities by exercising caution while relying on criminal antecedents for invoking its powers under Article 136.</p>.<p><em>(The writer is co-founder of the Criminal Justice and Police Accountability Project)</em></p>
<p>Last month, the Supreme Court (SC) in Munnesh vs State of UP, while hearing a Special Leave Petition (SLP) seeking bail for an offence of murder, rejected the petitioner’s application owing to non-disclosure of ‘criminal antecedents’ including one conviction for theft. The Court introduced a new procedural rule that anyone who files an SLP for bail must reveal their criminal history along with providing complete details about all their cases and their current status. Further, it added that non/incomplete disclosure could be treated as a ground for dismissal of the petition until the SC rules are formally amended in compliance with previous orders. This case has brought attention to the oft-used category of ‘criminal antecedents’. It is crucial to unpack this expansive category which is a common feature within the criminal legal system, for adjudicating questions of liberty in bail and other matters.</p>.<p>The term ‘criminal antecedents’ is not defined in criminal law. Subsequent judgements by High Courts and the SC have interpreted the term criminal antecedents to include pending cases, convictions and even acquittals. The Delhi High Court in the Prayas Tyagi case (citing the SC’s judgement in the Avatar Singh case) in a case of reliance on criminal antecedents for employment held that one must consider the nature of acquittals whether it is ‘technical’ or ‘clean’. Tyagi’s acquittal was not deemed a ‘clean’ acquittal given that it was based on a lack of corroborative evidence leading to the cancellation of his candidature despite being exonerated. Categorising an acquittal under criminal antecedents subverts the purpose and process of a criminal trial by inflicting a punishment despite proof of innocence. </p>.<p>Also, typically, in any criminal proceeding, the onus is on the prosecution to provide information regarding antecedents. This reversal of burden through Munnesh’s order is especially detrimental for the liberty of accused persons, particularly those deemed habitual offenders (HOs) who are unaware of being implicated in multiple criminal cases. In bail matters, these antecedents are consistently relied upon by courts to deny bail without delving into the merits of the cases being cited as antecedents.</p>.<p>The SC in the Neeru Yadav case set aside the bail order reiterating that history-sheeters involved in heinous offences cannot be granted bail without thorough judicial scrutiny. In criminal proceedings, the categories of HOs, rowdies, history-sheeters etc are used synonymously with criminal antecedents. While appellate courts have emphasised the need for exercising judicial discretion in antecedents borne out of heinous offences, it is observed that bail is denied even in cases when the antecedents comprise petty offences or those punishable by imprisonment of less than seven years. The police have historically enjoyed wide discretion in the kinds of offences that comprise the criminal record of an accused person. Therefore, a significant number of arrests by the police are made for petty offences under laws such as the Excise Act and Public Gambling Act.</p>.<p><strong>Overreliance abets discrimination</strong></p>.<p>A study of the Madhya Pradesh High Court bail orders for offences under the MP Excise Act undertaken by the CPA Project revealed that several bail applications of women from the denotified Kuchbandiya community were dismissed merely stating they were habitual offenders. The orders use HOs as a catch-all phrase, without delving into the merits of the antecedent cases or providing any other reasons for the rejection of bail. The FIRs were either registered under Section 34(2) of the Act for illegally manufacturing over 50 litres of mahua – a traditional Adivasi liquor – coupled with the sale of liquor unfit for human consumption, under Section 49A of the Act. It is crucial to underscore that both offences are punishable by imprisonment of three years and two years, respectively. This is despite the Supreme Court on multiple occasions reiterating its directions issued in the Arnesh Kumar case where it held that arrest by the police is <br>not mandatory for offences punishable by less than seven years including reprimanding police officials for <br>acting in violation.</p>.<p>Criminal antecedents have now acquired digital form through the Interoperable Criminal Justice System (ICJS) designed to facilitate their ‘seamless exchange’ by the police with prisons and the judiciary. Through the Model Prisons Act, history sheets maintained by the police have now been rebranded as ‘history tickets’ that through the ICJS allow for criminal antecedents to be merged with other personal data about HOs. This information is made available to judges during bail hearings and along with the final report submitted by the police following the completion of the investigation.</p>.<p>The centralised digital storage, and sharing of antecedents through the ICJS, has made the liberty of an accused in a criminal legal system heavily contingent upon ‘antecedents’. The casteist colonial history of the category of HOs through the criminalisation of Denotified Tribes by the police and criminal legal system is well-documented. Recent judgements of the SC have also taken cognisance of this historical continuity between the repealed Criminal Tribes Act, HO Acts, and history sheets. Yet, this overreliance on criminal antecedents only aggravates the discriminatory practices set into motion by the police. It is time the SC tapped into its wisdom on criminalised communities by exercising caution while relying on criminal antecedents for invoking its powers under Article 136.</p>.<p><em>(The writer is co-founder of the Criminal Justice and Police Accountability Project)</em></p>
