While discharging 23 accused persons in the corruption case linked to the alleged excise policy “scam”, a Delhi court on Friday (February 27) questioned the Central Bureau of Investigation’s (CBI’s) use of the expression “South Group”, which he said could be deemed offensive in certain circumstances.
The CBI had claimed that “advance kickbacks” of Rs 100 crore was paid to leaders of the Aam Aadmi Party (AAP) by some individuals based in Hyderabad whom it collectively referred to as the “South Group”.
The money was paid in return for favours in the excise policy, and the AAP used it to fund its 2022 Assembly election campaigns in Goa and Punjab, the CBI alleged.
The court also recorded its objection to the “use of the phrase ‘South Group’” in its order.
“The Court considers it necessary to place on record its concern with the repeated and deliberate use of the expression “South Group” by the investigating agency to describe a set of accused persons, ostensibly on the basis of their regional origin or place of residence,” the judge wrote in the order.
“Such a nomenclature”, the order noted, “finds no foundation in law, does not correspond to any legally cognisable classification, and is wholly alien to the statutory framework governing criminal liability”.
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“It is equally significant”, the order added, “that no comparable regional descriptor has been employed for the remaining accused persons; the prosecution narrative does not speak of any “North Group” or similar categorisation”.
“The selective adoption of a geographically defined label is, therefore, plainly arbitrary and unwarranted.”
“The concern”, Judge Singh said, “is not confined to semantics”. This is because “Region-based labelling carries an avoidable undertone and is capable of creating a prejudicial impression,” he said.
“It detracts from the settled requirement that criminal proceedings must remain dispassionate, evidence-centric, and insulated from extraneous considerations. In a constitutional order founded upon equality before law and the unity and integrity of the nation, descriptors rooted in regional identity serve no legitimate investigative or prosecutorial purpose and are manifestly inappropriate.”
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The judge said that “Such labelling is not a mere irregularity of expression; it constitutes a constitutional infirmity capable of undermining the fairness of the proceedings themselves.”
“The central message is categorical: criminal adjudication must rest on conduct proved by evidence, not on who the accused is or where he comes from,” the order said.
“The continued use of such terminology bears directly upon the fairness of the criminal process and touches upon the guarantee of a just, fair, and reasonable procedure under Article 21 of the Constitution,” Judge Singh noted.
“Equally, the employment of descriptors founded on regional or identity-based distinctions, in the absence of any rational nexus with the alleged offence, is inconsistent with the constitutional command of equality and non-discrimination under Article 15.”
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While making oral observations, Judge Singh made reference to a judgment in the United States where this concern had been addressed. “I found a beautiful judgment on this in USA… I’m not making any observations related to the case based on the terminology, but please be careful,” he told the CBI.
The order referred to this case, United States v. Cabrera, 222 F.3d 590 (7th Cir. 2000), in which the United States Court of Appeals for the Seventh Circuit treated the issue “as going to the very root of a fair criminal trial, and went so far as to set aside the conviction itself on account of the repeated use of identity-based terminology by the prosecution and law-enforcement witnesses, where such identity had no bearing on the elements of the offence”.
Judge Singh’s order quoted from the judgment of the US court: “The [US] government’s repeated references to the defendants as ‘Dominican drug dealers’ were improper. The ethnicity or national origin of a defendant is not relevant to proving the elements of a crime. Such references invite the jury to draw impermissible inferences based on nationality rather than evidence, and they risk appealing to bias rather than reason.
“We have warned prosecutors before that injecting ethnicity into a criminal trial, when it has no bearing on the issues being tried, is error. Criminal trials must be about what the defendant did, not who the defendant is,” the US court said, as quoted in Friday’s judgment.
