Sunday, August 23, 2015

Perpetual Ordinances in India - Part Two

The last post on this point mainly aimed to put the context out there of the point of discussion: there are ordinances in force today which were enacted during 1940-1946, and are used quite frequently. The example most common in my sphere of work is use of the Criminal Law (Amendment) Ordinance, 1944: an ordinance brought in to deal with war-time corruption and embezzlement. In the last post, I tried to see what reasons might compel a system to make war-time ordinances permanent without any intervention by the legislature. There didn't seem to be much in it. Barring of course, a reason in the form of the nation's judiciary consistently holding that the ordinance attained legal permanence not warranting any legislative dealing. Here, lets look at the judicial opinion on the point - both before and after independence.

The Privy Council and High Courts before 1950
In 1944 the Privy Council decided King Emperor v. Benoari Lal Sharma & Ors [72 Indian Appeals 57] and upheld the validity of the India & Burma (Emergency Provisions) Act 1940. The issue of its permanence had obviously not arisen yet, this being a dispute before 1946. What this decision is important for is the words used by Viscount Simon L.C. to describe the effect of the 1940 Act. He said the "operation of the words 'for the space of not more than six months from its promulgation' was suspended during the period therein specified." Suspended, not obliterated. The question did directly present itself before the Federal Court in J.K. Gas Plant Manufacturing Co. v. King Emperor [AIR 1947 FC 38].

The Appellants had been condemned by tribunals established by way of a combination of several war-time ordinances. An argument of the Appellants challenged the validity of the tribunal that condemned them, on the grounds that the ordinances must cease to apply after 01.04.1946. This claim was rejected by the Court. It understood the 1940 Act as not merely suspending the six-month validity for ordinances, but making those ordinances "subject to no time limit as regards their extent and validity". The Federal Court had lend support to the views of the Sind High Court [Duninchand Amboomai v. Crown (1947 Cri LJ 494)], and Madras High Court [In Re MS Mehdi (1947 2 MLJ 192)]. The Allahabad High Court arrived at the same conclusion soon after [Sridhar Achari v. Emperor (AIR 1948 All 182)], and within two years there seemed unquestionable validity for the idea of permanent ordinances.

Post 1950 and the Supreme Court 
The now-entrenched position was again followed by the Calcutta High Court in Mahabir Prasad Bajoria v. M.S. Biswas [AIR 1956 Cal 176]. But the seemingly obvious oxymoron of a permanent ordinance was bound to come up before the Supreme Court sooner or later. The validity of the High Denomination Bank Notes Demonetisation (Ordinance) 1946 was challenged and it went all the way to the Supreme Court. Five judges ultimately handed down the decision in Hansraj Moolji v. State of Bombay [AIR 1957 SC 497] and held permanent ordinances, although oxymoronic, were quite legal.  The Court held ordinances made by the Governor General were akin to acts of the legislature, and every act without a time limit is a perpetual act. As the phrase imposing the six month limit was "omitted" for all ordinances during the operation of the 1940 Act, this made them permanent.

This decision follows a simple logic: Ordinance = Act; Act if without time limit = Perpetual Act; therefore Ordinance without time limit = Perpetual Law. QED. I believe this is too simplistic. An ordinance in effect is akin to an Act but this does not mean the two are the same. The court somehow did not consider the fundamental nature of an ordinance being executive action as important. But this is what makes ordinances very, very different. What's more, the court was so content with the text of the Act that it did not deem appropriate to consider the intent or context of the 1940 Act. Neither was any reference made to the 1915 Act made by the British to extend operation of war-time ordinances. In my opinion, some more consideration of these issues was merited.

The Constitution Bench verdict in Hansraj Moolji has sanctified the legality of an irrational and seemingly illegal concept of permanent and perpetual ordinances. I admit, rationality is (sadly) no yardstick to test constitutionality. But colourable exercise of power is, and by allowing perpetual ordinances the court has enabled the executive to do indirectly what it could not do directly. This seemingly harmless pre-independence era relic of perpetual ordinances can be used to devastating effect if you think about it, and install a rather grim version of the "Ordinance Raj" some people have been fearing.

(the title of this post was changed from Permanent Ordinances in India - Part Two to Perpetual Ordinances in India - Part Two on 24.08.2015)

Friday, August 21, 2015

Perpetual Ordinances in India - Part One

The fact that a thing such as "perpetual ordinances" exists should strike you as rather odd. Well, maybe not if you had the chance to glance through the Law Commission's recent reports on obsolete laws (or some news reports about the Law Commission's work). The Law Commission over a course of what are currently four reports (available here) has highlighted several ordinances created during the Second World War continue as valid laws today. Not only do I find it very interesting that pre-independence ordinances govern us today, but also the very idea of a perpetual temporary law strikes me as brilliant. I admit, it is quite common for India to have arcane laws which don't matter as you might be thinking. But these ordinances don't always fall into that harmless category: the 1944 Criminal Law (Amendment) Ordinance is actively used today in litigation to attach properties. Can this be legal? Well, yes. Should it be so? Honestly, No. Part one of this two part entry considers the history behind perpetual ordinances.

Brief Background
Ordinances are peculiar creatures of the law - conferring legislative powers on the executive head of state and blurring the dearly held separation of powers model. While some (including the current NDA government) would argue ordinances are essential to ensure the state machinery keeps running where parliament takes too long to deliberate. Others call this a convenient backdoor for the ruling government to enforce its decisions when it fails to convince in parliament. Perhaps to balance both views, most ordinances come with stipulated time limits. Ordinances in India both before and after 1950 came with an upper limit of six months, following which they would automatically be repealed.

Few would argue though about the necessity of swift decision-making in particular situations, such as war. It was during the Second World War that the Colonial Government introduced a mechanism for swift decisions in the India and Burma (Emergency Provisions) Act, 1940. The Act did not create any law, but did alter this idea of limited ordinances. Broadly, the six month limit on operation of ordinances was done away with for ordinances passed during a time frame set out by the Act. A hugely convenient measure in an era where legislation was the domain of the infrequent meetings of the Governor General in Council (as the 1935 Government of India Act had not been enforced in its entirety). 

A Story of Two Wars
This was by no means extraordinary. In fact, the British had done the same thing during the First World War with the Emergency Legislation Continuance Act, 1915. Barring linguistic differences, it is difficult to say that the laws pursue differing objectives. The 1915 Act recognised that "owing to the state of war existing between His Majesty the King Emperor and certain foreign powers it is expedient to provide for the continuance in this Act mentioned of the provisions contained in those ordinances". The normally temporary ordinances were made permanent "during the continuation of the present war and a period of six months thereafter" through Section 2 of the Act.

In the 1940 Act, there were no recitals barring the economical reference to this being "an act to make emergency provision with regard to the government of India and Burma". What was vastly different was the phrasing of provisions removing time limits over ordinances. Section 1(3) needs to be quoted at length:

Section 72 of the Government of India Act (which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor General power to make Ordinances in case of emergency) shall, in respects Ordinances made during the period specified in section 3 of this Act have effect as if the words: 'for the space of not more than six months from its promulgation' were omitted ....

What happens after 01.04.1946?
This period mentioned in Section 1(3) ran from 27.06.1940 till 01.04.1946. During that six year period, nearly 190 ordinances were brought into force. Would they continue to remain in force beyond six months after 01.04.1946, or would 190 laws lapse as the emergency for which they were enacted ceased to exist? This would have been a telling question, and unfortunately there is little material in the public domain on the deliberations that might have occurred on the subject then. Most of the material makes it appear that there were no discussions. What we have are court decisions, which we shall come to in the next post. But despite not having the deliberations, we do have clear evidence of their conclusions: out of the 190 laws 127 are reported as being allowed to remain in force after 01.04.1946. The others were specifically repealed over the course of time [see, Hans Raj Executive Legislation in Colonial India (1989) and Shubhankar Dam, Presidential Legislation in India (2015)]. 

I avoided discussing judicial opinion here to see whether one can arrive at this conclusion of retaining ordinances through independent reasons. Why would we need to retain ordinances made during the emergency created during Second World War after the emergency ceased. If these laws are useful - what stops a parliament from re-enacting them (as currently happens with ordinances)? The lack of any debate on those 190 odd ordinances in the subsequent parliament of independent India is astounding. I would argue that quick, context-laden, decisions, should be reviewed in a neutral setting. Further, given the peculiar war-focus of those war-time ordinances, it would be best for the default to be termination of those laws with there being need for specific retention. But none of this was done, and we have been left with the strange legacy of colonial executive decisions governing us today. I admit that my involvement in these issues might have biased me into thinking there are no independent reasons, which is why I'd love to have comments. 

Sunday, August 2, 2015

Mere Syntax?

Why is this Blog called the "proof" of guilt and not the "evidence" of guilt? I was asked this but never paid much attention to the thought. Suddenly it struck me as a rather interesting doubt. When going over the Indian Evidence Act, 1872 to find an answer, I find Section 3 defines "evidence" but not "proof". However, the entire exercise was based on the idea of proving or disproving something, and a specific chapter is labelled "on proof", and we always consider burdens as proof beyond reasonable doubt. But is there any difference between evidence and proof?

Looking at the Evidence Act, it would seem evidence is what the parties lead at trial for the court to consider whether facts stand proved or disproved as explained in Section 3. The Madhya Pradesh High Court has said that "proof is the effect of evidence" [Phoolchand Garg v. Gopaldas Agarwal, AIR 1990 MP 135], but it seems more appropriate to treat proved or disproved as being the effect of evidence. Turn to definitions of proved and disproved, however, and you will see they don't mention evidence. Rather, a court may conclude a fact proved after considering all the matters before it.   

Looking at the description of something as proved doesn't in any case answer our initial question of whether any difference exists between evidence and proof itself. So we turn elsewhere. One interesting answer from the web was that proof was a term for the laws of mathematics. Those, you may recall, are immutable. Evidence belonged to scientific laws: conclusive till the discovery of some fresh evidence to then make a new law. Intuitively attractive, it didn't fit with the Indian Evidence Act. If proof was always conclusive, Section 4 wouldn't have explained the meaning of conclusive proof. Its here that the Supreme Court really made matters worse. In Somavanti v. State of Punjab [(1962) 3 SCR 774] it was asked what is the difference between this "conclusive proof" and the "conclusive evidence" which some statutes contained. A Full Bench of the Court held there was no difference. So is it mere syntax then?

I believe this answer is correct. I turn to the text of the Evidence Act to answer this and raise as an example Section 71 with its headnote: "Proof when attesting witness denies the execution: If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence [emphasis supplied]". The provision explains how documents may be proved when a witness denies execution, and says the proof may be other evidence. Clinches it, right? I think so, but then I remain by this one line in Section 136 of the Act:

"If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking [emphasis supplied]."

In the same sentence, the Act seems to treat the words differently and then identically. Call it bad drafting, or perhaps an insight into something deeper, I leave that to you. For this Blog, all it means is that there is enough reason to treat The Proof of Guilt differently from The Evidence of Guilt.