Friday, December 30, 2016

Preventive Justice Part 3 - An Overview of the Statutes

The two previous posts in the Preventive Justice series focused on Article 22 of the Indian Constitution which prescribes basic minimums regarding preventive detention in India. The history behind this constitutional provision - labelled an anachronism - offers further support to that old adage of not judging books by their covers. The development of due process law in India was used to question the sustainability of the basic minimums constitutionally prescribed by Article 22. To recap, it was argued that the Supreme Court has, unambiguously, held that Article 22 is not a complete code and preventive detention laws are open to challenge under Articles 19 and 21. In this concluding post in the series, I look at the many statutes - both federal and state - in India that authorise preventive detention for a wide variety of acts. The question I beg, not always directly, is whether these would pass muster when tested against Articles 19, 21 and 22 of the Constitution. 

Scope of Legislative Power on Preventive Detention
The Seventh Schedule to the Indian Constitution details the various items on which the federal and state legislatures can pass laws. Preventive Detention figures as Entry 9 on the Federal List (List I) as well as Entry 3 of the Concurrent List (List III). These read as follows:

Entry 9, List I: Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

Entry 3, List III: Preventive detention for reasons connected with security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.

In A.K. Gopalan v State of Madras [AIR 1950 SC 27] the majority held there was no requirement to specify what issue of defence or foreign affairs a preventive detention statute sought to deal with. It would be legal for it to simply refer to the subjects mentioned in these entries as justifications. As we shall see, this proved to be important for courts in upholding the validity of these statutes.

Federal Laws Authorising Preventive Detention
Is it purely coincidental that the federal laws authorising preventive detention in India today have some connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps. Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What are the purposes of these laws and what do they proscribe?
  • COFEPOSA: Allows for preventive detention for "conservation and augmentation of foreign exchange and prevention of smuggling activities.
  • NSA: Persons acting "prejudicial to the defence of India, the relations of India with foreign powers, or the security of India" as well as those acting "prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
  • Black Marketing Act: Allows for detention in cases for prevention of "blackmarketing and maintenance of supplies of commodities essential to the community."
Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was challenged in A.K. Roy v Union of India [AIR 1982 SC 710], and upheld by the Supreme Court. It helped that the legislature had copied the objectives from the Seventh Schedule. 

The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar challenges for fundamental rights violations. 

Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7 SCC 499] held that this didn't matter. It noted that as the validity of the COFEPOSA had been upheld once, the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22. The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the security of India by the Court.   

State Laws Authorising Preventive Detention
The vast majority of State laws greatly resemble each other - in both substance and in name - and address purported anti-social elements such as Goondas and Bootleggers. Amnesty India has put up a useful resource listing these laws and their objectives which means I can jump right away to the more recent developments on this front. I refer to the amendments to preventive detention laws brought to address video piracy and digital offenders. This was done by Karnataka most recently, giving us the atrociously titled Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment, Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money Launderers, Sexual Predators and Video or Audio Pirates Act 1985. The problems posed by such amendments by states have been discussed a fair bit already (see here, here and here) and has been considered once by the Madras High Court in 2005. Supplementing those critiques, I argue that these extensions are illegal for the laws do not pass the test posed by Articles 19, 21 and 22. The development of due process would suggest Article 21 poses an important test to the validity of these laws.

The lack of attention to preventive detention legislation in India remains surprising. Especially at at time when there is renewed attention to the expanding scope of detention without trial across the globe. The judicial approval of these statutes has stemmed debate to a certain extent, and has consequently resulted in emboldening states to continually expand preventive detention laws. While preventive action in itself is not a problem, Indian laws (both federal and state laws) display a glaring lack of proportionality in their approach. Prescribing possibly year-long detentions for potential copyright violations, when the offence itself is bailable, is patently unjustified and illegal. Looking ahead, lets see what the future holds. 

Thursday, December 22, 2016

Criminalising disrespect to the National Anthem

I have been asked more than once on why this Blog has been silent about the interim order passed by the Supreme Court in Shyam Narayan Chouksey v. Union of India [W.P. (Civil) 855/2016, dated 30.11.2016]. Through this order a Division Bench of the Supreme Court passed a slew of directions mandating that the National Anthem be played before feature film presentations in movie theatres, accompanied by a representation of the National Flag. The order has been critiqued on various fronts that are not a concern of what we do on this Blog. But recently, film festival screenings in Kerala saw arrests of persons who allegedly refused to honour the directions by not standing while the National Anthem was being played. News reports were hazy on the offence for which these arrests were made but some cited 188 IPC as the basis. My friend Mr. Rahul Unnikrishnan recently took up the baton and argued here that the arrests lacked legal basis and the Supreme Court had created a new offence. In this post, I further examine these claims. Together with Mr. Unnikrishnan, I argue that non-compliance with the directives of 30.11.2016 cannot be used to initiate criminal cases. One illegality must not be compounded with yet another.  

Using Section 188 IPC to Enforce the Order
Section 188 IPC is part of Chapter X, titled Of Contempts of the Lawful Authority of Public Servants. It is an exception to the norm that crime and punishment must be prescribed by the legislature. Thankfully, mere disobedience is not punishable, and the offence is complete only when tis disobedience risks occurrence of certain harmful consequences, or actually causes their realisation. So, there are three requirements for an offence under this provision: 
  1. Existence of an order promulgated by a public servant in her lawful authority.
  2. Knowingly disobeying such an order;
  3. Such disobedience causing the prescribed ill-effects.
Can we consider the order passed on 30.11.2016 as one that merits application of Section 188 IPC? 

Judicial precedent is clear that orders passed by courts in litigation between parties do not form the subject of Section 188 IPC. For example: violating an injunction order would not amount to an offence under Section 188 IPC but may possibly merit contempt of court proceedings [See, e.g., the decisions in Dalganjan Koeri v. State (AIR 1956 All 630); George Joseph v. State of Kerala (Kerala High Court, Division Bench)].  

But there is a catch here. The decisions I refer to above develop on the idea that court orders relate specifically to the parties rather than issues of public convenience and order. Few would contend that an order of the Supreme Court issuing directions for the country, as in the present case, are the same as regular orders even though they are passed in a litigation before the court. Add to this the Supreme Court's power to do complete justice under Article 142 of the Constitution. This makes it arguable to consider an order passed by a Supreme Court Justice - a public servant - as satisfying step 1 of my three-step Section 188 analysis.    

The Indian Constitutional Law & Philosophy Blog mooted that Article 142 was never meant to be used this way. While I support that view, I think it is instructive to turn to the intent behind Section 188 IPC to decide how much weight this arguable position can carry. Section 182 of Lord Macaulay's draft of the IPC contained a very similar provision to the current Section 188. Out of all the offences in this Chapter, the Law Commissioners thought it necessary to justify this one. The explanatory notes are insightful:  

"The only provision which appears to us to require any further explanation is that which is contained in clause 182. we have, to the best of our ability, framed laws against acts which ought to be repressed at all times and places, or at times and places which it is in our power to define. But there are acts which at one time and place are perfectly innocent, and which at another time or place are proper subjects of punishment; nor is it always possible for the legislator to say at what time or at what place such acts ought to be punishable. ... 

What we propose, therefore, is to empower the local authorities to forbid acts which these authorities consider as dangerous to the public tranquility, health, safety or convenience, and to make it an offence in a person to do any thing which that person knows to be so forbidden, and which may endanger the public tranquility, health, safety, or convenience. It will be observed that we do not give the local authorities the power of arbitrarily making any thing an offence; for unless the Court before which the person who disobeys the order is tried shall be of opinion that he has done something tending to endanger the public tranquility, health safety or convenience, he will be liable to no punishment. The effect of the order of the local authority will be merely to deprive the person who knowingly disobeys the order of the plea that he had no bad intentions. He will not be permitted to allege that if he has caused harm, or risk of harm, it was without his knowledge. ... 

We see some objections to the way in which we have framed this part of the law; but we are unable to frame it better. On the one hand, it is, as we have shown, absolutely necessary to have some local rules which shall not require the sanction of the legislature. On the other hand, we are sensible that there is the greatest reason to apprehend much petty tyranny and vexation from such rules; and this although the framers of those rules may be very excellent and able men. ... 

A public servant of more than ordinary zeal or industry, unless he have very much more than ordinary judgment, is the very man who is likely to harass the people under his care with needless restrictions. We have, therefore, thought it necessary to provide that no person should be punished merely for disobeying a local order, unless it be made to appear that the disobedience has been attended with evil, or risk of evil. [Emphasis added]"      

This makes it clear that the power of giving the backing of punishment to ensure compliance with orders was extraordinary and limited to peculiar situations for which legislative sanction does not make sense. This, coupled with the illustrations in the comments which I have omitted here, make it clear that the Law Commissioners were looking at local regulations dealing with processions, disease, etc. Issues that have already been answered through legislative sanction are surely outside the scope of Section 188. Insults to the Indian National Anthem and the National Flag are comprehensively dealt with by the legislature in the Prevention of Insults to National Honour Act, 1971. I would argue, then, that the order dated 30.11.2016 as forming the basis of prosecutions under Section 188 IPC.       

Can disobedience cause the necessary harmful effects?

What are the harmful effects that Section 188 IPC speaks of?
  • Causing or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed
  • Causing or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray
Ordinarily, not obeying the order dated 30.11.2016 will not attract the second situation. Courts have understood the first situation as referring to the obstruction, annoyance or injury caused to the person lawfully employed for enforcing the order in question. Which makes the position as follows: persons knowingly disobeyed the order lawfully promulgated by the Division Bench on 30.11.2016 and by doing so caused obstruction to the police who were lawfully employed for enforcing the order. Whether or not this disobedience caused 'obstruction, injury or annoyance' would become a question of trial and could go either way. This forces me to disagree with Mr. Unnikrishnan, who focused on this point to contend that using Section 188 IPC to justify arrests lacked "legal wisdom".

Offences under the Prevention of Insults to National Honour Act, 1971?
Mr. Unnikrishnan further argues the Supreme Court has created a new offence without any legislation backing it. His contention is slightly misplaced. The history behind Section 188 IPC shows that it was created specifically for making offences without legislative sanction. The basis of his argument is sound though, as we discussed above. This also leads me to the 1971 Act that specifically addressed this issue of criminalising insults to the National Anthem and National Flag. Section 3 it made an offence to intentionally prevent the singing or causing disturbance to an assembly singing the anthem. If by not singing the police are trying to say that persons caused disturbance to the rest of the assembly singing the anthem, it is a very strained reading of the text. If news items are to be believed then this provision is not being used to justify arrests. One can only hope that remains the case.

Sunday, December 11, 2016

Preventive Justice Part 2: Looking inside Pandora's Box

In the previous post, I traced the history behind Article 22 of the Indian Constitution, showing how the clause was considered to be Dr. Ambedkar's version of due process after that idea was excluded from Article 21 [India's guarantee to protect the right to life and personal liberty]. Constitutional developments since have seen the Supreme Court re-introduce the due process idea into Article 21 most famously in Maneka Gandhi's case. This, naturally, raises questions about the position of Article 22 in the panoply of rights to freedom guaranteed under the Indian Constitution. It leads me to consider the history behind the interplay between Articles 19 to 22 in this post. For this I have relied, again, on the books by Granville Austin and Mr. Seervai's commentary, and I would strongly suggest those interested in the issue to consult these sources. I then argue, that Article 22(3)(b) - excluding the right to legal representation for those preventively detained - is contrary to Article 21.

The 'Complete Code' idea - AK Gopalan and RC Cooper
A.K. Gopalan v. State of Madras [(1950) SCR 88] is one of my favourite decisions of the Supreme Court, and probably one of the most misunderstood ones too largely due to the common vilification it suffers after Maneka Gandhi. A.K. Gopalan [Communist Leader, and later Member of Parliament] was detained under the Preventive Detention Act, 1950 [a legislation hastily passed by the Nehru Government a month after the coming into force of India's Constitution to prevent release of the hundreds of persons detained under laws that would soon lapse]. Gopalan challenged the Act for violating Articles 14, 19, 21 as well being contrary to Article 22 itself. The Court upheld the validity of the Act but held Section 14 unconstitutional for violating Article 22(5) - the provision prevented even courts from accessing materials on which detention orders were based.

This post is limited to only one of the several fascinating points of discussion thrown up by Gopalan. That is the issue of Article 22 being a 'Complete Code', which means that the legality of preventive detention laws is limited to being tested only against Article 22 and not the other fundamental rights in Part III of the Constitution. The Attorney General argued this was the correct position of law. Only Mahajan, J. agreed: "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 a self-contained in respect of the laws on the subject of preventive detention." Kania, C.J., Sastri and Das, JJ. considered Articles 21 and 22 had to be read together [Kania, C.J.: "According to him [the Attorney General], Article 22 is a complete code. I am unable to accept that contention."]. Fazl Ali, J. went a step further and observed that "In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other."

This means that the 'Complete Code' argument was rejected in Gopalan itself, the only doubts left were regarding applicability of Article 19 to preventive detention laws. Strangely, then, the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that "The majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and 'within the four corners of that Article'." As Mr. Seervai notes, the majority incorrectly considered the 'Complete Code' idea as being approved by Gopalan and that this was further compounded in Haradhan Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the view of Fazl Ali, J. and overruled Gopalan for accepting the 'Complete Code' argument [wrongly, of course]. This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978 by Maneka Gandhi transplanting 'procedure established by law' with 'due process of law' without amending the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into preventive detention laws - Francis Coralie Mullin [AIR 1981 SC 746] an eloquent instance of the same.

Pandora's Box: Unleashing Article 21 on Article 22(3)(b)
Opening Pandora's Box is shorthand for taking decisions without appreciating the consequences. I think the analogy aptly reflects the Supreme Court's move to import 'due process' into Article 21. The interplay between the various 'rights to freedom' under Part III was based upon the specific exclusion of due process from Article 21 [discussed in the last post]. It is fair to say that the decision in Maneka Gandhi irreversibly severed Articles 19-22 from that original interpretation. Proceeding from this position, I argue that Article 21 and Article 22(3)(b) cannot coexist in the current constitutional scheme. The limited version of 'due process' guaranteed through Article 22 must give way.

Recall that Article 22(3)(b) barred persons detained under preventive detention laws from consulting and being defended by a legal practitioner of their choice. Like the rest of the preventive detention clause, this was considered necessary due to the situation prevailing at the time by Dr. Ambedkar. The Supreme Court noted its harshness but begrudgingly accepted this position. All this was because Article 22 represented the extent of due process guaranteed in the Constitution. Then the Supreme Court decided to introduce an unfettered concept of 'due process' into Article 21. This led the Court to note in Madhav Hoskot v. State of Maharashtra [(1978) 3 SCC 544] that a 'procedure established by law' entailed a right to appeal, right to counsel and imposed a duty upon the State to provide free legal aid (Krishna Iyer, J. even passed directions to that effect). How, then, does one justify the exclusion of this right to counsel through Article 22(3) to persons who perhaps are in greatest need of legal counsel? 

Five judges in A.K. Roy v. Union of India [(1982) 1 SCC 271] squarely faced this contention. Their answer was simple: detenus had not right to counsel because Article 22(3) specifically excluded it. Notice the helplessness in the opinion: "It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. ... It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1). [Emphasis mine]" What is crucial here, is the Court relying upon Article 22 itself as the yardstick to determine what is just, fair, and reasonable. I argue that this is incorrect, because after Maneka Gandhi the test of procedural fairness flows from Article 21 and not Article 22. In any event, no part of the Constitution itself remains above scrutiny, and the helplessness of the Court is akin to crocodile tears. 

The idea of a 'Complete Code' in Article 22 was unassumingly sustained by the Supreme Court and eventually buried by it as well. The consequences of this, however, are something that the Court continues to struggle with. While I have focused on clause (b), the retention of Article 22(3) itself despite the Supreme Court heralding a 'due process' standard is unacceptable. Looking at decisions post 1980 concerning preventive detention, it is clear that judges appreciated the problem. Successive decisions did mollify the deprivation of a right to counsel. In Nand Lal Bajaj v. State of Punjab [(1981) 4 SCC 327], the Court held that a detenu had a right to counsel where the Government was permitted to engage a lawyer to argue before the Advisory Board established under a preventive detention law. This, it reasoned, would violate Article 14 and Article 21. In A.K. Roy, after expressing its dire helplessness the Court did go ahead and hold that a person detained had a right to be assisted by a friend ["who, in truth and substance, is not a legal practitioner"] in making a representation. The Court has re-written Article 22(3) to this limited extent, but it dare not take the plunge and declare it wholly redundant.

[kudos to Gautam Bhatia for helping think this post through]     

Friday, December 2, 2016

Preventive Justice Part 1 - The History behind Article 22

India's Constitution elaborates on certain Fundamental Rights guaranteed to individuals. Some are limited as citizenship rights [Article 19] while others extend to all persons within the Union [Article 21]. As the title suggests, this post is concerned with Article 21's not-so-celebrated cousin, Article 22 [the cousin terminology is deliberate, as I will show later]. I first came across the very interesting history behind Article 22 while reading Granville Austin's Cornerstone of a Nation, and then traced the discussion in the Constituent Assembly Debates while supplementing it with some independent research. It is also discussed by Mr Seervai in his commentary on Articles 19-22 but only to the extent necessary for furthering his argument. In this post, I first look at the text of Article 22 and then the history behind its inclusion in the Constitution.

Right to Freedom - Articles 19-22
Part III of the Constitution runs from Article 12 to Article 35, but we often end up missing how the framers grouped certain rights together. Articles 19-22, for instance, are couched under Right to Freedom. One possible explanation offered is that Article 19 confers positive freedoms while Articles 20-22 confer negative freedoms by limiting what the State can do. Article 21 states that No person shall be deprived of his life or personal liberty except according to procedure established by law

This is followed by Article 22, which immediately tells us exactly how the State can take away this right to life and personal liberty. So, we find general protections in Articles 22(1) to (3): every person arrested must be informed of the grounds of arrest and be permitted to engage legal counsel of her choice [Article 22(1)], as well as be produced before a magistrate within 24 hours of being detained [Article 22(2)]. This, interestingly, is followed up by 22(3) which specifically takes away these rights in case of enemy aliens and persons arrested and detained under preventive detention laws. The remainder of Article 22 - clauses (4) to (7) - moves on to lay down the limits of preventive detention laws and confer certain limited rights upon detenus. Thus, ordinarily preventive detention is capped at three months unless reviewed by an Advisory Board which recommends otherwise [Article 22(4)], where the case is not of a category warranting special treatment [Article 22(7)]. Detenus have a right to be informed of the grounds behind a detention order as soon as may be [where disclosure is not contrary to public interest as per Article 22(6)], and also to make a representation against the order [Article 22(5)]. 

The majority of Article 22 appears a precision-based instrument chipping away the edges of the basic rights guaranteed by Article 21. It has frequently been attacked throughout the history of independent India, with detractors often pointing to the worst excesses of the Emergency in 1975 as indicative of the misuse Article 22 allows. What if I told you that Article 22 was introduced into the Constitution in order to prevent the worst excesses from materialising? That is the lesson we learn from history, to which I now turn.

Draft Articles 15 and 15-A and the 'Due Process' Fallout
The use of procedure established by law to safeguard the right to life under Article 21 of the Indian Constitution, as against the due process clause, is a wonderful story in itself [It is part of a separate file in the National Archives of India no less titled Article 15: Due Process of Law]. The initial Draft Article 15 (which became Article 21) contained the words due process. While the Constituent Assembly was mulling over the draft in India, Sir BN Rau - who was the Official Constitutional Adviser - had been entrusted with the task of eliciting opinion from important personalities abroad. During this time he met Justice Frankfurter, who strenuously advised him against the incorporation of the due process clause. 

Sir BN Rau considered these suggestions important enough to send a memorandum across by airmail dated 11 November 1947 (a very expensive proposition back then). He subsequently sent across his views in a formal Report in December, 1947. KM Pannikar, an Assembly Member, wrote to Sir Rau on 30 December 1947 discussing this report, and his happiness that "Munshi's [KM Munshi, member of the Assembly] due process clause has got a knockout blow from Justice Frankfurter." On 7 April 1948, Sir Rau wrote to Justice Frankfurter to inform him of the Assembly having substituted due process with procedure established by law in Article 15 of the Draft Constitution. 1948 saw fervent efforts to re-introduce due process led by KM Munshi. On 13 December, Dr. Ambedkar was asked to give his final reply on this tussle between the Legislature and the Judiciary. He is famously quoted as saying "It is rather a case where a man has to sail between a Charybdis and Scylla and I therefore would not say anything."

The stoicism in this statement does not mean that Dr. Ambedkar was simply going to accept this changed state of affairs. He supported the due process clause, and was affected by the intense criticism this withdrawal of due process drew from various circles. In September 1949, months before the conclusion of the debates, the Drafting Committee (headed by Dr. Ambedkar) cited this backdrop and introduced Article 15-A in the Assembly. This, today, is Article 22 barring some minor modifications. Article 15-A was introduced as a measure of "compensation for what was done then in passing Article 15" since removal of due process meant Article 15 conferred a carte-blanche on the executive to arrest and detain persons. Equally, existence of preventive detention as a subject on the Federal and Concurrent Lists of Business without due process protection meant the legislature could not be checked in passing oppressive legislation. These twin factors seemed to have convinced Dr. Ambedkar of the need to have express fetters placed on the possibility of arrest and detention of persons in independent India. Dr. Ambedkar spoke for the Drafting Committee when he said that "we providing for the substance of the law of 'due process' by the introduction of Article 15A"

Conclusions and Questions
Therefore, Article 22 was in fact a measure to protect, rather than curtail, the right to life and personal liberty. Mr Seervai discusses this in his Commentary, to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a separate Article for the exclusions. Looking at what happened subsequently, a differently drafted Article 21 might have led to a differently written judgment in Maneka Gandhi. It might have prevented the Supreme Court from going so far as to incorporating the substantive due process standard that the Constituent Assembly so painstakingly chose to avoid. Where does Maneka Gandhi leave the due process that Article 22 represented for the Constituent Assembly and Dr. Ambedkar? The Supreme Court has not considered this question fully, yet, although some seepage of Maneka jurisprudence into Article 22 has definitely resulted. In the next post we will address some of these questions arising out of the Supreme Court's engagement with Article 22 of the Constitution. 

Thursday, December 1, 2016

New Series: Preventive Justice

I recently finished two collections of essays; Regulating Deviance (Norrie et al eds., 2009), and Prevention and the Limits of the Criminal Law (Ashworth et al eds., 2013). A majority of the contributions to these volumes questioned the increased tendency of legislatures in USA, England, and Australia, to introduce legislation allowing arrest and detention of persons to prevent commission of harms. This upsets the traditional liberal argument of intervening only when there is some harm that has been caused. This is countered by governments pointing to the highly uncertain times wanton acts of terrorism have brought in. Prevention, after all, was always preached as being better than a cure.

Unsurprisingly, the horrible events of the previous decade (World Trade Centre, London Bombings, Madrid Bombings, Mumbai Train Blasts, for instance), propelled the move for harsher, stricter laws. At which point I was surprised at none of these essays referring the Indian experience, for the Indian Constitution since its inception legalised preventive detention and a withdrawal of rights for those so detained. Such a constitutional denial of liberty in Article 22 sits right next to the clause guaranteeing the right to life. Yet, little discussion is evoked by having this clause today. One might say that India is thoroughly normalised to preventive detention being part of the bargain. 

This new series on Preventive Justice in India is my effort to help spur some discussion on the limits of criminal law in India. Preventive Justice is an extremely populated field in India and the first set of posts will cover the constitutional text and statutory avatars will only come in later. Similar to how this blog earlier covered some issues serially, the a thorough engagement with the text will be followed by discussing how the Supreme Court has fashioned the limits of that text. The next post will re-live the very interesting history behind Article 22 of the Indian Constitution.