Thursday, September 17, 2020

Guest Post: Examining the Proposed Uttar Pradesh Special Security Force

(This is a guest post by Vaishnavi Prasad. Please note that the author’s analysis of the functioning of the force is based on press statements by public officials on the issue as the official state notification regarding the Uttar Pradesh Special Security Force has not yet been released. This post may be updated / supplemented once the notification is made public.)

On 13 September, the Additional Chief Secretary to the Government of Uttar Pradesh informed reporters that the State Government has given orders for the constitution of a special security force. The Uttar Pradesh Special Security Force is meant to provide security to the high court, district courts, administrative offices and buildings, metro rails, airports, banks, financial institutions, educational institutions and industrial units. However, the defining feature of this force is that it has the powers to arrest and search individuals without any warrant or the orders of a magistrate. The basis for this force is allegedly an order from the Allahabad High Court in December, 2019. In this piece, I will examine that order and the validity of such a force.

On 17 December, 2019, three men opened fire in the Court of the Chief Judicial Magistrate in Bijnor. The Allahabad High Court immediately took suo moto cognizance of this incident. The Bench recognised that this was not an isolated incident and over the past few years, similar incidents had taken place in various district judgeships. They recommended certain steps to ensure security in these district judgeships which included the following:

“(4) A specialized well-trained force be provided for the purpose of maintaining security in District Judgeships throughout the State of U.P. and whenever required, personnel from that Force may also be deployed in this Court along with existing security provided by C.R.P.F., if necessary.”

However, the Bench also stated that such recommendations are merely broad ideas and are subject to modifications and they invited suggestions from various District Bar Associations on the same. The matter of the participation of the State in the matter of security of court complexes was subsequently fixed on 20 December, 2019.

On the issue of specialised security personnel, the Allahabad High Court in its order on 20 December, 2019 stated that the Additional Chief Security (Home) must inform the Court regarding the formation of such a force via an affidavit and until such a time, an appropriate number of police personnel must be made available.

The matter was further listed to be heard on 2 January, 2020. The order includes an affidavit of compliance sworn by Sri Awanish Kumar Awasthi that stated that the State Government proposed to establish the Uttar Pradesh Special Security Force so as to maintain security of this Court at Allahabad, Lucknow, and other district judgeships. Further, the Special Security Force can be utilised for providing security of other installations and institutions, establishments or individuals notified by the state government for this purpose.

Two questions arise here: One, whether the High Court can direct the constitution of a special police force? Two, whether the present powers of the Uttar Pradesh Special Security Force are in consonance with the provisions in the Code of Criminal Procedure.

The State’s Authority to constitute a Special Police Force

The Constitution holds that Police is a subject governed by the State. The Police Act, 1861 governs the police in States such as Uttar Pradesh, Madhya Pradesh, Manipur and Nagaland. The State government shall exercise control over the police force and the superintendence of the police shall be vested in the State Government. The State Government’s executive function encompasses the creation and control of police forces. This power, to some degree, extends to police officers as well.

The Police Act, 1861 also gives police officers the authority to appoint special police-officers. Section 17 states that any police officer, not below the rank of inspector, may apply to the magistrate to appoint citizens as special police officers. Further, Section 18 specifies that these special police-officers have the same powers, privileges and protection as ordinary police officers.

The Supreme Court has established certain limitations to the State’s exercise of executive power in maintaining law and order. In Nandini Sundar and ors. v. State of Chhattisgarh, the Supreme Court discussed various aspects of the constitution and functioning of the Salwa Judum— an armed civilian vigilante group who acted as temporary police officers promoted by the Government of Chhattisgarh.  The respondent-State argued that due to the severe security issues caused by the threat of Maoist violence in Chhattisgarh, they have the executive authority to enforce law and order.

The Supreme Court held that while the State has the exclusive executive responsibility to provide security to its citizens, if it conflicts with core constitutional values such as the right to life and equality of its citizens, the Court is forced to intervene. Irrespective of the efficacy of such groups, they may not be used as a yardstick to measure constitutional permissibility. Therefore, the necessity of developing a well-trained and professional law enforcement capacity than function within the limits of constitutional action is emphasised.

Therefore, while the U.P. State Government may constitute a special police force, the members of such a force must be well-trained professionals and must operate within the boundaries of due process.

Arresting and Searching Property without a Warrant

From the perspective of a police-officer’s power to arrest, offences are broadly divided into cognizable and non-cognizable offences. Cognizable offences are those offences for which the police may arrest an individual without a warrant. This is specified in Schedule I of the CrPC. This includes offences such as kidnapping, murder, rape etc. Other offences are non-cognizable. A police officer cannot investigate a non-cognizable case without the order of a magistrate having jurisdiction over such a case. Further, a police officer has no powers of arrest without orders of a magistrate in such non-cognizable cases.

Section 41 of the Code of Criminal Procedure, 1973 provides certain circumstances where an individual may be arrested without a warrant. Section 41(1) of the Code of Criminal Procedure empowers a police official to arrest without a warrant, any person “who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.

Clear guidelines on the police’s power to arrest without warrant has been held in Joginder Kumar v. State of UP. The Supreme Court held that no arrest can be made simply because it is lawful for the police officer to do so and the police officer must justify their arrest beyond the fact that it is lawful for them to do so.

The Third Report of the National Police Commission suggested that an arrest during the investigation of a cognizable case may be justified in certain circumstances: One, if it involves a grave offences like murder, dacoity and rape and it becomes necessary to arrest the accused; two, the accused is likely to abscond and evade the processes of the law; three, the accused is given to violent behaviour; and four, the accused is a habitual offender. However, the police officer making such an arrest must record the same in a case diary and conform to due process. An arrest may be made only if there is reasonable satisfaction of the genuineness of the complaint after some investigation and there is necessity to arrest.  

Further, if arrest is effected, the individual who is arrested is entitled to certain rights guaranteed by Article 21 and 22(1) of the Constitution. They must have a relative or friend informed of their arrest and where they have been detained. The police officer must specifically inform the arrested person of this right and record the arrest in their case diary.

The aforementioned guidelines were reaffirmed in Som Mittal v. Government of Karnataka. Both Section 2(c) and Section 41 of the CrPC state that the police officer may arrest therefore implying that they’re not bound to arrest even in cases of cognizable offences. The Supreme Court observed the trend of immediately arresting individuals accused of cognizable offences even if the situation doesn’t meet the high threshold for arrest as held in Joginder Kumar.

Interestingly, the Supreme Court in this case also noted that due to the trend of arbitrarily effecting arrests as well as there being an absence of a provision for anticipatory bail in Uttar Pradesh, there is excessive overcrowding of jails, and hardship caused to both the public and the courts.

When one examines the prospective Uttar Pradesh Special Security Force, the officers of that force may arrest an individual without a warrant merely if they have reason to believe that a crime has been committed. This is a sharp contrast to the aforementioned threshold. The power of arrest is clearly based on the nature of the offence, and demolishing this legal requirement while vesting this power in any security force is arguably illegal.

Further, the UP Government has stated that Courts may not take note of actions of employees of such a force without government permission. This immunity from prosecution is not unknown in statutes in India. However, even then, there must be a showing that duties were discharged in "good faith" — if the proposed immunity clause here goes beyond this, it is a quick step into the realm of impunity.

Law and Order in Uttar Pradesh

This prospective move is yet another nail in the coffin of due process in Uttar Pradesh. The past few years displayed a shocking trend of rise in encounter killings by police (with reportedly media being "invited") and a spike in hate crimes against marginalised groups. Further, the jails are overcrowded, the courts overburdened, and the justice delivery system remains extremely inaccessible to ordinary citizens. It’s important to understand that the creation of another security force in a State where police atrocities go largely unquestioned is only diverting focus from the real issue of enforcing due process and improving transparency in police functioning. Even in the context of crime reduction, excessive policing is a poor (and expensive) replacement to actually improving welfare, quality of life and accessibility to justice, which have proven to effectively reduce crime rates in countries.

Saturday, September 12, 2020

Guest Post: The Police Violence in JMI and AMU — What does the Law Say?

(This is a guest post co-authored by Naeemullah Azeem and Rudraksh Lakra. It is in anticipation of an upcoming report published by Citizens against Hate where the thrust of the report is upon disproportionate use of force by police and paramilitary forces in JMU and AMU, based on testimonies of more than 200 students. The report also makes a detailed legal analysis of powers governing use of force by police / other forces.)

On 15th December 2019, in response to largely peaceful protests against the Citizenship (Amendment) Act 2019, the police and paramilitary forces forcibly entered Jamia Millia Islamia University's campus and subjected students to indiscriminate violence. On the same night, a similar story played out against students at Aligarh Muslim University. They were protesting the crackdown on students of Jamia Millia Islamia. UP police and Rapid Action Force personnel entered their campus late at night and subjected protestors to lathi charge, teargas shells, stun grenades, and even bullets.

This post assesses the legality of these actions by the law enforcement agencies (LEA) against the largely peaceful and unarmed protests by Jamia Millia Islamia (JMI) and Aligarh Muslim University (AMU) students discussed above. It attempts to answer three specific questions: whether LEA’s can enter university campuses, whether they can use force against protestors, and what ought to be the magnitude of force they employ.

It has been asserted that LEA’s have the power to enter campuses and to use force to carry out arrests and to disperse unlawful assemblies. To answer the questions that follow this initial line of inquiry, this article is divided into two parts: the first section examines and analyses the power of LEA’s to effectuate an arrest, examining whether or not they can enter education institutes to do so, and if yes, then to what extent force may be used to enforce an arrest. The second section explores the power of LEA’s to disperse an unlawful assembly and explores the extent of force that can be deployed to facilitate such dispersal. The article considers India's domestic and international obligations.

It concludes that while the LEA’s did have the power to enter the JMI’s and AMU’s campus, the state’s use of violence against the students amounted to unlawful use of force.

Power of LEA’s to effectuate an Arrest
Police can forcefully enter the campus for effecting an arrest under Section 41 and Section 48 of the Criminal Procedure Code 1973 [Cr.P.C.] allows police personnel to pursue individuals without warrants into places that are not within their territorial jurisdiction. The Cr.P.C. authorises LEA’s to enter any place (Section 165, 166) or any jurisdiction (Section 48) to effect an arrest, the degree of force that may be deployed by the police to effect an arrest ought not to be to more than that is necessary to prevent the target’s escape (Section 49).

The Kerala High Court in Vijayakumar v. State Of Kerala [2004 (2) KLT 627] clarified that “students indulging in criminal activities inside the college campus are liable to be dealt with just like any other offender and if the situation warrants the police can enter the college campus without anybody's request or permission to prevent such criminal activities or to take action against persons who commit criminal offences.” However, within the same judgment, it went on to caution “considering that the college is a 'temple of learning' any action of the police inside the college campus shall, as far as possible, be with the knowledge of the Principal.” (Paragraph 9)

The Bureau of Police Research and Development, which addresses the functioning and methods of police, has also clarified that the police should “keep the head of the institution informed of visits to the campus as far as possible.” 

Therefore, although there is no legal restriction upon entering campuses under circumstances where an official is “authorised” to effect an arrest, however permission is sought as a matter of custom.

Fact Matrix Analysis
While the police could have entered the JMI and AMU campus for effectuating lawful arrests, given the sensitive situation they should have consulted with the administration before entering the campus, on how best the situation could have been handled.

Moreover, the range of police activities that were carried out on JMI and AMU campus reportedly went well beyond merely arresting students. It was reported that police had deployed arbitrary and excessive force in their dealings with the students and targeted minorities. For instance, the instances of reported use of force in the library and reading room, would appear wholly unconnected to the purpose of locating and arresting students, and so could not possibly be justified because it fell within the police's power to effectuate an arrest.

In JMI, it was reported that over 1000 police and paramilitary forces were present; surely not all of them could have been positioned to arrest students. Therefore, the power of the police to effect an arrest cannot be used to legitimise the range of the LEA’s activities on these campuses.

While the lawfulness of the arrest can only be determined on a case to case basis, on the face of it, a case could be made that the force use by the police to effectuate arrests was illegitimate, as the force employed was not limited to the extent that would have been necessary to prevent suspects from escaping. PUDR’s fact-finding report concluded that the police used force to inflict “maximum damage,” and the force was deployed for reasons entirely unconnected to the object of arresting students, for instance, forces engaged, in the destruction of property of students and other residents vehicles in and around JMI, of window panes, of CCTV cameras, and library property.

Power of LEA’s to use force to disperse an Unlawful Assembly

Indian Law
Cr.P.C. Sections 129 and 130-131 encapsulate the powers of police and armed forces to use force to disperse an unlawful assembly. The Cr.P.C. does not place any territorial-jurisdictional limitation to the power of the police or armed forces under the sections, and therefore, it follows that they can even enter educational institutes.

The Supreme Court in Karam Singh v. Hardayal Singh [1979 Cri. L.J. 1211] noted an assembly being unlawful will not by itself warrant the use of force, the object of the unlawful assembly must be to commit violence or breach of peace, and it must be likely to commit violence or breach of peace (Paragraph 6).

The term “breach of peace” may be better understood by referring to SC’s articulation of the term public order, this is supported by the fact that Section 129 is placed within the chapter titled “[m]maintenance of public order and tranquility.” In Ram Manohar Lohia [AIR 1966 SC 740], the Supreme Court gave us the concentric circles logic for understanding the overlapping concepts of "law and order", "public order", and "security of the state" — law and order is the widest, public order narrower, and state security the narrowest (Paragraph 55). 

Therefore, for the use of force under Section 129 the object of the assembly, must be to carry out an act which rises to the level of disturbance to the public order – the public peace, safety, and tranquility in the society and such an act must be likely; consequently, a mere infraction of the law, would not invoke Section 129 CrPC.

Amount/Quantum/Extent of Force?
Section 130(3) of the Cr.P.C. indicates that “as little force as possible” is to be used by armed forces while dispersing an unlawful gathering. This section is indicative that even LEA’s are required to use “as little force as possible.”

In Anita Thakur v. Union of India [2016 SCC OnLine SC 814], the Supreme Court noted that the police's use of force in response to an unlawful assembly has to be reasonable and cannot be over the limit required to control and disperse the crowd. Even in a case where the protesters pelted stones at the Police, the Court held that the police’s use of force surpassed what was required to control the situation and amounted to a violation of human rights and human dignity (Paragraph 17-18). The same Court unequivocally noted in Ramlila Maidan Incident v. Home Secretary [(2012) 5 SCC 1] that the disciplinary action ought to be taken against those police officers who indulged in lathi charging, brick battling, and “excessive use of tear gas shells upon the crowd” and stated that these actions had “an element of criminality” (Paragraph 286.17(a)).

This is also found in Delhi Police Standing Order 72, which notes that the least force possible is to be employed.

Guidance is further provided by the Model Conduct Code for the Police (1961) and the Model Rules on the Use of Force by Police against Unlawful Crowds (1964), which state that minimum force necessary is to be employed to achieve the desired object, with the latter specifically stating that the object of use of force must not be punitive or repressive. These guidelines have been cited with approval in P. V. Kapoor v. Union of India [1992 Cri. L.J. 128] (Paragraph 35) [and the latter with approval in Anita Thakur (supra)]. In P.V. Kapoor, the Delhi High Court noted that “in maintaining order, the police should use the method of persuasion, advice, and warning” and only on the failure of these methods, the absolute minimum force employed as required in the situation (Paragraph 34-35).

Thus, force used under Section 129 of the CrPC should strictly be limited to what is strictly necessary to disperse the crowd, must halt once the crowd starts to disperse, and must not be deployed for punitive or other such purposes.

International Law
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [BPUFF], and the Code of Conduct for Law Enforcement Officials [CCLEO] are authoritative laws regulating the use of force by LEA’s and many of their principles are part of customary international law [CIL].

BPUFF’s principles are part of customary international law as recognised by the European Court of Human Rights in the Benzer v. Turkey (2013) (Paragraph 90) and by the Inter-American Court of Human Rights in Cruz S├ínchez et al v. Peru (2015) (Paragraph 264). Principle 5 states that the exercise of force should be proportionate to the seriousness of offence; Principle 13 states the force employed to disperse an unlawful assembly should be to the minimum extent possible, and principle 14 states that legal force should be the last resort.

Fact Matrix Analysis
Indian legislation, judicial decisions, and its international obligations, therefore, require LEA’s to exercise minimal proportional force to be used to disperse an unlawful assembly, and once the crowd starts to disperse, the use of force must stop, and the object of force employed should not be punitive. Moreover, force should only be employed where the object of the unlawful assembly is causing violence or breach of peace (or likely to do so).

Consequently, we argue that the use of force in JMI and AMU was excessive and unlawful. On 15th December 2019, a protest was organised by the JMI body crossed the JMI campus, and started walking toward Mathura road. It was at this point that the police started lathi charging and used tear gas because of which the crowd started dispersing, running towards the campus. Even if the assembly was unlawful, Section 129 could not authorise the use force, as the majority of these protestors were unarmed and peacefully protesting, and therefore is nothing to suggest the object of the protectors was to cause violence or breach of peace and that they were likely to.

Assuming the invocation of Section 129 was lawful when the assembly was marching towards Mathura road, even then force employed should have halted as and when the police were successful in dispersing the crowd which was heading back to the campus.

Lastly, even if the police claim that entry into the campus was important for dispersing the crowd and finding out who was pelting stones is accepted, the force used inside the campus remained vastly disproportionate to the extent required, lending itself an element of criminality [Ramlila Maidan (supra)].

The LEA’s use force only was not restricted to only those who were allegedly throwing stones; they “were certainly not being thrown by students in the reading room and library, the washrooms that they had to be gassed out or from the History and Urdu departments which were vandalized by the police.” The police targeted individual students and used force which was intended to brutalise and not merely to disperse the crowd. Islamophobic and targeted slurs were used against students indicating the action was punitive, targeted, and reprehensible.

In AMU, reports suggest that the actions of police were similar to those undertaken by them in JMI. The police arrived to disperse a crowd protesting at Bab-e-Syed​ and used non-lethal force including tear gas shells, rubber bullets, stun grenades, pellets, and other kinds of explosives into the crowd inside the gate. The crowd, at this point, reportedly began to disperse, which means that there was no need for further use of force. Despite this, LEA searched the campus to target student, the “nearby buildings such as Guesthouse No. 2 and 3 along with the mosques were raided by police and RAF and all the unarmed students (estimated 12-15) were heavily lathi-charged.

A fact-finding report shows that in Morrison Boys’ Hostel, AMU, soldiers beat up guards and fired teargas into the rooms of the students to smoke them out, and one of the rooms caught on fire. Doctors from the university medical college rushed more than ten ambulances to pick up the injured students, but the soldiers refused to allow them to rescue the students, and even broke the bones of one ambulance driver. As in the JMI incident, the kind of force reportedly used was disproportionate, targeted, and was employed to penalise and brutalise minorities.

The LEA’s and paramilitary forces did have the power to enter the campuses of JMI and AMU, however, the extent of use of violence against JMI and AMU students was disproportional and was unlawful. In our opinion, such use force of force was not towards securing a lawful object, but rather the purpose was something else entirely — an attempt to subjugate minorities and to suppress dissent from resilient and autonomous educational institutes, by sheer coercive action, in complete disregard for rule of law.

[This post was updated at 12 PM on 12.09.2020 to add details to the introduction and correct a typographical error regarding the date of incident]

Thursday, September 10, 2020

Guest Post: Conviction Records in Labour Law — A Closer Look at the Decision in Sushil Singhal

(This is a guest post by Vasudha Passi Verma)

Individuals who have been convicted of a criminal offence often find it difficult to reintegrate into society even after they have served a sentence prescribed by law. Apart from the stigma which attaches to a conviction, these individuals also lose several formal rights for the rest of their lives. This fate is especially tragic when it befalls individuals involved in minor or petty crimes, or young offenders, or those convicted under penal provisions which were not constitutional to begin with, such as section 377 of the Indian Penal Code for instance. Like other statutes struck down for unconstitutionality, it was only made ineffective prospectively, which means that individuals convicted under the provision from 1860-1947 serve carceral sentences and emerge with conviction records. All of these individuals are equally struck by blanket exclusions based on conviction records, and are thus deprived permanently of avenues to reform, self-actualize, or find constructive purpose.

Most jurisdictions recognize this, and attempt to reduce this impact. Some states in the US expunge criminal records of low-level and first-time offenders to prevent prejudice to opportunities otherwise available to the individual. In India, the attempt to prevent prejudice has culminated in the Probation of Offenders Act of 1958 (‘the Act’).

Sections 3 and 4 of the Act allow courts to offer a lighter sentence to persons who have committed minor crimes, or otherwise exhibit a character which makes it expedient in the opinion of the court to grant probation. These sections allow the court to exercise discretion and award a lighter sentence or ‘probation’. However, section 12 of the Act attempts to reduce the post-carceral disadvantage that these individuals face by relieving them of the disqualifications which accompany a conviction. 

The provision has the potential to create significant impact, but this has remained unfulfilled due to the conflicting and inconsistent construction that courts have placed upon it. In Sushil Singhal’s case, the Supreme Court had the opportunity to give meaning to section 12, which it missed. 

Sushil Singhal’s case
Sushil Singhal, the appellant, was an employee of the Punjab National Bank. As part of his duty, he was asked to deposit a sum of money which he instead misappropriated. The bank reported him to the police, and he was tried and subsequently convicted. He was also dismissed from his position because section 10(1)(b) of the Banking Regulation Act of 1949 required that the respondent bank dismiss and refuse to employ individuals convicted of offences involving moral turpitude. He was subsequently granted probation, and moved the Industrial Tribunal arguing that the dismissal was a “disqualification attached to conviction under [a] law”, and he was entitled to not suffer it. 

The court upheld his dismissal. In considering the effect of section 12, it asked whether dismissal from employment was a "disqualification attached to conviction under [a] law", and found that it was instead a "civil consequence". To arrive at the correct interpretation of the law, the court ought to have considered two distinct questions, namely whether the dismissal was at all a “disqualification”, and whether the dismissal in the present case was “attached to conviction”. 

Is dismissal from employment a “disqualification”?
In determining what a “disqualification” is, two views are possible. The first is that since the provision reads “notwithstanding anything contained in any other law... disqualification, if any, attaching to a conviction of an offence under such law”, that “such law” refers to disqualifications under statutes which specify the disqualification, or those to which the non-obstante clause pertains. This was the view taken in Shankar Dass. The other view is the one taken in Harichand, which read the provision to mean “conviction of an offence under such law”, where “such law” referred to the statute which specified the offence. Since the decision in Harichand did not acknowledge the decision in Shankar Dass despite adjudicating the same subject, it was in fact per incuriam, and the meaning of “such law” in Section 12 continues to refer to disqualifying statutes.

Thus, an individual who faces exclusion under a statute which creates the exclusion based on conviction should be relieved of it if they are granted probation. However, the Supreme Court in Sushil Singhal cited both Shankar Dass as well as Harichand to create sub-categories of “disqualification” to which section 12 applied. 

In Shankar Dass, the Supreme Court attempted to gauge the meaning of a “disqualification”. In that case, the appellant was convicted, granted probation, but dismissed nevertheless based on a departmental proceeding. The court held that “disqualification” in section 12 refers to disqualifications under statutes which provide for such “disqualifications”, such as for example the Representation of People Act, 1951 (which co-incidentally uses the word ‘disqualification’). The court appeared to have been emphasising that the benefit of section 12 could only be granted when the disqualification was under a statute. While the use of the example may be considered illustrative, the court did not specify whether statutes which use the word ‘disqualification’ differed from those that do not.

The Court in Sushil Singhal understood this ratio to mean that there exists a class of “other statutes” for which section 12 is effective. Apart from the Representation of People Act, the Court (wrongly) relied on Harichand to include within this category criminal statutes.

However, it did not attempt to clarify the meaning of “other statutes”. It did not even clarify if the basis of this determination was indeed the use of the word ‘disqualification’. Since the dismissal was based on the Banking Regulation Act, which was not a criminal statute, and did not contain the word ‘disqualification’, the Court’s determination allowed it to hold that the dismissal of the appellant was not a “disqualification” and the benefit of section 12 therefore need not be granted. However, the word “disqualification” should have instead been constructed to include all exclusions or bars stipulated by a statute where they attach to conviction. This is because of the following factors:

  • Beneficial legislation 
Statutes which confer a benefit on individuals or classes of individuals by protecting them from an oppressive circumstance should be interpreted broadly and given wide meaning. Since the Act, and in particular Section 12, attempts to protect certain individuals against the deprivation of their rights, it is a beneficial statute. In order to give section 12 wide effect, it should be read broadly. A broad reading would not limit its meaning to disqualifications expressly called ‘disqualifications’. Rather, such a reading would account for statutes which create a disqualification but for reasons of drafting or simplicity do not label them as such. For instance, the Court in Trikha Ram upheld an order of dismissal but noted that it should not operate in any way as a “disqualification or bar” against future employment. The court in Sushil Singhal did not consider if the Act was a beneficial legislation. 

  • “disqualification, if any”

The use of “disqualification” under section 12 is followed by the words “if any”. If the legislature had intended the provision to be read narrowly, it could have omitted “if any”, since the sentence ‘shall not suffer disqualification attaching to a conviction’ would have made grammatical sense. However, the inclusion of “if any” indicates that the legislature intended the provision to cover any kind of disqualification, and not just one which is expressly labelled so. This is a broad category but is limited by the requirement that the disqualification be mandated by statute. Thus, the section does not go as far as to create absolute parity of treatment with individuals without conviction records, but attempts to undo the harms of formal exclusion. 

Therefore, the word “disqualification” should be broadly construed. Such an interpretation would have acknowledged that a compulsory dismissal was indeed a disqualification created by the Banking Regulation Act, capable of receiving the benefit of section 12. Fortunately, the word has subsequently been interpreted broadly in matters connected with employment. For instance, section 12 has been held to protect retirement benefits, as well as employment opportunities received through compassionate appointment

Was the dismissal in this case attached to conviction? 
The Court was of the opinion that the dismissal of the appellant was a “disciplinary proceeding” against the employee. It argued that section 12 does not preclude disciplinary action against an individual, which is a “civil consequence”.

However, the court adopted the incorrect approach to this question. Instead of focusing on civil or criminal consequences, the court should have focused on whether the disqualification was attached to a conviction under a law. In Punjab Water Supply Sewerage Board, Karam Singh and in P.R. Mohan all of which the Court relied upon, the decision to dismiss was based on the discretionary ability to dismiss i.e. the departmental proceeding was a decision and not a mandate under a statute. 

The Court was in fact applying the ratio in Swarn Singh, where the appellant was dismissed under the same provision of the Banking Regulation Act, and sought re-appointment under section 12. Yet, even in that case, the Supreme Court attempted to characterise the dismissal as a discretionary act. It referred to Article 311(2) of the Constitution which confers a power on the government to dismiss a person “on the ground of conduct which has led to his conviction on a criminal charge”. However, the dismissal in both of these cases was based on a mandatory stipulation, making the dismissal not one of discretion but statute, and thus a ‘disqualification based on conviction under a law’ under section 12. 

In the abstract, the court’s reasoning was correct. Had the dismissal been the outcome of a discretionary disciplinary proceeding, the respondent bank would have been able to successfully demonstrate the legal basis to do so, and section 12 would not have applied. However, in this case, the respondent bank did not initiate its own disciplinary proceeding or act on the misconduct until the conviction, despite having the ability to do so as per Swarn Singh. The respondent, in fact, argued that the grant of probation did not “wash away” the finding of guilt or the “factum of conviction”, and relied on the ratio in T.R. Chellappan

That appears to be a reasonable view to take. Being convicted of a criminal offence means that an individual can be demonstrated to have committed it beyond reasonable doubt. Therefore, the grant of probation cannot take away the finding of culpability. Such a reading, however, fails to acknowledge the purpose of section 12. Surely all disqualifications attached to conviction actually attach to the finding of fact of commission of the offence. Without the finding, an order of conviction is purely an order of sentencing. It would make no sense to assume that the statutes which exclude based on conviction for an offence actually exclude based on the deprivation of personal liberty that the individual suffered whilst serving their sentence.

In fact, such a reading effectively nullifies section 12 in entirety. A more honest reading of the section would acknowledge that the only individuals who are granted probation are those in whom a court of law has seen a ‘character’ capable of change and reform, and therefore section 12 intends to erase any disqualification based on their conviction record, as the finding of culpability itself is deemed to not reflect on their future prospects.

Sunday, September 6, 2020

Guest Post: Neuroscience in Juvenile Policy Making, a Need of the Hour

(This is a guest post by Vatsala Singh Parashar)

The way our brain reacts to minor offenders is a paradox. When we regard them as helpless kids gone wayward, we characterise the offences (allegedly) committed by them as instances of immaturity. However, upon the consumption of society’s sympathy for them, we arrive at the opposite end of the spectrum, where society tends to regard them as "super predators". The lack of compassion towards these children, from the society as a whole, is reflected by the hardened stance taken when it comes to dealing with their crimes.

Indian society is plagued by the same vacillating views. The lawmakers of our country are products of a society which associates the criminalisation of the juvenile system as the only way forward to deal with a new species of super predators. The statute which deals with juvenile offenders in our country is the Juvenile Justice (Care and Protection of Children) Act, 2015 (“ The Act” ). It was passed, in largue measure, due to the fact that one of the accused in the tragic Nirbhaya Gang Rape case, was a minor at the cusp of adulthood .

This Act calls for the formation of a Juvenile Justice Board, (“JJB”) formed under section 4 of The Act, for the preliminary assessment of the capacity of the children in the age group of 16-18 to commit crimes. I argue that criminal actions undertaken by juveniles are the result of their interactions with their society, on the one hand, and the gradual development of their brain on the other. The development of a young person's brain during their adolescent years and their psychological and neurological deficiencies mitigate their criminal culpability. I do not argue that children should not be held criminally liable because of their mental insufficiencies; but simply that this suggest reasons for why they are less culpable because of the same reasons and should not be tried as adults

Working of the JJB - A Pandora's Box
The JJB, consisting of a Judicial Magistrate or Metropolitan Magistrate along with two social workers, takes the assistance of psychologists for performing the preliminary evaluation of children in conflict with law (“CCL”). Considering opinions on the anvil of scholarly articles referred to while writing the blog, I feel that this preliminary assessment fails to stand the basic test of criminal law. The edifice of criminal law is built on the pillars of actus reus and mens rea. Findlay Stark, in "It’s Only Words: On Meaning and Mens Rea", emphasises on the difficulty of establishing mens rea in an adult. Attempts to establish the same in a child are riddled with uncertainties, given the vulnerability and impressionability of a child’s brain. The JJB, in its assessment, disavows the guiding principle of criminal law, innocent until proven guilty by treating the child as someone being capable of committing a crime, even before the trial.

An exacerbating factor to be taken into account is the time lag between the commission of the offence and the interviewing of the CCL. The time lapsed is enough for the child to get influenced by external factors or behave in a way that fails to express the child’s feelings, as is highlighted by Professor Martha Duncan, in her article titled "So Young and So Untender: Remorseless Children and the Expectations of Law". The JJB, during its assessment, is statutorily mandated to undertake a background check on the CCL, which besides being disproportionately invasive of the person's privacy also can perhaps skew the entire process towards assuming culpability. In such a paradigm, the impression casted by the CCL upon the other members of the society are given more importance than the rights of the CCL. This method has the potential to lead the entire investigation towards a manufactured conclusion, one which takes into account the child’s past susceptibility to committing crime and allows the board to take into consideration a wider range of evidence against the child, which would have been inconsequential in the adult criminal court.

Neuroscience and the Adolescent Brain
I would argue that, based on extant scholarship, to come to well informed and correct decisions the people who make the juvenile system need to be aware of the changes that a child’s brain goes through during his adolescence, an age during which a child suffers from risk seeking stimulations projected by the brain itself. This would be in consonance with the principle of not holding someone criminally liable if they are unable to regulate their behaviour, as is the case with a CCL.

Laurence Steinberg, in "Should the Science of Adolescent Brain Development Inform Public Policy", conclusively stated that transferring a child into adult criminal system is punishing them for their brain’s incapability of regulating their actions before a specific age. In line with the set premise is the principle of penal proportionality, which states that people who are less capable of committing crimes should be given lesser punishments for the same. In their research paper on the "Teenage Brain", Richard J. Bonnie and Elizabeth S. Scott emphasised on the difficulties embroiled in the calculation of the mental maturity and capability of a CCL, thereby making them less culpable because of their mental dearthness.

Scientific reports on adolescent brain development convey that criminal acts of children peak between ages sixteen and eighteen but these tendencies go through a rapid degeneration soon after. This can be attributed to the changes in their brain structure and functions during that time. There are two major centres in the brain of a child which go through significant changes during adolescence; these are (a) the cognitive centre of the brain - amygdala, and (b) the self-regulatory centre of the brain- prefrontal cortex.

The amygdala is responsible for all the impulsive decisions under taken by adolescents. Due to the lack of foresight, an impairment exacerbated by an active amygdala, they are more susceptible to indulging in high risk activities. This is worsened by the high production of dopamine, a neurotransmitter which sends signals to neurons. It results in the cultivation of the reward deficiency syndrome, which compels them to undertake tasks which are risky, in order to attain the same amount of thrill as experienced by them during the pre-adolescent stage of their lives.

While the amygdala dominates the functioning of the brain at full swing, the part which is responsible for mature decision making and keeping a check on reckless behaviour , the prefrontal cortex, is still a work in progress. The prefrontal cortex does not mature fully until late adolescence. It is the sad reality attested by neuroscience that adolescents mature intellectually before they mature socially or emotionally. This means that while they have the ability to comprehend that killing someone is wrong, they are incapable of acting on that ability.

An adolescent brain is fuelled by unchecked and immature emotions. Stories supporting this never elude headlines. Any incident of a crime committed by a teenager who is intellectually superior to his peer is accompanied by the inability of the society to reconcile with the fact that an intelligent child is capable of committing an offence. Society forgets that intelligence has nothing to do with the commission for a crime.

The institution of criminal law is built on the foundation of autonomy of actions. A scenario in which the brakes of a person’s car fail and he ends up running over a pedestrian sleeping on the sidewalk will not be attract criminal liability because it was beyond his control. An adolescent’s brain has a similar working principle. Research conducted by the MacArthur Foundation on adolescent development and juvenile justice supported the theory that juveniles lack complete autonomy over their actions because of their brain’s accelerator, that is, amygdala being pushed to its maximum while the engine, that is, the brain is controlled by a faulty brake system or the prefrontal cortex.

Much research conducted in the field of juvenile neuroscience has revealed that adolescents are intrinsically different from adults because of their brain being in its maturation phase. The US Supreme Court through a series of landmark judgments has emphasised on the fact that children are different from adults because of their inability to assess the consequences of their actions. Most of the actions undertaken by children are the result of their “transient immaturity”. Thus, it can arguably be said that adolescents who prima facie appear to have assessed the consequences of their actions can still not be given the same criminal culpability as that imposed on their adult counterparts.

Closing Remarks
It is difficult to wrap one's brain around the fact that children are capable of committing crimes, for the simple reason that we do not expect them to be so. The amicable solution to this dilemma would be to not formulate laws that would push adolescents into adult criminal system, but ensuring that they receive the rehabilitative care that they need if they do end up committing a crime by virtue of their immaturity. There is a stark difference between a mischievous child and one with the intent to commit crime. However, when dealing with a CCL, these differences elide thorough deliberations. The fact of the CCL engaging in conduct which is a serious offence is conflated with him having shown problematic tendencies in the past. The society as a whole treats a CCL as a convict instead of an accused awaiting trial. It is highly unfair for them to be assessed by the elements of the same society, which denies them the right to have an impartial assessment and trial.

Wednesday, September 2, 2020

Dr. Kafeel Khan and Our Punitive Preventive Detention Law

On August 11, the Supreme Court had requested the Allahabad High Court to expeditiously decide the habeas corpus petition filed by Nuzhat Perween for her son, Dr. Kafeel Khan. The petition challenged orders for his preventive detention under the National Security Act of 1980 (NSA) that were passed on February 13, 2020. Initially filed before the Supreme Court in February itself, the petition was sent to the Allahabad High Court in March, where it was heard multiple times before, finally, a Two Judges’ Bench passed a judgment on 01.09.2020 in Nuzhat Perween v. State of UP and Anr., [Habeas Corpus WP No. 264 of 2020 (decided on 01.09.2020)] declaring the detention order illegal and directing Dr. Khan’s immediate release. 

Unlike the last time that a judicial authority directed his release on 10.02.2020, following which Dr. Khan was not released but instead led to the impugned detention order being passed, this time Dr. Khan has indeed stepped out of prison and as of now has not been arrested in any other proceedings.

Background to the Preventive Detention
Dr. Khan’s prevention detention under the NSA is only the most recent episode of the state machinery training its attention on him and depriving him of his personal liberty, only for a judicial authority to direct his release. 

According to the state, what prompted the order on 13.02.2020 was a public speech given by Dr. Khan in Aligarh to a group of students on 12.12.2019, an event more than two months old. It was stated that the speech incited feelings of communal disharmony and also lent itself to violent protests by groups of students on 13th and 15th December in Aligarh District. The proposal for preventive detention, made on the same date as the order, stated that “Since the fierce and communal speech given by him has had an adverse and unfavourable impact on the public order of the District, therefore it is very important to keep this person detained in jail to maintain the public order. (emphasis mine)

Take a close look at the last line above — preventive detention was necessary to keep Dr. Khan in jail. Why was he in jail, you ask? Because following the speech of 12.12.2019, a case was registered at P.S. Civil Lines, Aligarh, in the early hours of 13.12.2019 alleging inter alia that the speech incites communal disharmony. Dr. Khan was not immediately arrested in this case, but was ultimately taken into custody from Mumbai on 29.01.2020. He filed for bail, a request which was naturally opposed by the state. Despite the opposition, however, bail was granted on 10.02.2020. Two observations in the bail order are important: first, the Court rebuffed the state claim about the accused repeating the offence by stating that this would be grounds to challenge his bail, and; second, the court placed a bail condition upon Dr. Khan to “ not repeat the crime in the future”.

What happened next is in keeping with the worst traditions of how governments run in our republic, witnessed from the days of A.K. Gopalan itself (no, not his Supreme Court case). The bail order was passed but not given effect to by the executive. Two days later, on 13.02.2020, the trial court passed another order directing jail authorities to release Dr. Khan and directed its delivery by Special Messenger. However, the state claimed this was only received at 8:20 PM in the evening, by which time the preventive detention order had been proposed by the Officer in Charge of PS Civil Lines, sponsored by the Deputy Inspector General of Police, and authorised by the District Magistrate, Aligarh.

Therefore, it would be a mistake to think that Dr. Khan’s preventive detention was specifically required because of the incident of December, 2019. Rather, the need was only perceived by the U.P. Government once a competent court had applied its mind to the allegations against Dr. Khan in the regular course of law, and found that there was no reason to prolong his pre-trial custody any further. 

The Allahabad High Court Verdict
Before proceeding to the order that came to be passed in the habeas corpus petition, it must be mentioned that it took close to six months for a decision to be made in the matter. Even if we exclude the time the petition was in the Supreme Court, it is still an inordinate delay for what is arguably the most crucial kind of case before courts — one directly concerning the liberty of a citizen. 

Having said that, the short judgment of 42 pages does not waste too much time in getting down to the matter. The petition challenged the order of 13.02.2020 on three broad prongs: (i) there was no material for ordering preventive detention and it was intended to subvert the judicial process; (ii) the detenue was not supplied with all material thus denied a right to file an effective representation against his detention, and; (iii) the concerned government had unduly delayed the consideration of his representation against detention. I will only focus on (i) and (ii), as the judgment is restricted to a consideration of only these grounds. On both these legal issues, the Allahabad High Court has made some important observations.

Supplying Material
Let’s look at (ii) first because this is a small point. The High Court noted that while Dr. Khan had been given a CD with the speech ascribed to him, he was not given any means to play this disc. Neither was he supplied with any transcript of this speech, which was the primary basis for his preventive detention. This was unconscionable, and the Court rightly held it so, finding that this conduct on part of the state government deprived the detenue of his constitutional right to make an effective representation against his detention. 

Preventive Detention and Subjective Satisfaction
The Allahabad High Court was asked to consider the contents of the speech given by Dr. Khan in December 2019 to decide whether a reasonable person could apprehend any disturbance to public order based on his exhortations. The Court’s approach in this regard is important and requires a brief excursus to explain the legal position on how challenges to preventive detention orders are to be treated by the judiciary.

The law on preventive detention is an executive-driven process: it is an extraordinary power that executive officials in India have to make sure that imminent threats to public disorder etc. can be addressed swiftly without going through the rigour of the regular criminal process. The primacy given to the executive requires that in any subsequent challenge to a detention order, judges cannot substitute their mind for the subjective satisfaction of the executive official who made the decision in the heat of the moment. The judge cannot place herself in the shoes of the police officer. 

At the same time, however, this doctrine of respecting the subjective satisfaction of executive officials is not a license for abdicating the judicial function entirely when considering a challenge to preventive detention. Courts must still apprise themselves of the materials presented before the detaining authority to decide if the decision to authorise preventive detention was arbitrary and unreasonable. There is no running away from the fact that the lines being drawn here are fuzzy, and while it moves some courts to be excessively deferential to the executive, it equally allows other courts to keenly consider the facts without overstepping the limits of the judicial function or abdicating it entirely. 

In Nuzhat Perween, the Allahabad High Court clearly took the latter approach: 

“We are in absolute agreement with learned Additional Advocate General that it is not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned. While assessing “subjective satisfaction of the detaining authority” the Court examining a petition seeking a writ of habeas corpus has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom and that satisfies rationality of normal thinking and analyzing process. … In view of above, we have looked into the speech delivered by the detenue. The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions. (Emphasis Mine)”

In line with this approach, the High Court looked at materials forming the basis for the detention order in detail. The judgment quotes the entirety of Dr. Khan’s 23 minute-long speech made on December 12, to demonstrate how the police requests for preventive detention in this case had, in fact, not presented the authority with the complete picture. Instead, the police had patched up different parts of Dr. Khan's speech to present a different picture altogether from what appeared to be the speaker’s intention. It held, therefore, that based on this material it was impossible to conclude that Dr. Khan’s activities were such as to prejudice the maintenance of public order. 

Punitive Preventive Detention
The peculiar facts leading up to the detention order of 13.02.2020 have been extracted above, and it was argued that this demonstrates that the two months’ delay in passing the order, and its expeditious authorisation after Dr. Khan’s bail, all went to show that the preventive detention order was actuated by malice and not based on any genuine grounds. 

This is a more tedious issue than what might appear at first blush. It is because the Supreme Court has held, on countless occasions, that it is not illegal to pass a preventive detention order in cases where the person is already in custody and about to be released on bail. Most recently, this was confirmed by the Court in Dimple Happy Dhakad [AIR 2019 SC 3428] (Discussed on this Blog as well). Technically then, preventing Dr. Khan’s release on bail was a legally valid ground for the U.P. Government to take. 

This is really the twilight zone when it comes to preventive detention, where the preventive setup inextricably merges with the regular criminal process. The only justifiable premise for passing a preventive detention order in respect of a person who is about to be released on bail is if the authority can demonstrate that there is a continuing threat which did not dissipate once the regular criminal process has taken charge of the matter. This is not unimaginable — organised crime has many stories of rackets being run from prison. But it must be a very hard sell for the executive and it cannot be a means to pile-on incarceration upon persons deemed undesirable by the state. Not only would such delayed preventive detention orders turn the concept on its head — where is the prevention if the person was already in jail for months after the incident! — but it would also directly subvert the determination made by a competent court that there was no need for a person’s continued incarceration. At a macro-level, repeat occurrences of this phenomenon place an undeniable strain upon the relationship between the executive and judiciary, and give rise to an unconstitutional chimera of punitive preventive detention that hollows out the right to personal liberty from within. 

This is why courts must arguably be more vigilant while entertaining challenges to preventive detention orders in such cases where bail order is passed and, in some way, circumvented — as the Supreme Court has also emphasised on some occasions in the past. This is exactly the kind of approach on display in Nuzhat Perween, where the Allahabad High Court noted that:

“The exact nature of the contents of the lecture delivered by the detenue on 12.12.2019 at the Bab-e-Syed Gate of the AMU (as claimed by the state authorities), even if accepted to be correct, it cannot be overlooked that, that material could not be relevant for the purpose of satisfaction being drawn two months thereafter, inasmuch during that period of two months, undisputedly, the detenue neither visited the city of Aligarh nor he made any further or other speech or lecture connected thereto nor there is any material shown to us that the detenue was about to commit any act in furtherance thereto or was going to deliver any other speech or lecture connected thereto as may have prejudiced the public order.”

There was no fresh alleged illegal activity between December and February which prompted the order of 13.02.2020, even though Dr. Khan had been at liberty throughout that time. There was not even a proposal to pass an order for his preventive detention in that period. The first time when the idea came to the government was after the bail order was passed. For the Court, all this pointed to a conclusion that the gap of two months’ snapped whatever link existed between the allegedly offending conduct of Dr. Khan with a need to require his preventive detention. 

Our Slow-Moving Wheels of Justice 
The story of Dr. Khan and the manner in which the preventive detention machinery was clearly misused by the state government to keep a dissident behind bars is a tale as old as time itself. Small wonder why the writ of habeas corpus has such a celebrated position in societies. Indian courts have not had the most shining of records in terms of processing habeas petitions over the past few years and the delay that it took for Dr. Khan’s petition to be heard speaks to this serious systemic problem. But, ultimately, a court did apply its mind, and restore a person's liberty. 

The episode reminds me of a scene from the movie Shahid, where the young, imprisoned, Shahid Azmi is told by War Saab (played by KK Menon) that the wheels of justice turn slowly in India, but they do eventually turn.

Well, eventually, I guess they do.