Guest Post: Suspension of Sentence and the NDPS Act — An Unhappy State of Affairs

(I am delighted to present a guest post by Nipun Arora, an advocate practising in Delhi, and Shivkrit Rai, a law researcher at the Delhi High Court)

The Code of Criminal Procedure (Cr.P.C.) provides for securing liberty of persons in custody at various stages: individuals named as an accused in cases where the trial is pending can seek bail in terms of Sections 437 & 439 (Regular Bail); and convicts can seek a stay on execution of sentence under Section 389 (Suspension of Sentence). Jurisprudentially, there has been a difference between the two and the factors that the court must consider while deciding upon either of these. However, for the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), the situation is different. This post discusses how the distinction becomes diluted in cases under NDPS Act and leads to serious trouble.

Understanding the two stages of liberty for an accused. Bail v. Suspension of Sentence

During the trial, an accused person can seek bail. For a bailable offence, this can be availed as a matter of right, whereas in a non-bailable offence, bail depends on the discretion of the court after considering various factors such as the possibility of fleeing, chances of tampering the evidence, gravity of the offence, etc.

If found guilty, the convict can make an appeal before the appellate court, and during the pendency of this appeal, the convict can seek suspension of the sentence imposed by the trial court. The logic is similar as that of bail: if there is a possibility that the person might not have committed the offence, it would not be proper to confine them in custody.

However, the factors to be considered for suspension of sentence are different from that of bail. At this stage, the trial is over, evidence has been recorded, and a competent court has found the person guilty after application of judicial mind. The factors such as possibility of tampering evidence do not exist anymore. The decision to suspend the sentence or not has to be based on different factors: primarily on how long it would take for the court to decide the appeal. For instance, it would not be proper to suspend the sentence if the appeal is to be heard next week; whereas it would be desirable for the sentence to be suspended if the appeal might not come up for several years. The Supreme Court has reiterated these principles several times [Bhagwan Rama Shinde Gosai v. State of Gujarat, AIR 1999 SC 1859; Kashmira Singh v. State of Punjab, (1977) 4 SCC 291].

The distinction between bail and suspension of sentence has also been recognised by courts multiple times in Anil Ari v. State of WB [AIR 2009 SC 1564]; Atul Tripathi v. State of UP [(2014) 9 SCC 177]; Jagdip Beldar v. State of Bihar [Crl. App. (SJ) 2319/2017 (Patna HC)]. The logic is the same as discussed above: the trial has ended, a competent court has found the person guilty, the presumption of innocence does not exist anymore. The situation at pre-conviction and post-conviction stage is thus different.

Bail & suspension of sentence under NDPS Act

In cases under certain special statutes, the standard principles of bail as discussed above do not apply. These are the offences that are considered “grave” such as those under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), the Maharashtra Control of Organised Crime Act (MCOCA), the Unlawful Activities (Prevention) Act (UAPA), etc. Under the NDPS Act, bail can only be granted if “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail” (Section 37, NDPS Act). The embargo is problematic and has been discussed earlier on this blog. In brief, it requires the court to adjudge the guilt of the accused even before the trial has commenced and mostly without adequate material before it.

Besides the strict threshold for bail, the legislature also tried to place a blanket prohibition on suspension of sentence. By an amendment in 1989, Section 32A was inserted in the NDPS Act which took away the power of the court to suspend the sentences awarded under this law. This provision was challenged before the Supreme Court in Dadu @ Tulsidas v. State of Maharashtra [(2000) 8 SCC 437]. The full-bench of the Supreme Court held that the restriction on the power to suspend sentences is unconstitutional as contrary to Articles 14 and 21. The Court approved the judgement of Allahabad High Court in Ram Charan v. Union of India [AIR 1990 All 1480] that taking away the possibility of suspension of sentence renders the right to appeal meaningless.

While holding the provision unconstitutional, however, the Supreme Court noted that it would not automatically entitle an appellant to have the sentence suspended. It observed:

Holding Section 32A as void in so far as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act.

The Court then misquotes a division-bench judgement of the Supreme Court in Union of India v. Ram Samujh [(1999) 9 SCC 429] to apparently substantiate the position that restrictions of Section 37 would apply to suspension of sentence as well, though that judgement related to regular bails and did not deal with suspension of sentence at all. Regardless of the misquote, the law as it stands is that the threshold required in regular bail needs to be met for suspension of sentence as well. This makes things peculiar.

The Problematic Misinterpretation of the Court in Dadu @ Tulsidas

In theory, the extension of restrictions of Section 37 would make suspension of sentence impossible and could lead to certain illogical conclusions. For starters, the threshold for bail as per Section 37 requires the court to be of the opinion that the person “is not guilty of such offence”. The same threshold cannot be applied in a case of suspension of sentence, as the person has already been convicted by a competent court. Thus, the moment an order for suspension of sentence is passed, which matches the threshold of bail i.e. “not guilty of such offence”, the entire appeal will have to be allowed. This is because a conviction can only stand if the guilt is proved beyond reasonable doubt, and if there could be any opinion that the convict is not guilty (as required under Section 37), there clearly exists a reasonable doubt (or perhaps much more than a mere reasonable doubt).

It is absurd that a person can be said to be reasonably not guilty (in the order for suspension) but be a convict (in the final order) at the same time from the assessment of the same material by the same court. The extension of Section 37 to suspension of sentences makes the issues of the interim order so connected with the issues of the final judgement, that they cannot possibly be separated.

This paradox does not exist (or is not as apparent) at the stage of trial, perhaps because of the distinction in factors under consideration as discussed earlier: The trial court has to make a prima facie determination before or during the trial, and there is a possibility of adequate material emerging showing the guilt of the accused. However, that is not the case at the appellate stage – once it can be concluded in the interim order that there are grounds to believe that the accused is innocent, that view ought to be extended even at the final stage.

Even besides the resultant illogic, restrictions of Section 37 were not supposed to apply to suspension of sentence. It states that “no person accused of an offence” shall be released unless the conditions are satisfied – the subject of the section here is an accused, not a convict. The scope of the section is clearly limited by the words of the legislature. The legislature has not laid down any additional requirement for suspension of sentence. By extending the scope of Section 37 to apply to suspension of sentences as well, the paradoxical situation has emerged.

Conclusion

There has been a distinction in regular bail and suspension of sentence, and the factors relevant to both. However, the Supreme Court in Dadu @ Tulsidas appears to have overlooked this distinction and artificially created further restrictions which should not have applied otherwise. There was no especial requirement for the Supreme Court to have engaged in the unnecessary academic exercise of whether the restrictions of Section 37 would apply or not, when the scope of the challenge before it was limited precisely to the constitutionality of Section 32-A. Dadu @ Tulsidas, thus, appears to have been decided incorrectly to this extent and needs to be reconsidered. The embargo of Section 37 should not apply to cases of suspension of sentence.

Some Thoughts on the Ordinance to Protect Health Care Workers

On 22.04.2020, Ordinance No. 5 of 2020 was passed to amend the Epidemic Diseases Act, 1897. It was a response to the most recent pleas by medical professionals for greater legal protection against physical attacks. I say most recent because this issue has been raised on many a prior occasion, but it only seems to have assumed critical importance for the Union Government now (and saw the results within one day) as doctors threatened not to go to work in the midst of a pandemic.  

Attacking doctors for doing their job is unacceptable and the Ordinance certainly sends out a strong message to anyone who might do so. After all, while regular offences punishable under the Epidemic Diseases Act only attracted punishments of up to six months (at best), the Ordinance has added new offences which carry a jail term of up to five years for standard cases and up to seven years for cases with grievous hurt. There is also a stiff fine and the obligation to pay double the cost of any property damage suffered by the health workers. Surely, anyone would think twice before getting violent with doctors now.

A Temporary Solution

But, before we start high-fiving ourselves on this great new law, let's give it a more careful reading. For starters, this is not a permanent answer to the problem of violence against doctors. The Ordinance will only help doctors if they are working in times of an "Epidemic" as declared under the Epidemic Diseases Act. But, as has been mentioned above, the problem of violence against doctors is one that is not restricted to the extraordinary times we find ourselves in. 

Thus, what we actually have is a very temporary solution to what is a serious and lasting problem. And this temporary solution will become a bigger problem the moment states begin to declare that the Epidemic Diseases Act will no longer be applicable. Then, we will have a strange scenario in which the doctors in some areas will have better "protections" than others.   

The Problem with Criminalising

The fact that doctors and healthcare professionals have been the target of violence across various parts of India is a problem. But passing a law that makes such violence punishable with extremely harsh jail terms and monetary fines is hardly the answer. That healthcare professionals in India have become a soft target for violence suggests many underlying issues. It could reflect a declining trust in doctors. Or even an extreme reaction to doctors' perceived lack of respect for patients, who could be paying through their noses for medical services, and may thus be placed in an already tense situation, both emotionally and financially. 

In the context of Covid-19, the aggressive physical reactions could very well be the consequence of the disinformation that surrounds the disease and the containment measures being adopted to tackle the same. Imagine if you have just got back home after an arduous journey and have, potentially, lost your job because of the lockdown that has forced everyone indoors. You return to a setting where everyone can't stop talking about this virus, but nobody really knows what it does, or what happens to those who are found to be infected. There is no dissemination of verified information about what a quarantine means, or what the conditions of containment buildings are like. Now, if a team of persons flanked by the police come around to "test" you, is it wrong for an individual to try and avoid being tested? 

Criminalising conduct certainly sends a message. But it is a horrific answer to solve a problem that is not entirely of an individual's own making. It might quell incidents of violence against doctors, but it will not help address the mentality which is the cause of such a response. Doing something about the underlying causes would require much more effort than what it takes to simply sign off on a new law. For starters, it would require spending a lot of money on an active information campaign (something that is fairly achievable). In addition to this, it would require a governance of transparency that is open to questions, helps debunk fake news and, ultimately, forces the government to treat its citizens better (perhaps not so achievable given how the Union Government has managed the lockdown so far).  

The Problem with This Manner of Criminalising

Alas, what we are always left with is a law, which brings me to the provisions of the Ordinance. 

The new substantive offence itself is not very problematic. Section 3(2) punishes committing or abetting an "act of violence" against a healthcare service professional. The term "act of violence" goes beyond mere physical attacks and also covers harassment, and "healthcare service professional" goes beyond the medical professionals to all persons empowered under the Epidemic Act to take measures. Where the violence is of the level of causing "grievous hurt" as defined under Section 320 of the Indian Penal Code, Section 3(3) prescribes a harsher punishment. 

I will not speak here about the broad discretion on sentencing conferred by the Ordinance, nor the expropriation clause inserted to threaten individuals with seizure of their houses. Instead, my focus is purely on the problems posed by the procedure prescribed for investigating and prosecuting this new offence. 

Of course, such cases are made cognizable and non-bailable, i.e., the police can arrest persons without warrant, and bail is not a matter of right for them. Such powers are too normalised now to raise eyebrows. But, the same cannot be said about Sections 3C and 3D, both of which create presumptions about the illegal conduct in a manner almost entirely ignorant of basic criminal law and procedure.  

Section 3C

Section 3C requires that the court "shall presume" that a person committed the offence in a prosecution brought under Section 3(3) [grievous hurt caused by an act of violence committed against a healthcare service professional]. Yes, this is similar to Section 29 of the Protection of Children from Sexual Offences Act, 2012. It is also similar to the law that Maharashtra had introduced criminalising the possession of beef. But the problem is that in both of these examples (and others), such blanket clauses which effectively shift the entire burden of proving a crime onto the accused have been held unconstitutional. 

Instead, the prosecution has been required to prove certain foundational facts, such as whether or not grievous hurt was actually caused by the accused, after which the accused is required to prove her innocence [discussed in detail here]. Based on these judgments, I would argue that Section 3C should be struck down. Even if it is not, courts rarely convict purely on the basis of this presumption (I say this based on handling / reading judgments in child sexual assault cases), which would render Section 3C ornamental at best. 

Section 3D

What makes Section 3C even more peculiar is Section 3D, which requires that the court shall presume the existence of the culpable state of mind required for committing the Section 3(3) offence fo causing "grievous hurt". As I have explained above, this is the extent to which the reverse burden clauses in other laws have been held to be valid, and one would imagine that even in cases under the Ordinance it is Section 3D which will be more important. 

But, where Section 3D parts with basic criminal procedure is by prescribing that an accused person proves that she did not have any such mental state "beyond reasonable doubt". Normally, this is the standard of proof to which the prosecution is tested in a criminal trial. Is it fair, or constitutional, to require that the accused be tested on the same burden? The Supreme Court unequivocally held in Noor Aga [(2008) 16 SCC 417] that it was not. In Noor Aga, the Court looked at Section 35(2) of the NDPS Act, 1985 which carried similar language and specifically held that the accused could not be required to establish facts by meeting this strict standard. 

It beggars belief that the Union Government would be so unaware of basic criminal procedure, which then leaves two alternatives explaining why the Ordinance has Sections 3C and 3D: (i) it is an open challenge to the legitimacy of the Supreme Court, or (ii) it is a strategic move and the government knows the law, but is still using these provisions which look harsh to score brownie points and spread fear. Both of these two alternatives are extremely distressing. 

Even otherwise, it is not a "zero cost" issue if the government repeatedly passes legislation which is, on its face, contrary to law. For the same battles that were fought earlier must now be fought again. Valuable judicial time and effort, not to mention lawyers' fee, must be spent upon merely restating the law. Passing provisions totally shifting the burden of proof on the accused will lead to the police filing chargesheets within 30 days (as required under Section 3A) with little or not facts in support of their case.

Conclusion

The new Ordinance with its harsh punishments for violence against healthcare service professionals is a great solution for governments which remain non-committal to heavy spending on social justice issues and remain antithetical to values such as transparency in governance through a crisis which has upended the lives of crores of citizens. And even though all that is required in passing a law is putting pen to paper, the Ordinance suggests that the Union Government was either ignorant of existing law or actively chose to ignore it — both of the alternatives equally damning.

Of course, the Ordinance will help prosecute persons who commit violence against doctors. But what the Ordinance has also done is tell the citizens that their fears, apprehensions, and misgivings about Covid-19 — created in no small measure due to the failure of governments to spend money and be transparent — are exclusively their problem. Any untoward (though unjustified) reactions arising as a result will not bring the government to account, but will require the citizen to prover her innocence in court. The Ordinance channels the feeling that the Maharashtra police put across bluntly: there are only two choices, lockdown or lockup.

There are No Right Answers: The Supreme Court and the Purity / Mixture Debate under the NDPS Act

On April 22, 2020, a Three Justices' Bench of the Supreme Court decided a reference made to it in Hira Singh [Crl. Appeal No. 722 of 2017, decided on 22.04.2020]. The primary issue before the Court was the correctness an earlier decision by a Two Justices' Bench of the Supreme Court, E. Micheal Raj v. Intelligence Officer [(2008) 5 SCC 161, "E. Micheal Raj"]. There, it had been held that determining whether one was carrying "small" or "commercial" quantity of a drug depended exclusively upon the quantity of the "actual" or "pure" drug content, as opposed to the total quantity of the mixture that was seized. In Hira Singh, the Three Justices' have unanimously held that the view taken in E. Micheal Raj was incorrect, and that the determination of quantities for the purposes of the Narcotic Drugs & Psychotropic Substances Act 1985 ["NDPS"] depends upon the total quantity of the item seized. 

This post explains the issues present in this debate about how to judge a "mixture" of drugs under the NDPS Act. As the title suggests, I argue that the approaches taken in E. Micheal Raj and Hira Singh are both problematic for the administration of the law, for ultimately, the problem is an arbitrariness inherent in the NDPS Act itself. Even so, I conclude by critiquing the decision in Hira Singh for its surprisingly unreasoned, uncritical, and unsympathetic acceptance of an alternative which places the lives of many persons under the sceptre of harsh mandatory sentences.   

The Quantification Approach and Effects of Punishment

The NDPS Act is one of the most stringent laws present in the statute book of India today. Birthed as a result of the "War on Drugs" that captured the international imagination during the 1980s, thanks in no small part to the U.S.A, the NDPS Act sponsored a highly punitive approach towards drug crime. The law sponsored high mandatory minimum sentences, even for possession based crimes, took away the possibility of probation for first-time offenders, made getting bail extremely hard, and explicitly reversed the burden of proof. 

As the global community reckoned with the failure of punitive approaches as a sustainable solution for drug crimes, with the heavy punishments clearly not serving as effective deterrents, the world began to tone down the harshness of these laws. The 2001 amendments to the NDPS were the result of this global trend. They brought in a new scheme for administering the law by introducing a classification of "small" and "commercial" quantities, and varying punishments on the quantity of the drugs involved (An old notification detailing such quantities is here). The amendments also recognised that a one-size-fits-all approach that merely criminalised all drug related issues was not the answer, and brought forth a new process to recognise "Addicts" and treat them differently in the law (how successful this has been is a different issue altogether).

E. Micheal Raj and the Problems of a Purity-Based Approach  

This quantification regime was the focus of the decision in E. Micheal Raj, which involved quantities of heroin seized from an accused person. Lab testing showed that the heroin content of the mixture recovered during investigation fell in the "small quantity" category, while the weight of the entire mixture fell in the "commercial quantity" bracket. This mixture was not of two different drugs but of a drug and a neutral substance. The Supreme Court reversed the finding of the High Court, and held that the accused was only liable to be punished for holding a "small quantity" of the drug in question. This emphasis on the purity of drug content was, according to the Court, a direct consequence of the 2001 amendments and the "rationalising" of the punishment system that they sought to achieve.

The problems of such an approach which focuses on the "actual" drug content in a mixture is that it can defeat the oppressive purposes that the NDPS Act was enacted for in the first place, and which the legislature has not explicitly disavowed as yet. As the Court in Hira Singh has emphasised (more on that in the next section), an approach solely committed to identifying the actual drug content will end up being too lenient on suppliers, especially if the street practices entail that certain narcotics are only ever going to be sold as mixtures with small drug content. 

Hira Singh's return to a Total Weight Approach and its Problems

The opinion in Hira Singh suggests that there were several reasons to disagree with E. Micheal Raj — the Court disagreed with how the legislative intent was inferred and also suggested that this aspect of the opinion in E. Micheal Raj was entirely obiter and based on a misapplication of the law and facts. Having done so, the Court in Hira Singh unanimously and unequivocally rejected the actual drug content approach of E. Micheal Raj and approved of an approach that looked at the total weight of the seized items. This approach, the Court held, was in consonance with the legislative intent behind the NDPS Act. 

The reason was simple: An approach focused entirely upon actual drug content did not sufficiently address local practices of how the drug trade worked. Thus, we are told not only about how some kinds of drugs are more popularly sold as mixtures, but also about how some mixtures are in fact much more harmful and addictive than the pure drug itself. The court uses the example of "smack", a popular drug made by combining heroin with other substances such as chalk powder and zinc. An approach concerned with the actual drug content would allow for misplaced leniency in the system as the dealers of smack and other such deadly substances would not get a sufficiently stiff jail term for their conduct.

This criticism of the actual drug content approach is a fair one. But, at the same time, focusing on the total weight of a mixture brings its own problems which the Court all too conveniently ignores. This is the problem of manifest arbitrariness that, if anything, is now amplified in how the NDPS structure will operate. One side of this arbitrariness problem was aptly highlighted in Hira Singh, which I will call the problem of misplaced severity. Thus, the law now allows for the person who carries 4 grams of pure heroin to be punished for carrying a "small quantity" of narcotics, for a person carrying 249 grams of heroin to be punished in the "intermediate" category, while a person carrying a mixture weighing 251 grams, with 249 grams of neutral substance and 2 grams of heroin, will be punished for carrying a "commercial quantity" of heroin. 

This problem of misplaced severity has a twin — the problem of misplaced leniency — which can be understood in context of the American experience of punishing the trading of the drug LSD. The U.S. Supreme Court in Chapman v. United States had such an issue, where appellants were convicted and sentenced to a mandatory ten-year term for distributing LSD weighing around 1 gram. The appellants argued that they had sold blotter paper which, while weighing around 1 gram as a whole, had a much lower LSD content and would avoid the mandatory prison term. The Court held in favour of a total weight approach and upheld the mandatory sentences. 

Chapman was cited approvingly by the counsel for Union of India in Hira Singh. Sadly though, what was not mentioned before the Court was the problems that Chapman created for the law (succinctly explained in this piece). The problem was simple: As a normal dose of pure LSD only weighed about 0.05 milligrams, the total weight approach of Chapman allowed a person to escape the mandatory sentence even if she engaged in thousands of trades for pure LSD. But at the same time, it gave the mandatory ten-year sentence to those who made even one trade for LSD through the medium of blotter paper. Focusing on the total weight of a mixture, then, also brought with it misplaced leniency for drug offenders. 

Hira Singh — A Critique

These are serious problems and potentially invite a constitutional challenge to the sentencing regime under the NDPS Act — the kinds of issues, you would think, are what a Three Justices' Bench of the Supreme Court ought to be addressing. It is excruciating, then, to see the Court in Hira Singh totally avoid any discussion about the arbitrariness issue and offer its uncritical affirmation to the merits of adopting a total weight approach in the NDPS Act context. 

And here, perhaps a word must also be said about the unreasoned manner in which the Court reached at its final destination of upholding the total weight approach. Thus, as mentioned above, the Court notes the potential deadliness of mixtures such as smack and uses this to justify a rejection of the actual drug content approach [Paragraph 8.3]. But what is the basis for these observations? No reports of any government department or any international body are cited. Surely, details of the drug trade cannot be be assumed as matters of which judicial notice can be taken and thus do not require any material in support. Keen googling skills suggest that rather than government sources, the opinion has possibly relied upon a rather unaccredited source for these observations which, if true, would only serve to delegitimise the strength of these observations. 

And then there is Paragraph 8.5, which justifies adopting a total weight approach by (i) referring to the problem of "drug addicts" and in the same sentence refers to the devious workings of the "mafia" internationally, and; (ii) claiming that the "use of drugs by the young people in India has increased" and that "drugs are being used for weakening of the nation", to finally conclude that "the guilty must be in and the innocent must be out". It is nothing short of remarkable that while Hira Singh held the judgment in E. Micheal Raj as having wrongly read the legislative intent of the NDPS Act, it suggests drug addiction is a problem, which is a direct negation of the intent behind the 2001 amendments. If this was not enough, then a series of stereotypes and bald assertions about immorality and national strength are offered to serve as legal justifications. Thus, what are, at best, pleas by prosecutors to deny bail and, at worst, coffee-table rants by senior citizens, have been given the exalted status of legal reasons justifying why a harshly penal regime must be read in a broad, expansive, and potentially arbitrary manner. 

Conclusion

Hira Singh has taken the law on how to assess the quantities of drugs seized in an NDPS case to the position before the intervention made in E. Micheal Raj. In no uncertain terms, the Supreme Court has held that the total value of the seized items will be considered to decide whether or not the case was one of "small" or "commercial" quantities. But while the legal position has merely reverted to what it was a decade ago, the manner in which the Court has arrived at this conclusion is nothing short of extraordinary. The Court failed to address the one serious issue it was presented with — if the total weight approach rendered the NDPS sentencing regime arbitrary — and instead offered a litany of unreasoned assertions to justify its conclusions. After reading Hira Singh, I was left thinking that the Court appeared to have forgotten that underneath all this rhetoric of action and bluster in the context of drug laws, there are actual lives which are seriously affected by the interpretive choices that are being made. It is this lack of compassion that marked Hira Singh as a truly odious opinion.  

Section 144 Cr.P.C. — Part V: Combating the Repressive Law (1921 to 1940)

(This is the Fifth post in a multi-part series. Earlier posts can be accessed through here)

The previous post in this series discussed how a growing political consciousness across British India led worried administrators enough to begin to use the law as a means to suppress civil liberties. Section 144 of the Criminal Procedure Code 1898 [Cr.P.C. 1898], a provision largely used up to that point by Magistrates as a means to quell local disturbances between rival groups / factions, began to be used for prohibiting the holding of public meetings, and even banning the entry of persons in an area. This post covers a subsequent period, in which the position of Section 144 as a tool of repression came to be cemented in the eyes of many outside government. Unlike previous posts where the focus was largely on the courts, here we focus on the many battles that were fought over this provision in the Central Legislature of the time, i.e. the Legislative Assembly of India. 

Curbing the "Indiscriminate Use" of Section 144 — The 1923 Amendments

In January 1922, Rao Bahadur Rangachariar moved a Private Member's Bill to amend Sections 107 and 144 of the 1898 Code, with the stated aim being "to prevent the indiscriminate use of Sections 107 and 144 of the Code of Criminal Procedure 1898, in dealing with political agitation." This failed attempt to modify Section 144 (the Bill did not garner sufficient votes to be introduced for debate) was primarily a reaction to the use of this provision by the Government to quell the Non-Cooperation Movement. One gets a sense of the scale of use through Home Department File No. F-2A of 1922, which suggests that over 400 orders had been passed within the United Provinces in 1921 alone. This was part of the set of grievances aired when a Resolution was moved in March 1923 in the newly created Indian Legislative Assembly to condemn the repressive measures adopted to tackle the Non-Cooperation Movement.

Why use Section 144 and not some of the special laws such as the Seditious Meetings Bill, or even the Rowlatt Act, you ask? As I had mentioned in the previous post, the sufficiency of Section 144 to deal with political agitation was cited by legislators themselves who opposed the introduction of the aforesaid special laws. Protests over these special laws did not dissipate, and only added fuel to the political fires that were burning in India around 1919 to 1921. Thus, in an attempt to depoliticise the maintenance of law and order, the Colonial Government returned to that venerable old provision, Section 144, with renewed vigour which soon became a velvet glove concealing the iron fist.  

The 1923 Amendments

We get a window to this history through the lengthy debates in the Indian Legislative Assembly on January 25, 1923. The Assembly was debating the comprehensive Criminal Procedure (Amendment) Bill, and had now turned its attention to the proposals for modifying Section 144. The debates are too lengthy to summarise, and I would urge readers to go through the debates on the clause (which begin on page 27 of the link) to get a sense of the legal issues and the strong feelings that now accompanied any conversations about Section 144. 

Broadly, though, what the proposals sought to achieve were the following:

• Introducing a higher legal threshold for magistrates to take action under Section 144;
• Requiring that evidence be recorded in proceedings under Section 144, not only as a check on the exercise of power but also to enable superior courts to effectively exercise powers of judicial review;   
• Limiting the use of ex parte orders that were passed under Section 144, by either creating a time limit specifically for such orders, or mandatorily requiring magistrates to hear parties within a certain time period;
• Providing more avenues for challenging any Section 144 order by allowing revisions and appeals to be heard by superior courts; 
• Providing special protections for political speech and activity within Section 144 itself.

The changes ultimately made to Section 144 by the 1923 amendments [Section 27 of Act 18 of 1923] did, in some measure, address these issues:

• Section 144(1) was amended. Where earlier powers could be exercised if it was the opinion of a magistrate that speedy prevention was desirable, now the threshold was made similar to that in Section 204 Cr.P.C. for issuing process in a complaint case. Thus, the clause now required a magistrate to determine that there was sufficient ground for proceeding under this section;
• The restriction over challenging Section 144 orders in revision proceedings was lifted;
• A new clause was added, enabling aggrieved persons to petition the magistrate for rescinding / altering an order.  

However, as the next sections demonstrate, the fight to change Section 144 to install legal handbrakes to restrict ex parte orders as well as to protect political speech continued for several years after. But before we proceed further, it is important to flag what was not raised as being problematic in Section 144 during the 1923 debates. First, although some members complained about junior officers having been empowered under Section 144, only one member raised that as an issue. In fact, the Government benches cunningly turned this issue against the Indian members by citing that many junior officers were natives. Second, hardly any sustained attack was made to curb the breadth of Section 144, with the Assembly largely in agreement that the breadth of the provision was necessary to maintain law and order. 

The Many Abortive Legislative Attacks on Section 144

Even before the ink had dried on the 1923 amendments, Mr. A. Rangaswami Iyengar moved a Bill in 1924 to further amend Section 144 of the Code citing "recent events" that had seen the provision being used to impose "all kinds of restrictions on political workers and political propaganda". While positively noting the wide scope of the provision, Iyengar stated that the "extraordinary and indiscriminate applications of the section that have taken place since 1921 on such a large scale for the purpose of suppressing political agitation, is a matter which could not have been foreseen." Thus, he now sought limits on ex-parte orders, special protection for political activity, and that appeals (as opposed to revision petitions) be allowed against Section 144 orders which would make it a rule for proper evidence to be recorded in the first instance.   

The instructions from the Viceroy were clear: Oppose the introduction of the Bill at all stages, for as the Home Member had noted in the file, this Bill "would reduce Section 144 to nothing". But this Bill did not even reach the House for discussion. Undeterred, Iyengar coopted support for the Bill from other members of his party (the Swaraj Party) and moved the Bill again in 1925. Similar legislation was sought to be introduced by several other members as well during this time. However, all of these attempts met the same abortive fate and did not get past the introductory stage. 

The Gaya Prasad Singh Amendments 

One such Private Member Bill did eventually reach the floor of the House. In February 1931, a draft legislation moved by Mr. Gaya Prasad Singh was discussed where he proposed that the Bill be referred to a Select Committee. The focus of this legislation was on the same three issues that were raised in Mr. Iyengar's Bill of 1924. After heated debates which spanned several days, the Assembly passed a motion by a single-vote majority to circulate the draft legislation for public opinion. 

The idea of soliciting public opinion did not mean going to the people on the street, but instead going to ask administrators, judges, government pleaders and lawyers' associations for their opinions. When the opinions came back and the Bill was again taken up for discussion on September 15 of that year, it was apparent that almost all of these sections of society overwhelmingly supported Section 144 in its existing form. The voluminous opinions are collected in the Home Department File No. F-22/174 of 1931 (pages 71-192). 

While it was perhaps understandable that administrators found little fault in the provision, especially since their opinions were sought so soon in the aftermath of the Civil Disobedience Movement, the widespread support for retaining Section 144 in its existing form amongst the lawyers and judges was telling. Even though different High Courts had set aside many orders under Section 144, of a political nature and otherwise, as being contrary to law (and continued to do so hereafter), this was not seen as a blot on the legislation itself or its policy of combining judicial and executive powers within the same official. Rather, these cases were understood as individual errors, for which the existing set of remedies were considered sufficient — remedies that had only recently been expanded upon in 1923.         

As one would expect, in light of the unfavourable public opinion, the proposal to refer the Bill to a Select Committee did not garner the requisite support despite the best efforts for Mr. Gaya Prasad Singh and his sympathisers. 

Rangachariar's Return and The Repressive Laws Bill

In January 1931, Diwan Bahadur Rangachariar (as he now was) had moved another Bill to amend his old foe: Section 144. Unlike the earlier Bills moved by Mr. Iyengar which focused on ex parte orders and political speech, the Diwan's legislation sought curbs on Section 144 orders which curbed acts that were "not wrongful in themselves but are in exercise or enjoyment of the rights of parties". Unfortunately, this Bill was not any more successful than his earlier attempts at limiting the scope of Section 144.

Finally, this brings us to the Repressive Laws Repealing and Amending Bill that was moved by Mr. S. Satyamurti in 1934 but only discussed on the floor of the Assembly on February 20, 1936. As the name suggests, the Bill targeted not just Section 144, but other laws as well such as Section 124-A of the Penal Code which created an offence of "sedition". Crucially, Satyamurti also did not press for a repeal of Section 144, but rather re-agitated the changes initially proposed by Rangachariar and later by Iyengar & Gaya Prasad Singh, among others.  

While Satyamurti's proposals on amending Section 144 were, therefore, not significant as such, what was significant here was his logic behind picking these "Repressive Laws", which had not been as succinctly addressed in earlier debates. According to him, these laws were "all based upon a distrust of the judiciary as such" and "based upon a desire to arm the executive with the exercise of powers which shall not be questioned anywhere, and they all offend against, the elementary canons of the supremacy of law and the freedom of the citizen."     

Alas, the Bill seems to never have been taken up for debate subsequent to this occasion in the years till 1939 (largely due to administrative reasons as gleaned from the Home Department files), when the Legislative Assembly itself was suspended owing to the declaration of the Second World War.

Summing Up

It is impossible, and perhaps unsuitable, to provide a summary of this vast history here. Instead, it is better that I stick to highlighting three aspects that struck me as most significant. 

First, is the limited debate about the scope of Section 144. The debates repeatedly focused upon creating special exemptions for political speech rather than pressing for removing words such as "annoyance", or creating a proportional scheme of responses like the 1931 proposals of Rangachariar. A note must also be made here of how many members refuted any calls to change the language of the provision by citing its vintage, and simply referring to unpredictability as a reason for retaining the exorbitantly vague phrasing of the statute. 

Second, is the resigned acceptance of almost all the members in the Assembly for retaining Section 144 of the Code and their acknowledgment of the need for preventive powers to deal with communal riots and other public order disturbances. Indeed, it was quite normal for the Government benches to cleverly change the scope of the debate and play on this sentiment by mischaracterising the debate and suggesting that the proposed amendments sought to do away with Section 144 altogether. 

Third, is link between Section 144 and the underlying issue of separation of powers. The proposals for greater judicial oversight in this process were rebuffed not only on practical grounds — referring to the delays inherent in the appellate / revision system — but also by emphasising the desirability of a system which combined executive and judicial powers in the same officer for such purposes. A call to retain Section 144 as it was, then, was also a vote of confidence to retain the status quo and not separate judicial functions from executive functions.

Conclusion

I first came across Satyamurti's Repressive Laws Bill in K.G. Kannabiran's Wages of Impunity, where he favourably quoted the extract I've used above and, in his inimitable style, linked it to legislative approaches in independent India. But as this post shows, Satyamurti's efforts at reforming the laws, and more specifically reforming Section 144, were the last in what was a long tradition that began in the aftermath of the Non-Cooperation Movement. At a time when various sectors across society are looking at the provisions of Section 144 with careful scrutiny, it is imperative that the lessons offered by our history do not go ignored.

Guest Post: Barb Wiring Free Speech — Criminal Law and Curbing Press Freedom

(I am delighted to present a guest post by Nipun Arora, an advocate practising in Delhi, and Shivkrit Rai, a law researcher at the Delhi High Court)

Recently, the Uttar Pradesh police registered a First Information Report [FIR] against journalists (of The Wire) reporting on apparent violations of the lockdown that has been ordered by the Central Government. Similarly, an FIR was registered against an elected representative from the Aam Aadmi Party (an MLA) for allegedly defaming the Chief Minister of Uttar Pradesh. 

By no means is one state the exception here—there have been several such cases from different states across India in the past as well, with baseless FIRs being registered as part of clear attempts to stifle press freedom and rile journalists who ask uncomfortable questions. Often these incidents are discussed as part of a larger narrative on freedom of press discourse. What is often ignored is the means involved towards this end of silencing journalists: Police questionably using criminal law. This use of police machinery to hamper and obstruct journalistic freedom is a concerning issue that needs to be addressed by both, judiciary and the executive.

Abuse or Misuse? "Cognizable" Offences as Tools for Harassment

These FIRs against journalists / media houses disclose several similarities. Most importantly, we find that a majority of the offences alleged in these cases are "Non-Cognizable". This refers to that category of offences where the police cannot investigate the case without an order from the court, and thus cannot arrest suspects. 

In a bid to overcome this hurdle, we see that the police simply add one or two offences to the FIR that are "Cognizable". This mere mentioning of a particular section now allows the police to investigate the case without any judicial oversight and now the police can assume powers of arrest and detention in pursuance of the investigation. 

And, worryingly, very oftenthe cognizable offences added to the FIR are hardly applicable to the case at hand. For instance, consider the FIR filed against the Editor of Vishwani, a Karnataka based newspaper in 2019 at the behest of a complaint by the Janta Dal (Secular). Here, allegations of Criminal Breach of Trust—a cognizable offence—were added to what was (at best) a Defamation case, which is a non-cognizable offence. 

A similar trend is on display in the Uttar Pradesh cases against the Aam Aadmi Party MLA and The Wire where a cognizable offence Section 505(2) of IPC (false statement with the attempt to create enmity, hatred or ill-will between different classes), was added to circumvent the need to go the magistrate. This practice of adding cognizable offences where only non-cognizable offences are made out gives the police a cover to ‘investigate’ the case and arrest the accused.

Heightened Problems in Times of Covid-19

The only resort for the accused that remains, then, is to approach the courts, which have often made observations in such cases lambasting the police conduct of registering bogus cases that are all too clearly attempts to stifle the constitutionally protected freedom of speech and expression. Recent examples being the cases of Prashant Kanojia and Priyanka Sharma. But by the time that happens, the aggrieved individual is generally already under arrest, and thus the damage has been done. A chilling message has been sent: Dare to question, then face the music.

At the present moment, however, even approaching the courts is not possible as they have restricted their functioning to cases of utmost urgency due to the Covid-19 outbreak. The guidelines for court hearings suggest that courts are only taking up cases involving matters of life and death, and these more ordinary excess of executive power are, unfortunately, not matters that will be guaranteed a hearing in court. As a result, we find ourselves in the midst of a situation where the police have a carte blanche of sorts, rendering the already vulnerable persons in an even more precarious position.

Designing a Response? An Argument for Constitutional Torts

The much-needed structural reforms in police activity that have been recommended for decades are yet to see the light of day. While a High Court can step in and set aside the FIR in a specific case, it is clear that this strategy has failed to get the message across to police at large, as despite the repeated quashing of bogus FIRs new ones keep registered every other day. We need a different take on this problem, where state agencies are actively working towards dissuading persons from exercising their fundamental rights without any justifiable reason. 

In 1983, in a case titled Rudul Sah v. State of Bihar [(1983) 4 SCC 141], the Supreme Court had held that in cases involving violation of fundamental rights, the court can grant compensation to the victim. In cases of custodial deaths, repeatedly, the state has been held liable to pay compensation for infringing right to life under Article 21. A case of frivolous FIRs which is aimed at infringing the fundamental rights, and registered at the behest of the state itself (as opposed to being registered upon a complaint by a private person), clearly points towards the mala fide of state authorities who use the police to clamp down on press freedom. 

The courts thus need to take note of the growing tendency of the state to register, suo moto, a baseless FIR, aimed at curbing the freedom of speech, and make an attempt to curb the practice. It would be appropriate for the courts to start awarding compensation to the victim against whom the baseless FIR is registered, and to make appropriate orders of recovery of such compensation from the officer on whose instructions the baseless FIR was registered. It would ensure that only those sections which are genuinely made out are included in the FIR. Recovery of the compensation from the concerned officer would of course act as a deterrent and prevent such frivolous cases.

The need of such an institutional response becomes important because it ensures that even in extreme circumstances like the present where the functioning of the courts is also limited, such FIRs are not registered because of the deterrence created. The fear of repercussions once the courts reopen would be sufficient to dissuade an overenthusiastic officer even when the courts are closed. Such a systemic response has been a long-time due, and needs to be considered by the courts now.

Guest Post: America and the Insanity Defence — Kahler v Kansas

(I am pleased to present a guest post by Karan Gupta, an advocate practising in Delhi.)

Since the mid-1800s, the M’Naghten Rule (insanity defence) has been employed to exonerate defendants on criminal trial. In Kahler v Kansas, the question concerned whether the Due Process clause of the American Constitution requires States to allow a defendant to raise the defence of insanity that they could not “distinguish right from wrong”. The Supreme Court of Kansas rejected the challenge. On 24 March 2020, the Supreme Court of the United States (SCOTUS) rejected, by a 6-3 majority, Kahler’s appeal and held that the Due Process clause imposes no such requirement.

Facts

In 2009, following his divorce, Kahler shot and killed his wife, her grandmother and his two daughters. He surrendered the following day. He was convicted of capital murder and sentenced to death. At trial, the counsel for defence contended that Kahler had a mixed obsessive-compulsive, narcissistic, and histrionic personality and that he ‘snapped’. The state expert affirmed that he was mentally ill but had the ability to form intention. The defence was rejected on the ground that no moral capacity defence existed under Kansas law.

The SCOTUS Appeal

The majority and the dissent agreed that the M’Naghten rule stipulates two enquiries – first, whether the defendant knew the nature and quality of the act i.e. whether the defendant understood the action (cognitive capacity); or second, whether the defendant could differentiate between right and wrong (moral capacity). [p. 19, D2] These would allow the exoneration of both a mentally ill defendant who shoots an individual thinking they are a dog or cuts a person’s neck thinking it is a loaf of bread as well as someone who knowingly shoots a person under the belief that a dog ordered the kill. Prior to 1995, Kansas allowed both defences. However, by virtue of the 1995 amendment, the moral capacity defence was abolished. As the person in the second scenario understood the action, the intention to kill stands established and the person would not be exonerated. Four other states have laws similar to Kansas – Alaska, Idaho, Montana and Utah.

The SCOTUS has previously laid down that a state criminal law violates the Due Process clause only when it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In such determination, the Court turns to eminent common law authorities, precedent and “basic values that underlie” society. Kahler contended that the M’Naghten rule (and specifically the moral capacity test) fell within this ambit and Kansas had “unconstitutionally abolished the insanity defense.” [p. 5]

Justice Kagan (writing for the majority) agreed with Kahler that for “hundreds of years” jurists and judges have recognized the broad defense of insanity and there is no “single case to the contrary.” [p. 11]. The majority however held that Kansas’ law does not depart from that broad principle and does not fail to “offer any insanity defense at all” [p. 12] for two reasons:

First, Kansas’ law provides that the lack of the culpable mental state required for the crime as a result of mental disease or defect shall be a “defense to a prosecution”. Kahler could simply prove that he had no intention to kill. Second, while moral capacity is disregarded at the guilt-determination phase, it is a factor at the sentencing stage to mitigate culpability.

Critique

The first reason, far from highlighting a version of the insanity defence, merely reaffirms a basic tenet of criminal law—the prosecution must prove beyond reasonable doubt the existence of a mental element (intent) for crimes that require it. This would aid a person who mistakenly fires a gun but it would not aid a mentally ill person who intentionally fires the gun under the belief that unless he killed the person, the world would end. The second reason overlooks insanity an independent affirmative defence to prosecution itself. What appears to have persuaded the majority is that sentencing mitigation could lead to the same situation as in a state that allowed the moral capacity defence. [p. 4, 5] However, the moral capacity defence extends to every successful defendant the right to not be found guilty in the first place.

While the majority affirms the broad insanity defence, the question was whether the specific moral capacity test commanded such acceptance. The majority held that Kahler could not show “settled consensus” and consequently, as “the record is far more complicated”, such a “motley sort of history” cannot be the basis of a Due Process claim. [fn 8, p. 18, 19] Surveying precedent and commentaries, the majority held that the “overall focus” was on the ability to form intention (cognitive capacity) and not on moral capacity. [p. 16] Thus, the inability to distinguish between right and wrong, rather than being an independent ground, “served as a sign” of cognitive breakdown which precluded the finding of any intent. [p. 18] The majority here erroneously conflates the intention to commit an act and the ability to distinguish right from wrong.

The dissent addresses this by highlighting that while a person’s mental illness may leave unaffected their ability to form intention, it may nevertheless affect their motivation. [p. D20] For example, where a person commits a crime under the delusion that they will otherwise be killed (persecutory delusion) or that a supreme being commands it (religious delusion), they possess the requisite intention but not the moral capacity required for blameworthiness, thus precluding criminal responsibility.

The majority notes that definitions of legal culpability and mental illness are matters of 'state governance, not constitutional law.' [p. 24] In constitutional doctrine, this is sound. A federal structure requires that states are granted the autonomy to define the relationship between crime, moral culpability, and mental health. The dissent unequivocally agrees with this. [p. D1] However, the dissent holds that Kansas has not modified the defence but “eliminated the core” completely. [p. D1] The dissent holds that while the moral capacity test is not constitutionally required, it emerges from a “fundamental principle” [p. D4] of criminal law – that criminal liability must reflect a defendant’s capacity for moral agency and culpability. Absent such agency, such persons are “no more responsible for his actions than a young child or a wild animal.” [p. D3] This would explain why crimes committed by children are now treated differently with some countries exempting children from any prosecution altogether.

The dissent states that even in the context of the common law tradition, ‘mens rea’ was broader than mere intent and was linked to free will and moral understanding. According to this, where there is no reason, there is no free will. Where there is no free will, there can be no intention. Justice Breyer write — “To be guilty of a crime, the accused must have something more than bare ability to form intentions and carry them out.” [p. D13] The ‘more’, according to the dissent, is the agency to distinguish right from wrong. According to the dissent, the M’Naghten Rule was itself based on prior settled American criminal jurisprudence on individual blameworthiness and culpability. [p. D15]

The final reason employed by the majority is that while the moral capacity test requires the ability to distinguish right from wrong, the word ‘wrong’ could mean either a legal wrong and a moral. [p. 21] If a defendant was aware that the action is against the law, they would not be exonerated, despite their belief that the action was morally just (say commanded by God). The Court notes that 16 states have adopted the ‘legal wrong’ variant of the moral capacity test and accepting Kahler’s contention would require them to be struck down. While there is some support to Justice Breyer’s statement that the difference between legal wrong and moral wrong is illusory as it exonerates “roughly the same universe of defendants”, [p. D17] the simpler answer to this is that a question of this distinction did not arise in this case as Kansas provided neither version of the moral capacity test.

Conclusion

SCOTUS had an opportunity to decide the issue in Kahler by affirming the importance of values at the heart of criminal law. Unfortunately, the Majority opinion has failed to do so. To me, the Dissent not only reaches the correct outcome, that the Kansas' action violates the Due Process clause, it also arrives at this outcome via a more favourable approach that is committed to the basic tenets of criminal law such as moral agency, culpability and blameworthiness. As the Dissent rightly notes, Kansas’ law will lead to the “conviction of a broad swath of defendants” who “would be adjudged not guilty under any traditional form of the defense.” [p. D21] This would violate “deeply entrenched and widely recognized moral principles” of the criminal justice system. The Majority opinion in Kahler is right to note the leeway states possess in a federal polity. However, what the Majority overlooks is the significant points highlighted in the dissent and above. Where the Majority holds the Kansas has modified the defence, it has in fact dealt it a death blow.

Guest Post: When Might is Not Right — Police Violence and the Coronavirus Pandemic

(I am pleased to present a guest post by Shukr Usgaokar, a Fourth Year Law Student at the V.M. Salgaocar College of Law, Goa)

Since the imposition of a lockdown by the Central Government and State Governments all across India to contain the spread of Covid-19, several press reports have emerged showcasing brutalities resorted to by the authorities. Violators of the apparent “curfew” have been made to crawl on the street, do sit-ups, suffer lathi-charge, or were simply beaten black and blue by police officers. Some have argued that these are isolated incidents; others have justified such forms of punishment as a necessary-evil if the lockdown is to be effectively implemented to contain the spread of Covid-19. But the question which arises regardless is whether this use of force by the police is permissible under law, and if so, what is the magnitude of force which the law enforcement agencies are entitled to use.

No arrest, no force

Since law and order is a state subject, different states have enacted different statutes to regulate their respective police forces. The Police Act, 1861, is silent on the issue of whether and if so, under what circumstances the police officers are justified in using force while discharging their duties. The only provision that could serve as a source of power is Section 23, which simply provides that it is the duty of police officers to inter alia "detect and bring offenders to justice". 

The Code of Criminal Procedure, 1973 [Cr.P.C.] is more explicit. Section 46(2), entitled “Arrest how made”, states that if the person who is to be arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the police officer (or any other person) may use all means necessary to effect arrest. But the corollary of this provision would be that all means necessary, which would include force, are to be used only while making an arrest and that too only when the person who is to be arrested either resists the arrest or attempts to evade it.

Controlling frenzied mobs

Along with investigation of offences, the police in India have the additional function of maintaining law and order which is detailed under the 1973 Cr.P.C. Section 129 of the Cr.P.C., as the title suggests allows a police officer to use force to disperse an assembly. But there are, again, limits on how this power can be used. In Karam Singh v. Hardayal Singh [1979 Cr.L.J 1211], for instance, the Punjab & Haryana High Court culled out the three essential requirements that are ingrained in Section 129:

1. There should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of public peace.
2. An executive magistrate should order the assembly to disperse.
3. In spite of such orders, the people do not move away.

Thus, arguably, the pith and substance of Section 129 is that force is to be resorted to as a last resort, when the crowd, which in the opinion of the Magistrate is about to disturb public peace, does not disperse, even after it is ordered to do so.

The other source of power is, obviously, Section 144 of the Cr.P.C. read together with Section 188 of the Indian Penal Code. Section 144 orders can be passed by Executive Magistrates (which includes the High-Ranking Police) to prohibit all kinds of conduct for up to 2 months, and then the defiance of such orders is rendered punishable under Section 188 of the Penal Code. Much like Section 129, the use of Section 144 also requires that certain preconditions must exist [Most recently elaborated upon by the Supreme Court in Anuradha Bhasin [Writ Petition (Civil) No. 1091/2019 (Decided on 10.01.2020)]. 

Even if we assume that a valid 144 Order has been passed, it must be established that the existence of such orders is communicated to persons, without which their so-called defiance can't be penalised. But in the present scenario, can it really be said that the orders were explained or communicated in all cases where the police went ahead to forcefully apprehend "violators"? 

How much is too much?

It might be the case that the though the use of force is justified, the quantum of force used is not. Paragraph 4 of The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba in 1990 enjoins the law enforcement officials to use, as far as possible, non-violent means before resorting to the use of force and firearms. 

Even when the use of force becomes unavoidable, paragraph 5 mandates that they should exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved while minimising damage and injury. The Code of Conduct for the Police in India which was formulated at the Inspector Generals of Police Conference in 1961 has been cited with approval in P. V. Kapoor v. Union of India [1992 Cr.L.J. 128 (Delhi)] and states that while maintaining law and order, the police should as far as practicable use methods of persuasion, advice and warning and when the application of force becomes inevitable, only the absolute minimum required in the circumstances should be used. 

This view was reaffirmed more recently by the Supreme Court in Anita Thakur v. Union of India [(2016) 15 SCC 585] where it was held that even when it is the agitating protesters who start pelting stones on the police, use of excessive force and misuse of power by the police amounts to not only a violation of human rights and human dignity but can give rise to liability in civil and criminal law. 

Even the imposition of Section 144 of the Cr.P.C., as has been done in several districts to enforce the lockdown, cannot serve as a licence for unchecked, violent, police action. Though the Supreme Court in Ramlila Maidan [(2012) 5 SCC 1] upheld the imposition of Section 144, it ordered disciplinary action as well as registration of criminal cases against the all the erring police personnel who had resorted to brick-batting, lathi charge and excessive use of tear gas shells upon the crowd.

It is pertinent to note that the above cases deal with action taken by the police to suppress unruly and violent mobs. It is obvious that an even lesser degree of force would be called for while arresting an offender, which is an investigative function of the police. Useful in this regard is reference to the test laid down by United States Supreme Court in Graham v. Connor [490 US 386] in 1989, which held that the officer’s actions must “objectively reasonable in the light of the facts and circumstances confronting them, without regard to their intent or motivation.”

Wits, not Fists

It is abundantly clear that the conduct of the police authorities has been grossly disproportionate and amounts to a flagrant violation of human rights of those who were at the receiving end of such treatment. As mentioned above, disobeying curfew orders can be an offence under Section 188 of the Penal Code in some cases. But even then, the correct course of action would have been to arrest the curfew violators and release them on bail since that offence is cognizable and bailable and prosecute them according to the law when normalcy is restored, rather than dish out instant justice. 

If video-clippings are to be gone by, the curfew violators were unarmed, did not attempt to evade or resist arrest. However, the police officers have, without giving any warning and in some cases without even making an arrest, mercilessly assaulted the purported offenders. 

It is disheartening to note that authorities are treating a health emergency and humanitarian crisis as if it is a law and order problem. Even if the situation is somehow brought under the purview of section 129 of the Cr.P.C, the actions of the police amount to throwing every pre-requisite to the wind. The rightful conduct would have been to order people to disperse and stay at home, if at all there was a gathering of people, the dispersal of which was necessary to prevent them from contracting the infection.

The police officials must keep in mind that citizens are not violating the curfew because they want to or because they are desirous of getting infected with the Coronavirus. They are compelled to do so in order to buy groceries, medicines and other essentials, particularly when the performance of the home delivery service has been less than satisfactory. 

Under such circumstances, the police authorities ought to show restraint, empathy and a co-operative attitude towards the citizenry rather than indulge in high-handed behaviour and unprovoked hostility. The fact that the curfew is necessary to break the chain of transmission of Covid-19 and has been imposed for the own good of the people is no excuse to use force since as per Graham’s case (supra), the intention of police is immaterial and what must be seen is whether the conduct was objectively reasonable under the circumstances. However, it would become apparent that their conduct has been anything but reasonable with even those who were exempted from the curfew such as doctors, delivery personnel and pedestrians bearing the brunt of the viciousness of the police.

This flies in the face of Article 5 of the Universal Declaration of Human Rights which says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Referring to this, the Supreme Court in the celebrated case of D. K. Basu v. State of West Bengal [AIR 1997 SC 610] held that expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.

Way back in 1981, Justice V. R. Krishna Iyer commented that “Police rely more on fists than on wits, on torture more than on culture…Nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”. Nearly 40 years later, it would appear that not much has changed.