What Next after the Vernon Gonsalves Judgment

A Division Bench of the Supreme Court has allowed appeals filed by Vernon Gonsalves and Arun Ferreira [Reported as Vernon v. State of Maharashtra, Crl. Appeal No. 639 / 2023 (Decided on 28.07.2023) ("Vernon")] which challenged the dismissal of their bail applications by the Bombay High Court, and has directed that they must be released on bail. The judgment comes almost five years after their arrests, and has been welcomed as a ray of light in what is possibly one of the darkest corners of present Indian jurisprudence — grant of bail in cases under the Unlawful Activities (Prevention) Act 1967 ("UAPA"). I need not elaborate the reasons for this praise for Vernon here, all of which is merited, as these have been comprehensively discussed on the ICLP Blog. Instead, I wish to flag the challenges ahead that must be resolved to make sure that the judgment in Vernon is not reduced to a forgotten relic by the sands of time.

Urgent Need for Clarifying Divergent Opinions

Vernon comes more than four years after a different Division Bench of the Supreme Court had delivered its verdict in NIA v. Zahoor Ahmad Shah Watali in April 2019 [(2019) 5 SCC 1 ("Watali")] and interpreted Section 43D(5) of the UAPA which requires that courts evaluate whether the case against an accused is 'prima facie true' to decide grant of bail. 

In Watali, the prosecution had challenged an order of the Delhi High Court granting bail to the accused, arguing that the High Court had erred by evaluating the substantive merits of the material gathered by the prosecution to decide whether the case against the accused was 'prima facie true' as required by the UAPA. The Supreme Court agreed, and held that determining whether a case is 'prima facie true' did not entitle a court to speculate on how reliable or believable the material gathered by the prosecution is. 

In the years since Watali its dictum came to sponsor a dizzying variety of judicial approaches. On one end of the spectrum was the 'eyes wide shut' approach which saw courts loathe to ask any questions of the prosecution material to decide bail — if there was material, and it supported the allegation, the court was not going to entertain questions about it being absurd. A good example, perhaps, is the decision of the Delhi High Court denying bail to Umar Khalid. On the other end of the spectrum was an 'eyes wide open' approach which saw courts continue to demand some believability in the prosecution case to decide bail and test its soundness by skirting the edges of Watali. The Bombay High Court order granting bail to Anand Teltumbde was a recent example of this approach.

At one level, Watali was unremarkable in advocating an approach cautioning courts from wading too deep into a consideration of the merits of a case at the stage of bail. It borrowed this approach from general bail jurisprudence. What was remarkable about Watali was its blindness to the fact that it was not dealing with the ordinary bail law, where deciding bail should not turn on the merits of a case, but a statute which made bail entirely contingent on the merits of the case. In other words, Watali ended up fitting a square peg in a round hole. The judgment in Vernon does not expressly call out Watali as being problematic on this count. However, it unequivocally condemns that most extreme variant of the Watali approach when it concludes that "at least surface-level analysis of probative value of the evidence" is required to decide whether a case is 'prima facie true' for purposes of bail under the UAPA (Paragraph 36). This, arguably, is the best reading of Watali itself, but it is not how the Vernon court puts it. 

The subtlety of the analysis by the Supreme Court in Vernon may yet be lost on future courts or may be deliberately avoided by prosecutors, who will probably cling to the fact that both Watali and Vernon are decisions by benches of the same strength and thus continue to evoke the ghosts of the 'eyes wide shut' approach in spite of the condemnation in Vernon. To put the matter beyond doubt, it is imperative that the Supreme Court endorse the observations in Vernon wholeheartedly and shines light on its interplay with Watali. The pending appeal against rejection of bail to Umar Khalid may be a good place to start.

The Wider Problem of Twin Conditions Law

There is an interesting passage in Paragraph 40 of Vernon. Echoing observations made in Najeeb [(2021) 2 SCC 202], the Court notes that the restrictions on bail under UAPA are less stringent than those under statutes such as the Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS"). 

Section 43D(5) of the UAPA reads:

Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: 

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Section 37 of the NDPS Act reads:

No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless — 

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, 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.

Take a look at both clauses again. The Supreme Court in Vernon says that the UAPA bail requirement is less stringent because it asks a court to see whether the allegations "cannot be held to be prima facie true" as opposed to the NDPS clause which requires the court "to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and he is not likely to commit any offence while on bail." 

Insofar as the UAPA clause does not have any speculative determination of future conduct required to decide bail, it is definitely less stringent. But is the requirement of testing whether a case is 'prima facie true' less stringent than the NDPS formulation of 'not guilty' which is repeated across other laws? I think that it is not as straightforward a query as the Court has made it seem in Vernon. If anything, because it will be easier to cross the threshold of establishing a case is 'prima facie true' than establishing reasonable grounds for believing a person is 'not guilty', the UAPA clause is arguably a more stringent restriction on granting bail. 

Accepting that the UAPA is stricter than the NDPS would perhaps allow courts to come to terms with the seminal question that requires addressing here — can such a clause ever be constitutional? Unlike NDPS and other statutes restricting bail which do not exhaustively mention the materials which a court considers to decide whether reasonable grounds to deny bail exist, the UAPA clause specifically lists out the material on which this determination is made: case diaries, and the police report. Two questions arise. First, can judicial discretion be rendered subservient to the views of a police officer who conducts the investigation?  Second, since it is accepted by the Supreme Court itself that police reports often withhold exculpatory material from courts in a bid to secure convictions which has prompted the Court to broaden rules of disclosure, is such a procedure meeting the 'just, fair, and reasonable' test under Article 21? 

Answering this question of stringency requires dealing with a linked question which neither Vernon nor Watali dealt with — upon whom does the burden lie to meet this threshold? In the NDPS framing, it has been common for courts to assume that the accused must show that there are reasonable grounds to believe that she is not guilty of the offence. The text itself may yet support casting the burden on the prosecution, but that is a separate matter. In the UAPA context, the Supreme Court in its framing at Paragraph 40 itself suggests a similar approach of placing the burden on an accused — the test is framed as a negative, the case "cannot be held to be prima facie true", which is a proposition only the accused will try and show. This is how most courts have so far been reading Section 43D(5), but somehow it has not prompted courts from considering the impact this view has on how bail hearings under UAPA are to be conducted. Since it is only once an investigation concludes that the accused gets copies of the material forming the basis of accusations against him — the very material which is the basis for a court to decide whether the case is 'prima facie true' — does this mean that every accused is practically consigned to spend three to six months in custody in such cases before being able to agitate bail? Again, we must ask, is this a procedure that can ever meet the venerable 'just, fair, and reasonable' test prescribed by Article 21 to deprive persons of their personal liberty?  

Conclusion: The Little Done, the Vast Undone

Judgments like Vernon, where judicial reasoning does not crumble under the sheer weight of how serious certain accusations can be made to sound from the lips of prosecutors and the pens of policemen, breathe life into the idea that there exists a rule of law governing the affairs of the Indian republic. However, one judgment alone cannot alter the deep-seated views which prompt courts to adopt positions and procedures that are antithetical to personal liberty. Vernon reflects the little done. This post hints at the vast undone that must now be addressed by courts and the legislature if we want make bail hearings a fairer enterprise.

Call for Papers: NLSIR Vol. 35(2) on the theme 'Reimagining Jurisdiction and Sovereignty through TWAIL Perspectives'

(This is a call for papers for the National School of India Review)

As part of Volume 35(2), the National Law School of India Review (‘NLSIR’) is releasing a Special Issue focusing on the interactions of TWAIL with ideas of jurisdiction, extraterritoriality, statehood, and sovereignty.

The vision behind the Issue owes its origins to Prof. B.S. Chimni’s path-breaking article titled “The International Law of Jurisdiction: A TWAIL Perspective”. In his work, Prof. Chimni highlights the need to critically (re)view the categories of ‘territory’ and ‘extraterritorial. Prof. B.S. Chimni will provide an Afterword, with general reflections and takeaways from the Special Issue. Keeping with our aim to promote cross-cultural engagement, the Issue will feature a response to Prof. Chimni’s article from Prof. Chimène Keitner, a leading scholar of International Law and American Civil Jurisdiction. Prof. Keitner will also be acting as Guest Editor for this Special Issue. Her response will explore instances where territorial and jurisdictional borders are not congruent (e.g., universal jurisdiction).

Prof. Rohini Sen, a scholar on Critical Approaches to International Law, will offer a General Introduction to the Issue, locating it within different TWAIL traditions and their engagement with mainstream international law. Prof. Sen is also guiding the journal in her capacity as Advisor for this Special Issue.

The Special Issue will include both invited as well as submitted contributions. We cordially invite scholars, lawyers and students of law, from diverse areas of study to be part of and provide their contributions to this unique Special Issue.

Format of Submissions

Interested authors are requested to submit their draft submissions to both the mail.nlsir@gmail.com and the Digital Commons Platform by creating an account here. For further instructions and clarifications for submissions on the Platform, please refer to this guide.

• Submission on both platforms is necessary for the drafts to be considered for the review process.
• The recommended word limit for every submission is between 2500-3500 words (exclusive of footnotes).
• The deadline for submitting the entries would be 1st September 2023.
• Once the Issue is finalised, we will invite all authors of the Special Issue to be part of a Symposium conducted as a roundtable discussion (in virtual mode), towards the end of December. The transcript of the same will be published on the website.

Please refer to the concept note, for more information on the theme, the academics involved and the submission guidelines. In case of any queries please reach out to us at mail.nlsir@gmail.com.

We hope to receive an enthusiastic response through your valuable contributions to our Special Issue!

Guest Post: The Treatment of Mens Rea and Group Definitiveness in Rahul Gandhi's Defamation Case [Part Two]

(This is the second in a two-part guest post by Kartik Kalra. The first part can be accessed here)

The first part of this two-part series has discussed the High Court’s conclusion on the defamatory character of Gandhi’s remarks by decontextualizing his speech, where a single line becomes the prime focus of its analysis. This part further highlights the speech-restrictive implications of the judgement, for the Court dispenses absolutely with requirements of mens rea and group definiteness u/s 499 of the Indian Penal Code, 1860 (“IPC”) – both of which were key to upholding its constitutionality in Subramanian Swamy v. Union of India. 

This argument is made in the following manner – first, the High Court’s treatment of mens rea requirements u/s 499 is discussed, where it concludes the presence of intention through knowledge, without offering any reasons justifying the presence of such knowledge; and second, the Court’s treatment of the issue of the Modi community group’s definiteness under Explanation 2 to Section 499 [and the complainant’s locus u/s 199 of the Code of Criminal Procedure, 1973 (“CrPC”)] is discussed, which constitutes a radical departure from extant case-law emphasising on the group’s precise, narrow character whereby each person of the class must be defamed through the group’s defamation.

The High Court’s Treatment of Mens Rea Requirements

Mens rea requirements are necessary to be established for one’s conviction u/s 499, which are dispensed with in the instant case since the High Court concludes their presence solely through conjecture. The Court notes, correctly, that the mens rea requirements stipulated u/s 499 refer both to knowledge and intention, along with an alternative standard of a “reason to believe” – referring to foreseeable reputational harm – for the person targeted through speech. Though the dictum of knowing the natural consequences of one’s acts is well-accepted, the prosecution must still demonstrate how the resultant consequences were the natural consequences of the accused’s acts.

This, very glaringly, is absent – the Court holds the mere presence of the “reason to believe” standard u/s 499 sufficient to conclude its presence in the instant case. Further, it commits the error of equating knowledge and intention. In its refusal to suspend Gandhi’s sentence u/s 389 of the CrPC, the Court notes that “the offence…under Section 499 of the IPC is committed with an intention to make a false statement in connection with election…” [43], without disclosing any material pointing toward the existence of such intention. Subsequently, it uses the argument of intentional commission of the offence to deny suspension u/s 389, suggesting the offence’s seriousness [43]. Later, however, it holds that the only material pointing towards the existence of intention is the presence of knowledge of foreseeable reputational harm – and that intention and knowledge are interchangeably satisfied [47].

47. “Thus, not only intention or knowledge but “reason to believe” is an additional factor to bring the imputer to prosecute. Reason to believe is sufficiently established in the present case and “reason to believe” is on lower pedestal than intention or knowledge. In the present case, all the three ingredients, i.e. intention, knowledge and reason to believe are interredchangeably (sic) satisfied.”

This line of reasoning is deeply erroneous for never can intention be deduced from knowledge. Further, the presence of knowledge of adverse reputational consequences can’t be concluded by proposing a low threshold of the test – there must be analysis of the Court’s own that demonstrates how adverse reputational implications for the Modi community were a natural consequence of Gandhi’s impugned remark. This is evidently absent, and a conclusion on the presence of mens rea has been drawn solely on assumptions.

The Modi Community and Group Definiteness

Since the High Court found that the target of Gandhi’s speech was the entire Modi community instead of specific persons (as discussed in Part I), the next issue concerned the legal possibility of the defamation of a caste group, which the Court notes comprises of 13 crore people [4]. While Explanation 2 to Section 499 of the IPC states that a “collection of persons” may be defamed, Section 199 of the CrPC states that only a “person aggrieved” may file a defamation complaint. There are, therefore, two distinct issues – first, whether the defamed group fulfils the criteria to deem it a “collection of persons” u/s 499, and second, whether the complainant in the instant case was a “person aggrieved” u/s 199.

Courts had considered this issue on many an occasion, and concurred on a principle that the group claiming to have been defamed must be clearly demarcated and definite, whose members must be ascertainable with reasonable precision. Further, it is also well-settled that the complainant must undergo a specific grievance of their own for the complaint to be maintainable, which must be distinct from the general harm suffered by the entire group. In M.P. Narayana Pillai v. M.P. Chacko, a case concerning the defamation of the Syrian Christian community due to a publication alleging that “Syrian Christian girls working abroad are engaged in prostitution for livelihood” [3], the Kerala High Court noted that the group of Syrian Christians was an “indefinite and unascertainable body of people”, and the defamatory material – in order to be brought under Explanation 2 – should have affected each member of the class individually:

"11. Imputations should be capable of being located as aimed at particular individuals or collection of individuals capable of being ascertained. The imputations must relate to all of them also. There cannot be defamation against a community as such…When the defamatory matter affects each and every member of an ascertainable class or group each of them or all of them could set the law in motion…Where persons in the association or collection as such are ascertainable and the words or imputations are shown to be against all the persons in the association or collection as such, any one of the members could make a complaint."

On facts, it found the Syrian Christians too indeterminate to constitute a “collection of persons” under Explanation 2, for they were a “fluctuating mass”, and the publication couldn’t be reasonably construed as lowering the reputation of each Syrian Christian [12]. Further, the Court found that the complainant himself didn’t undergo any specific legal injury other than the allegation of his reputation being lowered due to the defamation of his community’s women, and found his complaint incompetent u/s 199 of the CrPC [12]. 

The principle necessitating a group’s definitiveness based on the ascertainable character of each member’s reputational loss has been affirmed in many other cases – G. Narasimhan v. T.V. Chokkappa found the defamation of a “Conference” whose members were unknown insufficient to constitute a “collection of persons”, for no individual could claim having been defamed due to the Conference’s reputational loss [22]; Dhirendra Nath Sen v. Rajat Kanti Bhadra found the alleged defamation of an “Ashram” to fall outside Explanation 2, for the Ashram was indeterminate, and one’s reputational loss through the Ashram’s membership unforeseeable [5]; Balasaheb Keshav Thackeray v. State of Maharashtra found “Congressmen” an unidentifiable group, for its defamation didn’t make each member “legitimately feel the pinch of it” [7]; Narottamdas L. Shah v. Patel Maganbhai Revabhai found defamatory remarks concerning “Vakil Alam” as falling outside Explanation 2, for they weren’t “referable to a person or a group of persons” [57]; Raj Kapoor v. Narendra found a disparaging representation of the Scheduled Castes in a movie insufficient to bring the group within Explanation 2 due to the absence of ascertainable members who underwent a reputational loss [2-3]; and Kalyan Bandyopadhyay v. Mridul De found the defamation of the Communist Party of India (Marxist) to fall outside Explanation 2, for it wasn’t as if “each and every member…[got] individually defamed when an insinuation [was] made against the party as a whole” [13]. 

On this basis, therefore, Explanation 2 had been read to require the demonstration of reputational loss of each member of the group – primarily in terms of its reasonable foreseeability – for the group to constitute a “collection of persons”. Subramanian Swamy, to justify the constitutionality of Explanation 2, relied exactly on these principles emphasising the definitive, determinate character of the group claiming to have been defamed:

178. “The aforesaid enunciation of law clearly lays stress on determinate and definite body. It also lays accent on identifiable body and identity of the collection of persons. It also significantly states about the test of precision so that the collection of persons have a distinction. Thus, it is fallacious to contend that it is totally vague and can, by its inclusiveness, cover an indefinite multitude. The Court has to understand the concept and appositely apply the same. There is no ambiguity.”

The Supreme Court's expectation in Subramanian Swamy that courts would appropriately assess a group’s definitiveness to examine its suitability under Explanation 2, however, seems to have gone unmet. In the instant case, an analysis of the foreseeability of reputational loss for each member of the Modi community is evidently absent, for the High Court creates a position of law of its own in holding that each caste group constitutes a “collection of persons” independently, without warranting any other analysis. Based on this proposition, the High Court proposes that the treatment of the Modi community as one such group would merely be a commonsensical application of this position of law –

45. “…Further, “Modi” people are a fraction of Ganchi / Taili / Modhvanik Ghnyati, as per the evidence and thus, again a well-defined identifiable / suable class. Like persons are having “Patel” Community as well as surname, “Jain” Community as well as surname, “Modi” is also a community and surname both.”

Based on this reasoning, it finds that the Modi community is a “collection of persons”, without bothering much into whether each of its members can be said to have reasonably undergone a reputational loss. It doesn’t enquire into compliance with Section 199 of the CrPC either, holding that the sole requirement to be fulfilled by any complainant is merely to belong to the defamed class, nothing else [45]. This principle is an acute misrepresentation of the high threshold of the complainant’s specific legal injury laid down in case-law above, by whose standards no indeterminate caste-group with an unforeseeable reputational loss could fall within Explanation 2.

Conclusion

The Gujarat High Court’s judgment in Rahul Gandhi, it is submitted, is deeply flawed in considering the principles of defamation law. Its implications may prove highly burdensome on free speech. The judgment departs from well-established principles on the treatment of classes under Explanation 2 to Section 499 of the IPC, errs on fundamental aspects of criminal law such as the difference between knowledge and intention, decontextualizes the speaker's remarks by ad-nauseum analysing a single line, and goes to the extent of labelling the offence one involving moral turpitude. The judgment ought to cast serious reflection on the sustained constitutionality of Section 499 IPC, which had been upheld on the hope and expectation that a basic minimum judicial responsibility in administering the clause would be exhibited by courts. An expectation which has been demonstrably left unmet in this case.

[Note: At the time of publication of this post, a challenge has been filed before the Supreme Court against the decision of the Gujarat High Court]

Guest Post: Dystopian Defamation Law — On the Gujarat High Court's Judgment in the Rahul Gandhi Defamation Case [Part I]

(This is the first of a two-part guest post by Kartik Kalra)

The Gujarat High Court delivered its judgement in Rahul Gandhi v. Purnesh Modi this week, where it was tasked to decide Gandhi’s application u/s. 389 of the Code of Criminal Procedure, 1973 (“CrPC”) to quash his conviction u/s 500 of the Indian Penal Code, 1860 (“IPC”) for defaming the Modi community – a caste group consisting of 13 crore people – by uttering the words “Saare choro ke naam Modi Modi Modi hi kyu hai?” (which roughly translates to “why do all thieves have Modi as their name?”) [51] at a political rally in 2019. The Court found that the Modi community was sufficiently definite to constitute a “collection of persons” under Explanation 2 to Section 499 of the IPC [45]; that Gandhi’s statements were defamatory u/s 499, for they were false, and were uttered with the “reason to believe” that they would lower the Modi group’s reputation in the estimation of the others [47]; and that the invocation of the Prime Minister’s name, the proximity of the impugned statements to national elections, and Gandhi’s position as the “president of the party (sic) ruled in country for more than 50 years” made the offence one involving “moral turpitude”, which did not warrant suspension u/s 389 of the CrPC [43, 45].

This two-part series highlights the dystopian character that criminal defamation acquires through this judgement, whereby one can be convicted for an offence without satisfying any of its ingredients. The judgement concludes the commission of the offence of defamation by assuming ingredients that were either evidently absent, or whose presence was extremely onerous to demonstrate – from Gandhi’s mens rea, the falsity of his remarks, the contextual meaning of those remarks, to the complainant’s locus u/s 199 of the CrPC and the definiteness of the Modi group. 

In this part, I propose that the High Court assesses the defamatory nature of Gandhi’s remarks in a manner divorced from his remaining speech, and upheld the conviction based on a highly non-obvious, unreasonable construction of his remarks. This argument is made in the following manner – first, an overview of the judgement on its legal issues is provided, where I highlight the interpretive tools invoked by the Court to disadvantage Gandhi; and second, the Court’s treatment of the ingredients of Section 499 is discussed, where I propose that the Court abstained from entering into a concrete enquiry, concluding the presence of the offence’s ingredients primarily through conjecture.

Guilt by Conjecture – An Overview of the Judgement

The case concerned Gandhi’s applications for suspending his conviction and sentence, meaning that the High Court had to assess the validity of his conviction by the Sessions Court, or alternatively, suspend his sentence and decide his appeal later. The Court, through a single judgement deciding both applications, affirmed the Sessions Court’s judgement, holding that his conviction (and two-year sentence) u/s 500 was valid.

In order to reach this conclusion, the High Court notes that its powers u/s 389 cannot be exercised when the impugned offence is serious, or involves “moral turpitude” [43-5]. In order to determine whether Gandhi’s defamatory remarks fall within these categories, it conceptualises Gandhi as an individual with extraordinary responsibility, whose remarks carried the potential to destabilise the national elections. It noted that the impugned remark, which rhetorically asked why every thief has “Modi” as their name, was false – without any elaboration how. This falsity, it held, constituted an independent offence u/s 171G of the IPC – which penalises making false statements in connection with the character of an electoral candidate, adding to the offence’s seriousness [45]. Lastly, it noted that Gandhi invoked the “name of the Hon’ble Prime Minister to add sensation, apparently and for an intention to affect the result of the election…”, which, when seen with the factors above, made Gandhi’s offence one involving “moral turpitude” [45]. Once the Court concluded that the offence involved moral turpitude, all was mostly lost, with the Court refusing to suspend Gandhi’s conviction.

Following its conclusion on the offence’s seriousness, the High Court next examined two connected issues – first, whether the Modi community was sufficiently definite to constitute a “collection of persons” under Explanation 2 to Section 499 of the IPC; and second, whether the complainant in this case (a legislator from Gujarat), was a “person aggrieved” u/s 199 of the CrPC. In case the former requirement was absent, the imputation won’t be “defamatory” in the first place, and in case the second requirement went unsatisfied, the trial would be vitiated, for Section 199 is a mandatory provision. The Court found, deviating from a settled position, that the Modi community was a definite caste-group, constituting a “well-defined identifiable/suable class” [45]. It noted that the question of a group’s definitiveness was primarily a question of fact already decided by the Trial Court, not warranting additional analysis. As a principle of law, it indicated that each and every caste group may constitute a “collection of persons” by itself – and that treating the Modi group as one is merely a commonsensical application of this principle [45].

Once it held the Modi group sufficiently definite to constitute a “collection of persons” under Explanation 2, it noted that the only thing required to be done by the complainant – in order to be a “person aggrieved” u/s 199 of the CrPC – was to belong to the Modi group, nothing else [45]. This approach had been rejected almost unanimously by courts up till this point, instead requiring proof of a specific legal injury in terms of lowering one’s reputation by virtue of group membership just for the complaint to be maintainable – which is assessed before analysing the offence’s actual ingredients. That stage, following the general tenor of the judgement, also contains minimal reasoning, where it takes the offence’s ingredients for granted to an extent that it doesn’t devote to them a single line. It only discusses Gandhi’s mens rea, holding that it is present, just because it is, and on account of this found the offence was too serious to warrant suspension of his conviction [47]. The Court finds that Gandhi must have had a reason to believe that his remarks would cause foreseeable reputational harm to the Modi community, without entering into an analysis of the reasons necessitating such foresight on his part. Such an analysis would inevitably have assessed the contents (and context) of Gandhi’s speech, which the Court wasn’t very willing to enter. Its conclusion on the foreseeability of the Modi community’s loss of reputation, therefore, stands primarily on conjecture. 

Decontextualized Defamation – the Court’s Treatment of Section 499’s Ingredients

While the Court doesn’t undertake a full-fledged analysis of the impugned remarks’ satisfaction of Section 499’s ingredients, it does label Gandhi’s remarks false at two occasions [45], and concludes the presence of mens rea to lower the reputation of the Modi community [47]. 

This enquiry is insufficient, for it aligns neither with the text of Section 499 nor with tests as explained by courts. Jeffrey J. Diermeier v. State of West Bengal is one such case laying down the test u/s 499, which has been affirmed in Subramanian Swamy. It proposes that the ingredients of the offence are found both in the text of Section 499 and Explanation 4, with the latter laying down evidentiary requirements of demonstrating loss of reputation. The ingredients, overall, are three – 1) there must exist a defamatory imputation; 2) the imputation must lower the complainant’s character in the estimation of others, or portray them in a loathsome or disgraceful manner; and 3) the accused must have the intention, knowledge or a reason to believe that the imputation would carry adverse consequences for the complainant's reputation [24-5]. In the instant case, the High Court doesn’t do minimal justice to any of these requirements, concluding the commission of the offence primarily on conjecture.

The High Court, it must be noted, commits a glaring error in assessing the first two ingredients– it decontextualizes Gandhi’s speech by reducing it to a single line, attempting to portray as its primary purpose the targeting of the entire Modi community. The defamatory nature of a single line cannot, for obvious reasons, be analysed by divorcing it from the remaining speech. In order to assess whether a person would undergo reputational loss by virtue of a remark, it becomes necessary to assess the context in which the remark was delivered, and then assess its overall effects in the mind of a reasonable person.

Khushboo v. Kanniammal was a defamation case concerning an actress’ remarks indicating the incidence of pre-marital sex in Tamil Nadu, where the complainant proposed a construction of her remarks to mean “all women in Tamil Nadu have engaged in premarital sex” [27]. The Supreme Court refused to interpret her remarks in this manner, holding that they were only a “general endorsement of premarital sex”, and weren’t directed at any particular individual or collection [24]. Similarly, in Raj Kapoor v. Narendra, a defamation case concerning a movie allegedly disparaging persons belonging to the Scheduled Castes, the Gujarat High Court had assessed the context in which the disparaging imputation was made, and concluded that a reasonable construction thereof would note its purpose as challenging norms of orthodox Brahminism and casteism. On this basis, it held that no case lies u/s 500, for a single disparaging line can’t be divorced from its context and purpose of critiquing caste society. 

Tests on other speech-restrictive provisions of law, such as obscenity, also employ the same standards – the obscene nature of a publication, pursuant to Aveek Sarkar v. State of West Bengal, must take into consideration the entirety of the publication, not a single decontextualized component [24]. 

The point, therefore, is that the assessment of a single ostensibly defamatory line, decontextualized from the remaining speech, is an incorrect mode to appreciate the satisfaction of Section 499’s ingredients. This decontextualized assessment, however, is exactly what the Court does. It refers repeatedly to the single line extracted above, refusing to examine the components of the speech providing context. Apart from the impugned remark asking why every thief has their name as Modi, consider the following other segments of the speech (source), appearing a few moments before and after* –

• Aapse kehte hain kaale dhan ke khilaf ladai… (1:41-1:43) — They say they are fighting the plague of black money…
• Aapko dhoop mein bank ke saamne khada karte hain… (1:51-1:53) — They ask you to stand in front of banks in hot weather…
• Aapke jeb mein se paisa nikaal ke bank mein daalte hain… (1:56-1:59) — They take money from you and put it into their bank…
• Aur phir aapko pata lagta hai, ki aap hi ka paisa Nirav Modi utha ke bhaag gaya… (2:05-2:09) — Then you get to know that Nirav Modi has stolen your money and run away…
• 35,000 crore rupay aapki jeb se nikaal kar uski jeb mein… (2:17-2:20) — They took Rs. 35,00 crore from you, put it into his pocket…
• Mehul Choksi, Lalit Modi… (2:31 –2:39) — Mehul Choksi, Lalit Modi…
• Acha, ek chhota sa saval hai, sabke naam…sab choro ke naam…Modi, Modi, Modi kaise hain? (2:41-2:47) — I have a small question, how do all thieves have their name as Modi?
• Nirav Modi, Lalit Modi, Narendra Modi…aur thoda dhoondenge toh aur bohot saare Modi niklenge… (2:55-3:01) — Nirav Modi, Lalit Modi, Narendra Modi…if you search, you will find a lot more Modis…
• Unhone notebandi ki, chhote dukandaro ko…small-medium business waalo ko nasht kiya…zindagi barbaad ki… (3:12-3:19) — They did demonetization, they destroyed small and medium businessmen…destroyed their lives…
• Uske baad gabbar singh tax lagu kiya, doosra jhatka maara… (3:32-3:35) — They introduced the gabbar singh tax thereafter, which was a double whammy…
• UPA, congress party ki sarkar aane do, kuch hi mahine mein gabbar singh tax ko hum sacchi GST mein badal denge… (3:45-3:54) — Let the UPA/Congress Party come to power, we will transform the gabbar singh tax into a true GST…

[*The time stamps correspond to the utterance of the words in Hindi, and do not consider their Kannada translation appearing thereafter.]

Apart from the impugned remark shown in bold, the Court doesn’t consider surrounding paragraphs colouring it or providing it context. The speech begins with an expression of dissatisfaction with the state’s economic performance, alleges existence of its nexus with crony capitalists, and lastly alleges the government’s role in stealing public funds. It is in context of these comments that the impugned remark – asking why thieves share the name “Modi” – is made. Based on a reasonable, contextual construction of the impugned remark, it is fairly clear that the recipient of Gandhi’s rhetoric is the Prime Minister – or at best – the set of capitalists he alleged benefitted through the former. When seen in context, the nature and purpose of the speech don’t appear to be a simplistic targeting of the Modi community in entirety, referring instead to specific individuals. The Court does acknowledge this context at one occasion, but invokes it – consistent with its general tenor – to Gandhi’s disadvantage. It notes that despite the Prime Minister having been specifically named, the offence still remained the defamation of the entire Modi community. Instead, it notes that this reference to the Prime Minister made the offence of defaming the Modi community much worse, for it “add[ed] sensation” and was designed to “affect the result of the election…” [43].

Conclusion

The Gujarat High Court’s affirmation of Rahul Gandhi’s conviction stands, therefore, on extremely shaky ground, for it doesn’t undertake the minimal task of appreciating his remarks in context. The Court’s extraction of a single line to demonstrate its defamatory implications for the entire Modi community is an unreasonable, far-fetched and non-obvious interpretation of his speech, for its political character – especially in terms of its specific targeting of political opponents – was fairly clear. The judgement’s implications on political speech may be immense, for a chilling effect induced by the possibility of one’s words being twisted and turned to constitute a penal offence is inevitable. 

The speech-restrictive implications of the judgement are discussed further in the following part, where I highlight the Court’s radical departure in assessing group definiteness and its foundational errors in evaluating mens rea.

Guest Post: Section 160, Arrest, and the Calcutta High Court Order in Sutapa Adhikari

(This is guest post by Archit Sinha)

The Calcutta High Court, on June 8, 2023, restrained the state police from issuing notices to the accused in connection with Contai Police Station Case No. 46 of 2022, dated 31.01.2022. The order was passed in the case of Sutapa Adhikari and Ors. v. The State of West Bengal & Anr. The impugned notices were issued under section 160 of the Code of Criminal Procedure, 1973 (“The Code”).

The High Court went on to quash these. In an unprecedented move, it went on to add two incongruous conditions for subsequent notices and arrests. It provided that the notices under 160 may be issued but if actual presence is required, a 72-hour notice was a must. Secondly, it provided that if such persons were to be investigated, they will receive a show cause notice and will not be arrested for 10 days. Furthermore, it frowned on the practice of issuing 160 notices followed by arrests and considered it to be a misuse of the section. It held that “the investigation agency cannot use section 160 of the Cr.P.C as an oppressive measure against anyone.”

This order overlooks a Supreme Court judgement on the scope of sections 160, 161, and 162:  Nandini Satpathy v. Dani (P.L.) And Anr. This post aims to highlight the holding from Nandini Satpathy on Sections 160-162 of the Code and point out that the Calcutta High Court order is per incuriam to the extent that an accused may be issued a notice under Sections 160, 161. And any arrests which may follow, if compliant with Sections 41 and 46 of The Code, are legal.

Scope of Sections 160, 161, and 162: Nandini Satpathy & the Accused/Witness

In Nandini Satpathy, the Supreme Court delineated the scope of Sections 160 and 161 of the Code. The question framed by the Court was the following:

“[W]hether the police have power under Sections 160 and 161 of the Cr. P.C. to question a person who, then was or, in the future may incarnate as, an accused person”

The Court answered in the affirmative while citing a Privy Council decision in Pakala Narayana Swami v. Emperor. The reasoning behind the order was the purported legislative intent behind the sections read with a plain interpretation of the words. “Free disclosure of words” and “protect persons from making such disclosures” were notable in the Privy Council decision in construing Sections 160 and 161. It held that the scope of 161 was broad enough to be issued to an accused.

In Mahabir Mandal v. State of Bihar, the Supreme Court affirmed that “any person” includes an accused under Section 160 of the Code. By necessary implication, it held, that an accused will be “acquainted with the facts” of the crime. Such understanding may or may not come out to be true but it doesn’t vitiate the application of Sections 160-161. Regarding the marginal note of Section 160 to the extent that it mentions “witness”, it was said that “the marginal note [merely] clears ambiguity but does not control meaning.”

As mentioned, in Pakala Narayana Swami, such an interpretation of 160-161 is backed by the purported legislative intent gathered from a plain reading of the sections. These sections are intended to serve as a guarantee for free disclosure of information and to protect the person making such disclosure from the supposed unreliability of such testimony. This protection is provided for in the form of a bar on its use as evidence in trial as given in Section 162 of the Code. This implies 2 things – (a) and accused may be “a witness” and “acquainted with the facts of the case”, and (b) such statements by virtue of 162 cannot be the basis of conviction of the person making them. Though arrest is covered by neither of the 2 propositions, there is no express or implied bar on it either. The decision to arrest is a prerogative of the investigating officer, who, given the circumstances, is in the best position to make this decision. There obviously are possibilities of misuse but this does not mean taking this power away from the IO.

The effect of calling an accused under 160 can lead to a legal arrest in law. This does not mean that such an exercise is an abuse of process. In the present case, the petitioners had argued that such notices were meant to ensure the presence of the concerned persons to take them into custody and deny them the opportunity to apply for anticipatory bail under Section 438 of the Code. The High Court agreed with the petitioners and set aside these notices and laid guidelines for subsequent notices to the same persons. It also noted that the practice of calling someone for arrest through a 160 notice “cannot be encouraged.”

On closer scrutiny, the argument of notices undermining the right to seek anticipatory bail holds little water, since it has long been held that the test for anticipatory bail is whether a genuine apprehension of arrest exists, and this may exist even before registration of an FIR in some cases. Thus, it is argued that in Sutapa Adhikari there was no denial of anticipatory bail rights because, as argued by petitioners, they feared arrests because of the prior conduct of the police. In fact, paragraph four of the order notes that the “apprehension of arrest” on the part of the petitioners was well-founded due to the prior conduct of the agency. Therefore, nothing prevented petitioners from availing anticipatory bail. In fact, there is nothing on record to show that they even applied for it despite this apprehension. This signals a voluntary waiver of that right and not abuse of process.

Scope & Use of 160: Where Sutapa Adhikari Gets it Wrong

It was submitted by the petitioners that in recent cases, namely CRR 3047 of 2022 and GR Case No. 1357 of 2022 arising out of Contai police station Case No. 265 of 2022, the investigating agency has been using this section to arrest innocent persons. In the present case, the petitioners had alleged that the family members and acquaintances of the accused in Case No. 46 of 2022 – Suvendu Adhikari, were being harassed via notices under section 160 of The Code as arrests were happening post appearances by such people. 

The High Court set aside these notices while observing that such practice of calling someone not named in the FIR by a notice under section 160 of The Code and the IO, in the name of interrogation, implicating them as an accused and arresting them directly, amounts to abuse of Section 160. It is argued that these observations by the High Court are erroneous in law. 

Looking at the text of Section 160 in line with Nandini Satpathy, it becomes clear that an accused can be called under 160 to record a statement under 161 of The Code. But by virtue of 162 and Article 20(3), read with Aghnoo Nagesia all such statements cannot be used as evidence. As per section 25 of the Indian Evidence Act, confessional statements to the police are not admissible in a trial as evidence. Thus, there are inbuilt safeguards for such arrests by having a limited evidentiary value of such statements. Such statements cannot be used as evidence, they may or may not be the basis of an arrest because there is no express bar on such an arrest. This does not violate any procedural rights of the accused. Moreover, the domain of investigation is the sole prerogative of the executive and cannot be interfered with as a routine practice by the Courts. So, the order of the Court which not only discourages Section 160 notices on erroneous premises but also invents the two preconditions before initiation of investigation and arrest, is not only bad in law but also lacks legal precedent.

So, then, what remains to be analysed is the larger concern underlying this High Court order. This concern is of wide discretionary powers of arrest vested with the investigating agencies. On the ground, there may be the potential to misuse Section 160 notices. For example, in the very first issuance of a notice to a ‘witness’, there is little apprehension of an arrest. So, it is unlikely that such a ‘witness’ to whom such notice is issued, will apply for anticipatory bail. This is a valid concern and can raise questions about a fair procedure. As a general principle, allowing Section 160 notices to accused persons can certainly lead to an arrest, and this power can be misused can be misused. But does it mean that the scope of Section 160 needs to be reconsidered or that Nandini Satpathy needs to be overturned?

Per Nandini Satpathy, Pakala Narayana Swami, and Mahabir Mandal, it is known that the purpose behind 160, 161 is two-fold – (a) free disclosure of information, and (b) protection of the persons making such disclosures. In line with these purposes, there is perhaps a need to look at Nandini Satpathy on the presence of a lawyer during the questioning of a witness/accused, i.e., at the pre-trial stages. The Supreme Court had held that the right to consult a lawyer includes the right to have the lawyer present during interrogation. But this does not entail that “the police must secure the services of a lawyer.” 

In Nandini Satapathy, the court noted that “a lawyer’s presence is a constitutional claim in our country, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. Article 20(3) and Article 22(1) may in a way be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined.” However, subsequent judgments, notably, Md. Ajmal Md. Amir Kasab v State of Maharashtra, Shri D.K. Basu, Ashok K. Johri v State Of West Bengal, and State Of U.P, Poolpandi Etc. Etc vs Superintendent, Central Excise, and State (N.C.T. Of Delhi) v Navjot Sandhu, it was held that the lawyer can be present during interrogation, but they will need to maintain a certain distance or a partition of glass will be there while interrogation as such is going on. Thus, the Indian position on the presence of a lawyer is that the lawyer should be allowed to be present during interrogation, but at a visual and not aural distance. Since Nandini Satapathy, subsequent case laws have curtailed the right of the accused to have their lawyer present and involved during the interrogation and other pretrial stages. Thus, there is a need to revisit the question and scope of the presence of a lawyer during the pretrial stages. Such may not be the panacea for allaying all concerns regarding the wide arrest powers of the police but it is a starting point. It can serve, at least, as a check on the procedure during an arrest or interrogation of a witness/accused under 160 while also reinforcing the protection against self-incrimination.

The Sutapa Adhikari order, speaks of violation of “natural justice” in arrests following a notice. While the presence of a lawyer in pretrial stages may or may not affirm “natural justice”, it may very well provide for some checks during arrests, and the procedure of interrogation and is also relevant for the right against self-incrimination. From, existing case law, it is clear that arresting via notices under Section 160 is a valid legal option. Undoubtedly, there is potential for misuse but there exist ways in law to check such misuse. But, what is clearly not a valid way to check such misuse is the invention of a new procedure, as the Court did in the current order.

Conclusion

The Calcutta High Court order on Section 160 of the Code is flawed and may prompt police to complain that it has made it more difficult for to investigate crime. The order also sets a dangerous precedent by inventing new procedures that are not supported by the law. It is per incuriam Nandini Satpathy, which is clear on the scope of “any person” under 160-161. The order also wrongly assumes that the accused has no right to avail anticipatory bail under section 438 of the Code. Concerns of wide discretionary powers of the police/investigating agency to arrest persons may perhaps be checked or at least held up to scrutiny by the involvement of a lawyer at pretrial stages. This would provide an additional safeguard against the misuse of Section 160 notices and would help to ensure that the accused’s statement is accurate and reliable. Clearly, it would not serve as a panacea for this issue of powers of arrest, but it is a starting point.

Guest Post: A Conspectus of the Law Regarding Notice Prior to Arrest

(This is a guest post by Sudhanva S. Bedekar)

Whether the Courts are empowered to issue directions to the investigating agencies to give to the accused, a reasonable notice (example 72 hours) prior to arrest is a question which is sought to be addressed in this post. The issue becomes relevant due to a recent pronouncement of the Supreme Court in Vijaykumar Ramchandani v. Amar Sadhuram Mulchandani where the Court has frowned upon such a practice. 

The power to issue such directions could be traced to two provisions of the Code of Criminal Procedure, namely Section 438 and Section 482. While Section 438 grants to the High Court and Court of Sessions a power to direct release of a person on bail in the event of arrest, Section 482 saves the inherent powers of the High Court. 

In the context of Section 438, the said question seems to have been covered by a judgement of the Supreme Court in Union of India v. Padam Narain Aggarwal. It is argued that Padam Narain Aggarwal, insofar as its reasoning and reliance on Gurbaksh Singh Sibbia is concerned, is not decided correctly and needs a re-look.

Revisiting Padam Narain Aggarwal

It is therefore necessary to examine Padam Narain Aggarwal. The case arose from an order of the High Court of Rajasthan which directed Customs authorities to not arrest the Petitioners without ten days prior notice in case any non bailable offence was found to have been committed by them, while at the same time also holding that the Applications of Petitioners were premature. A bare perusal of the said order would reveal that the same was cryptic and did not contain any reasoning whatsoever which could justify the ten days notice period. 

While setting aside this order, the Supreme Court examined whether such an order could have been passed by the High Court in the first place. The facts of the said case reveal that notices under S. 108 of the Customs Act were issued to the Petitioners and due to their brazen non-cooperation, complaints were filed under Ss. 174 and 175 of the Indian Penal Code. Thereafter, the Application for Anticipatory Bail was disposed by the High Court with the direction as aforesaid.

In Padam Narain Aggarwal, the Supreme Court discussed the development of the law relating to grant of Anticipatory Bail in some detail and extensively relied on Sibbia's case. Paragraph 40 of the judgement in Sibbia, which is reproduced in Padam Narain Aggarwal, reads as follows;

“40... We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence….”

The Court in Sibbia ultimately came to the conclusion that no blanket order of bail can be passed while exercising power under S. 438 of the Code. Similarly, the Court in Padam Narain Aggarwal relied upon Adri Dharan Das, where the Supreme Court had held that normally direction should not be issued that the Applicant should be released on bail whenever arrested for whichever offence. 

In Das, it was also held that an interim order restraining arrest passed in an Application under S. 438 will amount to interference in investigation and will not be permissible under S. 438. After a conspectus of the case law in this regard, the Court in Padam Narain Aggarwal arrived at its final conclusions which are stated in paragraph 45:

“45. In our judgment, on the facts and in the circumstances of the present case, neither of the above directions can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket one as held by the Constitution Bench of this Court in Gurbaksh Singh and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails the authority of Custom Officers from exercising statutory power of arrest a person said to have committed a non-bailable offence by imposing a condition of giving ten days prior notice, a condition not warranted by law...”

The Court clearly arrived at a conclusion that the order directing grant of 10 days’ notice is a blanket one as held in Sibbia. It is submitted that the view taken by the Court is erroneous. 

Firstly, the meaning of the term blanket order has been explained by the Constitution bench in Sibbia and the same was reproduced by the Court in Padam Narain Aggarwal. The Sibbia dictum is that a direction under S. 438(1) that the accused should be released on bail whenever arrested in whichever offence would amount to a blanket order (see para 40 above). It court did not have occasion to examine whether reasonable notice prior to arrest is permissible under S. 438. The order of the High Court which was impugned in Padam Narain Aggarwal did not direct that the accused be released on bail whenever arrested for whichever offence. It merely directed that notice be given prior to arrest. Whether such a course of action would be permissible under S. 438 was the question which the Court sought to examine. 

The Court’s conclusion that such a course of action is not permissible since the same would be a blanket order granting protection in non bailable offence is clearly erroneous, as the direction impugned was not one which directed release on bail “whenever arrested for whatever offence.” What the Court in the impugned order had directed was that the authorities must give ten days’ notice prior to arrest. Such a direction, according to the Court, was necessitated since at the stage when the Application was filed, apprehension of arrest was not present. 

In Padam Narain Aggarwal, the Court failed to draw a distinction between a blanket order which directed release on bail for whatever offence and one which merely directed the prosecution machinery to grant reasonable notice prior to arrest. The settled position of law, insofar as Applications under S. 438 are concerned is that the apprehension of arrest needs to be established. 

When the Court is dealing with Applications where the apprehension is based on notices issued by authorities under special legislations such as the Customs Act or the Prevention of Money Laundering Act, it is not always possible for the accused to establish whether the agency concerned is even treating him as an accused. Thus, such Applications may be easily disposed off on the basis that the same are premature. However, if such is the position, then the provisions of S. 438 would be rendered nugatory. 

To prevent such a predicament, Courts some times direct a reasonable notice prior to arrest, which very often is for a period of 72 hours. Once such a notice is issued, the accused would be at liberty to approach the Court with an Application under S. 438 which can be decided on its own merits. Such orders are by no means anticipatory bail orders or blanket orders as contemplated in Sibbia for the reason that there is no direction contained therein to release the accused on bail.

The Court in Padam Narain Aggarwal could yet have set aside the impugned order directing 10 days notice prior to arrest since on facts, it is evident that the order did not contain sufficient reasons guiding the discretion of the Court. Moreover, the notice period of 10 days was perhaps otherwise excessive. However, the reliance on Sibbia was misplaced. Recently, a Constitution bench in Sushila Aggarwal has yet again relied upon the very same paragraphs of Sibbia and while summarising the principles, observed as follows;

“52.14. A blanket order under Section 438, directing the police to not arrest the Applicant, “wherever arrested and for whatever offense” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offenses in the future. (Paras 40-41, Sibbia)”

The Court has repeated the error of not appreciating the distinction between an order preventing arrest for a limited period and a blanket order to release on bail. The reliance on paragraphs 40 and 41 in Sibbia is clearly erroneous. A perusal of the above paragraph from Sushila Aggarwal reveals an inherent absurdity. The Court has stated that blanket orders to not arrest 'wherever arrested' cannot be passed. The absurdity lies in the fact that no direction to not arrest can be passed in cases where the accused is already arrested. It is only an order to release on bail that can be passed. It is thus clear that what is meant by the aforesaid direction is that the courts cannot grant orders directing blanket release wherever arrested. Furthermore, interestingly, the Court had observed, apparently in the context of blanket orders, that an order based on reasonable apprehension relating to specific facts though not spelt out with exactness can be passed.

Establishing the Case for Allowing Protective Orders under S. 438

The case of Dr. Sameer Narayanrao Paltewar v. State of Maharashtra decided by a single judge of the Bombay High Court settled a unique question relating to the fate of the accused persons who were directed to remain present for final hearing of their Applications under S. 438 and the Applications were dismissed. Section 438 of the Code of Criminal Procedure had been amended in its application to the State of Maharashtra and sub-section (4) thereof stipulates that the Sessions Court can direct the presence of the Applicant at the time of final hearing of the Application for Anticipatory Bail. 

The Bombay High Court was called upon to issue appropriate directions in order to ensure that liberties of the Applicants are protected by courts when Applications were dismissed while the Applicants are present in Court for final hearing. The High Court noticed that if the Applications under S. 438 are dismissed, the accused runs the risk of immediate arrest, thus frustrating his right to approach the High Court under S. 438 seeking the same relief. 

In this backdrop, the Court directed that the Sessions Courts must extend interim protection for a period of three to four days if Applications are rejected while the Applicant is present in Court. The said direction was issued in order to ensure that the remedy to approach the High Court is not rendered nugatory. 

It is pertinent to note that though it would appear that the order in question was passed in an entirely different context and was not any blanket order like the one impugned in Padam Narain Aggarwal, the principle of law that is applied by the High Court in this case and the principle of law applied in the other cases where prior notice before arrest was directed is one and the same. 

The principle is that by ensuring prior notice or some other protection to the accused, the right under Section 438 is not allowed to get frustrated. It is submitted that on a literal reading of S. 438 of the Code, it is possible to argue that the ruling in Paltewar is erroneous since the provision does not contemplate such a course of action. 

However, such a direction is borne out of a pragmatic and purposive interpretation of S. 438 and is therefore not erroneous. So also, directions of notice of reasonable time before arrest passed under S. 438 of the Code cannot be faulted simply on the premise that the same is not permissible under S. 438 or on the premise that such orders run contrary to the statutory powers of arrest. Such orders are necessary since it is not possible on every occasion for the Applicant to meet the threshold requirement of apprehension of arrest, particularly in cases where the investigating agency is acting under a special legislation such as the Customs Act or PMLA.

Exploring Inherent Powers to Support Notice prior to Arrest Orders

A conspectus of case law on the subject reveal that the discussion regarding orders directing notice prior to arrest has largely remained confined to the exercise of jurisdiction under S. 438 of the Code. However, whether such orders can be passed by the High Court in exercise of its inherent powers under S. 482 of the Code is a question that remains to be considered. 

Padam Narain Aggarwal reveals that the Court restricted itself to the interpretation of S. 438 of the Code and does not extend to exercise of inherent powers by the High Court under S. 482 of the Code. Further, the jurisprudence on the expanse of the powers of the High Court under S. 482 indicates that orders in the nature of notice prior to arrest could be passed in exercise of powers under S. 482. In the context of S. 438, it was possible to argue that the language of the provision does not permit any restriction on the power of arrest but only permits grant of bail in the event of arrest and that fetters cannot be imposed on statutory powers. However, when the High Court exercises its inherent powers, it is not possible to curtail its jurisdiction. The language of S. 482 is also indicative of this fact.

In Petitions for quashing of FIRs, the High Courts pass interim orders in the nature of not to take coercive steps or stay on investigation. Given the expanse of the inherent power of the High Court, an argument that curtailing statutory powers of the investigating agencies by way of interim relief is not permissible, has not been made. However, whether such relief can be granted as final relief is a question which would require some consideration. S. 482 is most commonly invoked in order to quash FIRs, chargesheets or criminal proceedings. 

It is also invoked in situations where the Code does not otherwise provide any remedies to approach the High Court. It remains to be seen whether the High Court’s jurisdiction under S. 482 of the Code can be invoked seeking relief of notice prior to arrest. There has never been an occasion for any accused to apply to the High Court seeking such a relief since such Applications were usually filed under S. 438. However, if it is to be held that the language of S. 438 does not permit such a relief, in the future it is likely that the jurisdiction of the High Court under S. 482 may be invoked.

In Petitions filed for quashing of FIRs, High Courts in fit cases pass interim orders staying investigations or directing the investigating agencies to not take any coercive action. However, such orders are interim orders where the final relief claimed is that of quashing of the FIR or proceedings concerned. In the case of Neeharika Infrastructure Private Ltd. v. State of Maharashtra the Supreme Court held that such interim orders directing no coercive steps cannot be passed if the High Court is dismissing the Petition for quashing of the FIR. However, no fetters have been imposed on the High Court’s power to direct no coercive steps as an interim order, provided that the High Court gives adequate reasons for arriving at the conclusion that such an interim order needs to be passed. 

The judgement of the Calcutta High Court in Ram Chandra Panda and Anr. v. State of West Bengal decided in January, 2023, presents yet another peculiar circumstance where the police were issuing notices under S. 160 of the Code to persons who were not named as accused in the FIR and were thereafter arresting these persons. Thus, a Petition was filed challenging few notices issued under S. 160 of the Code. S. 160 grants to the police making an investigation, the power to require the attendance of any person who may be acquainted with the facts of a case. 

The peculiar facts of the case before the High Court prompted it to ask the question as to why the police were resorting to this indirect method of arrest when they had the power to arrest at any time. The High Court held that such conduct was only to ensure that the accused does not get the chance of approaching the Court by filing an Anticipatory Bail Application or seek other protective orders. It further held that if this be the intention of the police, the situation required the court to invoke its inherent jurisdiction. It held that if a criminal case is to be initiated against the Petitioner, he shall not be arrested for a period of ten days so as to enable him to avail his remedies. 

It is apparent that the said order too has not been passed in exercise of powers under S. 438 but in exercise of inherent powers under S. 482. However, it appears that insofar as grant of relief of pre-arrest bail is concerned, there appears to be a fundamental flaw in the reasoning of the Court where it holds that the police were trying to ensure that the accused does not get a chance to avail anticipatory bail. It is noteworthy that in order to seek pre-arrest bail, it is not material as to under which provision of the Code a notice has been served. What is material for the said purpose is as to whether there is any apprehension of arrest.

Conclusion

To conclude with, it is submitted that a purposive interpretation of S. 438 would entail that the no fetters can be imposed on the power of the High Court or Court of Sessions from directing notice prior to arrest. Such orders are issued in situations where it is not possible to highlight the apprehension of arrest. In cases involving legislations such as the PMLA, such orders would be necessary so as to not render futile the mandate of S. 438. As an illustration, such orders could be necessary in situations where multiple FIRs are being registered on the basis of the same set of allegations. 

Further, the term “blanket order” as interpreted in Gurbaksh Singh’s case refers to orders directing release on bail in whatever offence and does not refer to orders directing notice prior to arrest. Hence, the rulings in Padam Narain Aggarwal and Vijaykumar Ramchandani require reconsideration.

Guest Post - Effective Communications Lite: A Caution against Short-circuiting Article 22 Safeguards

(This is a guest post by Varun Ahuja)

A Division Bench of the Madras High Court, in a case titled Harini v. State of Tamil Nadu [HCP No. 2679 of 2022 decided on 28.04.2023], quashed a preventive detention order under the Tamil Nadu Goondas Act, 1982, holding that informing the wife of the detenu about his detention through a Short Messaging Service (SMS) message is improper and violates Article 22(5) of the Constitution (Para 9).

Article 22(5) provides two valuable rights – a right to be informed of the grounds of detention and to be afforded the earliest opportunity to make a representation against the preventive detention order. This post addresses the problems with short-circuiting the first right, namely, to be informed of the grounds of detention; especially, in context of the Tamil Nadu Goondas Act. Additionally, it briefly touches upon the absence of legal aid to detenus under preventive detention and explores the inter-connectedness of the two rights under Article 22(5).

The High Court’s Decision in Harini

The challenge of habeas corpus in Harini was to an order dated 30.11.2022, passed by the Commissioner of Police, Avadi City, Chennai, to detain the petitioner's husband, Ezhilkumar @ Ezhil aged 26 years, under the Goondas Act. A prior case, which formed the basis of the order, was Crime No. 897 of 2022 registered at E-5 Sholavaram Police Station, for offences of rioting and robbery (among others). Therefore, the detenu came under the definition of a ‘Goonda’ as per Section 2(f) of the Act.

The date of the detention order assumes significance, since the bail application of Ezhil was filed just a day prior, i.e. on 29.11.2022, at the Principal District Court, Tiruvallur. It was later dismissed on 02.12.2022. The passing of detention orders against individuals already in custody is not uncommon, and has been upheld by the Supreme Court as lawful [recently in Union of India v. Dimple Happy Dhakad, (2019) 20 SCC 609)]. Nevertheless, the habeas corpus petition was filed and registered with the High Court on 22.12.2022. It took little over four months for it to be finally decided on 28.04.2023.

To reach its decision, the High Court relies on two earlier decisions of the Division Bench of the Madras High Court — Akilandeswari v. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, 2008 (3) MLJ (Crl) 744 & Ganesh @ Lingesan v. State of Tamil Nadu, 2012 SCC OnLine Mad 2187. In both cases, Akilandeswari & Ganesh, information about detention was conveyed by telegram but a copy of the telegram was not supplied to the detenu. Additionally, in Akilandeswari, it was contended by the State that the detenu's family was informed; however, no material was placed on record to substantiate the claim. In both cases, the High Court came to the conclusion that there was an infraction of Article 22(5) and therefore, the detention order was bad in law.

In Harini, the State argued that the grounds had been communicated through an SMS to the detenu's wife on a phone number based on details provided by the detenu himself. Furthermore, it was argued that no representation was made in this regard and the ground of non-imitation has been put forth for the first time (Para 5). The High Court rightly rejected these contentions and specifically observed that the ‘grounds booklet’ bore no signature to show that the phone number belonged to the petitioner.

Goondas Act and the Necessity of Proper Communication

A Look at the Statistics

The Tamil Nadu Goondas Act was enacted in 1982 and covered a wide ambit – involving Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders & Slum Grabbers – for preventing activities ‘prejudicial the maintenance of public order’. Over the years, through various amendments, its scope has been expanded further to include Forest Offenders, Video Pirates, Sand Offenders, Cyber Law Offenders & Sexual Offenders (For a detailed history and application, see here, here & here).

The frequent resort to using preventive detention in the State of Tamil Nadu is clear from looking at the numbers from the NCRB & SCRB. The Prison Statistics Report of 2021 shows that a little over half of detenus (51.2%, 1,775) in the country were in the State of Tamil Nadu. Crime Review 2021, a Report published the Tamil Nadu State Crime Records Bureau, shows that out of the total 3194 persons detained in the year 2021, 2843 (89%) persons were detained under the Goondas Act. Furthermore, in a study of the habeas corpus petitions decided by the Madras High Court (both Benches) from the year 2000 till January 2022 (total of 7,448 cases over 22 years) under all preventive detention laws, it was revealed that 95% of the cases (7,096 out of 7,448) emanated from the Goondas Act.

To better understand the implication of Article 22(5) against this prolific use of Goondas Act, it is important to see what kind of people are detained under the law. The profile of detenus can be ascertained from the NCRB’s report in Prison Statistics India:

• Educational profile - 417 (23.4%) were illiterate, 700 (39.4%) had education below Class X and 369 (20.7%) had education above Class X but below Graduation;
• Domicile - all 1775 detenus were from within the State;
• Caste profile - 657 (37%) belonged to Scheduled Castes, 32 (1.8%) belonged to Scheduled Tribes, 808 (45.5%) were from Other Backward Classes;
• Age profile - 762 (42.9%) detenus were between 18-30 years & 647 (36.4%) detenus were between 30-50 years of age.

(Analysis for the years 2016 to 2020 can be found in this Study at page 4 and shows similar results)

It can be concluded that people being detained are usually young, less educated and from marginalized communities. In these circumstances, it becomes even more crucial that the ‘communication’ mandated by law is scrupulously adhered to and the duty to ensure that grounds are effectively communicated must necessarily rest with the State.

Absence of Legal Aid

Effective communication of the detention order and grounds of detention is also necessary because, as a rule, the Constitution under Article 22(3) envisions a denial of the right to consult an advocate to a person under preventive detention and provides a positive mandate on the detenu to make a representation against their detention. Section 11(5) of the Goondas Act implements this mandate and states that a person is not entitled to appear through a legal practitioner before an Advisory Board. 

This denial of the right to counsel was, unfortunately, upheld by the Supreme Court in A.K. Roy v. Union of India, (1982) 1 SCC 271; only adding a caveat that if the detenu is denied legal representation before the Advisory Board, the Government cannot be represented by a Counsel either; moreover, it added that the detenu can be represented by a ‘friend’ of the detenu, so long as they were not a legal practitioner.

Be that as it may, a representation before the Advisory Board is one thing, but to even understand and formulate an ‘effective representation’ the detenu would require assistance to rebut the grounds supplied by the detaining authority, especially if the detenu is less educated or illiterate. So that the representation remains ‘effective’. Over time, the Supreme Court has incrementally developed the right to ensure that the procedure of detention remains fair and reasonable as far as possible. For example, the Court has held that the grounds that are supplied should not be vague, non-existent or irrelevant, stale, suffer from mala fide, should be in a language the detenu understands, and the documents that are relied upon by the detaining authority should not be illegible or blurred.

Additionally, a denial of the right to consult a lawyer shifts the burden on the family members of a detenu, who are constrained to approach the High Court, seeking a writ of habeas corpus. As was the case in Harini; it was the wife of the detenu who approached the High Court, without adequately agitating their case by way of an effective representation.

Two Connected Rights

The Supreme Court recognises that preventive detention, by its nature, is ‘repugnant to democratic ideas and an anathema to the rule of law’. It has, time and again, stated that procedural safeguards under preventive detention have to be followed strictly. Reiterating the principle recently, the Supreme Court held that preventive detention laws in India are a ‘colonial legacy’ and have the ability to ‘confer arbitrary power to the State’. It went on to observe that every procedural rigidity must be followed in its entirety by the Government and the Court’s duty is not only of protecting civil liberties of an individual or the society, but also of ‘preserving our Constitutional ethos’.

The two safeguards that are important for our consideration are enshrined under Article 22(5) of the Constitution. Article 22(5) runs as follows:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. [Emphasis Supplied]

Professor M.P. Jain states that these two rights – communication of grounds and the right to make representation – collectively are ‘natural justice woven into the fabric of preventive detention by the Constitution’ (See M.P. Jain, Indian Constitutional Law, 8th Edition at Page 1241). The inter-relatedness of the two rights had also been recognised by the Supreme Court as far back in 1975 in Khudiram Das v. State of W.B., (1975) 2 SCC 81 (Para 6).

Amongst the two, the safeguard of communicating the grounds of detention becomes more important since the other right, namely, making a representation against the detention, can only be realised if the grounds (along with the relevant material) are supplied to the detenu. This has also been acknowledged by the Supreme Court in Bhut Nath Mete v. State of W.B., (1974) 1 SCC 645, observing that “communication of facts is the cornerstone of the right of representation and orders based on uncommunicated materials are unfair and illegal.” 

It is axiomatic that unless a detenu knows the reasons why his liberty has been curtailed, there can be no effective representation against such detention. It is apposite to recall Justice H.R. Khanna’s timeless dissent in ADM Jabalpur: “the history of personal liberty is largely the history of insistence upon procedure.” And it still holds true as demonstrated in Harini. The procedural safeguards under Article 22 are the bare minimum of what is required to ensure that the State does not use its exceptional powers arbitrarily. It is only the stubborn insistence on following procedure that can help reduce, or at least keep in-check, the abuse of powers by the State.