Criminal Law Reform — Many Misgivings, and the Long, Uncertain, Road Ahead

The Indian law school experience revolves around the idea of submitting "projects" or "assignments". At the start of the 5 year marathon, many of us used to be petrified about the idea of failing to submit the assignment beyond the "Last Last Day" — the last permissible date for handing in the project, after the stipulated deadline. I found it quite strange that the senior students displayed little or no trepidation at the thought of the impending deadline, while the rest of us rushed to print and submit. Why? Because the seniors knew that if many students asked for more time, for some reason or another, surely the University is not going to flunk them all. So the "Last Last Day" could easily be extended, and it was.  

True to form, citing the many requests for extension of time, the Committee for Reforms in Criminal Law (incidentally operating out of a Law School) just went ahead and extended a deadline for submissions, on the date of the deadline. Lest we forget, this is a Committee that has been tasked with possibly one of the most burdensome mandates ever — suggesting reforms to the entire landscape of India's criminal process, within the sweet time span of six months. 

This extension of time by the notice of July 17 is just the most recent chapter in what has thus far been an extremely turbulent start to the life of this committee and the consultations it has sought to initiate. Within the few weeks that have passed since the first announcement was made by the Committee about how the consultations will proceed, and from the release of its first Questionnaire on July 4, several representations have been issued expressing serious misgivings about the whole process. These representations (some of which I have been a part of) have, amongst other things, called for (i) abandoning this effort at least while India struggles with Covid-19; (ii) reconstituting the Committee which, in its current form with 5 men sitting in New Delhi, embodies the worst tendencies of prior "reform" efforts and appears akin to the same colonial mindset that the Committee explicitly has set out to remove.

But at least for me, what has been particularly galling and difficult to stomach, is the consultation process itself. And that is the focus of my ire.

From Moving the Goalposts, to Removing Them

The Committee presently has a sleek website which, unfortunately, does not manage to distract attention long enough for one to not see the big bundle of fluff that has been offered to us at present. There is no White Paper or Consultation Paper on offer telling us what are the specific areas that have been identified as needing reform and the specific issues that the Committee thinks require consideration. This is not to ask for the moon and the stars, but this is only to highlight what is standard practice for any efforts to carry out law reform in any functioning democracy.  

What we do have, is an "Aims and Guiding Principles" tab, and other separate tabs outlining "Objectives" for substantive law, procedural law, and the law of evidence. The former is nothing but a collection of the best homilies that one could give for any criminal justice system. The second at least outlines some issues (finally some specifics) but, alas, it does not tell us what is the problem in the first place. And of course, the few specific objectives are couched between wonderfully vague ones such as "Revising foundational definitions and classifications in order to bring the Cr.P.C. in line with modern legal developments". 

Basically, while the Committee has suggested that it is time to move some goalposts, what it has actually done is to temporarily remove the goalposts altogether. There are no positions held, no beliefs about what is good or bad about the law. Conveniently, the goalposts shall reappear one day when the Committee so chooses, and we can only hope that do not appear straightaway in the form of draft legislation itself.

The Questionnaire Process

The removing of goalposts is a problem that has paled into insignificance once we moved into the process of consultations itself. The "Expert Consultation" process was announced, in which there would be two questionnaires each on the three areas of the criminal process flagged above. Responses to each of these questionnaires were due in two weeks time, completing this part of the exercise in twelve weeks. As of July 17, the duration is now four weeks per questionnaire, completing the exercise in 24 weeks, i.e. around four months. Now, as before, all the questionnaires have not been released together. Instead, they will be released in tranches — first substantive law, then procedure, then evidence.

The breaking up of the criminal process into silos through these questionnaires is plainly inexplicable. If anything, what is required is a consolidated approach that considers, at the same time, what effects might be borne by the system by tweaking one of its components. So, for instance, how can we be entering into a conversation about defences without having a conversation how any of these defences might be proved in court? But since the former is substantive law and the latter get covered by procedural and evidence law, in this bizarre consultation process we will only ever look at the picture piecemeal and never as a whole.   

I will try and capture my anguish and frustration at this process with the following image. On July 4, when the first questionnaire was released, it was like the start of a long cycling tour (Tour de France kinds). The race was divided into stages, which came non-stop one after the other. But, here's the twist: Nobody in this tour knows what will happen at the end of each stage; I might go sideways, or up the mountains, or maybe do hardly anything except flat-track sprints. Nobody even knows where the race will eventually end (since there are no goalposts and they will conveniently appear). And every stage is compressed to make it seem like it is legal to now run the Tour de France on steroids. 

What made the nightmare particularly harrowing for me (yes, there is still room for things to get worse) is the questionnaire itself. It does not systematically proceed from laying a foundation on general issues to then move into specifics, it does not systematically go through the list of objectives outlines on the website for substantive law. There is not even indication of the broad themes to be covered within the two sets of questionnaires to be released. Instead, it is a scattershot mix of general queries of principle, with clearly loaded questions designed to favour certain answers, and some very pointed questions (the only ones I had the gumption to attempt to answer) such as should marital rape no longer be a defence to rape. 

All of which we must answer in tiny little boxes of space which keep-expanding. While the 200 word limit has been removed (again, after the questionnaire was released), it is still difficult to not be left feeling that the questionnaire and its overarching undefined consultation process had reduced the task of reforming criminal law to the banality of customer satisfaction forms asking for my opinion on the quality of service. Note, that the Committee has declared that an "Open Consultation" process will also be launched (not yet live), where people can write anything and do not need to feel bound by the questionnaires. The way I see it, the cat comes out of the bag with this one. Tell us, dear Expert, what is the problem with general defences and do our work for us. For a vast majority of the questions, and indeed with the open consults, one is not being asked to consult on a position that the Committee has identified, inasmuch as one is being asked to opine about the desirability of taking a position itself. Will the reform agenda now be determined based on which aspects of the law receive the most criticism in the questionnaire? Is that not the worst kind of majoritarianism on display? I simply do not understand.

The Long, Uncertain Road Ahead

This is not law reform, it is a nightmare that is going to continue for nobody knows how long. Considering the pathetic publicity that the activities of the Committee have thus far received in the national and local media, it is bound to be a nightmare that only the select few who are invested in the process will have to knowingly suffer through. What does one do? One could choose to participate in this process and salvage what can be salvaged, or fight the process tooth and nail to ensure it receives no legitimacy whatsoever, or do a mixture of both. There is, as always, no right answer. 

This blog has, and remains in favour of, the argument that the criminal process requires serious attention and consideration. But that consideration cannot be in the nature of an opinion survey asking whether X or Y aspect should go and A or B should come instead in one questionnaire, and later turning attention to the other parts, all of which happens without any clarity about the positions adopted by the Committee which is running the consultation process. A holistic approach which considers the criminal justice "system" will need integration and clarity, not these tranches of questionnaires. 

It is remarkable that the Committee thinks that it can deliver on its principles within 6 months when a look at India's history suggests that delivering on those principles, such as primacy of the constitution, is task that we still have not managed to fully achieve. I ask myself, if the country has supposedly suffered with this colonial baggage for over 150 years, why not we spend a few more to try and make sure we don't end up under a different kind of ideological baggage this time? The impetus for reforming the criminal law has not come very often. It gives a chance to improve the life of each and every citizen and secure the promise of liberty. It is a chance that cannot be squandered.

Section 144 Cr.P.C. — Part VI: Continuity and Change (1941 to 1950)

(This is the sixth post in a multi-part series. The earlier posts can be accessed here)

The two previous posts in this series charted the slow but determined emergence of Section 144, in what was the Criminal Procedure Code of 1898, as an integral part of the toolkit of repressive laws that was used by administrators to mercilessly stifle political activity across British India. This post turns our attention to the decade of Indian independence, and of course, the adoption of India's Constitution. 

Crisis, Section 144, and the Public Order Acts

If one were to go along with the conventional representation of 1947 being the high-point in a long struggle for Indian independence, then the years leading up to it were nothing short of a maddening crescendo in terms of ordinary life. The Second World War consumed the world till 1945, and for India this meant the almost full-scale devolution of powers to executive officials under wartime legislation. During which time the country also saw the Quit India Movement and its bloody suppression by the colonial administration. 

I mentioned in the introduction that Section 144, Cr.P.C. had come to be identified as part of a repressive laws toolkit. However, as I had reflected in the previous post as well, for many legislators this blackballing of Section 144, Cr.P.C. masked a deep underlying consensus between the colonial and nationalist leaders about the utility of this provision. A legislative measure conferring wide powers on the executive to efficiently control public order emergencies was seen as a necessary part of ordinary law. 

Thus, while the nationalist legislators certainly tried hard to carve out exceptions for political acts from within the scope of this provision, at the same time, they remained supporters of Section 144, Cr.P.C., as long as it was "properly used". What might this mean? For instance, using Section 144 promptly to quell any communal riots. Considering how rapidly communal violence escalated in several parts of India during this decade, it helps explain why there is a surprising absence of critical commentary (and appellate court litigation on public order issues) around Section 144 in the archive for this period. 

If anything, the withdrawal of wartime legislation, coupled with rising communal violence, labour agitation, and the political activity pressing for independence, made many administrators skeptical about the sufficiency of ordinary laws such as Section 144 to deal with the problem at hand. This prompted a wave of special, province-level ordinances in 1946, which were soon followed by statutes in 1947, such as the "Assam Maintenance of Public Order Act". 

Not only did the statutes have similar names [almost all of them were the "(Insert) Maintenance of Public Order Act"] but they were also very similar in terms of content: wide-ranging powers were conferred upon the executive to deal with all sorts of public order problems with minimal judicial review. Thus, towards the maintenance of public order, executive officials had been conferred with powers for preventive detention, externment (ordering a person to leave an area for a specified period of time), imposition of collective fines and, of course, prohibitory orders akin to Section 144. 

Independence, Public Order, and the Constitution

On June 26, 1947, the Chief Commissioner of Delhi passed Order No. F.2(16)47-R&J, whereby he extended the existing Section 144 Orders "prohibiting all meetings of ten or more persons and all kinds of audible or visible demonstrations in any public street or place within the area of New Delhi" for a further period of two months. 

Thus, underneath the fiery inspiration of Pandit Nehru's speech which promised freedom at the stroke of the midnight hour, there lay the cold legality of a Section 144 order. It lay there, waiting, as India joyously celebrated independence. But it was not long before that Section 144 and the rest of the repressive laws toolkit swiftly came to the fore to remind all Indians just how limited our newfound freedom was going to be. 

Indeed, while communal tensions remained a major overt reason for retaining the untrammelled executive powers conferred by the Public Order Acts, these powers also came to be unscrupulously used by the new nationalist governments in the years following independence to quell any political opposition and labour agitations, and Section 144 orders remained in force for several months at a time in various places. All of this, of course, led to fierce litigation. But since most of it was concerning the preventive detention aspects of the Public Order Acts I have refrained from engaging with it in great detail here. 

Only rarely does one get a sense of this turmoil while reading the proceedings of the Constituent Assembly, which worked tirelessly during this time. But what was unsaid in the Assembly itself can be heard loudly in the text of the document that it authored. Yes, there were fundamental rights guaranteed by the Constitution. But the civil liberties that were ardently fought for now came with many fetters, in the form of explicit restrictions to fundamental freedoms and the rejection of the Due Process Clause, which gave a renewed lease of life to many loathsome colonial laws as well most parts of the Public Order Acts.  

Thus, in his Presidential Address before the Indian Civil Liberties' Conference in July 1949, Justice (retd.) P.R. Das lamented that

This, then is the position in India today. We have no protection against tyrannical laws; we have no protection against the arbitrariness of the Executive Government. The Constitution has deliberately provided for "executive justice" and not for "rule of law" ... We have the same Police Raj; orders under Section 144, Code of Criminal Procedure, continue to be made; and lathi charges have not been stopped.    

 

Continuity and Change

India's founding moment has attracted considerable scholarly attention from all quarters of late. Some argue that the adoption of a Constitution and recognition of universal suffrage marked a transformative moment where people became citizens from being subjects, and the country shifting to a governance of justification. Another important conversation has been around the idea of colonial continuities, which in some measure interrogates whether this transfer of power was really transformative. The Public Order Acts that ruled the realm between 1946 to 1950 offer a fantastic site of inquiry on these lines, and I can only hope that they get the scholarly attention that they deserve.

But what about Section 144, the protagonist of our narrative? The recognition of fundamental freedoms certainly changed the nature of the debate — wrongful or improper use of this power was no longer a mere statutory breach, but a violation of the fundamental rights constitutionally secured to all citizens. However, the history of Section 144 had confirmed just how resilient it was to court cases. Litigation unfolded at a leisurely pace which meant that the prohibitory orders had often expired by the time an order was passed. Only time would tell whether these practical realities would also change in the new climate of independence.

The next post will look more closely at the first decade of independence and its impact on Section 144. It will discuss some interesting legislative developments that took place, as well the first constitutional challenges levelled against the provision in court. 

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.

Section 144 Cr.P.C. — Part III: Expansive Powers, in the Hands of Many Officers

(This is the third post in a multi-part series on the Blog on Section 144, Cr.P.C.)

The previous post traced a historical arc stretching from 1861 till the end of the 19th Century to show the gradual development of Section 144, Cr.P.C. It looked at the socio-political contexts in which the powers conferred by this provision were being applied, and legally resisted, and argued that the legal framework regulating the exercise of these wide powers still permitted for vast arbitrariness in how officers wielded their discretion. But on re-reading the post, I thought there was a need to develop these points further before we go ahead in engaging with Section 144 during the period from 1901 to 1950, as advertised at the end of the last post. My apologies for this detour.

Like the title suggests, in this post, I try to go beyond the expansive nature of powers under Section 144, Cr.P.C. and instead shed more light on the authorities empowered to use these powers (relying heavily on the analysis offered by Professors Singha and Hussain, which I referred to in the last post). Besides this aspect, I also take note of how from 1860 till 1900 (almost), similar powers came to be vested in police officers under various Police Acts. The result was a legal regime being birthed by the start of the 20th Century, in which a laundry-list of executive officers wielded immense discretionary powers under different laws, and could obstruct any aspect of public life in the name of maintaining "public order" or preventing "public nuisance". This multi-layered legal regime remains a feature of Indian law to this day — something lawyers have had to face over the past few months.

The "Responsible Officers" tasked with Maintaining Public Order

One of the hallmarks of the colonial model of governance was creating a nodal officer as the centre of power for a region. Thus, control over all aspects of revenue collection, policing, land regulation, and the dispensation of justice through courts, came to be vested with a single officer known as the District Commissioners or District Magistrates. These officers became the cornerstones of the colonial administration in India, imagined as having a steady grip on the pulse of all local affairs. For many persons in the District, these were the supreme manifestation of official power, and were often white Europeans.

It is not very difficult to imagine how this notion of a high-powered official could easily change from a force for dispensing justice to a local despot exercising immense power in an arbitrary manner to benefit select interests. These fears of despotism guided the creation of legal systems in which decisions are made on the basis of standard criteria which ensures a measure of consistency in how things are done and allows people the chance to order their affairs to avoid penalties for breaking rules. Thus, we see how the very idea of a codified system is destined to reduce the power of the high-powered District officer. But here comes the catch: What if the ruling authority actually supports the expediency that boundless discretion brings, and is therefore skeptical of a system of rules wherein decisions must be made by processes, after taking evidence and hearing all sides, and with written reasons allowing aggrieved persons the chance to appeal a decision? We find an answer in provisions such as Section 144 where, on the face of it, a procedure is prescribed and discretion is limited by law. But, on closer scrutiny, the scope of discretion is found to be almost limitless, with the law permitting decisions to be made without having any hearing or any evidence, and with no right of appeal.

The colonial rulers were under no misconceptions about such provisions — they knew how a vaguely worded law ensured that executive officers retained the broad discretion that they were accustomed to for getting work done in the colony. To justify this position, they offered an inherently fallacious argument, which painted the high-powered nature of the official as a blessing. Rather than it being a bad thing for these officers to wield vast powers, it was argued that the very nature of their position ensured that they would make good decisions. Thus, as Turner, C.J. of the Madras High Court observed in Sundram Chetti [ILR (1884) 6 Mad 203], "The law [s. 518 of the 1872 Cr.P.C.] in sanctioning this imperfectly controlled power is careful to provide it shall be committed only to Magistrates whose discretion is presumably guaranteed by their responsible position or by selection."   
 
With this in mind, let's take a look at the various iterations of Section 144 and how it conferred this "imperfectly controlled power" upon officers: 

• 1861: Section 62 prescribed that powers could be wielded by "Any Magistrate", where Section 16 defined Magistrate as persons "exercising all or any of the powers of a Magistrate". Thus, many officials empowered under various laws were given these powers, including senior police officers.
• 1872: Section 518 conferred powers upon "a Magistrate of the District, or a Magistrate of a Division of a District, or any Magistrate specifically empowered", which meant that the Local Government or the District Magistrate could vest even a Magistrate of the Third Class could with these vast powers [See, Sections 22 and 23].
• 1882: Section 144 conferred powers upon the same category of officials.
• 1898: Section 144 conferred powers upon the same categories, while also including a Chief Presidency Magistrate to that list of statutorily competent officers.    

While the law explicitly empowered senior officers such as a District Magistrate, it also allowed the Local Government (or the District Magistrate himself) to confer powers upon any other officer. There was no avenue to challenge this delegation of power, which was used quite liberally, as reflected in the legal commentaries and manuals of that time.

The idea that only senior officers must be conferred with wide discretion to prevent misuse is one that we routinely encounter, and have come to accept as a justifiable bulwark against arbitrary exercise of powers. It could certainly act as a check upon how the wide powers under Section 144 were used. But this could hardly be said of a situation where the law went beyond empowering only senior officers and actually allowed governments to confer powers upon other officials including lowly Third Class Magistrates. For such delegatees, it could hardly be argued that their position ensured responsible decisions would be made. And, unfortunately, the latter reflected the truth about Section 144, which became one of the vehicles through which many junior officials came to be vested with awesome powers with the potential to upend normal life. 

Co-existing Spheres of Power: The Police Acts and Public Order

As the Criminal Procedure Code witnessed various iterations over the years, changes were also being made to another key aspect of the legal regime governing public order in the colony: the laws regulating policing. The idea of police personnel having powers to regulate the minutae of daily life in the cities was almost entirely non-existent in the early versions of local police acts, as well as the first "Indian" Police Act of 1861. However, by the first decade of the 20th Century, almost all the local laws (as well as the overarching 1861 statute) had provisions empowering police officials to go ahead and regulate public activity in the streets.

Section 30 of the 1861 Police Act [Page 21 of the pdf] permitted the two highest police officials in a District to pass orders regulating conduct of processions, without conferring any powers to ban them. But if we look at the Madras City Police Act of 1888 (supplementing the Madras District Police Act of 1859), Section 41 of this law expanded the scope of the regulatory powers over assemblies, meetings or processions. Not only were these powers conferred upon Police Commissioners and any officer authorised by them in this regard, but they went beyond regulating assemblies to prohibiting them if police thought such activity was likely to cause a breach of peace. By 1895, Section 30 of the Police Act was also amended to widen the scope of regulation, with Section 30-A inserted permitting police to prohibit meetings or processions under this statute as well. Perhaps the widest encroachment upon daily life was made by the City Police Act of 1902 enacted in Bombay. Here, besides the strict regulation over carrying out processions or assemblies, the police control also extended to "keeping order" in all public places, which could mean almost anything. By 1910, similar provisions had been inserted by inserting Section 39-A in the 1866 Calcutta Suburban Police Act.

The gradual expansion of policing power across various provinces in colonial India definitely hints at a pattern. Unfortunately, I have been unable to locate much discussion on these amendments, besides an excellent piece by Prashant Kidambi on the introduction of the City Police Act, 1902 in Bombay. Kidambi argues that the rise in sectarian and labour violence witnessed in Bombay during the 1890s created a fear of the street and convinced the government of the need for enhanced police powers to regulate these spaces. It is possible that the governments of other provinces were driven by a similar logic. As Kidambi illustrates, the continued tensions in early 20th Century Bombay created a suitable atmosphere for the police to use their new powers to regulate how different sects carried out their business. But at the same time, the police also began to exercise their newfound discretionary powers to engage with the street, and these cases of "public nuisance" became the most reported crimes in the city. The zealousness being at times self-motivated by the officer's desire for more cases, and at times being a reaction to demands made by the elite to clean up the city.

What we find then is a picture of the city where the presence of police loomed large upon the lives of the people, and especially those who had anything to do in the streets. The police had powers to prohibit any acts in their bid to maintain "public order" and prevent potential breaches of the peace — powers remarkably similar to those conferred under Section 144. The statutory approval for delegating these wide powers was yet another aspect where the similarities between the Police Acts and Section 144 were apparent. And, furthermore, very often these powers co-existed in the same officers, as Police Commissioners were often recognised as having all powers of Magistrates by the 1861 Act (and other senior police officers were explicitly conferred with Section 144 powers by the local government).

But there were also differences between these two sets of powers which actually showed how the scope for arbitrariness was in fact wider in the Police Act powers than under Section 144. Unlike Section 144, there was no logic of emergency or expediency limiting the invocation of these powers by the police. Nor did the Police Acts permit for a possibility of hearing before decisions were made. And the decisions of the police were much more difficult to challenge in courts as they were not the outcomes of judicial proceedings. The consequence of all of this was that in the Police Act framework there was a lower level of justification before making decisions that denied exercise of civil rights.

Conclusion: The Subordination of Civil Rights to Public Order
The purpose of this post was to highlight just how large the shadow of executive authority looming over the exercise of any public-oriented activity in India was by the start of the 20th Century. The police had been given wide powers of interfering with public activities in the interests of "public order", and this was in addition to the extremely wide powers conferred upon Magistrates to order persons to abstain from doing any act which was likely to disturb public tranquility. Up till this point, these wide powers had been primarily used for balancing the interests of rival landholders and religious groups. But there was nothing stopping these powers from becoming convenient tools to muzzle the voice of public opinion critical of the government. More on that in the upcoming posts. 

Two Wrongs Don't Make a Right: The Supreme Court's Reading Down of Mohan Lal

A few weeks ago, I had mentioned the possibility of the Supreme Court changing the rule it had laid down in Mohan Lal v. State of Punjab [AIR 2018 SC 3853] [Discussed here]. That possibility became a reality when a Three Justices' Bench handed down its decision in Varinder Kumar v. State of Himachal Pradesh [Crl. Appeal No. 2450 of 2010, decided on 11.02.2019], and specifically "read down" the Mohan Lal decision as not applicable to cases pending at the time of that judgment.

Recap: Mohan Lal, and Impartiality in Investigations

The issue decided in Mohan Lal was a very precise one: can the same police officer who served as an informer for a case continue as the investigating officer? Take the following example: Officer X is working undercover and raids a room with five people. All of them flee, and only one is caught. Who should investigate the incident? There are reasons to suggest Officer X should continue: she was at the scene and knows the case the best, presumably, and there are not many police officers out there anyway. But, there are also strong reasons for Officer X to not continue as the investigating officer. Being there at the scene, not only is she a part of the story, but also has her own version of the story. Can she be trusted to disregard her recollection of events when it conflicts with other information revealed through the investigation? Unfortunately, there will continue to remain lingering doubts over the fairness of any investigation Officer X conducts in the case.

This conflict between realities of investigations and the lingering problem of fairness is what the Three Justices' Bench of the Supreme Court sought to address in Mohan Lal. It rightly identified a conflict between earlier decisions of the Court on the point: some benches had held that an investigation conducted by the same officer would be unfair and illegal, but others had held that there was no grounds for complaint unless there was some perceptible bias shown in the conduct of the officer. Mohan Lal decided this issue by agreeing that the fairness issue was paramount, and held that there was no need to show any perceptible bias. Not only this, it held that any investigation done by the same officer was unconstitutional, and could vitiate the entire trial that follows. As the decision did not specify otherwise, this rule would apply to all pending cases and appeals as well, and threw them all into doubt.

The Problems with Mohan Lal: Too Bitter a Pill 

A decision that says fair investigations are a constitutional right sounds amazing, and few would have any qualms about this aspect of Mohan Lal. The problems with the case — as discussed at length in an earlier post — were in the remedies it prescribed for violations of this right. The case held that an unfair investigation vitiated any subsequent proceedings, including a trial. Problematically, there was no clarity on (i) the kinds of unfairness that can lead to throwing out subsequent proceedings, and (ii) when can the individual seek these remedies (i.e., could this be done during a pending trial or only at the appellate stage).

The problem with remedies such as the one prescribed in Mohan Lal is that they encourage what has been called "remedial deterrence". The criticism that fundamentally good prosecutions are being thrown out on technical grounds stings, and deters courts from finding breaches of the right to avoid using these awesome remedies. In the past few weeks, this was amply on display in, first, the decision in Mukesh Singh (17.01.2019), and now Varinder Kumar (11.02.2019). In fact, the latter invokes this issue expressly, where Sinha, J. expressly suggests that a fundamentally good prosecution against a notorious offender will be thrown out because of a technicality unless the Mohan Lal rule is watered down. This is what it did, only, it did not do so with much grace. 

Varinder Kumar and the perils of a Balancing Approach

The Bench in Varinder Kumar thought a solution to the bitterness of Mohan Lal was to limit it as a rule that did not apply to pending cases. All that was needed to achieve this is a line saying "Mohan Lal does not have retrospective effect". But the decision goes further and explains why this needs to be done, and in that process, undoes whatever credit it deserved.

The analysis of this issue begins from Paragraph 9. At Paragraph 11, Sinha, J. very fairly notes that in Mohan Lal the Court did not go ahead and fully develop the remedial tool it had crafted because the need for such an exercise was obviated by the facts. Through Paragraphs 12 till 18, the opinion takes up that mantle and begins crafting the remedy. In this effort, the decision roots itself in the logic of "balancing" the rights of an accused with other stakeholders in the system. The broad argument is straightforward: Mohan Lal disturbed the ideal balance and allowed the system to "veer exclusively to the benefit of the offender", and "societal interest therefore mandates that [the rule] cannot be allowed to become a springboard ... for acquittal ... irrespective of all other considerations". 

The notion of balancing rights has frequently come to the fore when the Supreme Court has discussed victims' rights — most recently in Mallikarjun where it expanded the contours of a victim's right to appeal. Here, the active victim is replaced by the passive society, whose interests are jeopardised by the release of persons like Varinder Kumar on supposed technical flaws in the prosecution. But if you chase this argument, aren't persons like Varinder Kumar also part of that same society, and is it not in society's interests to prevent flawed and unfair investigations? Undoubtedly so. Adherence to proper procedure is not a matter of "benefit" to an offender, or creating a "springboard" for acquittals. It is a commitment of a law-abiding society, that the State's power will be wielded in a particular manner, without looking at who is the target, and is the only real guarantee of personal liberty that exists. 

Thus, while a balancing logic might — and I stress on might — be appropriate in context of a victim's right of appeal, it is thoroughly out of place when at issue is the procedure for wielding state power. In a similar vein, Mathew, J. in Prabhu Dayal Deorah v. District Magistrate [AIR 1974 SC 183] lamented the tendency to sacrifice procedural law while prosecuting "anti-social activities". The observations really do deserve being quoted in full:

The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say, and we think it is necessary to repeat. that the gravity of the evil to the community resulting from anti- social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. ... The need today for maintenance of supplies and services essential to the community cannot be over-emphasised. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in. the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community,'when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears. [Emphasis mine]

Conclusion: Saving Criminal Procedure from the Courts

Most observers would have said that the absoluteness of Mohan Lal will be tempered to make way for a more practical remedy, and Varinder Kumar takes some steps in that direction. Whether this is the last step is something only time will tell, though I would suggest otherwise — remember that the reference made in the earlier case of Mukesh Singh is pending. In this respect, then, Varinder Kumar is frankly unremarkable.

Perhaps the balancing approach of the opinion is also unsurprising. It relies upon observations made by a different Bench of the Supreme Court in Sonu v. State of Haryana [(2017) 8 SCC 570], where the issue was limiting retrospective operation of another procedural rule arising a judicial decision: The necessity of Section 65-B Certificates for admitting electronic evidence as held in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473] [For discussions, see here]. On that occasion as well, the Bench lamented about the fear of letting criminals go on technicalities, and posing procedure as an honour among thieves. 

While it may be unsurprising, this repeated invocation of a balancing act is alarming. By subscribing to this argument of fear, where adherence to procedural law in establishing guilt is belittled as a mere "technicality", and nebulous societal interests are used to balance away what are perceived as "benefits" to an accused, the Supreme Court is not only betraying the Constitution but unknowingly setting a body of precedent that might return to come back and haunt all of us one day. 

Guest Post: Abandoning In Limine SLP Dismissals in Death Sentence Cases: A Half Full / Half Empty Solution in Babasaheb Kamble

(I am pleased to host a guest post by Ms. Ankita Sarkar, an Associate with Project 39-A, National Law University Delhi)

The signs outside courtrooms at the Supreme Court of India, informing law interns that they cannot be accommodated on Mondays and Fridays, speaks volumes about the furore that are ‘Miscellaneous Days’. The astounding number of cases on board are often heard for less than a couple of minutes, and their fates sealed with either the word ‘notice’, or ‘dismissed’. 

Exercising its power under Article 136, the Supreme Court on every Monday and Friday decides countless ‘Special Leave Petitions’ by determining whether they deserve to be heard as appeals. The exercise of this power in the context of death sentence cases has long been a niggling constitutional question. On the one hand we have the Supreme Court’s profound recognition of the stakes involved through its observation in Mohammed Ajmal Mohammad Amir Kasab [(2012) 9 SCC 1] that in death penalty cases it has been “the time honoured practice of the Supreme Court to examine the material on records first-hand and come to its own conclusion, unbound by the findings of the Trial Court or the High Court”. 

This recognition sits rather uncomfortably with the fact that that the court has dismissed the SLPs in limine of 9 death row prisoners since 2004. However, this practice of the Supreme Court became constitutionally unviable after the judgment in Mohd. Arif [(2014) 9 SCC 737, later itself reviewed in 2016], whereby open court hearing of death sentence review petitions became mandatory and was recognised as part of Article 21 (review petitions are usually decided in chambers and open court hearings granted on discretion of the judges). 

The November 2018 judgment in Babasaheb Kamble [R.P. (Crl.) 388 of 2015, decided on 01.11.2018] [applied in Jitendra, R.P. (Crl.) 324 of 2015, decided on 01.11.2018] seeks to resolve this constitutional tension by ruling that in limine dismissals of death sentence cases will have to necessarily accompanied with reasons at least for the sentencing part. I argue that the terms of this resolution in Kamble are unsatisfactory to the extent that the distinction it draws between conviction and sentencing is untenable in law. 

Mohd Arif, and the Problem for In Limine Dismissals for Death Cases

To understand concerns with the terms of the resolution in Kamble, it is important to first understand the constitutional underpinnings of the judgment in Mohd. Arif. The Supreme Court aptly carved out death sentence cases as a distinct category altogether, recognising its irreversibility. Considering this distinction, the Court observed that even at the stage of review, cases involving the death penalty are such that the "Bar-Bench dialogue" by way of oral hearing becomes too precious a right to be parted with. Further, the Court opined that different judicially trained minds can apply different conditions while coming to the conclusion of awarding death sentence or otherwise. Such a procedure for the review of death sentence cases, the Supreme Court held, was in compliance with the principles of "due process of law". 

As a result of Mohd. Arif, the Court's power under Article 136 to dismiss death sentence SLPs in limine presented a constitutional conundrum. The right to have a death sentence review petition heard in open court meant that the petitioners would have to demonstrate the "error apparent on the face of record" (as required by the Supreme Court of India- Handbook on Practice and Procedure and Office Procedure). In limine dismissals then fell into question, as the determination of such error became impossible when the order did not record reasons reflecting the application of judicial mind. In effect, in limine dismissal of death sentence SLPs rendered Mohd. Arif pointless. 

But given the text of Article 136, it would be untenable to argue that the Supreme Court had to necessarily admit all death sentence SLPs. Article 134 already recognises the death sentence cases in which the Supreme Court must hear the appeal. The only way to reconcile this limitation and the mandate in Mohd. Arif was to make the argument that in limine dismissals of death sentence SLPs while being permissible had to necessarily be accompanied with reasons. Reasoned in limine dismissals would enable an effective open court review within the constitutional scheme. 

Kamble and its Discontents

Kamble seeks to put a lid on this question by holding that in limine dismissals must necessarily have reasons on the point of sentence. The focus on sentencing reasons is heavily reliant on a progressive constitutional viewpoint. Reliance is placed on Rajesh Kumar [(2011) 13 SCC 706], observing that the expression ‘hear the accused’ does not confine merely to oral submissions but it is also intended to give an opportunity to the prosecution and the accused to place material that have a bearing on the sentence. The Court took the view that while upholding the death sentence, it is the obligation of a judge to give reasons as to why the alternative of life imprisonment is unquestionably foreclosed. 

This determination is critical, especially when the decision is to be challenged in review for an ‘error apparent’. Such errors while determining the sentence could be many — reliance on cases declared per incuriam, consideration of irrelevant aggravating factors, non-consideration of mitigating factors, etc. In that context, it is imperative that the SLP dismissal record the reasons for confirmation of the death sentence. Kamble now ensures that there is a concrete basis for filing and arguing of the review petition on sentencing. 

However, limiting the requirement of reasons to sentencing alone, and not conviction, is at odds with the right recognised in Mohd. Arif. That decision held death sentence review petitions will be heard in open court without making a distinction between conviction and sentencing. Therefore, the concern with in limine dismissals prior to Kamble continues as regards convictions in death sentence cases. The purpose of re-appreciating the material on conviction also echoes the sentiment of the Supreme Court, often reiterated, that a majority of convicts belong to the weaker sections of the society. The poor are more often than not at the receiving end in access to justice and access to the remedies available — something evident from the recent SCLSC Report through Project Sahyog.  

The Supreme Court has been conscious of the need to agitate the claim of innocence in multiple stages, considering the nature of punishment imposed at the back of inadequate legal representation. The need for such multi-level checks is amply demonstrated by the Death Penalty India Report, which reported that between 2000-2015, of the 1,486 death sentences imposed by the trial courts, 29.8% (443 prisoners) were acquitted by the end of the judicial pyramid. Affording such checks acknowledges the possibility of different judicially trained minds appreciating evidence differently and affording the highest levels of constitutional protection before sentencing an individual to death. Acknowledging the high rate of reversals and the critical role of the Supreme Court in ensuring strict adherence to constitutional standards, the Law Commission in Report No. 262 also recommended doing away with in limine dismissals of death sentence SLPs. 

Conclusion

The judgment in Kamble is significant for its procedural tightening of the death penalty and is also a recognition of the sentencing woes that afflict death penalty jurisprudence. It seeks a procedural cure for this problem by ensuring that more judges apply their mind to the confirmation of the death sentence. Of course, the question before the court was one of procedure, but in the current position of death penalty jurisprudence suffers from certain fundamental sentencing questions that need judicial clarity and procedural fixes can only take us that far. The procedural tightening in Kamble is of great significance but it must also be accompanied with a full-fledged acknowledgment of the poor legal representation that death row prisoners receive. Mere acknowledgment is insufficient, and what we need is a robust judicial discourse on its consequences in terms of constitutional and criminal law. Unfortunately, the judgment in Kamble by drawing a distinction between conviction and sentencing does not fully embrace this systemic reality. 

Article 22(3): A Constitutional Paradox?

(This post first appeared on the NLSIR Online Blog)

Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation. Amidst the focus on India’s transformative Constitution, this post takes a look at Article 22(3). The clause provides that if persons are arrested and detained under preventive detention laws, or are enemy aliens, then the basic protections against arrest and detention provided by Article 22(1) and (2) do not apply. Here, I attack the resulting deprivation of the right to counsel brought about by Article 22(3).* 

Content and Origins 

Article 22 can be understood as consisting of two parts - clauses (1) and (2), and clauses (3) to (7). The first part tells us that all persons are guaranteed certain rights upon arrest: the right to be immediately informed of grounds for arrest, to be produced before a magistrate within 24 hours if detained upon arrest, and to consult and be defended by a counsel of choice. The second part begins with clause (3) telling us that the first part isn’t actually applicable to all persons. Clauses (4) to (7) then detail minimum criteria that any preventive detention law must satisfy: it must inform persons of grounds for detention, enable them to make representations against detention, create Advisory Boards which must approve all detentions longer than 3 months, and fix a maximum period of possible detention. 

I’ve discussed the origins of Article 22 at length elsewhere. It suffices here to state that the first part of Article 22 was intended to salvage what the Constitution lost by deletion of “due process” from Article 21. The second part was guided by the same intentions - since the Constituent Assembly had already decided to grant powers to enact preventive detention laws to both the Union and states, the excision of “due process” theoretically meant that there were no limits to what kind of laws are passed. Clauses (3) to (7) were meant to soften the blow and ensure that state interests are protected by laws that facilitate quick arrest and detention, without completely trouncing individual liberties. 

In this attempt to strike a balance, the right to legal assistance was sacrificed entirely. I say entirely, for while the other rights provided in clauses (1) and (2) are still present in a watered-down form in clauses (4) to (7), the right to legal assistance fails to find any mention. Why? The consistent answer one gets upon consulting the Constituent Assembly Debates is an argument of efficiency. The Assembly feared that letting lawyers into the preventive detention system would invite delays of the kind that the ordinary criminal justice system suffered from, undermining the very swiftness that made preventive detention attractive in the first place. 

Legislative Adaptation and Judicial Treatment 

India’s Provisional Parliament passed the Preventive Detention Act, 1950 [PDA] less than a month after the Constitution came into force. Since this body comprised almost the entirety of the Constituent Assembly, one imagines that the statute closely followed the Assembly’s vision of preventive detention. What kind of proceedings did the PDA envisage? Section 7 obligated communication of grounds without fixing a time limit, and permitted non-disclosure wherever necessary in public interest. Section 10 laid out the procedure of hearings before Advisory Boards and specifically stated that detenus were not entitled to either personal appearance or appearance through counsel. Section 14 went so far as to render grounds of detention entirely confidential, denying even constitutional courts the right to know why a person had been detained. 

This, then, is the ideal vision of preventive detention: proceedings that involved acting first and explaining later, with explanations hardly beyond the bare minimum, with paper pushing and no oral hearings. From A.K. Gopalan onwards, this ideal vision was gradually demolished by the Supreme Court. Judicial engagement with preventive detention followed an accepted script: while the ultimate legality of preventive detention measures was beyond question, the harshness of the regime was not. Towards this, several judicially crafted innovations were made to enhance the fairness component, all the while operating within the bounds of Article 22. 

The Emergency of 1975 - 1977 saw targeted amendments to undermine these innovations and curtail judicial review. This curtailment, though initially resisted by High Courts, was ultimately accepted by the Supreme Court itself in A.D.M. Jabalpur. As the popular narrative suggests, that Court began to restore the content of fundamental rights and its own institutional legitimacy, once the Emergency ended. This led to the opinions in Maneka Gandhi which expanded the scope of Article 21. In a flurry of subsequent decisions, the Court recognised that this expanded Article 21 contained an unenumerated right to counsel, broader than the Article 22(1) guarantee. While Article 22(1) granted a right to counsel of choice, Article 21 carried a right to counsel, thus prohibiting deprivation of life and personal liberty made in absence of legal assistance. 

This belated recognition of the importance of legal assistance and its fundamental link to the right to personal liberty was also soon felt in the sphere of preventive detention. Different benches of the Court in Gopalanachari, Kavita, and Nand Lal Bajaj - all consisting at least of either Justices Krishna Iyer, Sen, or Islam - held that the denial of legal assistance in preventive detention was not absolute. Relying on Article 21, these decisions emphasised the importance of counsel, especially where persons were detained without trial. They held that a detenu still had a right to request for legal assistance, which then had to be adequately considered by authorities. This consideration was ultimately subject to judicial review, providing some measure of oversight. One of these cases, Nand Lal Bajaj, found it “incomprehensible” that the regular criminal justice system granted legal assistance but preventive detention didn’t. But since it was not asked to decide this issue, these remarks remained obiter dicta . 

A.K. Roy and the Current Legal Position 

Maneka Gandhi, an expanded Article 21, and a fundamental right to counsel: this was the context in which the Supreme Court heard a batch of petitions challenging the National Security Act, 1980 [NSA]. The Constitution Bench assembled for this purpose delivered its decision late in December 1981, reported as A.K. Roy v. Union of India, and it almost entirely upheld the validity of the NSA. The controlling opinion was authored by Chandrachud CJ to which three judges signed on, while Gupta J and Tulzapurkar J dissented in part. Analysing the entire decision is beyond the scope of this post. Rather, the focus here is on how the Court unanimously saved Section 11(4) of the NSA, the provision which disentitled detenus from legal representation before Advisory Boards. 

What did the Court do? It relied upon Article 22(3)(b), and held that the right under Article 22(1) to consult and be defended by counsel of choice is inapplicable in the context of preventive detention. The Court acknowledged that preventive detention laws were not only subject to Article 22, but were also open to scrutiny under Articles 14, 19, and 21. Did depriving persons of their liberty without legal assistance satisfy this scrutiny? 

The Court rejected the go-around offered by petitioners: since Article 22(3)(b) only excluded Articles 22(1) and (2), the right to counsel contained in Article 21 was still applicable. The controlling opinion labelled it “impossible” to find that what one part of the Constitution had denied, another provided. It then offered a positive answer as well, holding that the original text of the Constitution was per se “just, fair, and reasonable” and so could not fall foul of Articles 19 or 21. Simply put: since the original constitutional text said detenus don’t get lawyers, there was no question about laws implementing this mandate being unconstitutional for violating rights contained in other provisions of the Constitution. 

Before parting, the Court tried to mollify the harshness of this conclusion which it had arrived at “regretfully”. It held that where the government engaged counsel, a detenu must also be afforded a similar chance, and further, that nothing denied detenus the ability to ask for assistance from a “friend” in proceedings before the Advisory Board. 

A Veneer of Legality 

Preventive detention laws have never been tested by a Constitution Bench since A.K. Roy, and that decision still remains the final word on the issues it considered. In this section, I demonstrate that the controlling opinion’s handling of the issue of denying legal assistance to detenus was flawed and promoted a constitutional vision irreconcilable with the idea of a transformative Constitution. 

The primary basis for upholding Section 11(4) of the NSA in A.K. Roy was that Article 22(3)(b) permitted deprivations of the right to counsel and since it formed part of the original Constitution, it is bizarre to say that the framers themselves had inserted unconstitutionally unreasonable clauses. Though the opinion did not cite Golaknath, this distinction between the original text and amendments had been propounded since then: while the Court happily reviewed amendments, it kept the original text in a hermetically sealed box. This distinction was also accepted by the Court in Keshavananda Bharati as a limit to the basic structure doctrine as well. 

But this privileging of the original test does not make sense. Gautam Bhatia exposed the logical fallacies in this view some time ago, arguments that I adopt and expand here. As he argued, if we think of the basic structure test as promoting faithfulness to values, then how do we justify this separate treatment for the original text? Moreover, the idea that the original text is uniquely faithful to “we, the people” is also flawed: the Constituent Assembly was barely representative of “the people”, nor was it subjected to a ratification process. Also, nothing in the constitutional text itself supports this separate treatment of the original text and subsequent amendments to it. 

The flaw with this approach gets magnified in A.K. Roy because of the context: Articles 21 and 22. The Court in Maneka Gandhi had gone so far as to rewrite the original Constitution by re-inserting “due process” into Article 21. Whatever significance this had for the rest of Indian jurisprudence, the effect of this shift was tectonic in context of Article 22. After all, Article 22 was birthed because the Constituent Assembly had removed the “due process” phrase. Once due process came back into Article 21, it unmoored Article 22 from its very foundations, and directly questioned the adequacy and reasonableness of the limited guarantees that Article 22 provided. 

Accepting that an expanded Article 21 contests the earlier minimums set by Article 22 is the only sensible way that the two can be read together, rather than privileging the original text. This was the direction the Court seemed to be heading in as well. It quickly resolved one issue: the minimum set by Article 22(1) in terms of the right to counsel was insufficient, and was thus expanded by Article 21. This was easy, since Article 22(1) could be argued to be silent about legal aid and not explicitly against it. Article 22(3) was much harder because it expressly excluded certain rights. Fidelity to a basic structure doctrine that focuses on values would then evaluate whether this exclusion was contrary to these values, and give us an answer. 

Rather than resolve this crucial issue of harmonising an expanded Article 21 and Article 22(3), A.K. Roy simply told us that the latter was correct because it was there for longer. And it did so by trying to minimise the significance of this conflict. While the Court privileged the original text, the controlling opinion carries no mention of the peculiar history behind Articles 21 and 22. Further, it either distinguished the recent decisions on the expansion of Article 21 and a right to counsel, or amazingly did not mention them at all where they pertained to the preventive detention regime. 

Conclusion 

A.K. Roy subscribes to a view that the Constitution offers forever static minimum protections to safeguard life and liberty. Currently, the Supreme Court finally acknowledges that constitutional protections are meaningless in abstract, and must be tailored to the unique harms that different generations face. The harm from preventive detention is very different today from what it was in 1950. It is far from an exotic tool to deal with threats to public order, and instead is used to arrest persons on suspicions of copyright violations, video piracy, and cow slaughter. Even more importantly, the very basis for the original minimum constitutional rights secured by Article 22 has ceased to exist ever since the Court re-inserted due process into the Constitution, where it has flourished since. Thus, if the entire milieu has changed so dramatically, is it sufficient to tell us that persons, who can be arrested and jailed without knowing why and kept in jail for months on end, have no right to counsel simply because the Constitution said so from the start? I strongly disagree.

*This post is focused on preventive detention, largely because there has been no instance of applying Article 22(3)(a) that I could trace. Nevertheless, the arguments here, made in the preventive detention context, would also apply to Article 22(3)(a).