Guest Post: A Moral Case against Criminalisation of Mere Membership in UAPA [Part 1]

(This is a guest post by Kartik Kalra)

[This is the first of a two-part series on evaluating present association-based standards and proposing new mens rea-based standards to assess the commission of membership-based offences under the UAPA. This part evaluates moral and conceptual reasons in refusing to criminalise guilt by association. The second part evaluates UAPA jurisprudence, discerning the continued criminalisation of guilt by association, and proposes mens-rea based standards to assess the commission of membership-based offences.]

“Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act.” 

- Indra Das v. State of Assam [(2011) 3 SCC 380], a judgement acquitting the accused from the offence of joining the United Liberation Front of Assam (“ULFA”). 

The Unlawful Activities (Prevention) Act, 1967 (“UAPA”) creates presumptively strict liability membership-based offences, which call for a conviction based on membership of unlawful associations or terrorist groups. These are present u/ss. 10, 20, 38 and 39 of the UAPA, all of which criminalise the membership of entities that have been prohibited. For the offence u/s 10, one must be a member of an association declared unlawful by the government; for the offences u/ss. 38 and 39, one must be a member of a terrorist organization while having an intention to further its activities; and for the offence u/s 20, one must be a member of a terrorist organization that has committed a terrorist act. The Terrorist and Disruptive Activities Act, 1987 (“TADA”) also carried membership-based offences of a similar tenor, and Courts had successively read down its membership clause to impose a burden on the state to demonstrate the accused’s “active membership” of the impugned group. This was done in Arup Bhuyan v. State of Assam [(2011) 3 SCC 377], which pronounced the requirement of active membership while stipulating that a close connection to committing, inciting or promoting violence would be a factor in its determination (¶12). On this basis, it acquitted the accused of the offence of joining the ULFA, given that the active nature of their membership could not be established. 

Everyone’s fate, however, is not like that of the accused in Indra Das or Arup Bhuyan. 

The UAPA has been used exhaustively in recent times to prosecute persons accused of organizing the Elgaar Parishad, an event commemorating the 200th anniversary of the battle of Bhima Koregaon. Speeches were delivered, plays performed and sloganeering done, which later devolved into an unfortunate spate of violence leading to the death of one individual. In connection to this violence, the state has effected arrests of sixteen civil society activists for membership-based offences. The allegations against most are similar, which concern their membership of the Communist Party of India (Maoist) (“CPI-Maoist”), which in-turn is alleged to have organised the event. 

This membership, the state has mostly claimed, constitutes an offence irrespective of the impugned individuals’ own roles and intentions in furthering the group’s violent aims and insidious projects, if any. The question of membership is one of degree: under what conditions can it be considered that an individual was a member of a group, and what extent of membership must be demonstrated to establish the commission of a membership-based offence? Must the accused’s intent to further the aims of the group or their role in the incitement of violence be demonstrated, or is the mere possession of literature or documents sufficient to constitute a membership-based offence?

In this piece, I present a moral case against the criminalisation of mere membership in the form of possession of literature or convergence of beliefs, and argue that the principles of moral agency dictate that an organization’s acts of terror must not be unfairly imputed to a member unless they themselves partake actively in such acts. In other words, one’s non-violent convergence of beliefs or possession of literature doesn’t per se constitute an act of terror. In order to make this argument, firstly, I present arguments in favour of the criminalisation of mere association; and secondly, I rebut those arguments by demonstrating that the criminalisation of guilt by association is inconsistent with the principle of universal moral agency, and is disproportionate in nature. I argue for mens-rea based standards to evaluate the commission of membership-based offences in Part II.

Conceptual Underpinnings of the Principle Against Guilt by Association

In State of Kerala v. Raneef [(2011) 1 SCC 784], a doctor who provided medical treatment to persons accused of offences of a religious character was charged for a membership-based offence under the UAPA. Assuming that the doctor was indeed involved with the banned group in treating them, is this sufficient to constitute the commission of a membership-based offence? Does the doctor’s own act of providing medical treatment constitute an act of terror?

Andrew von Hirsch proposes that acts meriting criminalisation may be largely harmless at present, but may be susceptible to trigger a “series of events that eventually risk harmful consequences”. On this basis, the long-run harm anticipated from presently innocuous acts serves as justification enough for proscribing them. Consider the example of the consumption of drugs, which may be regarded as a prima facie self-regarding action. The harm caused by their consumption, however, may be remote: one person’s consumption of drugs may be susceptible to creating a general environment where the consumption of drugs is acceptable, which leads to lower social productivity, greater poverty, and a rise in theft. The state may, therefore, have legitimate grounds to criminalise the consumption of drugs based on this perception of remote harm.

Other scholars have applied the formulation of remote harm to membership-based offences, drawing a distinction between exclusively terrorist organizations and their ancillary counterparts. The latter refers to entities that serve multiple functions, whose link with terrorism is the solely the state’s suspicion instead of a demonstrable function of the group. For the former, it has been argued that membership of any kind, whether active or passive, be legitimately criminalised. The immense magnitude of remote harm threatened via the large-scale destruction of life and property is often considered a justification for early criminalisation. For the latter kind of groups, it has been argued that there exists greater scope for evaluating the individual’s conduct within the organization instead of criminalising mere membership.

Overall, the theoretical backing of early criminalisation rests on the presumption of the moral (and constitutional) acceptability of imputing the responsibility of the occurrence of future uncertain events on persons disconnected from them. I shall now rebut the arguments presented in this section, and argue that the criminalisation of mere membership militates against the principle of universal moral agency and is disproportionate in nature. 

Moral Agency and the Disproportion of Guilt by Association

The distinction between exclusively terrorist and ancillary organizations, along with the differential criminalisation of memberships in both, I propose, is incompatible with the minimum moral respect owed to persons for their own actions and the standard of physical violence that is tied to definitions of terrorism, including that within UAPA.

Dworkin argues that a fundamental feature of political society is that the state treats all its members as responsible moral agents (200). All persons, he argues, must be free to hear all opinions despite a possibility of their swerving towards dangerous or offensive convictions. This, I propose, applies equally to association: as long as I am a moral agent who takes responsibility for my own actions, I must be free to join whichever organization I desire as long as my own conduct doesn’t constitute an act of terror via the perpetuation or endorsement of large-scale violence. Imputing to one an organization’s acts of terror solely due to their convergence of beliefs with those of the organization, or via the possession of its literature, in disregard to their own positive acts and personal convictions that are disconnected to the endorsement or commission of violence, constitutes a case of criminalising guilt by association. 

Even for extremely offensive views that arise from one’s membership that shake one’s moral conscience but stop short of a nexus with violence, the remedy must not be found in a wanton labelling of the membership itself as a terrorist offence. In other words, criminalising mere membership as an act of terror is disproportionate. 

Conclusion

In this piece, I have argued that theories justifying the criminalisation of membership-based offences in the UAPA subordinate the principle of universal moral agency, and unfairly impute responsibility of the organization’s violent acts to the individual. An individual’s membership in the form of possession of literature or convergence of beliefs doesn’t constitute an act of terror by itself, and considering it one is disproportionate and militates against their moral agency. In Part II, I show how the UAPA continues to criminalise guilt by association, and also propose mens-rea based standards to assess the commission of membership-based offences. 

Some Thoughts on the Ordinance to Protect Health Care Workers

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

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

A Temporary Solution

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

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

The Problem with Criminalising

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

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

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

The Problem with This Manner of Criminalising

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

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

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

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

Section 3C

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

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

Section 3D

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

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

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

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

Conclusion

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

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

Section 144 Cr.P.C. — Part IV: Public Order and Political Agitation (1901 to 1920)

(This is the Fourth Post in a series on the Blog. Previous posts can be accessed here)

The previous post expanded upon the officers who dealt with the powers conferred under what, by 1898, was Section 144 of the Criminal Procedure Code [Cr.P.C.]. The post also elaborated upon the expansion of such powers by the enactment of new police legislation, or the amendment of existing laws to empower police to address public order problems. Before that, we had begun drawing a long historical arc to see the evolution of Section 144, which is at the heart of public order policing in India today. This post comes back to that effort, and sheds light on the period from 1901 to 1920. 

Judicial Decisions: A Skewed Archive

The reported judicial decisions from 1861 to 1901 were few, but nevertheless, significant. The cases showed how the legislators at that point in British India were keenly tuned into how the statutes were being applied. This litigation experience was useful feedback for the legislators, who then amended the law to rectify whatever defects had been made apparent. A good example of this was the addition of a time-limit on the duration of any orders under Section 144. Where no such temporal limits were initially present, the law was amended in 1872 after courts stressed upon the need for such a limit to the powers conferred by this provision. 

At the same time, the litigation history of Section 144 also helped give an idea of the social context in which the provision was being used. The few reported decisions available suggested that one of the main uses of Section 144 was to help keep the peace between rival groups — be it religious sects, landlords, or factions in a village. At the same time, a few stray decisions had Magistrates using this provision as a tool for good governance — by regulating how boats could be docked at the harbour, say — and such administrative usage of the provision was strongly deprecated by the High Courts.

I've added details of the reported decisions for the period from 1901 to 1920 to the Google Sheet, this time including references to cases under the Police Act. It would appear that the the most common litigation in the High Courts around this provision continued to be that between rival groups seeking to enforce / defend their private rights. In this regard, it is notable just how frequently ordinary disputes over land rights ended up with Section 144 orders being passed, which were then set aside by the High Courts. A line of cases emanating from the Patna High Court is most instructive in this regard. There are also two cases that came up where orders under Section 144 / Police Act had been passed for good governance purposes: One of these regulated the carting of dogs, and the other regulated who could go through a railway station. In both cases, the orders were struck down.

Before drawing conclusions about the social context in which these provisions were being used, let's take a step back, and square this information from judicial decisions with what else we know about this period from 1901 to 1920.

According to most accounts, this period was one of the most volatile periods in the history of colonial India. Recall that this is the era of the infamous Partition of Bengal, of the onset of revolutionary and anarchical activity across the colony and secret societies, of the First World War, of the Khilafat movement, and of the infamous Rowlatt Act. However, none of this is reflected in our small set of High Court decisions. In fact, I found zero cases where the High Courts dealt with Section 144 orders passed in such kinds of issues. The only case I found where the facts concerned political agitations was one under the Calcutta Suburban Police Act, where the Calcutta Police had banned one Leakat Hossein from carrying out Swadeshi Agitations in 1907.

Section 144, Political Speech, & the Seditious Meetings Acts

So, was Section 144 really not being used by the government to rein in political agitators during this period? Of course not. During this time, the limits of Section 144 were being tested as a strained set of administrators relied on this provision to curb political speech and expression. While it did not end in courtroom battles, there was considerable debate within the administration itself, much of which is now publicly accessible thanks to the digital repository of the National Archives of India. 

The tense situation created by the Partition of Bengal in 1905 led many District Commissioners and Magistrates to use Section 144 and prohibit public meetings which, in their view, involved seditious oratory. But something was clearly amiss, for in 1907 the Government brought about the Regulation of Meetings Ordinance to prevent "seditious meetings" and applied it to parts of Bengal. The debates on the eventual Prevention of Seditious Meetings Act of 1907 are silent on this aspect, and Dr. Rash Behari Ghosh's remarks of Section 144 being enough to curb seditious meetings went unanswered. 

A view to how the Government approached the issue can be gleaned from the Home Department files on the 1907 Act, specifically the one marked "HOME_POLITICAL_A_1907_DEC_64-84". The file contains a letter dated August 12, 1907, sent by the Chief Secretary to the Chief Commissioner, Central Provinces to the Secretary of the Home Department, Government of India, giving his opinion on the draft legislation shared with him (Pages 130-132). On whether Section 144 was sufficient to deal with seditious meetings, the letter reads:

"Section 144 of the Criminal Procedure Code would justify the issue of an order to this effect to a fire-brand orator; but disobedience, to that order cannot be punished under the Indian Penal Code unless the court will hold that his action produced or tended to produce a breach of the peace. Fear of a disturbance of the public tranquillity justifies an order under section 144 but not a conviction for disobedience of it under section 188 of the Indian Penal Code which was never correspondingly amended. The object sought could be gained by such an amendment of section 188 of the Indian Penal Code. The interpreta­tion of section 144 of the Civil Procedure Code [sic], read jointly with section 188 of the Indian Penal Code, is so overlaid by a mass of rulings that it is difficult to extract what the law on the subject really is."

Thus, one big flaw in the potential for using Section 144 to curb political agitations was the absence of any subsequent sanction: Even if somebody disobeyed the order, punishment could only follow in very limited cases.

More arguments on the inadequacy of Section 144 are found in a letter dated July 18, 1907 that was appended to the letter sent in August. This earlier letter was sent to all Commissioners and Deputy Commissioners in the Central Provinces and Berar by the Office of the Chief Commissioner, Central Provinces, giving guidance on using Section 144 to deal with political meetings (Pages 138-139). I've linked a typed out copy of the letter here, which merits a full reading.

In the interests of brevity, here I only flag three of the other concerns that the letter raised in using Section 144 for the purpose of containing political speech. One point was the lack of prior notice that a meeting was to be held: it would be very difficult to issue orders under Section 144 to prevent a seditious meeting if there was no prior notice at hand. Another point was the concern of Section 144 with preventing public disorder. Thus, it could not be used "if the sole object of the Magistrate were to prevent an extremist orator from making a Swadeshi speech which might or might not contain seditious phrases". And, finally, there was the problem of legality. There was always the chance that the order under Section 144 could be challenged, either directly or in a prosecution for Section 188 IPC, and so Commissioners were advised to only pass orders which could withstand subsequent legal scrutiny. 

As a result of these issues, the Seditious Meetings Act was passed in 1907 with a three-year expiry date. It was given an extra lease of life in 1910, and then was made permanent in 1911. However, even though the legislators had stressed on the inadequacies of Section 144 to push the case for having a special law in the nature of the Seditious Meetings Act, the ordinary law continued to be used for the containment of political speech throughout British India. Indeed, the sufficiency of the ordinary law was a constant refrain of the Indian benches who were opposing the 1911 Act in the Legislative Council debates. 

Perhaps it was due to this supposed adequacy of Section 144, coupled with India being placed under wartime legislation for a large part of the 1920s, that the Seditious Meetings Act was rarely used till its eventual repeal in 2018. The same can hardly be said about Section 144, which emerged as one of the "repressive laws" of the colonial regime in the subsequent decades.

Next Post: Emergence of a Repressive Law

The years between 1901 to 1920 marked a transformation in how Section 144 came to be used across India. A growing political consciousness led to this provision being used to prohibit public meetings where, according to the British, seditious speeches would be made. Yet, in spite of this, a reference to the debates of the Legislative Council when this issue of curtailing public meetings was raised shows that the Indian members of the Council were quite sympathetic to this provision. It is perhaps notable that while the Rowlatt Act, the Seditious Meetings Act, and the Defence of India Act were all part of the brief of the Repressive Laws Committee of 1922, Section 144 was not.

The resentment surrounding Section 144 was to considerably grow in the next two decades, as it became a key instrument in the legal arsenal to combat large-scale political mobilisation in India. By the end of this period, Section 144 also came to be seen as a Repressive Law, with many unsuccessful attempts being made for its repeal. All this will be the focus of the next post in this series.

From Complainants to Consumers — A Perversion of the Criminal Process

(This is a long post, the title of which was changed on May 4, 2019)

Consider a scenario. Geetha loaned her friend Swati a sizeable sum. A year on, Geetha starts asking her friend to repay the loan. She sends many texts, but Swati doesn't reply to a single one. Frustrated, Geetha comes to you, her friendly neighbourhood lawyer, for some advice on how to proceed and says she wants to take this to court. What do you do? It is possible to think of many responses, but that's not the point. The point, is, that there is no clear answer on how a dispute is presented in law. This process, and the ultimate result, is a function of the client's means, demands, and a lawyer's imagination. This post explores the process of going to court through the lens of a hypothetical client, Geetha, with modest means and a lawyer's assistance. 

The Realities Facing Consumers of the Legal Process

What is Geetha's trouble? She wants her money back. One way to do this is by filing a civil suit for recovery. This requires that Geetha go to court with a written plea (plaint) explaining what happened, disclosing all the material she can muster to support her claim, and then call upon the court to decide whether or not it should be granted. If the court agrees with Geetha, she gets her money back, probably with interest. How would this scenario play out in real life? Every different step that I flagged above — filing a plaint, getting your evidence, going through trial, and arguing the case — will take at least a few months to complete because of the high pendency plaguing our courts. This means that even a basic suit for recovery drags on for at least a couple of years. Because of this, the probability of having to repay the principal loan amount with interest some years down the line creates very little pressure for Swati to try and resolve the dispute with Geetha.  

There is another way to present Geetha's case: Allege that Swati had never intended to repay the loan, and Swati dishonestly induced Geetha into giving her the money. Now the issue is no longer a simple recovery, but a case of cheating which is a crime, where the consequences go beyond money and threaten to take away Swati's liberty. How might Geetha start a criminal case? Either by going straight to court, like her civil suit, or by asking the police to look into the matter. As we now know, going to court for the recovery suit is a long and painstaking process. The same is true for a criminal complaint, and so the threat of imprisonment becomes too remote for anyone to care about. But, if Geetha can convince the police to look into her case, then we get a drastically different scenario. For starters, it is the State that becomes in-charge of pursuing the case against Swati — Geetha is only a witness now. More importantly, the threat of coercive action — a decree or a guilty verdict — which seemed like a distant dream in a court case, becomes very imminent when the police is involved. This is because the police officer can arrest persons suspected of committing crimes. The recalcitrant Swati might begin to have doubts about her stance knowing that there is a likelihood of her being arrested, and might take the steps needed to resolve the dispute.   

Systemic Incentives to Pursue Criminal Proceedings

The previous section explained why, when presented with a choice, consumers like Geetha might be inclined to portray their problems as criminal cases for police to investigate: The relative advantages of this kind of setup are substantial when compared to a situation where someone goes to court directly. Given the relative advantage, it is not impossible to imagine some consumers will be motivated to paint all their disputes as criminal cases. Equally, it is quite possible that police might go ahead and arrest people for flimsy reasons — something hinted at in the glaring disproportion between the rates of arrest and the rates of conviction. 

How do we curb this? I can think of three ways. First, reduce the scope of what all can be called a "crime". In doing so, you reduce the scope for persons to try and contort their disputes into criminal cases. Second, and far more useful, is to restrict the powers of arrest for police. This power is the game-changer when we consider the relative attractiveness of the criminal process today, as the police can arrest without conclusive proof and only based on suspicions. So, it would make sense to regulate this power tightly, making sure that the bludgeon of arrest cannot be wielded arbitrarily. Third, and linked to the second, is to make police decision-making more transparent. Make guidelines that the police have to consider before deciding to take up a case, and render it necessary to justify every departure from the mandate.

Unfortunately, the Indian criminal process incorporates none of the above. The routine manner in which every statute today seems to carry an "offence" provision, and the damning refusal by successive governments to reconsider the archaic Indian Penal Code of 1860, ensures that a whole lot of seemingly ordinary conduct can be labelled as "criminal" to trigger the process. Nor is there any transparency over police decision-making. There are many internal circulars etc. which regulate how cases are to be taken up — something I saw in the recent 66-A litigation — but none of these are voluntarily published online or elsewhere. What makes the over-criminalisation and non-transparency much worse, though, is the daft manner in which the criminal process confers, and regulates, the powers of arrest vested with police. There are three different systems of regulation on arrest powers in place today, and as I demonstrate below, all three are in pretty bad shape.  

The first regulation is by way of the cognizable / non-cognizable divide — certain offences have been labelled "cognizable" in the Criminal Procedure Code 1973, and for only those can the police arrest persons without needing prior judicial permission. However, nothing in the law offers any guidance on how to decide which offences should be called cognizable. There is no provision in statutes, nor any judicial test, that governs this critical restraint on police power. What results is manifest arbitrariness. For instance, consider the current sets of offences dealing with sexual assault. While "outraging the modesty" of a woman is a cognizable offence, "sexual harassment" conduct is not. How to distinguish between the two is anyone's guess, and thus the theoretical "restraint" of calling some offences non-cognizable becomes redundant.          

The second regulation on arrest powers is the level of suspicion that police officers must have before deciding to arrest. This is found in Section 41 Cr.P.C., which unhelpfully tells us that a police officer can arrest if she has reason to believe a cognizable offence has been committed. Allowing the police to arrest on an "I know it when I see it" approach is pointless, and perhaps this is why the judiciary has stepped in to construct an additional test of "necessity" to regulate arrests. Basically, courts tell police not to arrest persons unless there is a need to. The most prominent example from the Supreme Court was the decision in Arnesh Kumar [(2014) 8 SCC 273], which created strict rules of necessity to restrict arrests in cases where the suspected crime was punishable up to 7 years. However, the overlapping scope of different offences where similar kinds of conduct are punished differently — as seen in the sexual assault example above — has also undercut this reform measure. It is becoming increasingly common to lump in an allegation regarding an offence punishable with 10 years only with a view to avoid the rigours of Arnesh Kumar.          

The third regulation on arrest powers, more indirect than the others, is the law on bail. By subjecting the police to strict scrutiny during bail hearings, courts send a clear signal that flimsy arrests won't be tolerated. Pop-culture wants us to believe this is true — with all that verbiage about "bail is the rule and jail is the exception". A hard look at India's prison statistics is all you need to see through this deception. In a system where undertrial prisoners populate over 65% of prisons, bail is the exception, and jail the rule. Because bail is granted at a premium, normally ensuring that the person remains in jail for at least some weeks and also with stringent conditions upon release, consumer demand for the criminal process and arrests remains high.  

Perhaps because they are aware that none of these regulations working very well, courts in India have also proved willing to judicially terminate pending cases or investigations where a "purely civil case" is masquerading as a criminal one, by calling such proceedings an "abuse of process". This purported solution is a non-starter, sadly. To ask a court, or any reasonable person, to decide if a dispute is a "purely civil case" when the matter is still being investigated / inquired into, is to put the cart before the horse. Naturally, this renders the entire setting arbitrary, where what is sauce for the goose might not prove to be sauce for the gander.  

The Consequences of Commodification

This commodification of our criminal process, with its long delays and lack of effective regulation on what kinds of cases can be called "criminal", is not without consequences. In the zone of consumer choice that this post identified and discussed, this commodification is slowly coming to define how the criminal process is considered by all stakeholders.  

The most visible example of this is, again, the law on bail. I mentioned before that this has proved to be an ineffectual regulation on excessive arrests. But to think that this is because our courts love to keep people behind bars is a bit of a stretch. Instead, as has been argued elsewhere, courts have come to attach a premium to granting bail largely because they also acknowledge the need for some kind of pre-trial justice. Aware of the high pendency, courts view the issue of pre-trial custody not merely as one of preventing an accused from tampering with evidence or absconding, but as a matter of doing justice by the victim of a crime. Because of this, today it is part of standard practice to consider the "gravity" of offences while deciding the issue of bail. At the same time, courts are encouraged not to dwell too much on the probity of these allegations at the pre-trial stage. Ultimately then, we are back to square one, with police arrests sanctified on allegations and little else.

Not only this, but in financial fraud matters, it has become increasingly common for courts to require that the accused deposit a chunk of the alleged criminal gains in order to be released on bail. In their quest to do justice by the consumers, it somehow stops mattering to courts that they are effectively decimating the presumption of innocence by demanding a pound of flesh from the accused on the strength of unproven allegations. In this manner, even the courts end up reinforcing the motivation that consumers might have to portray their disputes as criminal cases. All the while decrying other such instances as an "abuse of process". The absurdity is, indeed, remarkable.

Besides eroding the presumption of innocence theoretically guaranteed to all persons, the unabated commodification of the criminal process also promotes corruption. Basically, the system is holding out the promise of a fast-tracked dispute resolution model through the police. But there are just not that many police officers out there, to cater to the demand for their services. This is not only the case for India but anywhere in the world. This demand-supply mismatch means that persons are willing to give a higher price for such services, and the police have to exercise some discretion on what cases they choose to investigate. Since there is minimal transparency in this context, how do we know that the police are picking the cases where they are needed most, and not based on some arbitrary factors? Such an environment fosters corruption and gravely damages this valuable public service.   

Conclusion: An Identity Crisis

Most often, this blog adopts the perspective of a defendant, or that of an outside observer critiquing the law. In adopting such a consumer-centric lens, my objective was to present the criminal process — comprising both the police and courts — from another perspective. In this context, the law is a service for people to make use of. Looking at the criminal process through this lens, its many facets appear in a different light. The reviling over-breadth of the criminal law becomes a welcome feature, because it gives litigants more choice in how to frame their disputes in law. Similarly, in this context, the wide powers of arrest with police officers are not only abhorrent but also desirable, as they help exert pressure to get persons at the negotiating table and resolve disputes quicker. 

This perspective helps to understand the disappearing presumption of innocence, as today even courts seem to be on board with a notion of using the pre-trial stage to dispense generous dollops of justice without having proof of guilt or innocence. But, since our system is not designed to sponsor this "pre-trial justice" and remains committed, at least in theory, to ideas like the presumption of innocence, this commodification of the criminal process creates serious contradictions. Today, it is justifiable to keep someone in custody for "not-cooperating" with investigation. It is legally proper to keep persons in jail for refusing to simply bend over and accept the allegations against them, and remedy whatever alleged wrongs have been suffered by a complainant. But all of this is in the shade of a fundamental right against compelled self-incrimination. 

Solving this identity crisis in the criminal process is a task beyond our fractious legislatures. What they can do, is take steps to limit the existing systemic incentives for consumers to file police cases and trigger the criminal process only to exert pressure on the other side. Hopefully, tighter and more transparent regulation can help restore some clarity on the larger values that our criminal process subscribes to as well.

Delhi HC Decriminalises Begging - An Outlier or the Start of Nationwide Reform?

Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 ["anti-begging law"]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, "Harsh Mander"]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional. 

The Crime of Begging and its Punishment

Before going forward, let's take note of what was being criminalised. Begging. The statute defined it as "having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms." It also defined it as "soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale." [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence. 

The state saw the main problem being addressed through the law as one of organised crime - rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who "looked" poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case

The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg "ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction."

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as "raising his front paws" rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21. 

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions "manifestly arbitrary" and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to "ascertain the cause of poverty" is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the "contours" of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons "compelled" to beg is in the "teeth of Article 21" [Paragraph 33]. The Court also claimed another reason for reading down these provisions - the wastage of public funds as Certified Institutions were lying unused [Paragraph 39]. 

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government - both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising "specific types of forced beggary" and for curbing the "racket of forced begging" might survive constitutional scrutiny [Paragraphs 36, 46]. 

Conclusions

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed at which the verdict came (judgment reserved on August 7 and delivered on August 8), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court's decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.

[updated on August 8, 2018 at 13:30 to add the reference to the earlier adultery post and mention the speed at which the decision in Harsh Mander came]

The "Pathological Politics" of Criminal Laws in India

By all accounts, criminal justice is currently one of the most pressing issues in the Indian political process. Powerful protests erupted in different parts of the country over the past few months blaming the system not only for how it treats the rich and privileged - the laxity over bank frauds - but also the poor and helpless - the horrors in Kathua, Unnao, and countless other places. On April 21, the President promulgated two ordinances designed to purportedly address both ends: The Fugitive Economic Offenders Ordinance, and the Criminal Law (Amendment) Ordinance. Both seem to be rooted in a deterrence logic that operates on either end of the spectrum. Allegations of having committed an economic offence involving sums of one hundred crores or above are sufficient to trigger asset forfeiture unless the suspect cooperates with the investigation, which is supposed to deter the rich from fleeing the country. Similarly, prescribing tougher sentences for rape ought to deter them from happening.

We have been here before, most recently with amendments to the Juvenile Justice Act and tougher sentences for rape in the wake of the 2012 Delhi Gang-Rape case, and by now it can be safely asserted that the deterrence logic is questionable at best. But here we are again, different government but the same result. Why? The answer has a lot to do with what the late law professor William Stuntz explained in his seminal essay, “The Pathological Politics of Criminal Procedure”. Writing in the American context where a similar tough on crime approach had led to a significant ratcheting up of punishments for drug crimes without any real deterrent effect, he argued that it was because passing new laws and increasing sentences was the cheapest option in the political process. Compare that with the cost of finally bringing about police reforms that have been in cold-storage since the 1960s that would reduce politicisation of police and improve investigation. Or with reforming the structures of public-sector banks to rid them of government influence in appointments. Passing an ordinance costs nothing more than the paper it is printed on, police reforms will come at thousands of crores, and bank reforms involve incalculable political cost. Together with that low cost, the option brings significant political returns – the government will use the new laws to show voters that it cares about these issues and is willing to do something about them.

This skewed cost-benefit incentive makes it logical for our politicians to adopt seemingly illogical policies. The consequences of these cycles do not result in any appreciable effect on reducing the incidence of crime, as we know by now. But this does not mean that they are benign. They carry serious downstream consequences. Passing more laws, that too stiffer laws, without making similar investments on their enforcement, means that the police and prosecution forces are getting more and more discretion to enforce those laws. That discretion can be challenged in India – one can petition a court to either start or quash an investigation – but besides being restricted to the privileged, courts are usually circumspect about intervening at this stage. Effectively, then, we give more and more power to the police. The same police which is maligned for shoddy investigations, arbitrary targeting of individuals, corruption, use of third-degree torture methods and whatnot. Since nobody speaks of, or either pays attention to, these downstream effects, we only realise them when it is too late.

In India, an additional feature worsens the “pathological politics”: the relative importance given to the start of a case with its end. Here, the political process meets the systemic problem of judicial delays. It takes years for any criminal trial to conclude, and the passing of time depreciates the deterrence value of any possible sentence that might follow a conviction. Because of this, the public at large views the pretrial stage as appropriate to start dishing out the penalties. The problem is that the criminal justice system isn’t designed to function that way. It traditionally takes the end more seriously – the label of “guilty” and eventual sentence – and guarantees accused persons with several rights to ensure that those consequences are not lightly or wrongly imposed. It does not provide with similar protections at the start of the process because that would obstruct the investigation itself.

This demand for pretrial punishment is being met by all branches of the State, in different ways and forms. The judicial branch has the power to deny bail and condemn individuals to jail without them having a right to know exactly what the evidence against them is, without having the ability to cross-examine witnesses, and without being able to introduce evidence. Since convictions take time, judges frequently use pretrial detention to achieve punitive functions, thus depriving individuals of their liberty without them having been proven guilty. While this is the most obvious problem, it is not the only one. What we rarely appreciate are the collateral consequences that have been imposed by the legislative and executive branches on persons “accused of an offence”.

Being arrested means your fingerprints and photograph will be taken, and your name will be entered into a national database. A pending case against you means restrictions on issuing a passport. If you are a public servant, it means suspension. If you are aspiring to be one, you will not be considered. The private sector frequently runs background checks where you will be flagged. And till you are released on bail, you lose your voting rights. These are only some illustrations of the general consequences. Besides others of this nature, there are also specific consequences that can arise depending on the alleged crime. The legislature has made it very easy for court to deny bail in certain offences. Similarly, if you are accused of a crime covered by the Money Laundering Statute, you stand to be dispossessed of any assets that the government alleges was connected to that crime.

The traditional notions of procedural guarantees to accused persons to protect them against the stigma of convictions are turned on their head in India. The accusation of crime involves equally serious consequences, if not more serious, then what can follow a conviction. The effect of which is to expose defendants to serious life-changing consequences based upon unproven allegations, that are the product of an unchecked exercise of discretion vested in untrustworthy police forces. Each subsequent cycle of criminal law’s pathological politics will worsen this underlying tension leading to short-term gains for whichever government is in power, at the cost of long-term damage to the Indian criminal process. 

(Many thanks to Deekshitha Ganesan for her help with this post)