No Censure and Total Sanction: A Recipe for Disaster

Below are some random quotes that I've extracted from news reports in the aftermath of the horrible incident of alleged rape in Telangana: 

• Andhra Pradesh Chief Minister YS Jagan Mohan Reddy has promised to bring in a law to punish rapists within 21 days of a crime. [Article dated 09.12.2019 from News Minute];
• Thank you Hyderabad Police. This is the way to deal with rapists. Hope Police of other states will learn from you [Tweet by a politician dated 06.12.2019 as seen here];
• What will the police do if rapists try to escape. That is exactly why we are requesting the Centre to create a strong system in the country so that rapists who are committing such heinous crimes need to be given death penalty after all kinds of court procedures. [DCW Chief quoted in an article dated 06.12.2019];

[Emphasis is mine in all the above]

There are tons of other, similar, quotes that can be extracted, and there is already substantial discussion surrounding the two separate crimes that occurred at the same spot within the space of a week. So what is the point of plugging these quotes? The purpose behind extracting these quotes was to give concrete examples of the kinds of conversations that newspapers, TV channels, dinner-tables, metro cars, sidewalks, canteens and restaurants are inundated with at the moment, all decrying "these rapists", or, "these criminals". And then, to ask you to take a step back and consider: Does being arrested on the suspicion of a crime make you a criminal? If not, then why does being arrested for allegedly committing rape make anyone a rapist?

I apologise if this sounds like an attempt at being clever, for this is far from it. Instead, I am trying to flag how loose talk about criminality, of the kind referred to above, contributes to the certain erosion of two cherished principles in our society. These principles are, first, that the condemning of a person as a criminal is a serious consequence, a punishment in and of itself; and second, presuming every person as being innocent and an equal member of society, until proven as being unworthy of such equal treatment for having broken the system of laws. 

For centuries, society has been taught to despise a criminal, causing those who were so labelled to carry a badge of shame. And this was not even a purely metaphorical badge, for often criminals were physically branded (24601), to completely deprive them of a chance at redemption through a normal life, a normal employment, and a family. This act of being labelled a criminal, which conveys to a person the censure of his fellow citizens and potentially banishes him from their effective company, is acknowledged by most to be the real part of punishment. And yet, somehow, popular discourse in India routinely ignores just how serious this label is. In fact, in this constant hyperbole of increasing sanctions for the offence of rape, hardly anyone acknowledges that a large part of the punishment is in being called a rapist for the rest of your life.

The seriousness of this label of criminality, and the consequences it entails for those who are so labelled, is what propels the other, cherished feature: a presumption of innocence. It might not have been true a couple of hundred years ago, but today, the idea that all humans are inherently equal beings is one that the law demands we respect. Even the most flagrant breaches of this equality principle that you can spot today (such as a recent legislation passed in the Indian Parliament) are still paying lip-service to the principle, being unwilling to risk the backlash of being too honest about their intentions. Thus, a society of equal persons demands that we secure this idea of equality, by refusing to remove anyone from society's fold by means of incarceration, unless their breach of the social contract can be established to a level that is "beyond reasonable doubt". To put it even more simply, because you yourself would not want to be labelled a criminal and condemned to prison at a mere accusation, you are willing to confer the same treatment upon others who might be so accused. In this way, the idea of a presumption of innocence lies at the heart of a society that respects equality.

What happens when you say that you will punish rapists quickly? By conferring a label upon another equal member of society based on a mere accusation, the premise behind the presumption of innocence is flipped. If the social contract is imagined as being made of invisible bonds, then I imagine these unwise and hasty declarations as knives that cut those bonds loose and, consequently, leading to breeding a culture of difference rather than equality. We might still be uncomfortable prejudging our guilt, or our brother's guilt, but we are fine with prejudging the guilt of those "shifty looking", "poor folk" who are always "up to no good". And slowly, these different groups of "us" and "them" come to see a society which forces people to live together with disdain rather than delight.

Nobody is born a criminal, and nobody becomes a criminal merely on the strength of suspicions or accusations. Rather, ordinary persons end up doing things that are punishable under laws made by society, and they might end up doing so for a multitude of reasons. In some cases those reasons may be brutal, but in others, they may just be the embodiment of the worst mistake in a person's life (to use a metaphor that Bryan Stevenson might employ). To foist fearsome labels of criminality upon a person and permanently alter his life, even posthumously, without giving any of this a thought, can surely satiate the heat of the present. But it is also steadily leading us towards a far bleaker, and much more divided, future. 

[This post was updated on December 12 with minor edits, and changing the reference to law passed by India's Parliament]

Guest Post: An Argument against the Absolute Bar on Grant of Parole / Furlough to Rape Convicts

(I am pleased to present a Guest Post by Mr. Vivek Krishnani, a student in the B.B.A. LL.B. (Hons.) Program at the National Law University, Jodhpur)

Prison management and administration, as a legislative subject, falls under Entry 4 of the State List i.e. List II of Schedule VII to the Indian Constitution. Accordingly, it is in the domain of the State Legislature and governed, mainly, by the Prisons Act, 1894 and Prison Rules, as adopted by the respective states. It is, therefore, for every state to make apt policies and procedures to govern their prisoners in a manner that complies with their human rights and at the same time, does not do away with the safety of the society. 

As per the report of the All India Jail Manual Committee 1980-83, prisoners should be sent to prison “at punishment” and not “for punishment”. Unfortunately, the prison rules of some states seem to have been ignoring this subtle difference. These rules have been overlooking the ultimate aim of rehabilitation of the prisoner and his resettlement into the society. In this post, I argue that the policy in some states to completely deny parole / furlough to persons convicted of Rape is completely contrary to this idea, as well as contrary to the fundamental rights guaranteed by the Indian Constitution. 

An Insight into Parole and Furlough 

To begin with, parole is the release of a prisoner, before completion of the term of imprisonment, on certain conditions which are concerned with the behaviour of the prisoner during the interval of release. The prisoner is required to abide by these conditions and regularly report to the concerned prison authorities for a specified time period. 

As regards furlough, it is simply a cancellation of a short period from the term of imprisonment given as a reward to the prisoner for his good conduct. This, generally, happens in case of long term imprisonment wherein a short leave, without having an impact on the completion date. Which amounts to saying, the leave interval gets cancelled from the punishment of the prisoner and he need not undergo the same. 

Reformation and Recidivism

Now, the objectives of granting parole and furlough may be looked in to. Placing reliance on the Model Prison Manual which was prepared in 2003, the Gujarat High Court in Bhikhabhai Devshi [AIR 1987 Guj 136] has enumerated the following objectives: 

(i) to enable the inmate to maintain continuity with his family life and deal with: family matters;
(ii) to save the inmate from the evil effects of continuous prison life;
(iii) to enable the inmate to maintain constructive hope and active interests in life.” 

It can be understood that parole and furlough rules are aimed, mainly, at humanising the prison system. Such humanisation of the prison system is in line with the idea of reformation which is as much a cardinal principle underlying punishment of offenders as retribution or deterrence. Accordingly, this idea should not be disregarded by going overboard for punishing the offender or deterring potential offenders. 

Having said this, countervailing interests of public order cannot be undermined for upholding the objectives aforementioned. In fact, the most common ground to decline parole or furlough is that there is apprehension of breach of peace, in case the prisoner is so released. This brings us to the concept of “recidivism” which means, simply, the habit of relapsing into crime in spite of having administered correctional treatment. Some prisoners, despite undergoing the reformatory measures employed in present-day prisons, show strong recidivistic tendencies. Accordingly, to strike a balance between reformation of prisoners and public order, every state has a detailed set of rules in this regard. 

Rules 4(13) and 19(2)(B)(i) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 and the constitutional challenge 

Now, time to address the primary issue. Rules 4(13) and 19(2)(B)(i) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 create an absolute bar to claim release on furlough and parole leaves on the convicts for, inter alia, the offence of rape. Resultantly, while prisoners convicted for murder are entitled to seek parole/furlough, prison rules of Maharashtra have barred rape convicts from requesting the same. 

Noteworthy is the fact that the question concerning the constitutionality of such provisions which classify prisoners on the basis of the nature of offences has been discussed time and again by the Indian judiciary. Interestingly, the Supreme Court has, in the cases of State of Haryana v. Jai Singh [AIR 2003 SC 1696] and Asfaq v. State of Rajasthan [(2017) 15 SCC 55], provided completely contrasting opinions and thereby made the issue at hand all the more important for a detailed discussion. While the former upheld such a classification, the latter rejected the same. 

Quite recently, the question as regards the constitutionality of the Rules 4(13) and 19(2)(B)(i) itself was raised in Vijay Prahlad Varankar v. Divisional Commissioner [Criminal Writ Petition No. 234 of 2018, Bombay High Court, on October 11, 2018] before the Bombay High Court. However, the Court did not provide any answer for the same. Accordingly, reference could be made to that court’s judgment in Sharad Devram Shelake [2016 SCC OnLine Bom 2448] wherein the provision was tested on the parameter of Article 14. In that case, Tahilramani J. expounded the difference between offences like murder and the offence of rape and upheld the validity of the provision. The explanation, which I find quite objectionable, given by the judge was: “In case of murder only that person against whom the perpetrator has a motive or animus alone is exposed to danger from him and not others. So far as (other offences) are concerned, any victim is a good victim and the entire society is exposed to the risk. It is, therefore, clear that these offences fall in a different category.” 

Even if it is assumed that murder and rape are so different, a classification of prisoners on the basis of gravity of the offences committed by them is, in my opinion, should not be decisive for rendering prisoners ineligible for parole/furlough. A person who is convicted of a serious offence cannot, ipso facto, be considered to be unfit for a temporary contact with the society. Hence, in case a prisoner has responded positively to corrective measures undertaken during the course of his imprisonment, he should not be considered as ineligible for seeking parole/furlough from the court notwithstanding the nature of the offence committed by him. Admittedly, the nature of crime cannot be completely ignored and perhaps stricter standards could be set for grant of such leave to such convicts. However, an absolute bar, ignoring the good behaviour and reformative tendencies of a prisoner, simply because he has been convicted for a heinous crime, is not only unrelated to the objective sought but also unjust and inhumane. 

Inspiration from Other State Regimes 

My concerns with respect to the absolute bar can be better understood when it is seen in light of the prison rules of other states. In particular, the Rajasthan Prisoners Release on Parole Rules, 1958 and the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 must be looked into. 

The Rajasthan rules do specify certain kinds of prisoners, much like the Maharashtra rules. However, as per Rule 14 of the Rajasthan rules the prisoners so specified are “ordinarily” ineligible for parole. The use of the word “ordinarily”, herein, shows that merely because a prisoner was convicted for an offence he doesn’t altogether become ineligible for parole. 

Similarly, the Haryana law, which classifies prisoners convicted for certain offences as “hardcore prisoners”, makes a special provision for them regarding their eligibility. Under Section 5A (2) of the Act, the hardcore prisoners who have not been awarded death penalty are eligible for parole in case they have not been awarded any penalty by the Superintendent of Jail and have completed 5 years of their term. 

From the foregoing discussion, it can be understood that a prisoner cannot be presumed to relapse into crime simply because the offence he has been convicted for is of a grave nature. Generalising prisoners on the basis of the offence they have committed is undesirable in that different prisoners respond differently to the reformative processes they undergo in prisons. Accordingly, absolute bars, resulting from such a generalisation, have not been found in the rules applicable to the states of Haryana and Rajasthan.

Concluding remark 

My views are in complete conformity with the observation of the Supreme Court in Charles Sobraj [AIR 1978 SC 1514]: “Imprisonment does not spell farewell to fundamental rights ... Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, the Court's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.” 

To make rape convicts ineligible for parole/furlough amounts to disrespecting the human in them and the very objective of their rehabilitation into the society. While it is admitted that even a short release of some prisoners is a threat to the society, gravity of the offence committed by a prisoner should certainly not be the criterion for deciding who those prisoners are. Which amounts to saying, recidivistic tendencies should be adjudged from a case-to-case basis as every prisoner is different and correctional measures employed in the prison system have different impacts on each one of them.

Amendments to the Prevention of Corruption Act: Corporate Criminality

The previous post discussed amendments to Section 8 of the Prevention of Corruption Act, 1988 [PC Act], which will now punish giving bribes as a standalone offence rather than a case of abetting bribe taking by the public servant. The post did not discuss one proviso that the amended Section 8(1) carries: providing that when an offence under Section 8 is committed by a "commercial organisation", it is punishable by fines. This is my gateway to discuss the new regime on corporate criminal liability that the PC Act will introduce, the fulcrum of which is amended Sections 9 and 10. This second post in the series focuses on what this new regime is, and its potential positives and pitfalls. 

Prosecuting Corporate Corruption: The New Text 

Before moving to the text, let's take a step back and cover some basics on the criminal liability of commercial organisations [called "corporation" hereafter]. Corporations are purely legal creatures, so to hold them criminally responsible we need to use the conduct and mental state of some humans. So far so good. But which humans are to be considered? Some jurisdictions, like the U.K., recognise a narrow basis for affixing liability to corporations. Commonly called the "alter-ego" or "directing-mind" theory, under this rule only the acts of humans in management roles or other decision-making capacities can be the basis for imputing liability to corporations. Contrary to this, other jurisdictions - most prominently the United States, adopt a much broader rule where the conduct of any employee can be imputed to a corporation, as long as this resulted in some benefit to the corporate entity.

When the Indian Supreme Court recognised criminal liability for corporations it chose to follow the U.K. model and adopted a narrow basis of liability. Because of this, corporate prosecutions in India needed allegations against management-level persons for the case against a corporation to stick. In what is a seismic shift, the legislature has marked a break away from this position for corruption offences in the recent amendments. India will now follow a model more akin to the U.S., potentially making it much easier to prosecute corporations. Let's turn to the text:

Section 9. (1) Where an offence under this Act has been committed by a commercial organisation, such organisation shall be punishable with fine, if any person associated with such commercial organisations gives or promises to give any undue advantage to a public servant intending -  

(a) to obtain or retain business for such commercial organisation; or 

(b) to obtain or retain an advantage in the conduct of business for such commercial organisation: 

Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct [to be created under Section 9(5) read with Section 29A].

Some further points of interest:

• While "an offence under this Act" indicates this regime applies to all offences under the PC Act, Section 9(2) clarifies that it is unnecessary for the human to be prosecuted under Section 8 for the Section 9(1) offence to stick against a corporation. 

• Section 9(3) explains various terms, such as "commercial organisation" [Section 9(3)(a)], "business" [Section 9(3)(b)], and "person associated ..." [Section 9(3)(c)].

• A person is "associated" with the corporation if she performs "services for on or behalf" of the corporation, which shall be determined by looking at all the relevant facts and not merely the nature of relationship between the two [Section 9(3)(c), Explanation 2]. 

• The "person associated" need not be an employee, and can equally be an "agent or subsidiary" of the corporation [Section 9(3)(c), Explanation 1]. 

• Lastly, if the "person associated" is an employee, it is presumed that she performed "services for or on behalf of" the corporation [Section 9(3)(c), Explanation 3].    

Before moving on, note that Section 9 is not the only relevant provision in context of corporate crime. Section 10 goes after management level officers after Section 9 cases are proved in court:

Section 10. Where an offence under Section 9 is committed by a commercial organisation, and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer ... such [person] shall be guilty of the offence and shall be liable to be proceeded against and shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years.

The Promises and Pitfalls of Reform
A directing-mind test can prove too limiting in a corporate context where decision-making authority is increasingly decentralised. Not only this, it also offers an easy escape hatch to avoid corporate liability by concentrating focus on a select corps of officers. Recognising both of these problems, many jurisdictions - even the U.K. - moved away from the rule in the corruption context. The 2010 U.K. Bribery Act carries a "Failure to Prevent Bribery" offence under Section 7, which seems to have inspired our legislature the most. More recently, Argentina and Malaysia both took radical steps to move away from a directing-mind approach for corruption cases, to impute corporate liability based on acts of any employee. In finally shedding the alter-ego in Section 9, the Indian statutory regime better reflects the realities of the modern corporate context and offers a potentially more robust tool to prevent and prosecute corporate corruption in the country.

The shift to a broader basis of liability carries a downside: law enforcement agencies get extremely powerful tools to regulate corporate conduct which can be misused. By making offences cognizable and empowering police to arrest "persons associated" with corporations, the problem becomes more stark. Naturally, then, we need some corresponding protections for corporations to protect against abuse and ensure a degree of fairness in legal enforcement. The global norm seems to be having protections for corporations that install adequate compliance procedures. The U.K., Argentinian, and Malaysian examples mentioned above all have such provisions. The new Indian amendments also provide corporations this kind of protection in the proviso to Section 9(1), as extracted above.

But there is a catch. Having a defence at a criminal trial is not a protection against prosecution, and the difference can be huge in the corporate context. Installing adequate compliance procedures is a cost, and the bigger the corporation, the higher that cost is bound to be. For the corporation to make these expenditures, it needs incentives to do so. Since potential prosecutions for management level personnel under Section 10 have been pegged to the corporate crime under Section 9, there is certainly some incentive to install adequate compliance regimes. But is that enough? I would argue that it isn't. Effectively, the law is telling corporations to spend the money, but that more money will still have to be spent in facing a criminal trial for years, where eventually it can plead innocence by pointing to compliance procedures.

Nobody, especially corporations whose reputation carries considerable financial value, want to go to court and have their name dragged through mud. Which is why globally, it is more common for the legal system to reward those corporations with adequate compliance regimes by helping them avoid prosecutions altogether. They do not get a get-out-of-jail-free card, mind you, and still end up having to cooperate with investigators, paying fines, and being monitored for a few years afterwards under Deferred Prosecution or Non Prosecution Agreements. In the United States, the Department of Justice has been issuing "Principles of Federal Prosecution for Business Organizations" that implement this regime. Similarly, in the U.K., the Crown Prosecution Service is instructed to not prosecute cases where it finds corporations met the Statutory Guidance. Within India itself, this idea of avoiding prosecutions exists in context of the Information Technology Act, 2000, which triggers legal action only if online platforms do not pull down objectionable content within 36 hours after a takedown notice or court order. Since the statutory rules on compliance under the PC Act are yet to be drafted, I expect the powerful corporate lobby in India will try and push for a regime which avoids prosecution altogether. In the event that comes to pass, it will be fascinating to see what follows: will India start seeing innovations of the kinds seen in the U.S., or will corporations be getting a clean chit. 

The Big Lapse on Sentencing Reform

At the end of the day, what matters most is the eventual punishment. What happens to corporations if they are found guilty of paying bribes? Do they fear hefty penalties, or a situation like the infamous case of Arthur Andersen in the United States - the accounting firm that went bust facing criminal charges? Not really. The new amendments to the PC Act leave untouched the sentencing formula of the earlier system, where penal provisions only provide for a "fine" to be imposed on corporations. This is not statutorily linked to wrongful advantage gained by the paying bribes, nor is there any clear authority to revoke corporate licenses or impose curbs on business activities if the corporation is found guilty (such powers seem to exist for charitable organisations). Sentencing will remain entirely dependent on the judges' discretion. From my limited experience of seeing corruption trials with corporate defendants, I saw three scenarios most commonly play out: judges either levied no separate fine on corporations, imposed the same fine as the human defendant, or simply doubled the amount of fines imposed. In all of these, often no explanation was offered for how the amounts were fixed. 

This is where the tendency to ape foreign legislation can become problematic. Yes, Section 7 of the U.K. Bribery Act also only stipulates a fine to be imposed. But the U.K. has an entirely different sentencing regime to that of India. Not only are courts mandated to explain their reasons for awarding the sentence, but the Sentencing Council issues Guidelines for courts to follow in figuring out how to arrive at that sentence as well. In 2014, the Council published Guidelines for Fraud, Bribery and Money Laundering Offences that requires courts to consider ten different factors to fix a sentence for Section 7 offences, in which removing all gains from corruption is almost a pre-requisite. 

By retaining the old system, the amendments have seriously missed out an opportunity of ushering in much-needed reforms. It means that the significant deterrent and regulatory force that anti-corruption legislation carries ends up lost on other bad actors in the field, undermining one of the main reasons for creating corporate criminal liability in the first place. Thus, despite having a broader scope for corporate liability, it might remain worryingly common that corporations brush off corruption charges and continue to engage in illegal acts.

Conclusions and Next Post

The PC Act amendments have ushered in a new regime for holding corporations criminally liable for engaging in corruption offences, one which theoretically renders it easier to prosecute corporations than before. Having moved to this legal theory in the corruption context, one wonders whether the Indian legal system will witness an en masse shift abandoning the old alter-ego theory altogether. As discussed in the post, once the amendments come into force, there is probably going to be immense lobbying as corporates try to create rules that gives them more benefits than merely a legal defence at trial after making costly outlays for installing a compliance regime to check bribery. In the long run, it might also result in disrupting how India regulators prosecute corporate bribery, encouraging more conversations between regulators and corporate defendants to keep a case away from court. Having now discussed two of the major new avenues explored by the PC Act, the next post returns to more familiar terrain for the law and discusses changes made by the 2018 amendments to prosecuting public servants for corruption.

Snippet: Increasing Penalties for Traffic-Rule Violations Makes Roads Safer?

The short answer to the titular question here is, no. The Motor Vehicles (Amendment) Bill, 2016 is soon going to become law and is being largely hailed across platforms as a gamechanger. It brings in a lot of new things which are necessary - revamping definitions, including aggregator services, reworking the insurance and compensation provisions. But, sadly, it simply treads the all-too-familiar path of hiking penal tariffs in a bid to curb bad road behaviour. 

I have argued on this blog (a long time ago here) that this routine understanding of deterrence is fraught with problems. A rational decision-maker will consider costs posed by breaking the law, and the likelihood of being caught at that moment. The lesser the likelihood of being caught, the lesser any possible sanction will impact my behaviour. Duh, right? The fact that nobody seems to be stating the obvious at this moment is pretty infuriating, forcing me to say it all over again. To assume that adding another zero to the quantum of fines is going to deter people from driving rashly, or taking the wheel when drunk, is daft. Anybody who travels by road can tell you that the problem isn't just the existence of sanctions, but it is their enforcement. 

How often do traffic cops cut challans (fines) after stopping vehicles suspected of violating traffic rules? A simple attempt to map the disparity between these two events (the stopping of a vehicle vs. issuing a fine) and then reducing the arrears would probably achieve far more towards making our roads safer than another increase in penalties. And it is simple - just add recorders on the motorcycles that the traffic police use. That technology is inexpensive and easily accessible, and would deter the corruption that is rife in this field. Maybe this solution is also too naive. In fact, I'm sure it is. But it is surely better than simply raising the sceptre of more stringent punishment, ignoring how this will also proportionately increase the corruption plaguing the system at present. 

Preventive Justice Part 3 - An Overview of the Statutes

The two previous posts in the Preventive Justice series focused on Article 22 of the Indian Constitution which prescribes basic minimums regarding preventive detention in India. The history behind this constitutional provision - labelled an anachronism - offers further support to that old adage of not judging books by their covers. The development of due process law in India was used to question the sustainability of the basic minimums constitutionally prescribed by Article 22. To recap, it was argued that the Supreme Court has, unambiguously, held that Article 22 is not a complete code and preventive detention laws are open to challenge under Articles 19 and 21. In this concluding post in the series, I look at the many statutes - both federal and state - in India that authorise preventive detention for a wide variety of acts. The question I beg, not always directly, is whether these would pass muster when tested against Articles 19, 21 and 22 of the Constitution. 

Scope of Legislative Power on Preventive Detention

The Seventh Schedule to the Indian Constitution details the various items on which the federal and state legislatures can pass laws. Preventive Detention figures as Entry 9 on the Federal List (List I) as well as Entry 3 of the Concurrent List (List III). These read as follows:

Entry 9, List I: Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

Entry 3, List III: Preventive detention for reasons connected with security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.

In A.K. Gopalan v State of Madras [AIR 1950 SC 27] the majority held there was no requirement to specify what issue of defence or foreign affairs a preventive detention statute sought to deal with. It would be legal for it to simply refer to the subjects mentioned in these entries as justifications. As we shall see, this proved to be important for courts in upholding the validity of these statutes.

Federal Laws Authorising Preventive Detention

Is it purely coincidental that the federal laws authorising preventive detention in India today have some connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps. Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What are the purposes of these laws and what do they proscribe?

• COFEPOSA: Allows for preventive detention for "conservation and augmentation of foreign exchange and prevention of smuggling activities." 
• NSA: Persons acting "prejudicial to the defence of India, the relations of India with foreign powers, or the security of India" as well as those acting "prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
• Black Marketing Act: Allows for detention in cases for prevention of "blackmarketing and maintenance of supplies of commodities essential to the community."

Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was challenged in A.K. Roy v Union of India [AIR 1982 SC 710], and upheld by the Supreme Court. It helped that the legislature had copied the objectives from the Seventh Schedule. 

The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar challenges for fundamental rights violations. 

Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7 SCC 499] held that this didn't matter. It noted that as the validity of the COFEPOSA had been upheld once, the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22. The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the security of India by the Court.   

State Laws Authorising Preventive Detention

The vast majority of State laws greatly resemble each other - in both substance and in name - and address purported anti-social elements such as Goondas and Bootleggers. Amnesty India has put up a useful resource listing these laws and their objectives which means I can jump right away to the more recent developments on this front. I refer to the amendments to preventive detention laws brought to address video piracy and digital offenders. This was done by Karnataka most recently, giving us the atrociously titled Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment, Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money Launderers, Sexual Predators and Video or Audio Pirates Act 1985. The problems posed by such amendments by states have been discussed a fair bit already (see here, here and here) and has been considered once by the Madras High Court in 2005. Supplementing those critiques, I argue that these extensions are illegal for the laws do not pass the test posed by Articles 19, 21 and 22. The development of due process would suggest Article 21 poses an important test to the validity of these laws.

Conclusion

The lack of attention to preventive detention legislation in India remains surprising. Especially at at time when there is renewed attention to the expanding scope of detention without trial across the globe. The judicial approval of these statutes has stemmed debate to a certain extent, and has consequently resulted in emboldening states to continually expand preventive detention laws. While preventive action in itself is not a problem, Indian laws (both federal and state laws) display a glaring lack of proportionality in their approach. Prescribing possibly year-long detentions for potential copyright violations, when the offence itself is bailable, is patently unjustified and illegal. Looking ahead, lets see what the future holds. 

Criminalising disrespect to the National Anthem

I have been asked more than once on why this Blog has been silent about the interim order passed by the Supreme Court in Shyam Narayan Chouksey v. Union of India [W.P. (Civil) 855/2016, dated 30.11.2016]. Through this order a Division Bench of the Supreme Court passed a slew of directions mandating that the National Anthem be played before feature film presentations in movie theatres, accompanied by a representation of the National Flag. The order has been critiqued on various fronts that are not a concern of what we do on this Blog. But recently, film festival screenings in Kerala saw arrests of persons who allegedly refused to honour the directions by not standing while the National Anthem was being played. News reports were hazy on the offence for which these arrests were made but some cited 188 IPC as the basis. My friend Mr. Rahul Unnikrishnan recently took up the baton and argued here that the arrests lacked legal basis and the Supreme Court had created a new offence. In this post, I further examine these claims. Together with Mr. Unnikrishnan, I argue that non-compliance with the directives of 30.11.2016 cannot be used to initiate criminal cases. One illegality must not be compounded with yet another.  

Using Section 188 IPC to Enforce the Order

Section 188 IPC is part of Chapter X, titled Of Contempts of the Lawful Authority of Public Servants. It is an exception to the norm that crime and punishment must be prescribed by the legislature. Thankfully, mere disobedience is not punishable, and the offence is complete only when tis disobedience risks occurrence of certain harmful consequences, or actually causes their realisation. So, there are three requirements for an offence under this provision: 

1. Existence of an order promulgated by a public servant in her lawful authority.
2. Knowingly disobeying such an order;
3. Such disobedience causing the prescribed ill-effects.

Can we consider the order passed on 30.11.2016 as one that merits application of Section 188 IPC? 

Judicial precedent is clear that orders passed by courts in litigation between parties do not form the subject of Section 188 IPC. For example: violating an injunction order would not amount to an offence under Section 188 IPC but may possibly merit contempt of court proceedings [See, e.g., the decisions in Dalganjan Koeri v. State (AIR 1956 All 630); George Joseph v. State of Kerala (Kerala High Court, Division Bench)].  

But there is a catch here. The decisions I refer to above develop on the idea that court orders relate specifically to the parties rather than issues of public convenience and order. Few would contend that an order of the Supreme Court issuing directions for the country, as in the present case, are the same as regular orders even though they are passed in a litigation before the court. Add to this the Supreme Court's power to do complete justice under Article 142 of the Constitution. This makes it arguable to consider an order passed by a Supreme Court Justice - a public servant - as satisfying step 1 of my three-step Section 188 analysis.    

The Indian Constitutional Law & Philosophy Blog mooted that Article 142 was never meant to be used this way. While I support that view, I think it is instructive to turn to the intent behind Section 188 IPC to decide how much weight this arguable position can carry. Section 182 of Lord Macaulay's draft of the IPC contained a very similar provision to the current Section 188. Out of all the offences in this Chapter, the Law Commissioners thought it necessary to justify this one. The explanatory notes are insightful:  

"The only provision which appears to us to require any further explanation is that which is contained in clause 182. we have, to the best of our ability, framed laws against acts which ought to be repressed at all times and places, or at times and places which it is in our power to define. But there are acts which at one time and place are perfectly innocent, and which at another time or place are proper subjects of punishment; nor is it always possible for the legislator to say at what time or at what place such acts ought to be punishable. ... 

What we propose, therefore, is to empower the local authorities to forbid acts which these authorities consider as dangerous to the public tranquility, health, safety or convenience, and to make it an offence in a person to do any thing which that person knows to be so forbidden, and which may endanger the public tranquility, health, safety, or convenience. It will be observed that we do not give the local authorities the power of arbitrarily making any thing an offence; for unless the Court before which the person who disobeys the order is tried shall be of opinion that he has done something tending to endanger the public tranquility, health safety or convenience, he will be liable to no punishment. The effect of the order of the local authority will be merely to deprive the person who knowingly disobeys the order of the plea that he had no bad intentions. He will not be permitted to allege that if he has caused harm, or risk of harm, it was without his knowledge. ... 

We see some objections to the way in which we have framed this part of the law; but we are unable to frame it better. On the one hand, it is, as we have shown, absolutely necessary to have some local rules which shall not require the sanction of the legislature. On the other hand, we are sensible that there is the greatest reason to apprehend much petty tyranny and vexation from such rules; and this although the framers of those rules may be very excellent and able men. ... 

A public servant of more than ordinary zeal or industry, unless he have very much more than ordinary judgment, is the very man who is likely to harass the people under his care with needless restrictions. We have, therefore, thought it necessary to provide that no person should be punished merely for disobeying a local order, unless it be made to appear that the disobedience has been attended with evil, or risk of evil. [Emphasis added]"      

This makes it clear that the power of giving the backing of punishment to ensure compliance with orders was extraordinary and limited to peculiar situations for which legislative sanction does not make sense. This, coupled with the illustrations in the comments which I have omitted here, make it clear that the Law Commissioners were looking at local regulations dealing with processions, disease, etc. Issues that have already been answered through legislative sanction are surely outside the scope of Section 188. Insults to the Indian National Anthem and the National Flag are comprehensively dealt with by the legislature in the Prevention of Insults to National Honour Act, 1971. I would argue, then, that the order dated 30.11.2016 as forming the basis of prosecutions under Section 188 IPC.       

Can disobedience cause the necessary harmful effects?

What are the harmful effects that Section 188 IPC speaks of?

• Causing or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed
• Causing or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray

Ordinarily, not obeying the order dated 30.11.2016 will not attract the second situation. Courts have understood the first situation as referring to the obstruction, annoyance or injury caused to the person lawfully employed for enforcing the order in question. Which makes the position as follows: persons knowingly disobeyed the order lawfully promulgated by the Division Bench on 30.11.2016 and by doing so caused obstruction to the police who were lawfully employed for enforcing the order. Whether or not this disobedience caused 'obstruction, injury or annoyance' would become a question of trial and could go either way. This forces me to disagree with Mr. Unnikrishnan, who focused on this point to contend that using Section 188 IPC to justify arrests lacked "legal wisdom".

Offences under the Prevention of Insults to National Honour Act, 1971?

Mr. Unnikrishnan further argues the Supreme Court has created a new offence without any legislation backing it. His contention is slightly misplaced. The history behind Section 188 IPC shows that it was created specifically for making offences without legislative sanction. The basis of his argument is sound though, as we discussed above. This also leads me to the 1971 Act that specifically addressed this issue of criminalising insults to the National Anthem and National Flag. Section 3 it made an offence to intentionally prevent the singing or causing disturbance to an assembly singing the anthem. If by not singing the police are trying to say that persons caused disturbance to the rest of the assembly singing the anthem, it is a very strained reading of the text. If news items are to be believed then this provision is not being used to justify arrests. One can only hope that remains the case.

Preventive Justice Part 2: Looking inside Pandora's Box

In the previous post, I traced the history behind Article 22 of the Indian Constitution, showing how the clause was considered to be Dr. Ambedkar's version of due process after that idea was excluded from Article 21 [India's guarantee to protect the right to life and personal liberty]. Constitutional developments since have seen the Supreme Court re-introduce the due process idea into Article 21 most famously in Maneka Gandhi's case. This, naturally, raises questions about the position of Article 22 in the panoply of rights to freedom guaranteed under the Indian Constitution. It leads me to consider the history behind the interplay between Articles 19 to 22 in this post. For this I have relied, again, on the books by Granville Austin and Mr. Seervai's commentary, and I would strongly suggest those interested in the issue to consult these sources. I then argue, that Article 22(3)(b) - excluding the right to legal representation for those preventively detained - is contrary to Article 21.

The 'Complete Code' idea - AK Gopalan and RC Cooper

A.K. Gopalan v. State of Madras [(1950) SCR 88] is one of my favourite decisions of the Supreme Court, and probably one of the most misunderstood ones too largely due to the common vilification it suffers after Maneka Gandhi. A.K. Gopalan [Communist Leader, and later Member of Parliament] was detained under the Preventive Detention Act, 1950 [a legislation hastily passed by the Nehru Government a month after the coming into force of India's Constitution to prevent release of the hundreds of persons detained under laws that would soon lapse]. Gopalan challenged the Act for violating Articles 14, 19, 21 as well being contrary to Article 22 itself. The Court upheld the validity of the Act but held Section 14 unconstitutional for violating Article 22(5) - the provision prevented even courts from accessing materials on which detention orders were based.

This post is limited to only one of the several fascinating points of discussion thrown up by Gopalan. That is the issue of Article 22 being a 'Complete Code', which means that the legality of preventive detention laws is limited to being tested only against Article 22 and not the other fundamental rights in Part III of the Constitution. The Attorney General argued this was the correct position of law. Only Mahajan, J. agreed: "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 a self-contained in respect of the laws on the subject of preventive detention." Kania, C.J., Sastri and Das, JJ. considered Articles 21 and 22 had to be read together [Kania, C.J.: "According to him [the Attorney General], Article 22 is a complete code. I am unable to accept that contention."]. Fazl Ali, J. went a step further and observed that "In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other."

This means that the 'Complete Code' argument was rejected in Gopalan itself, the only doubts left were regarding applicability of Article 19 to preventive detention laws. Strangely, then, the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that "The majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and 'within the four corners of that Article'." As Mr. Seervai notes, the majority incorrectly considered the 'Complete Code' idea as being approved by Gopalan and that this was further compounded in Haradhan Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the view of Fazl Ali, J. and overruled Gopalan for accepting the 'Complete Code' argument [wrongly, of course]. This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978 by Maneka Gandhi transplanting 'procedure established by law' with 'due process of law' without amending the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into preventive detention laws - Francis Coralie Mullin [AIR 1981 SC 746] an eloquent instance of the same.

Pandora's Box: Unleashing Article 21 on Article 22(3)(b)

Opening Pandora's Box is shorthand for taking decisions without appreciating the consequences. I think the analogy aptly reflects the Supreme Court's move to import 'due process' into Article 21. The interplay between the various 'rights to freedom' under Part III was based upon the specific exclusion of due process from Article 21 [discussed in the last post]. It is fair to say that the decision in Maneka Gandhi irreversibly severed Articles 19-22 from that original interpretation. Proceeding from this position, I argue that Article 21 and Article 22(3)(b) cannot coexist in the current constitutional scheme. The limited version of 'due process' guaranteed through Article 22 must give way.

Recall that Article 22(3)(b) barred persons detained under preventive detention laws from consulting and being defended by a legal practitioner of their choice. Like the rest of the preventive detention clause, this was considered necessary due to the situation prevailing at the time by Dr. Ambedkar. The Supreme Court noted its harshness but begrudgingly accepted this position. All this was because Article 22 represented the extent of due process guaranteed in the Constitution. Then the Supreme Court decided to introduce an unfettered concept of 'due process' into Article 21. This led the Court to note in Madhav Hoskot v. State of Maharashtra [(1978) 3 SCC 544] that a 'procedure established by law' entailed a right to appeal, right to counsel and imposed a duty upon the State to provide free legal aid (Krishna Iyer, J. even passed directions to that effect). How, then, does one justify the exclusion of this right to counsel through Article 22(3) to persons who perhaps are in greatest need of legal counsel? 

Five judges in A.K. Roy v. Union of India [(1982) 1 SCC 271] squarely faced this contention. Their answer was simple: detenus had not right to counsel because Article 22(3) specifically excluded it. Notice the helplessness in the opinion: "It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. ... It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1). [Emphasis mine]" What is crucial here, is the Court relying upon Article 22 itself as the yardstick to determine what is just, fair, and reasonable. I argue that this is incorrect, because after Maneka Gandhi the test of procedural fairness flows from Article 21 and not Article 22. In any event, no part of the Constitution itself remains above scrutiny, and the helplessness of the Court is akin to crocodile tears. 

Conclusion

The idea of a 'Complete Code' in Article 22 was unassumingly sustained by the Supreme Court and eventually buried by it as well. The consequences of this, however, are something that the Court continues to struggle with. While I have focused on clause (b), the retention of Article 22(3) itself despite the Supreme Court heralding a 'due process' standard is unacceptable. Looking at decisions post 1980 concerning preventive detention, it is clear that judges appreciated the problem. Successive decisions did mollify the deprivation of a right to counsel. In Nand Lal Bajaj v. State of Punjab [(1981) 4 SCC 327], the Court held that a detenu had a right to counsel where the Government was permitted to engage a lawyer to argue before the Advisory Board established under a preventive detention law. This, it reasoned, would violate Article 14 and Article 21. In A.K. Roy, after expressing its dire helplessness the Court did go ahead and hold that a person detained had a right to be assisted by a friend ["who, in truth and substance, is not a legal practitioner"] in making a representation. The Court has re-written Article 22(3) to this limited extent, but it dare not take the plunge and declare it wholly redundant.

[kudos to Gautam Bhatia for helping think this post through]     

Patna HC Liquor Ban Verdict - Proportionality in Punishments

A Division Bench of the Patna High Court yesterday ruled that the Bihar government’s prohibition measures were unconstitutional. These measures included notifications passed by the executive as well as amendments to the Bihar Excise Act made in 2016 by the Bihar Legislative Assembly. My friend at The Indian Constitutional Law and Philosophy Blog is most likely to post a scintillating analysis of the various constitutional law issues discussed by the Division Bench very soon. I’m trying to beat my friend at his game here. In this short comment I focus on the penal provisions introduced by the amendments which have been held unconstitutional.

Overview

The separate opinion of Justice Singh covers seven issues and he saves the best for last with his analysis of punishment clauses coming right at the end at Paragraph 89. Effectively, the law criminalised anything one did with alcohol (i.e. acts/omissions associated with its production, possession and consumption) contrary to the Act and rules. Punishments for these offences are neatly summarised into three categories in the judgment: (i) incarceration and fine (Sections 47, 53), (ii) confiscation of property (Sections 68-A, 68-G), and (iii) collective fines (Section 68-I) [There are other provisions on punishments in the Act as well that developed on these basic offences]. These were supplemented by the now-standard provision on reversing the burden of proof and presuming the accused is guilty (Section 48). The High Court unanimously held that these penal clauses were unconstitutional.

The Opinion

Out of these three categories, take categories (i) and (ii) separately from category (iii) which is collective fines. The collective fine provision is set aside for obvious violations of Article 21 of the Constitution as it imposed punishments contrary to a procedure established by law as no right of hearing or right of appeal was provided by the clause. Similar provisions for collective fines are present elsewhere that have these procedural safeguards [See, Section 16 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989].

Which brings me to the more interesting part of the decision concerning categories (i) and (ii). The primary plank on which these penal clauses are set aside is an argument on proportionality, i.e. the sentence imposed for an offence must be proportionate to the harm purportedly caused by the offence. This is a rather crude summation of what is a highly technical concept in sentencing theory [See, Andrew Ashworth Sentencing and Criminal Justice (5^th edn., 2010); Andrew Von Hirsch Censure and Sanctions (1993)]. The High Court located the concept of proportionality in criminal statutes in Article 21 of the Constitution by relying upon the Supreme Court decisions in Mithu Singh v. State of Punjab [(1983) 2 SCC 277] and Vikram Singh v. Union of India [(2015) 9 SCC (502)]. The three judges in Vikram Singh framed the proportionality test as follows: “Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.”

In this case, the harm as per the State of Bihar was the various evils associated with excessive alcohol consumption that are afflicting its people. The response was to introduce penal provisions that had these notable features:

• A presumption of guilt which the accused must rebut without specifying whether the State had any burden to prove objective facts displaying commission of the offence;
• Broad constructive liability attracting persons whose property was allegedly involved in the commission of offences. These persons would be subjected to the similar presumption of guilt which they must rebut;
• Mandatory minimum punishments – warranting that a sentence of at least ten years’ imprisonment be awarded for possessing alcohol and at least five years for consuming it in a public place;
• Sealing of properties allegedly involved in commission of offences and their confiscation upon conviction;

The Court posed to itself a question – was this response proportionate to the harm – and answered it in the negative as it found the penal clauses were notoriously overbroad and unspecific. There was no gradation of punishment to differentiate minor and major violations. Nor did the punishment clauses show any sensitivity to how different acts posed different harms. The NDPS Act was cited as an example of how such clauses can be provided within constitutional limits (to think that the NDPS Act would appear as a measure for principled criminal legislation!). Notably, Justice Singh did not restrict his opinion to the badly drafted punishment provisions for his proportionality analysis. It also looked at the various procedural conveniences incorporated by the 2016 Amendments, i.e. the reversed burdens of proof and coercive procedures of confiscation and sealing of property. Although persons could plead ignorance as a defence, broad constructive liability meant far too many people would be unfairly accused and subjected to these coercive procedures while having to prove their innocence. These dangers were not set aside by the stringent punishments imposed on vexatious actions by overzealous state agents.

Some Comments

The absence of any sentencing policy or guidelines has been a common lament for several criminal law scholars in India over the years. This decision puts the problems starkly into perspective. Imposing a minimum ten-year imprisonment for possessing alcohol and confiscating premises where nobody knew alcohol was present there seems to satisfy the outrageously disproportionate standard of the decision in Vikram Singh. However, the Supreme Court in both Mithu Singh as well Vikram Singh was at pains to stress the different position that the death penalty occupied from a sentence of imprisonment. In Mithu Singh, one may recall, Section 303 IPC was set aside because it only allowed for the death sentence without any alternative. The Supreme Court in Vikram Singh put it bluntly: “there are very few and rare cases of sentences of imprisonment being held disproportionate.” The Patna High Court decision is therefore remarkable, for it places the penal clauses in the Bihar Excise (Amendment) Act 2016 in this category of very few and rare cases. To my knowledge, this is the first decision to use the proportionality doctrine to set aside penal clauses despite no death sentence being involved.

There are deeper problems though. The decision in Vikram Singh provided a neat ‘sum up’ of principles on proportionality at Paragraph 52. It was a summing up of principles drawn from Canadian and American jurisprudence – both have specific constitutional prohibitions on certain kinds of punishment. India does not. In fact, the Supreme Court on an earlier occasion in Jagmohan Singh v. State of U.P. [AIR 1973 SC 947] specifically noted that American jurisprudence on prohibiting cruel and unusual punishment [flowing from the Eighth Amendment to the United States Constitution] could not be imported in India because the Indian Constitution did not have similar clauses. Of course, Maneka Gandhi came after Jagmohan Singh and expanded the boundaries of Article 21 allowing us to possibly incorporate the Eighth Amendment jurisprudence. The problems of having such an indeterminate constitutional jurisprudence have been seen with the tussles over the right to privacy and its scope. Therefore, it should be clear that proportionality analysis of punishment clauses does not have a sure footing in Indian constitutional law and the expansion by the Patna High Court may well be considered beyond its current scope.

Conclusion

For now, though, one can only be happy with how proportionality is invoked to set aside statutes inflicting persons with disproportionate terms of imprisonment. This experience is similar to what happened in Maharashtra with the beef ban, where again a proportionality argument was raised to set aside the reverse burden clauses. It shows us that High Courts are stressing on a more principled brand of criminalisation, something that has not been the hallmark of how criminal law developed in India over time. A refusal to budge especially when prohibition was such an integral scheme of the ruling government reflects a commitment to principles that must be lauded. The decision is kind, for it tells the legislature what can be done to fix the law. If the State of Bihar chooses to challenge the decision rather than amend the statute, the Supreme Court will be able to consider these important questions. One hopes it upholds how the Patna High Court applied proportionality to restrain the legislature from abusing its near-plenary powers in sending people away for a decade for having a pint.