Guest Post: The Unchartered Territory of Customer Liability under Section 370-A IPC

(This is a guest post co-authored by Rupam Jha and Ashwin Vardarajan)

On 20th September, 2014, suspecting organised prostitution, the Telangana police inspected a colony located in Cyberabad, Telangana. They arrested two individuals, allegedly, for hiring prostitutes; and both were booked under Section 370A of the Indian Penal Code, 1860 [‘IPC’] that criminalises sexual exploitation of trafficked persons. Praying for the FIR to be quashed, the two accused, then, approached the Hyderabad High Court (‘HC’), contending that an offence under Section 370A was not made out against them. The HC, however, rejected this argument, observing, inter alia, that Section 370A takes “in its fold the customer[s] also.” [Naveen v. State of Telangana (2015)]. Three years later, the Karnataka HC in Pradeeban v. State (2018), confronted with the same question, noted that Section 370A “in no way attract[s] for punishment so far as the customers are concerned”. This contrast in judicial interpretation raises a pertinent issue, and it is in this light that we aim to discuss Section 370A IPC — to determine whether criminal liability of a customer [of prostitution] is intrinsic to this provision.

Legislative Genesis of Section 370A

The law pertaining to sexual exploitation of trafficked persons is broadly provided under two statutes in India: The Immoral Traffic (Prevention) Act, 1956 (‘ITPA’) and the IPC. In order to understand the conundrum of Section 370A we must undertake a brief study of its legislative history, which involves both these statutes.

An amendment bill to amend the ITPA, inserting, inter alia, Section 5C into the said act, was tabled before the Parliament in 2006. Section 5C of the bill provided punishment for any person “who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons”. This provision, quite visibly, criminalises the act of a person sexually exploiting a trafficked person, without adequately laying down the standards of intent or knowledge that the accused must have while engaging in such exploitation. The bill was, then, referred to the Parliamentary Standing Committee (‘PSC’). On 23rd November, 2006, providing its assessment, the PSC released the 182nd PSC Report. The report noted that the provision had received ‘mixed reactions’ — conveying the concerns of certain NGOs who believed that the provision fails to acknowledge the very likelihood of consensual and voluntary prostitution (para. 13.3). Further, the report put forth several arguments against Section 5C pertaining to, inter alia, how an accused person visiting a brothel would ideally not be able to distinguish between a trafficked and a non-trafficked person, there being no definition of ‘sexual exploitation’, and the potential harassment by the police of every person visiting brothels [See paras 13.6-13.8].

Then, in 2012, the Nirbhaya incident happened, which threw light on many lacunae in the framework of criminal laws in India especially sexual offences. Accordingly, the JS Verma Committee (‘JSVC’), tasked with the duty to recommend changes to the existing framework of criminal law, recommended several amendments to the IPC in its 2013 Report. In response to the need of “a comprehensive code to deal with trafficking and sexual exploitation (both commercial and otherwise)”, the Committee amended Section 370, and added Section 370A to criminalise the act of “employing” a trafficked person/minor for “forced labour” (p.172 & 439). The provision, as originally recommended, was also endorsed (at para.5.16.1) by the 167th Department Related PSC Report on the Criminal Law (Amendment) Bill, 2012. Notably, there was an unnamed member who opined that Section 370A should be confined to offences relating to ‘sexual exploitation’ and not ‘forced labour’ (para. 3.2.26). Section 370A (2) as proposed by the JSVC read as follows:

“Whoever, despite knowing, or having a reason to believe that an adult has been trafficked, employs such adult for labour, commits the offence of forced labour of a trafficked adult, and shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to five years.” (Emphasis added)

However, when Section 370A was formally introduced vide the Criminal Law (Amendment) Act, 2013, its focus shifted from those employing trafficked persons into ‘force labour’, to those engaging in ‘sexual exploitation’ of trafficked persons/minors – thereby critically deviating from the amendment proposed by the JSVC. The inserted provision of Section 370A (2) now reads as follows:

“Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.” (Emphasis added)

The legislature offered no justification for this change. Further, in their move to alter the proposed Section 370A, the Parliament has brought back the concerns echoed by the PSC on the 2006 ITPA amendment bill. 

The Shallow Judicial Explication

In the backdrop of this alteration, the Hyderabad HC in Naveen held the customer, that is — in this context - the person who engages the services of a prostitute, may be tried under Section 370A — a decision that has since been followed quite a few times (illustratively, see here). In doing so, the courts implicitly raise either of the two presumptions against the customer: firstly, the accused's knowledge about the victim being trafficked; or, secondly, a reason for the accused to believe so. This eliminates the difference between a customer “who engages the services of the prostitute” and the individual who “engages such [trafficked] person for sexual exploitation”. What is more, such interpretation fails to take note of the element of volition, in so far as the sex worker is concerned, and places an arguably undue burden on the customer to conduct a backdrop check of the sex worker. 

Bewilderingly, in holding the “customer” liable under the provision, the Hyderabad HC in Naveen relied on the JSVC Report — observing that this interpretation fell in line with “the object with which the report was submitted”. As has been previously established, Section 370A bears no resemblance to the suggestion made in the committee report. JSVC suggested a provision criminalising the engagement of trafficked persons for forced labour, while Section 370A now criminalises engagement of trafficked persons for sexual exploitation. Therefore, it is unclear how the Courts reached the conclusion that they did, considering, particularly, that not once has the text of the bare provision been satisfactorily discussed in any case.

This difference in the judicial opinions of the Hyderabad and Karnataka HC (as discussed earlier) in this regard were brought to the notice of the Hyderabad HC in Mohd. Riyaz v. State of Telangana (2018). The petitioners contended that the decision in Naveen did not lay down the correct law under Section 370A — thus warranting reconsideration. However, the HC rejected this argument and held that a person coming to a brothel, or hiring a prostitute/sex worker, for participating in sexual intercourse “is said to have engaged in sexual exploitation” and may thus be liable under Section 370A. This explanation fails to consider the entire text of the provision. Put simply, Section 370A does not criminalise the very act of hiring a prostitute. Rather, it criminalises the act of engaging a trafficked individual for sexual exploitation. The interpretation offered by the Courts lends to the belief that hiring a prostitute, irrespective of the consensual nature of the act, by its very nature, is tantamount to sexual exploitation of a trafficked person. Now, although, Section 2(f) of ITPA, defines prostitution to include sexual exploitation, the key word for us to consider here in the text of Section 370A is trafficked, and the knowledge of the same. 

Moreover, as noted by the 182nd PSC Report, this allows the police the power to harass anyone who hires a prostitute, or goes to a brothel. Interestingly, Shashi Tharoor, during the Lok Sabha discussions on Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, too criticised Section 370A for being interpreted too “liberally by the Police and the courts, going well beyond the legislative intent of those provisions.”

Conclusion

To summarise, a literal interpretation of Section 370A is capable of encompassing customers – as prostitution is also considered a form of ‘sexual exploitation’. The catch here is whether the customer had ‘knowledge’ of him/her sexually exploiting a ‘trafficked’ person/minor. This determination of knowledge under Section 370A is seemingly difficult in comparison to other offences under IPC. Lastly, it has a detrimental effect on the rights of trade and livelihood of sex workers – as this interpretation directly discourages a profession (prostitution) which is not criminalised per se. It is pertinent, therefore, that this interpretative lacuna be looked into at length, and its implications be duly weighed by the courts in the future.

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.

Supreme Court Holds The "Legislative Packet" of Adultery Unconstitutional

Today, a Constitution Bench of the Indian Supreme Court delivered the judgment and opinions in Joseph Shine v. Union of India [W.P. (Crl.) No. 194 of 2017, decided on 27.09.2018]. A unanimous Court held that Sections 497 of the Indian Penal Code, 1860 [IPC] and 198(2) of the Criminal Procedure Code, 1973 [Cr.P.C.] are contrary to Articles 14, 15, and 21 of the Constitution and are therefore struck down. The Chief Justice wrote the opinion for himself and Khanwilkar, J., while the three remaining Justices [Nariman, Chandrachud, and Malhotra] each penned a separate opinion. This post discusses what has been held by the Supreme Court, focusing on its impact on the criminal law and criminal process in India [the non-discrimination aspects have already been discussed here].  

The Issue and the Broad Holding

During the course of arguments in Joseph Shine, I had discussed the issues on the Blog and need not repeat everything here. Suffice to say that Sections 497 IPC and 198(2) Cr.P.C. created a peculiar legal framework: punishing husbands for only certain kinds of marital infidelity, while expressly depriving the wife a right to institute prosecutions. There were multiple ways to grapple with the problems they posed, and the previous post suggested three such formulations: 

• Type I: Is Section 497 IPC void because adultery shouldn't be a crime at all? 
• Type II: Are Sections 497 IPC and 198(2) Cr.P.C. bad because they perpetuate unconstitutional gender-based discrimination? 
• Type III: Is Section 497 IPC bad because it differentiates within adulterous relationships without any rational basis for that classification? 

I had argued that the previous challenges to adultery provisions had mostly been Type II cases. The entire Court in Joseph Shine considered this set of arguments and held for the Petitioners. All five Justices held that the adultery provisions were contrary to Articles 14 and 15 of the Constitution, being manifestly arbitrary and perpetuating gendered discrimination. The Court also unanimously held that the provisions were bad for being contrary to Article 21, as they deprived women of the dignity assured by that fundamental right. Each opinion heavily criticises the provisions for their treatment of women as chattel and endorsing an outmoded conception of patriarchy and marriage. The argument of relying on Article 15(3) of the Constitution to propose these provisions as "beneficial legislation" for women was, to put it bluntly, scoffed at and rejected.

But the hearings in Joseph Shine suggested some ambiguity in how far the Court was interested in also hearing a Type I challenge, i.e., arguments on whether adultery could be criminalised. This sense of confusion is visible to varying extents in the several opinions in Joseph Shine. Nariman, J. does not discuss the Type I challenge at all, while Chandrachud and Malhotra, JJ. hint at this in some parts but mainly stick to a Type II argument. On the other hand, the Mishra, C.J. and Khanwilkar, J. in the lead opinion discuss the Type I challenge fully, as I elaborate below.  

New Constitutional Limits on Substantive Criminal Law?

The substantive law issue posed by the adultery provisions arose largely out of Article 21, which the Supreme Court affirmed guaranteed a right to privacy. Thus, would criminalising adultery violate this constitutional right to privacy? As I mentioned above, barring Nariman, J., the rest of the Court did go into the substantive issue. Justice Malhotra discusses it at Paragraph 17 of her opinion, giving a general exposition of the principles of criminalisation: 

"In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole. Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State."   

Chandrachud, J. discusses the issue in two paragraphs, making more pointed connections between the issues and Section 497 IPC: 

"... There is a fundamental reason which militates against criminalization of adultery. Its genesis lies in the fact that criminalizing an act is not a valid constitutional response to a sexual relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. ... Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing." [Paragraph 60]

"... The legitimate aims of the state may, it must be recognized, extend to imposing penal sanctions for certain acts within the framework of marriage. Physical and emotional abuse and domestic violence are illustrations of the need for legislative intervention. The Indian state has legitimately intervened in other situations such as by enacting anti dowry legislation or by creating offences dealing with the harassment of women for dowry within a marital relationship. The reason why this constitutes a legitimate recourse to the sovereign authority of the state to criminalize conduct is because the acts which the state proscribes are deleterious to human dignity. ... Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. ..." [Paragraph 61] 

Note the problems. Malhotra, J. provides a useful exposition of the principles for criminalisation, and Chandrachud, J. adds to this with the specific problems created in the context of adultery. But neither of the opinions discusses how the analysis applies to criminalisation of adultery per se in India. While one wonders whether these Justices would have upheld a gender neutral formulation of the offence, it is clear that their opinions do not engage with the core substantive claim of whether adultery can be a crime. 

The same cannot be said for the opinion by Misra, C.J., and Khanwilkar, J.: 

"We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. ... A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. ... We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. ..." [Paragraph 49, Emphasis supplied]

The highlighted parts make it clear that this opinion expressly engaged with the privacy issue posed by a criminalisation of adultery per se and not only its specific formulation under Section 497 IPC. It also offers a clear rule rather than expositional rhetoric for future courts and legislatures to apply: do not criminalise conduct which is purely within the "real private realm" or affects the "extreme privacy" of certain spheres. But since the content of these terms has been left unclear, it is anybody's guess on how this rule applied in future decisions. Except, perhaps, one specific area of the criminal law in India which might finally be struck down: the marital rape exception under Section 375 IPC.

Article 21 and the Marital Rape Exception 

The marital rape exception under Section 375 IPC, as the name suggests, deems non-consensual sex acts performed by a husband on his wife to be legal. The Delhi High Court had been hearing petitions on removing the exception even before today's decision in Joseph Shine, and the opinions should help the cause of those arguing for striking it down. Although the exception does not criminalise, at its heart is the same logic that has been declared unconstitutional by the Supreme Court: that the sexual autonomy and agency of a married woman is subservient to her husband's interests. Consider the following excerpts from Chandrachud, J.'s opinion, which could equally apply to marital rape as well:

"It proceeds on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinates the woman to a position of inferiority thereby offending her dignity, which is the core of Article 21." [Paragraph 11]

"A woman's ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law."[Paragraph 25]

"Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision." [Paragraph 32]

"The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage." [Paragraph 36]

"In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy." [Paragraph 59]

Conclusions

Credit must be given to the Court for taking up the constitutional issue and pruning the statute books, a task long overdue. The crime of adultery is gone, and thanks to the controlling opinion in Joseph Shine, it should be gone for good. It joins the other anachronism in the bin - criminalising consensual sexual relations between homosexuals. Make no mistake, Joseph Shine has its flaws. This was the second case where the Supreme Court invoked the right to privacy under Article 21 to strike down a penal provision - after Navtej Johar - and still nobody really knows where that fundamental right begins or ends. By not referring to the decision in Navtej Johar (except Chandrachud, J.), and adding new terms such as "real private realm", the Supreme Court is making a mess of the nascent privacy jurisprudence. 

Ultimately, the Court had it easy in both Navtej Johar and Joseph Shine. Statistics suggest that both the underlying offences were dead letters and prosecutions were rare, and in the former the Union did not even defend the criminalisation. A more stern test of the liberal credentials of the Court is bound to come up where it is asked to practice what it preaches in a more contentious context. This, I suggest, is bound to be criminalisation of marital rape - an issue around which a different kind of lobbying exists. Predictions aside, legally the point should be straightforward: If constitutional morality is offended by legislative inequality between the spouses in their pursuit of sexual freedom outside marriage, the same yardstick must apply within the marriage itself. Any other conclusion is the worst kind of hypocrisy imaginable.

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 Lawlessness of Land Grabbing Laws? - Part II

The previous post started a discussion on issues with the Karnataka Land Grabbing Act (based on an earlier 1982 Andhra Pradesh statute). It discussed how the Karnataka statute created a crime of “Land Grabbing” and argued that the definition was criminally vague, and its classification of this offence as cognizable and non-bailable invited abuse by law enforcement agencies who could arrest and detain persons without warrants. It flagged the use of a reverse onus clause in the statute as another problem, suggesting it was potentially unlawful. Unfortunately, it is uncommon for such arguments to find favour before a court. In this post, I turn my attention to the kinds of technical arguments that might resonate louder. Like the previous post, the framework for discussion is the Karnataka Land Grabbing (Prohibition) Act, which is being challenged before the Karnataka High Court.

     
The Special "Land Grabbing" Court: Judge, Jury, and Executioner 
The primary body responsible for enforcement of the Land Grabbing Act is a "Special Court" created under the statute [Section 7]. Although it is called a "Court", it shares many features with the various statutory tribunals which exist in India today. Its members are both former judges and members of the revenue services appointed for fixed terms by the Government [A three-year tenure in this case]. All pending cases, of both a civil and criminal nature, relating to issues under the Land Grabbing Act stand transferred to this Special Court for areas in which it is created [Section 20], and this body of persons then decides how the cases shall proceed [Section 9(4)]. It must try to finish any case within six months of it being instituted [Section 9(6)].

Only once we move beyond the Special Court taking up pending cases do we encounter a striking set of procedures that have been installed. In Land Grabbing laws, a Special Court has been empowered to act as judge, jury, and executioner: it has the power to start a case on its own, conduct the trial, and also initiate any other legal action against persons it concludes are violating the Land Grabbing Act, whom it can then send to prison as well [Section 9(1)]. The power conferred on the Special Court to initiate cases is limited, technically: for taking cognizance it can "consider the location, or extent or value of the land ... or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter." Considering these highlighted terms are broad enough to mean anything, the purported limits are pointless.

I label these procedures striking because of history. The combination of executive and judicial powers in one office was often noted as a hallmark of the oppressive legal process in colonial India, often campaigned against by leaders of India's nationalist struggle. This system meant that the same officer could prosecute persons and then condemn them, naturally resulting in this power being used to selectively persecute those raising their voice against the Crown. Separating executive and judicial functions was a big part of the "transformative" agenda that the nationalist leaders sought to introduce with the Indian Constitution, becoming part of the Directive Principles as Article 50. Alarmingly, the state governments have chosen to revisit the dark days of India's colonial past, seemingly oblivious to this critical history. The problem of obvious persecution that can arise by empowering the same authority to file criminal cases and judge them is worsened by the fact that the Karnataka statute presumes guilt, as was discussed in the last post.

The sense of doom is capped when we look at what happens after the Special Court gets done with trial and consider the sentencing and appeals process. Recall that the Karnataka Act provides for mandatory minimum prison terms. This statutory harshness is combined with an amazing permission on the Court to order eviction with force if necessary, where it finds that land grabbing was done forcefully [Section 9(5)(c)]. What can a person aggrieved with decisions of a Special Court do about her grievance? Worryingly little. All decisions of the Special Court are final and not subject to appeal [Section 9(3)], and so the only possible legal remedy is by way of writ petitions. In this regard, the Karnataka law is even harsher then the Andhra Pradesh statute on which it is modelled upon, as the latter creates a two-tier system allowing for appeals.

An Unfairly, Arbitrarily, and Unconstitutionally Harsher Process? 

Directive Principles are not enough grounds for rendering any law unconstitutional, but looking at Article 50 one does get to know that this combination of powers is a harsh process that is not usually prescribed for conducting any cases. Other features which make the procedure under the Act a harsh one were discussed previously. The question, then, is whether these deviations from the standard set of rules is constitutional. For this, the state must show exactly what makes the land grabbing problem so bad that it justifies re-introducing colonial legal principles that were removed after some serious bloodshed. Could anything really be that bad for the state to revert to the colonial system? If the state cannot satisfy this burden it possibly renders the statute contrary to both Article 14 (protecting against unfair and arbitrary discrimination) and Article 21 (protecting against unfair and arbitrary deprivation of the right to life).   

I suspect it is going to be difficult to justify the problem as being so bad that the government needs (i) the power to arrest without warrant and detain persons pending trial, (ii) to presume guilt, and conclude this by a truncated trial process (iii) to have mandatory minimum sentences, (iv) to have all of these powers bundled up together in one body whose decisions are not subject to appeal. This task is potentially made even more difficult if we consider the fact that the many state laws concerned with land grabbing coexist with a Federal law on a similar subject: the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 [Public Premises Act]. This allows for the removal of persons occupying lands owned by the Indian Government. Like the state laws, the Public Premises Act also creates offences and designates them as cognizable. But this is where the similarities end, for unlike the state laws, the Public Premises Act does not allow for arrests without complaints by specified public servants based on the kind of property concerned [Section 11-A]. The Public Premises Act only criminalises illegal occupation of land and does not criminalise illegal construction etc. [Section 11]. Moreover, this is a crime which it punishes by possible jail-time of up to six months, (repeat offence being punishable up to a year) and possible fine of up to five thousand Rupees. It gets worse. The Public Premises Act does not begin with a criminal court deciding the fact of illegal occupation / construction. That issue is determined in hearings before an Estate Officer, who issues a show cause notice to the concerned individuals. If, after this process, the Estate Officer concludes that occupation was illegal, this leads to an Order of Eviction. This need not call for immediate eviction, and allows for giving up to fifteen days for clearing out of the land [Sections 4-5]. Finally, unlike state law which does not allow any appeal against the orders of a Special Court, all orders made by Estate Officers can be appealed [Section 9].

Conclusion: The New Normals
There are more possible grounds on which one could challenge the Karnataka statute, but I thought the Special Court presented the most obvious source of legal trouble and so focused on it here. With the litigation in the Karnataka High Court pending, one hopes that the issues receive a proper hearing. This is important not only from a "legal" perspective. The problems that have been flagged in these two posts are not mere legal issues: they are windows into seeing how government in India is willing to create oppressive legal regimes to force policy agendas, and has been doing so for some time. This eagerness to achieve results is slowly eroding whatever supposed transformations India's Constitution sought to bring. It is the responsibility of the people of India to stop this trend through the political process. But this arduous task will continue to verge on the impossible if the the courts, custodians of the constitutional agenda, turn a blind eye and let status quo persist. 

[Disclaimer: This post was written with inputs from Ms. Nayanatara B.G., a practising advocate who is part of the legal team challenging the legality of the Karnataka Land Grabbing (Prohibition) Act before the High Court of Karnataka, at Bengaluru]

The Lawlessness of Land Grabbing Laws? - Part I

In 1982, the government of what was then undivided Andhra Pradesh passed the A.P. Land Grabbing (Prohibition) Act to "curb the unlawful activity of grabbing Government land, a local authority, a religious or Charitable Institution or Endowment including Wakf or any other private property". A central means of achieving this was to create a new offence of "land grabbing" and to create "Special Courts" for dealing with land grabbing cases that would finish them within six months. Inspired by the A.P. model, similar Land Grabbing laws have been introduced in the states of Assam (2010), Odisha (2015 ordinance), and Karnataka (2016). In 2011, in a much-politicised incident the Madras government relied on similar ideas for "better" enforcement of existing laws but chose not bring a new legislation into effect.

This two-part series discusses some problems with the Karnataka version of the Land Grabbing Act. The problems are not restricted to issues with the constitutional validity of the law, but cover more ground that touches broader policy issues. Before proceeding further though, a caveat. Surprisingly, it seems that the constitutional validity of these statutes has rarely come up for scrutiny before the state High Courts. Searching for cases, I only came across constitutional challenges to how the Special Court is constituted under the A.P. law. I couldn't find anything from Odisha or Assam. Thus, whatever I argue here is based on an assumption that the issues have not directly come up before a court yet. If they have, please share the judgment! 

What is "Land Grabbing"? How Serious is it?

Land Grabbers [defined under Section 2(e) of the Act] are persons who engage in Land Grabbing, or abets others in doing so. Land here means land belonging to the government, essentially [Section 2(d)]. As defined under Section 2(f), "Land Grabbing" means:

... every activity of grabbing of any land, without lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements, construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures ... 

The definition is not very helpful. It contains a clear "physical conduct" requirement: there must be "grabbing of any land without lawful entitlement". But there must be an associated mental state with this conduct that makes it criminal. Here, this is grabbing land to which you have no title, with a view to (i) take illegal possession, (ii) create illegal tenancies / lease / license deals, (iii) build structures for sale / hire, (iv) hand over the land to someone else to do all of these things. Since you would rarely end up "grabbing" any land which you don't own without wanting to take illegal possession over it, one would think that it isn't too difficult to prove this crime. But more on that later.

This is not the only offence under the statute. Section 5 lists "Penalty for other offences in connection with land grabbing" and criminalises other acts, such as (i) selling grabbed land / advertising about it, (ii) instigating or inciting someone to grab land, (iii) uses grabbed land for any purpose, or knowingly permits it to be used, (iv) enters into deals about constructing on grabbed land, (v) "causes or procures or attempts to procure any person" to do any of the above. Again, one wonders why this was needed given the massive overlap between the two provisions.  

Land Grabbing and all other offences in connection with it, are punishable with at least 1 year and potentially up to 3 years in prison, along with a fine which could go up to Rs. 25,000 [Sections 4, 5]. If that doesn't sound serious enough, note that all offences are cognizable [Section 13]: which means that law enforcement can arrest persons without warrant on suspicion that an offence was committed.  Moreover, since the statute does not provide whether the offence is bailable or not, the Cr.P.C. makes it non-bailable by virtue of it being punishable up to three years in prison. Why would such broad powers be given to states? The definition of "Land Grabber" gives a hint. It is not only talking about persons who take illegal possession. Rather, it focuses on the idea of organised activity geared towards land grabbing. It speaks of "a group of persons or a society" engaging in this, or giving "financial aid" to another for grabbing land or illegally constructing upon it. The definition even speaks of persons "collecting or attempting to collect" money from occupiers of grabbed land by "criminal intimidation", again hinting at organised crime.* It is quite common for organised crime to not be limited to just one activity, which is why allowing police powers of arrest for these things may help them get dangerous persons off the streets. 

That is the logic behind having these powers, but as we know, it is quite common for such powers to be misused. That is a serious concern given how loosely the definition is crafted, and how widely the net is cast. Take a hypothetical: someone tells the police that X is illegally occupying some land. Since illegal occupation would rarely mean that it is not done with a view toward illegal possession, that is enough for police to arrest. Someone needn't even tell the police that actually, as they can do it themselves. The problem goes further: the act penalises a person who "causes or procures or attempts to procure" anyone to engage in land grabbing. This is not a regular law that penalises attempting to commit a crime. It penalises attempting to get someone to attempt the crime - "attempts to procure any person to do any of the above". That theoretically means anyone can be arrested and sent to jail, and practically means that the police have a tool to arrest and jail persons on the pretext of allegedly committing this offence. [See here, and here, for earlier posts that discuss this issue].       

Proving "Land Grabbing" in Court - More Reverse Burdens

Section 11 of the Karnataka Act provides that in any proceedings under the Act, if the government can prima facie prove that the land in question was government owned, then the Special Court shall presume that the person is a Land Grabber, and the burden to prove she is not guilty of the crime lies on the person accused. Using reverse onus clauses - where the state does not have to prove guilt - to make it easy for the government to get convictions is now very common. It is a practice blessed by the Supreme Court, which has held them legal as long as the government proves initial facts to shift the burden on to the accused. Here, the government is asked to prove something: that the land was government owned. Does this justify the shifting of burdens? I am not so sure.       

First, the provision here applies to all proceedings under the Act: which means that at every stage such as bail, initial remand, and the start of the trial, the accused will be contesting innocence. This, at the stage of bail where the accused may not yet have the means to assemble a defence, make the bargain particularly unfair. Second, the state needs to prima facie prove something. But what does it mean to prima facie "prove" anything? The Evidence Act in Section 113-B asks the state to "show" facts, and usually the law asks it to "prove" facts. But prima facie proof suggests a lower standard. If the state already doesn't need to prove guilt, is it legal for the burden to prove initial facts to be even lower than proper proof beyond reasonable doubt? Third, Section 11 asks the government to prima facie prove that the land in question was government owned. Is this enough? Logically, one imagines that the state will also need to prove that the land was being occupied by the accused. Assuming this condition is incorporated into the provision, we come to the remainder of the offence-requirement. The accused would then have to prove that her occupation of the land was not illegal. That seems fine - property documents etc. should be with the accused and this would simply require her to bring them to court. But poor persons often don't have property documents, despite paying good money for being able to live on land which may not even be government land. Eventually then, they are the ones who stand to suffer.      

Summing Up and Next Post 

This post took up two issues with the Karnataka Land Grabbing Act - how it defines the crime of "Land Grabbing" and how it provides for enforcement of the law by the police and by judges. A common theme that emerged was that while the purely legal objections to the statute might be easy to deal with, the real-world problems that the law brings remain unaddressed. Since there is no legal basis to challenge the classification of offences as cognizable and bailable, it means courts cannot act as a check on police powers of arrest and detention. When the legislature confers these powers on the police for the enforcement of vague crimes, which cover not only attempts to commit the crime but attempts to attempt, it invites rather than merely allows misuse. Similarly, reverse burden clauses are now something we can justify as fair when it seems that the accused is not being asked to prove too much. But in imagining this idea of what is "too much", we are assuming a kind of accused person who might be prosecuted: someone who can offer that proof. In context of land grabbing, and many other offences that rely on documentation, the truth is that several people cannot offer those papers. Not because they are violating the law, but because they are poor and vulnerable to oppression by the state machinery which denies them their rights. Does this render a law bad? Unfortunately not.            

The next post will take up issues with the "Special Court" created under the Land Grabbing Act and how it prosecutes and tries offences.

*The definition of Land Grabber is curious. It speaks of collecting rent by "criminal intimidation" as a problem, but does that mean collecting rent without this is not a problem? Going by the definition of Land Grabbing, and associated offences under Section 5, one suspects that the statute is not going to be limited this way.

[Disclaimer: This post was written with inputs from Ms. Nayanatara B.G., a practising advocate who is part of the legal team challenging the legality of the Karnataka Land Grabbing (Prohibition) Act before the High Court of Karnataka, at Bengaluru]

The Fugitive Economic Offenders Ordinance: Gearing Up for Challenge?

It has been over a month since the Fugitive Economic Offenders Ordinance [FEO] was passed by the Indian President. In what is rather common fashion, the Ordinance was passed without the necessary rules having been prepared, and this past month has slowly seen the Government get its act together and notify those rules that make the wheels of the Ordinance turn (see here, and here). The stage is nearly set for the first set of cases to be brought under this Ordinance, which one expects would be against Nirav Modi and Vijay Mallya, the two bogeymen used to pilot the law through in the first place. What this also means, hopefully, is that the legal defence teams for both Mr. Modi and Mr. Mallya will bring up what many commentators including myself (mostly before the Ordinance, for instance see here, here, here, and here) have imagined as the expected legal challenge to the constitutionality of that Ordinance. In eager anticipation of that legal challenge, which I sincerely hope does take place for a Court to clarify the issues, this post highlights what are perhaps the weakest parts of the Ordinance legally. It then moves beyond these previously argued points to point out a serious change brought about by the Ordinance in how its invested law enforcement agents with seriously broad powers to investigate routine offences.

The Mechanics of the FEO Ordinance

Bear with me, as I quickly run through what the FEO Ordinance does, before moving to what many have considered as its potential pitfalls if a legal challenge comes before court. The FEO Ordinance is a measure passed by the Government to "deter" alleged fraudsters from hastily fleeing the jurisdiction of Indian law enforcement agencies, which stalls any potential criminal proceedings against these persons. Who is an FEO? It is a person against whom a warrant has been issued, and who either left India to evade it, or if outside India, remained outside to evade arrest [Section 2(f)]. The Government admittedly had the examples of Mr. Modi and Mr. Mallya in mind, and so it has made the Ordinance applicable to persons who might already be FEOs before the Ordinance came in force [Section 3].  

How does the FEO Ordinance work? It can be used by Officers of the Enforcement Directorate [ED] in cases where they allege a person is an FEO and that sums more than Rs. 100 Crores were involved [Section 2(m)]. Based on these ED allegations, the Ordinance allows the Government to confiscate the property of an FEO at the initial stage itself. To triggers this process, an application consisting of these allegations (why is she an FEO, where is she, what property is sought) must be filed by the ED [Section 4]. The Court then issues a notice the alleged FEO, and any other persons with interest in the property, to appear and answer the allegations. The persons must have at least six weeks to appear, but this calculated from the date of issuing notice and not its receipt. Effectively, it will be lesser, as the Government has up to two weeks to get that notice served [Section 10]. If the person comes herself then proceedings under the Ordinance terminate. If, she appears through counsel, then the Court can give up to a week to file a reply. But if she does neither, and the Court is satisfied that notice was properly served, then it will hear the merits of the Government application [Section 11]. If the Court finds is convinced of the Government claim, then it will declare the person an FEO, and pass orders for confiscation [Section 12]. Thus, it should be clear that the ED can't get "immediate confiscation" as some news reports wrongly suggest."

Previously Argued Pitfalls

Confiscation of assets is not new under Indian laws. But confiscation at the pre-trial stage, with such rapidity and only on the basis of initial allegations levelled by an admittedly biased investigating agency, is definitely new. Thus, it has been argued that the Ordinance procedures could be challenged as unreasonable under Article 21 of the Constitution. Most commentators argue that a prominent issue with the Ordinance lies in the variety of drastic measures it seeks to impose on a person declared an FEO. Specifically, Section 14 of the Ordinance has been attacked. This allows any court to disallow the FEO herself or entities in which the FEO holds a key managerial position to advance or defend any civil claims. The provision is dangerously overbroad: any civil claims includes property disputes, matrimonial claims, company disputes, writ petitions, and a host of other potential claims. Certainly, the FEO Ordinance cannot take away the right of a person to seek writ remedies, or approach the Supreme Court under Article 136? Beyond Section 14, it has been argued that a problem lies in the Ordinance failing to explain what happens if a person successfully appeals against an FEO declaration under Section 17. Will the Government have to return confiscated property? Will it have to make monetary refunds for property where it has already been sold? The failure to elucidate any of this raises a question of whether the deprivation of personal assets, part of my right to life under Article 21, is being done via procedure established by law. This is not inconsequential, for while the Supreme Court has upheld pre-trial confiscation of property for a State Law in Odisha and Bihar (wrongly, in my view), both those statutes had provided compensation in case of a successful appeal.

A Challenge to the Broad Powers of Enforcement - Routinising Exceptionalism

In the existing commentary on the FEO, both while it was a pending Bill and the present Ordinance, little has been said about what it allows the Government to do beyond confiscating property. By this I mean the powers of survey, search, seizure, etc. [Sections 7-9] that have been conferred on ED officers. These are extremely broad powers. Survey powers allow them to enter any establishment and legally compel proprietors or employees to furnish documents and other materials, and even take their statements. Search and seizure, though common to law, requires court sanction unless there is grave exigency. Not anymore, as Section 8 authorises ED officers to conduct warrantless searches of places without any need for exigency. Section 9 similarly allows searches of persons, obviously not the FEO, for finding evidence. 

Now, these powers are not unknown to Indian laws. Nearly identical provisions are present in the Prevention of Money Laundering Act 2002 [Sections 16-18], and are definitely the source for the FEO Ordinance. Similar powers of search are also under the Unlawful Activities Prevention Act 1967 [Section 43A]. But, at the cost of sounding obvious I must say this, Money Laundering is one of the most serious offences out there today, and the UAPA deals with terrorism. Money laundering carries links with terrorism, and nation states argue that it offers one of the most serious threats to economic stability. We can all disagree about this assessment (I certainly do), but that is the line that India and other nations have taken. Is the FEO Ordinance only dealing with Money Laundering? No! It isn't! While allegations of Money Laundering offences can trigger the FEO, it is also a mechanism for dealing with many more standard offences when the allegations involve sums of over Rs 200 Crores. So, one finds that Cheque Bouncing Offences are part of the Schedule, as are nearly all the property-related offences of the Indian Penal Code, 1860. So, the ED can bust your house without a warrant for high-value cheque bouncing or cheating cases. You might say that wait, these are huge sums involved. Rs. 200 Crores is not chump change, and these are persons fleeing the country. I agree. But are there really these sums involved, and do we really have absconders? No. Remember, the FEO Ordinance powers can be used based purely on the untested allegations of the ED. Moreover, the law contains the vague language, that the ED officers can use these powers on the suspicion that a person may be an FEO. So there is no objective basis to be certain of how fairly these powers are used. 

To give some context, go look at the Narcotics, Drugs and Psychotropic Substances Act 1985, one of the more draconian statutes that we have at our disposal. Even that law does not permit a warrantless search and seizure except in cases of exigency. Thus, what the Government has done, is to confer perhaps the most serious and rights-limiting style of enforcement powers our legal system has, to deal with cases of cheque bouncing. It offers a drastic instance of routinising exceptional powers that the law confers under the guise of fear-mongering and scare politics. Sure, you can go challenge the unannounced raid and deprivation of your property in Court later. But the damage is already done by then, and is certainly done by the time you might get a hearing in the slow Indian criminal justice system. 

Conclusion: A Serious Problem Needing Judicial Attention

The FEO Ordinance must come up before a Court. The problems that have been highlighted in terms of its consequential provisions are serious and, in some cases, seemingly unconstitutional. That the Government went ahead with these provisions despite persistent adverse commentary makes one wonder just what it thinks is a legal justification behind them? But far more troubling is this resort to exceptional enforcement powers in dubious fashion. Why does the Government need terrorism-level enforcement powers to deal with loan defaulters, cheque bouncing, cheating, and bank fraud cases? No mention of this aspect was found in the Ordinance, the Bill, or the Parliamentary Debates on the Bill, and that should concern us. This cannot become the new normal that we slowly slide towards. In any potential legal challenge, a court will have the chance to arrest that slide, and it must.