Jail is not the Rule - Contesting Restrictive Bail Regimes (new series)

Growing up, the soundtrack of Amar Prem was very popular in my house. I never understood it much, but as I grew older, I came to love it too. Why such a random start? Because it is a few lines from one of its songs, called Chingari Koi Bhadke, that I have been stuck on for the past few days. The poetry of its lyric (crooned by Kishore Kumar) is laced with intriguing posers, and one of them asks us that if the boatman is the one responsible for keeping us afloat at sea in choppy waters, what will happen if the boatman decides to sink the ship? 

Let me use a different frame of reference to convey the issue which the song poses. If our constitutional courts are the ones responsible for keeping the flame of fundamental rights and personal liberties ablaze even as the other conjoint branches of the Indian State are determined to snuff it out, what will happen if constitutional courts decide to thumb out the flame as well? This is exactly the dilemma put to us when the courts begin to uncritically state that for some situations "jail is the rule" because the legislature appears to have said so, and proceed to deny bail and condemn a person to incarceration pending an adjudication of his guilt. 

This was the position recently endorsed in a decision of the Supreme Court in context of Section 43D of the Unlawful Activities Prevention Act 1967 ['UAPA']. Even though this opinion may only be by Two Justices and arguably incorrect for failing to even refer to binding precedent, its existence has emerged as a lightning rod to galvanise anti-liberty views on how judicial discretion should be exercised. It did not take long for the Madras High Court to repeat the mantra when dealing with another restrictive bail clause, that under Section 45 of the Prevention of Money Laundering Act 2002 ['PMLA']. 

At this stage you might think - well, so what? Judgments adopting a highly restrictive view on matters of liberty are as old as the Constitution itself, they coexist with judgments adopting a more critical view of the exercise of state power to ensure that the deprivation of liberty is not unjust, and good advocacy lies in the ability to differentiate the bad ones and use the good ones. The "jail is the rule" mantra is no exception to this time-tested logic. 

To which, I would urge you to reconsider this accepted wisdom and ask whether a matter such as personal liberty pending trial is one which should be subject to vagaries of 'good' advocacy or be considered a matter that is too fundamental to be trifled with in such a manner. If you agree with the latter thought, then I would also ask you to consider that over the past 74 years, restrictive bail clauses are now found across nearly twenty statutes across the central and state laws, and have become a key prong in lawfare tactics adopted in India. 

Contending with, and contesting, the restrictive bail clauses splattered across the Indian legal landscape is thus slowly emerging as the pre-eminent problem for both lawyers and scholars who are vested in the idea that the Constitution is a document designed to protect personal liberty and only permit its deprivation in a manner consistent with proportionality, fairness, and reasonableness. This Blog has dealt with such clauses in the past, both in terms of specific statutes and a more generic frame of reference, and offers an archive to help understand the issues. 

Over the next few weeks, we will develop on the more generic approach to complement the older posts which are now almost nine years old. The aim is to adopt a similar flow - start with the history, to then contend that the clauses are unconstitutional, and knowing just how unlikely such a claim is to succeed, also suggest ways in which courts can (and must) insist upon a fairer application of the restrictive bail clauses.

Guest Post: Section 29 POCSO Act — From Guilty Presumptions to Proof of Guilt

(This is a guest post by Angad Kamath, a final year law student at NALSAR University of Law)

Presumption literally means “taking as true without examination or proof”. In Kumar Exports v. Sharma Exports (2009 2 SCC 513), the Supreme Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence." In a lawyer’s dictionary, ‘presumption’ can have several meanings – each different from the other. The term is most commonly associated with statutory provisions that require a certain fact to be ‘presumed’ upon proof of other sets of facts – this is also known as a derivative presumption. It can also be used to allocate the burden of proof; the presumption of innocence, in this sense, can be expressed as the right of the accused to shift the onus to prove her guilt on the prosecution. This form of a presumption is described as a foundational presumption; a proposition that the court must initially accept without proof of any fact.

In this piece, I wish to explore the nature of the presumptive clause found in section 29 of the Protection of Children from Sexual Offences Act 2012 [POCSO]. I argue that Courts have failed to look beyond the commonly associated form of presumption, i.e., the derivative presumption in its interpretation of section 29. I further argue that the non-literal interpretation adopted by some courts has rendered the presumptive clause meaningless, effectively reducing it to a standard of proof clause.

Let's begin by constructing a general presumptive clause, giving it the framework of a derivative presumption.

Section XYZ – “If facts A, B, C are proved, then the court shall presume fact D unless the contrary is proved”. Examples of this type of presumptions can be found in section 139 of the Negotiable Instruments Act 1881 [NI Act], section 113B and 114A of the Indian Evidence Act 1872, and section 35 of the Narcotic Drugs and Psychotropic Substances Act 1985.

[General framework formulae: proof of foundational facts occasions separate fact to be presumed – fact presumed can be rebutted]

To further simplify, let us take the example of section 139 NI Act-

“139. Presumption in favour of holder - It shall be presumed, unless is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability."

A bare perusal of the section 139 NI Act would suggest that before the presumption (u/s139) becomes available to the complainant, he must show that he is holding a cheque which is ‘of the nature referred to in section 138’. Hence, the facts to be proved (basic or foundational facts) contained in section 138 are extracted below:

"... Provided that nothing contained in this Section shall apply unless: —

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may, makes a demand for the payment of the said amount of money by giving a notice in writing, to be drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."

Now, a conjoint reading of sections 138 and 139 would make it sufficiently clear that only upon proof of facts provided in clause (a), (b), (c) of s. 138, would the benefit of the presumption (that the cheque was issued in ‘discharge of a whole or in part of any debt or any other liability’) accrue to the complainant.

It can be noticed here that the facts proved and the fact presumed is independent and separate from one another, in accordance with our general framework set out above. The fact presumed is an inference drawn upon proof of independent and separate facts. The presumed fact can be rebutted by leading evidence to the contrary.

Now let’s proceed to examine the framework of the presumptive clause provided for in section 29 of the POCSO Act and compare it with our general presumptive clause:

Section 29 – Presumption as to certain offence

“Where a person is prosecuted for committing or abetting or attenuating to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved”

Upon a strict literal interpretation, the presumptive clause in s. 29 can be deconstructed as follows –

• Fact to be established/proved - person prosecuted for committing any offence under section 3,5,7,9
• Fact to be presumed - person has committed the said offences.

Put otherwise, if any person were to be ‘prosecuted’ for any offence under sections 3,5,7,9, then the Special Court shall mandatorily raise the presumption of such person having committed the offence unless any evidence to rebut the presumption can be led. 

But courts have taken extremely divergent stands on the interpretation of the word ‘prosecuted’, which falls under the foundational facts category in our general framework.

A division bench of the Calcutta High Court in a recent decision (27 Feb,2020) held as follows —

“The words appearing in section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross-examination by defence.”

Similarly, the Bombay High Court while examining the effect of the presumption under section 29 POCSO has held —

“It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.” (emphasis supplied)

The position taken by the Calcutta HC and Bombay HC has been similarly adopted by the Madhya Pradesh High Court and Kerala High Court (See, Joy v State of Kerala (2019) SCC Online Ker 783)

On the contrary, in a bail petition filed for offences under POCSO and IPC, the Karnataka High Court, in a bail application, appears to have found favour with the literal interpretation of s. 29 presumptive clause. While denying bail to the accused, the court held as follows — 

“The POCSO Act came into existence in the year 2012. In order to protect children provision has been made under Section 29 of the Act that if once charge sheet is filed and the allegations are available, further the victim statement is recorded, under this factum the Court has to infer the said act has happened by drawing initial presumption. That has to be rebutted only during the course of full dressed trial.”

According to this interpretation, the presumption of guilt is to inferred once the charge-sheet is filed and victim’s statement is recorded, which essentially means, the presumption is raised at a pre-trial stage.

In State v. Tej Kumar @ Tinku the Special Court for POCSO cases (sitting in Delhi) was addressed the following arguments, inter alia, on behalf of the accused -

“ ... that presumption also lies in favour of prosecution in different statues like under Negotiable Instruments Act, NDPS Act, Indian Evidence Act, Prevention of Corruption Act but by the mere fact that some presumption in provided in the statute, complainant/prosecution can not be exonerated from their liability. Rather, it is well settled law that to draw a presumption in favour of complainant under Negotiable Instrument Act, complainant has to prove certain facts.”

Upon a detailed comparison of the presumptive clause found in section 29 of POCSO Act and section 138 NI Act, the court, in line with the Karnataka High Court’s strict literal interpretation concluded as follows –

“But, presumption under Section 29 of the POCSO Act is not similar to the presumption as under Section 139 of NI Act ... To draw a presumption in favour of prosecution, prosecution has to establish that accused is prosecuted for committing or abating (sic) or attempting to commit any of the offences which are mentioned:-(i). under Section 3 of the Act i.e. Penetrative Sexual Assault.(ii). under Section 5 of the Act i.e. Aggravated Penetrative Sexual Assault.(ii). under Section 7 of the Act i.e. Sexual Assault.(iv). under Section 9 of the Act i.e. Aggravated Sexual Assault. Once prosecution is succeeded to establish the aforesaid pre-requisite condition, Special Court is bound to draw a presumption in favour of the prosecution that the said person i.e. accused has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved.Bare perusal of Section 29 of the Act reveals that the initially burden is upon the accused to show that he was not involved in the said case and once he is succeeded to raise a doubt over a prosecution case or to show his innocence by preponderance of probabilities, onus will be shifted upon the prosecution to prove the guilt of accused.”

If one takes a closer look at the presumptive clause under section 29, the requirement of foundational facts to be proved is conspicuous by its absence. As a corollary, it can be concluded that the presumptive clause under section 29 does not accurately fit in the framework of our general presumptive clause. The absence of clear and discernible legislative instruction on this aspect has led some courts to observe that mere prosecution is sufficient for raising the presumption, while others have opined that the literal and restrictive interpretation may render the clause constitutionally suspect. In order to avoid a potential constitutional challenge, some courts have read in the element of foundational facts having to be proved at trial for the presumption to come alive. In this way, courts have proceeded to interpret the textually different presumptive clause under the POCSO Act in the same manner as the general presumptive clauses found in the NI Act, Evidence Act, etc.

By reference to the cases surveyed above, there appears to be a clear conflict in the interpretation of s. 29 POCSO between different courts as regards the following issues –

1. At what stage does the presumption of guilt embedded in section 29 operate? Does it operate from the commencement of criminal prosecution (i.e. at the time of filing charge-sheet or filing complaint before a magistrate) itself or is it confined only to the trial?
2. What are the foundational facts, if any, that are to be proved for the presumption to kick in and reverse burden to apply?

The answer to issue 1 lies in finding the answer to issue 2 – i.e., we must, firstly, identify the foundational facts, if any, which ought to be proved for the presumed fact of guilt to be inferred. I use the words ‘if any’ consciously because the legislature might have preferred to incorporate a foundational presumption of guilt clause (think of the presumption of innocence – it does not require any facts to be proved for it to operate) as opposed to a derivative presumption (the general presumptive framework captured above is an example of a derivative presumption) that we so commonly find in various statutes. [I am not examining the constitutional validity of the literal interpretation in this piece.]

If the trigger for presumption lies in nothing but ‘mere prosecution’ (as literally interpreted by the Karnataka High Court and Delhi District Court), then the presumption of guilt may have a strong bearing on outcome of bail applications filed before the trial stage, apart from other serious consequences at the trial. The serious difficulty of obtaining bail in POCSO matters may just translate to impossibility if presumption arose upon mere prosecution.

With this background, let us grapple with issue 2 — In the case extracts cited above, it can be noticed that the courts having avoided the literal interpretation route have some commonality in their interpretation of section 29 presumptive clause. I have culled out the common features of their interpretive observations below –

• That the prosecution would have to mandatorily bring on record the facts which form the basis of presumption.
• Upon having brought the facts on record, the prosecution must proceed to prove the facts
• Having proved the facts forming the basis of presumption, the presumption is triggered and the burden to reverse the said presumption shifts upon the accused.

In summary, it can be concluded that initial burden has to be discharged by the prosecution, which can be rebutted by accused by adducing evidence to the contrary.

As observed earlier, in their attempt to save it from a constitutional challenge, courts have resorted to interpreting the unique presumptive clause found in section 29 in the same manner in which derivative presumptions are generally interpreted. No doubt, this interpretation holds the field when it comes to the reading of derivative presumptions (where X fact is to be inferred upon proof of Y fact). But before we apply it to section 29, we must be sure of whether or not the said section is of the nature of a derivative presumption or a foundational presumption (like the presumption of innocence), which has still not been authoritatively pronounced by any court, let alone the Supreme Court. Even if we were to assume for the sake of argument that section 29 is a derivative presumption, the courts have so far failed to articulate the finer details of the foundational facts that need to be proved: What constitutes the specific foundational facts, which if proved, will lead to an inference of guilt?

Generally, most courts have held that the trigger for presumption lies in proof ‘of the primary facts constituting the offence’. On the question of standard of proof, which needs to be met by the prosecution, a division bench of the Calcutta HC in Subrata Biswas v. State of West Bengal [(2019) SCC Online Calcutta 1815] has observed –

“A proper interpretation of the said provision in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability.” (emphasis supplied)

With this context, let us now consider if interpretation given to section 29 presumptive clause fits the general notion of a derivative presumption clause.

Three things are now clear. A) That the prosecution will have to discharge the initial burden of proving the foundational facts; B) Foundational facts in the POCSO context are the ingredients of the offence found in section. 3,5,7,9; C) The standard of proof to discharge onus is a mere preponderance of probabilities and not the usual beyond reasonable doubt standard.

Applying this logic, one would realise that if the prosecution is required to prove all the primary facts of the case, then why would a presumptive clause be provided by the legislature in the first place? Generally, if a particular offence has three ingredients to be satisfied – say, X, Y, and Z, a derivative presumption clause would require the prosecution to prove X and Y (foundational facts) upon which the fact Z would be presumed. The function of a derivative presumptive clause, in this manner, is to ‘give the prosecution a very helpful shortcut to proof of the presumed fact’.

We can now compare this with the earlier example of section 139 the NI Act. The complainant is not required to prove the factum of the cheque having been received in discharge of debt or liability if he can establish the foundational facts [Keep in mind that receipt of cheque in discharge of debt is a key element for conviction under s. 138 NI Act]. The burden then shifts on the accused-defendant to rebut the said presumption by leading evidence to the contrary.

Coming back to section 29, the presumptive clause will be rendered meaningless if the prosecution is required to prove of all primary facts of the offence, although to a lesser standard of proof.

What this effectively means is that the courts, in their attempt to save section 29 from a potential constitutional challenge, have read it in such a way that the spirit and underlying essence of the presumptive clause is completely lost. Through its interpretation, some courts have given it an altogether new meaning; the title — ‘presumption as to certain offence’ — has become nothing but a misnomer. Far from being a presumption clause, its functional purpose has been reduced by some to a lowering of the standard of proof required from beyond reasonable doubt to the preponderance of probabilities standard.

The Complex World of Bail in India's Criminal Justice System

On January 24, 2020, a bench of the Supreme Court comprising Rastogi & Malhotra, JJ, delivered its judgment in State of Kerala v. Rajesh [Crl. Appeal Nos. 154-57 of 2020]. The State of Kerala had challenged an order of the High Court granting bail to persons in a case under the Narcotics, Drugs & Psychotropic Substances Act of 1985 [NDPS Act], arguing primarily that the order was bad since Section 37 of that statute had been ignored by the High Court. The Supreme Court agreed, and set aside the High Court's order.

This Blog has discussed the provisions which impose a burden on an accused to prove innocence at the bail stage, such as Section 37 of the NDPS Act, in some detail (See: here, here, here, and here). Our view is clear: such provisions are a blot on any legal system, let alone a system that purports to guarantee a right to personal liberty and professes a belief in the presumption of innocence. 

Given that the NDPS Act itself takes away that presumption and replaces it with a presumption of guilt, the results in Rajesh should not appear as very surprising. But even so, what is truly remarkable is how the Supreme Court took a legal provision that made it very difficult to get bail, and read it in a way that made it even harder, to a point where the idea of bail is rendered almost illusory in statutes containing such a provision. This scandalous burial of the presumption of innocence takes merely one paragraph (Paragraph 21) and, by the end of it, one wonders whether the Court really considered the consequences of its eagerness to add the veritable bite to the law's bark.

In a scathing assessment, Gautam Bhatia argues that this legal approach reflects the Supreme Court's support for blend of "punitive constitutionalism" that he sees reflected in other areas of the Court's recent work. Reading Rajesh, I would also argue that the decision is a reflection of another tendency of the Supreme Court which is of an older vintage. 

This is the tendency to overemphasise the allegations by considering the "gravity" of the offence and treat them as controlling while deciding an application for bail. Thus, when faced with a case involving allegations of a serious offence, one finds that the rhetoric often becomes eerily reminiscent to conversations people end up having on the lines of "How can you release murderers / rapists / etc. out on bail?", completely ignoring that at the bail-stage what we have are only allegations, and not proof of guilt. Rajesh, for me, is symptomatic of this approach. The moment you read that the case involved a haul of over ten kilos of drugs, and over Rs.13 lakhs in cash, there seems extremely little chance of any other outcome in a bail application, especially where the investigation was still ongoing. 

I wholeheartedly support the position that this approach of the law on the subject of a person's liberty is improper, privileging, as it does, allegations of criminal conduct, and rendering them sufficient to hold persons in custody almost indefinitely. But, at the same time, one must also acknowledge that these features of our "broken" criminal process end up taking a toll on those who knock on a court's door as victims. Indeed, as has been discussed elsewhere, in many instances we find that because the courts know that a conviction is lightyears away, they end up using the bail stage as a way to render justice to the victim by playing up the retributive tendencies. 

In fact, today, in an era of economic crime, there are many prominent examples of courts using the bail stage to secure compensation for a victim. Take, for instance, cases where a court rejects bail to the promoters in various Builder Companies that are being prosecuted by aggrieved homebuyers, unless the accused take steps to compensate the aggrieved victims (as in the case of Unitech). Or, of a person arrested on allegations of having duped countless persons into parting with their savings, where the court makes bail conditional on the accused depositing 50% of the allegedly cheated amount in a fixed deposit to ensure that the ultimate conviction of an accused does not bring a hollow sense of justice. 

How does one understand these cases? Is a court's willingness to go beyond the "alleged" nature of the facts at the bail stage always an instance of the judiciary behaving like executive courts rendering "punitive constitutionalism" and burying liberty? Or, are these actually instances of courts carefully doing justice to litigants in a broken criminal justice system? For me, you cannot look at a decision like Rajesh without also considering these questions, to which there are no easy answers.

Restrictive Bail Conditions in Indian Criminal Procedure: Lessons From History

The law on bail in India has often been discussed on the Blog. Most recently, we analysed the Indian Supreme Court's decision in Zahoor Watali, which revolved around Section 43-D of the Unlawful Activities Prevention Act 1967 [UAPA]; the provision which imposes conditions upon grant of bail in UAPA cases that go beyond the set of conditions laid out in Section 437 of the Criminal Procedure Code of 1973 [Cr.P.C.].

Section 43-D of the UAPA is far from the only example of Parliament creating a law that makes it more difficult to get bail. Indeed, on an earlier occasion, the Blog had offered an indicative list of the statutes carrying such provisions. But a lot was left out in that earlier post in the interests of brevity. Since the preference for such provisions is only increasing with each passing year, it's worthwhile to revisit the subject of restrictive bail conditions in Indian criminal procedure. 

This post takes a look at the first instance of such a provision being used in independent India, when it was added to the Essential Supplies (Temporary Powers) Act of 1946 [ESA] by an amendment in 1950 by the Provisional Parliament. 

Context: Scarcity in Independent India  

It is an undeniable fact that the overall quality of life has seen an increase for a majority of people in India since independence. Keeping that in mind, it is not easy for many of us to imagine the drastic scarcity in essential supplies, such as food and fuel, that India faced in the first two decades after independence. In an effort to manage the limited amount of these essential supplies, the Government chose to continue with a War-time measure of controls that entailed a system of intense state control over both production and distribution (Rohit De offers a window into this world in a chapter of his recent book). The ESA was one of those War-time measures that had been allowed to continue even after independence. 

But each passing month suggested that managing such a vast network of controls was proving too difficult. Thus, rather than curb prices and ensure fair distribution, the intense state control ended up contributing to a thriving black market. Here, supplies would be sold to the highest bidder and so profit would be much higher than what the trader would stand to get by selling material at artificially reduced prices. And this "blackmarketeering" happened by hoarding your supplies; telling customers that there isn't anything left when in fact a certain quantity of supplies was held back to be sold in the black market.

Basically, it became profitable to flout the law. But the costs of this were felt by everyone except the limited minority who could afford to spend large sums of money on the black market. This, naturally, meant that a large majority of the citizens of independent India were increasingly disaffected with the government that promised fair prices for goods and supplies. What was the point of independence, if it meant staying without food? This background helps understand the severity of the problem in the eyes of Parliament, and why it was felt necessary to amend the ESA in 1950 to introduce a stricter penal regime for those flouting the law (among other things).

ESA Debates in the Provisional Parliament: A "War" Against Hoarders

The ESA Amendment Bill was introduced and debated in the Provisional Parliament on August 14, 1950 (Page 1013, Left Column). The Minister for Food and Agriculture was K.M. Munshi, a lawyer who had played an important role through the drafting of the Constitution. 

After reading the different administrative aspects of the Bill, Munshi turned to the penal regime. Besides introducing a new offence with stringent punishment, the Bill also sought to make two changes to prevent persons from taking "advantage of the provisions of the Criminal Procedure Code" and drag out trials. One method was day-to-day trials for ESA crimes. The other, and the one that concerns this post, was introducing Section 13-A and a stricter regime on bail. He acknowledged that the Defence of India Rules were the inspiration for this provision, under which "bail cannot be given unless the prosecutor is heard and the Magistrate is satisfied that there are reasonable grounds for believing that [the accused] is not guilty." He further acknowledged, that "this puts the burden on the other side", but justified the measure as being an "emergency legislation" of some importance and this being a tool to deter people from hoarding. (Page 1020, Right Column).

The proposal did not go uncontested. Jaspat Roy Kapoor — who famously said that the Chapter on Fundamental Rights should have been renamed "Fundamental Rights and Limitations Thereon" — moved a motion to amend the clause which he argued was "against all elementary principles of law and equity" (Page 1097, Left Column). His changes to proposed Section 13-A were twofold:

• Rather than requiring that the prosecution be heard before granting bail, he suggested that the clause only require that the prosecution be given an opportunity to be heard. 
• Rather than require a court be satisfied that the accused is not guilty of the crime before to grant bail, he suggested that the clause should require that a court be satisfied that the accused was guilty of the crime.

The proposed changes were small but of substantial import. By requiring that the prosecution only be given an opportunity of being heard, rather than actually be heard, Kapoor sought to prevent cases where a wily prosecutor might create unnecessary delays to extend incarceration. Similarly, by asking that the court be satisfied about an accused person's guilt before granting bail, rather than be satisfied about her innocence, Kapoor sought to ensure that the clause was in harmony with the presumption of innocence:

It is for the prosecution to make out a prima facie case and not for the arrested person to establish his innocence when nothing has been made out against him. That is — I again submit at the risk of repetition — something astounding and offends against our sense of justice and jurisprudence. You may have a hard law, but let it not be a lawless law. Let it not appear to be ridiculous. After all that is not the way in which legislation should be enacted in a highly democratic Parliament. (Page 1100, Right Column).

The eminent lawyer Thakur Das Bhargava, another veteran of India's Constitutional journey, rose in support of this suggestion and condemned the proposed Section 13-A as "against all canons of justice and law" (Page 1101, Left Column). Naziruddin Ahmad also rose to support the attack on proposed Section 13-A, though, he was not troubled by the negation of the presumption of innocence as much as he was troubled by a fear of selective enforcement of this harsh tool (Page 1104, Right Column). 

The government response was telling. The Minister argued that the measure was hardly against all canons of jurisprudence as it had been part of Emergency legislation in India for a number of years. Removing this stringent bail provision, he argued, would weaken the whole legal apparatus (Page 1103, Right Column). When reminded that the Emergency legislation had been passed in times of War, Munshi boldly replied that "This is a war against hoarders" (Page 1104, Right Column).

Ultimately, Jaspat Roy Kapoor withdrew his amendment, stating that it was "sacred" to him and he sought to "spare it from defeat" (Page 1105, Left Column). Still, the suggested change with respect to giving prosecutors an opportunity to be heard was amended, as was a minor modification suggested by Bhargava on the degree to which a Court must be satisfied of innocence for granting bail. As a result, Section 13-A was brought on the ESA in the following form:

Notwithstanding anything contained in the Code of Criminal Procedure 1898, no person accused or convicted of a contravention of any order under Section 3 relating to food-grains which is punishable under the proviso to Sub-Section (2) of Section 7 shall if in custody, be released on bail or on his own bond unless

(a) the prosecution has been given an opportunity to oppose the application for such release, and 

(b) where the prosecution opposes the application it appears to the Court that there are reasonable grounds for believing that he is not guilty of such contravention. 

The Lasting Legacy of Section 13-A

K.M. Munshi was a supporter of expansive fundamental rights in the Indian Constitution. He was a proponent of having a "Due Process" clause, and when the phrase was culled from the text by the Drafting Committee, he was instrumental in securing its re-introduction through what is today Article 22 of the Indian Constitution. He was part of a group of persons which displayed tremendous ability to imagine an India different from the one they had inherited. One of the key features of this vision, was reducing the scope for individual oppression at the hands of government, by way of guaranteeing fundamental rights. 

At the same time, when faced with a problem of hoarding and food scarcity — which Government policy had partly created — Munshi and the other members leaders of an independent, democratic, republic of India displayed a telling lack of imagination and turned to the War-time measures of a colonial regime that simply invested greater powers with executive officers, while at the same time reducing the potential for checking abuses at the hands of such officers. 

This contradiction between legislative deeds and constitutional vision has continued to repeat itself often in Indian history, and especially if we choose to narrowly focus on the creation of new criminal statutes. Provisions with restrictive conditions on bail are one such example. Again and again, India seems to find itself in an "emergency" situation that needs a harsh procedure to prevent persons from getting bail too easily. Sadly, the government never comes around to telling us just how useful the "lawless laws" were in achieving any of the stated objectives.

Flash - Supreme Court declares PMLA bail provisions unconstitutional

The Supreme Court has today held that Section 45 of the Prevention of Money Laundering Act, 2002, is unconstitutional. While the decision is not yet out here is an excerpt from the news:

A bench led by Justice Rohinton F Nariman struck down Section 45 in the PMLA to the extent that it refuses bail to the accused on the basis of twin conditions. 

The first condition says that no bail can be given without giving the public prosecutor an opportunity to oppose the bail plea. The second condition stipulated that the bail can be given only when the concerned court is prima facie satisfied that the accused is not guilty of the offence alleged against him. 

These two conditions made grant of bail virtually impossible in money laundering cases and the maxim tend to be shifted from “bail is rule and jail an exception” to “jail is rule and bail an exception”.

If the Supreme Court has really done as the news suggests, this is potentially a ground-breaking decision. This Blog had discussed in an earlier series of posts how such reverse-onus clauses in bail provisions are littered across various statutes. The Blog had also argued how their operation renders bail an illusion while drastically curbing the presumption of innocence (for those posts, see here, here, and here). More to follow once the judgment comes out. In the meanwhile, I've copied the list of statutes here that can potentially be affected:

1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
2. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
3. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
4. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
5. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
6. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
7. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
8. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
9. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
10. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
11. Section 45 of the Prevention of Money Laundering Act, 2002.
12. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
13. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical). 
14. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
15. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

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. 

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]     

Preventive Justice Part 1 - The History behind Article 22

India's Constitution elaborates on certain Fundamental Rights guaranteed to individuals. Some are limited as citizenship rights [Article 19] while others extend to all persons within the Union [Article 21]. As the title suggests, this post is concerned with Article 21's not-so-celebrated cousin, Article 22 [the cousin terminology is deliberate, as I will show later]. I first came across the very interesting history behind Article 22 while reading Granville Austin's Cornerstone of a Nation, and then traced the discussion in the Constituent Assembly Debates while supplementing it with some independent research. It is also discussed by Mr Seervai in his commentary on Articles 19-22 but only to the extent necessary for furthering his argument. In this post, I first look at the text of Article 22 and then the history behind its inclusion in the Constitution.

Right to Freedom - Articles 19-22

Part III of the Constitution runs from Article 12 to Article 35, but we often end up missing how the framers grouped certain rights together. Articles 19-22, for instance, are couched under Right to Freedom. One possible explanation offered is that Article 19 confers positive freedoms while Articles 20-22 confer negative freedoms by limiting what the State can do. Article 21 states that No person shall be deprived of his life or personal liberty except according to procedure established by law. 

This is followed by Article 22, which immediately tells us exactly how the State can take away this right to life and personal liberty. So, we find general protections in Articles 22(1) to (3): every person arrested must be informed of the grounds of arrest and be permitted to engage legal counsel of her choice [Article 22(1)], as well as be produced before a magistrate within 24 hours of being detained [Article 22(2)]. This, interestingly, is followed up by 22(3) which specifically takes away these rights in case of enemy aliens and persons arrested and detained under preventive detention laws. The remainder of Article 22 - clauses (4) to (7) - moves on to lay down the limits of preventive detention laws and confer certain limited rights upon detenus. Thus, ordinarily preventive detention is capped at three months unless reviewed by an Advisory Board which recommends otherwise [Article 22(4)], where the case is not of a category warranting special treatment [Article 22(7)]. Detenus have a right to be informed of the grounds behind a detention order as soon as may be [where disclosure is not contrary to public interest as per Article 22(6)], and also to make a representation against the order [Article 22(5)]. 

The majority of Article 22 appears a precision-based instrument chipping away the edges of the basic rights guaranteed by Article 21. It has frequently been attacked throughout the history of independent India, with detractors often pointing to the worst excesses of the Emergency in 1975 as indicative of the misuse Article 22 allows. What if I told you that Article 22 was introduced into the Constitution in order to prevent the worst excesses from materialising? That is the lesson we learn from history, to which I now turn.

Draft Articles 15 and 15-A and the 'Due Process' Fallout

The use of procedure established by law to safeguard the right to life under Article 21 of the Indian Constitution, as against the due process clause, is a wonderful story in itself [It is part of a separate file in the National Archives of India no less titled Article 15: Due Process of Law]. The initial Draft Article 15 (which became Article 21) contained the words due process. While the Constituent Assembly was mulling over the draft in India, Sir BN Rau - who was the Official Constitutional Adviser - had been entrusted with the task of eliciting opinion from important personalities abroad. During this time he met Justice Frankfurter, who strenuously advised him against the incorporation of the due process clause. 

Sir BN Rau considered these suggestions important enough to send a memorandum across by airmail dated 11 November 1947 (a very expensive proposition back then). He subsequently sent across his views in a formal Report in December, 1947. KM Pannikar, an Assembly Member, wrote to Sir Rau on 30 December 1947 discussing this report, and his happiness that "Munshi's [KM Munshi, member of the Assembly] due process clause has got a knockout blow from Justice Frankfurter." On 7 April 1948, Sir Rau wrote to Justice Frankfurter to inform him of the Assembly having substituted due process with procedure established by law in Article 15 of the Draft Constitution. 1948 saw fervent efforts to re-introduce due process led by KM Munshi. On 13 December, Dr. Ambedkar was asked to give his final reply on this tussle between the Legislature and the Judiciary. He is famously quoted as saying "It is rather a case where a man has to sail between a Charybdis and Scylla and I therefore would not say anything."

The stoicism in this statement does not mean that Dr. Ambedkar was simply going to accept this changed state of affairs. He supported the due process clause, and was affected by the intense criticism this withdrawal of due process drew from various circles. In September 1949, months before the conclusion of the debates, the Drafting Committee (headed by Dr. Ambedkar) cited this backdrop and introduced Article 15-A in the Assembly. This, today, is Article 22 barring some minor modifications. Article 15-A was introduced as a measure of "compensation for what was done then in passing Article 15" since removal of due process meant Article 15 conferred a carte-blanche on the executive to arrest and detain persons. Equally, existence of preventive detention as a subject on the Federal and Concurrent Lists of Business without due process protection meant the legislature could not be checked in passing oppressive legislation. These twin factors seemed to have convinced Dr. Ambedkar of the need to have express fetters placed on the possibility of arrest and detention of persons in independent India. Dr. Ambedkar spoke for the Drafting Committee when he said that "we providing for the substance of the law of 'due process' by the introduction of Article 15A". 

Conclusions and Questions

Therefore, Article 22 was in fact a measure to protect, rather than curtail, the right to life and personal liberty. Mr Seervai discusses this in his Commentary, to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a separate Article for the exclusions. Looking at what happened subsequently, a differently drafted Article 21 might have led to a differently written judgment in Maneka Gandhi. It might have prevented the Supreme Court from going so far as to incorporating the substantive due process standard that the Constituent Assembly so painstakingly chose to avoid. Where does Maneka Gandhi leave the due process that Article 22 represented for the Constituent Assembly and Dr. Ambedkar? The Supreme Court has not considered this question fully, yet, although some seepage of Maneka jurisprudence into Article 22 has definitely resulted. In the next post we will address some of these questions arising out of the Supreme Court's engagement with Article 22 of the Constitution. 

New Series: Preventive Justice

I recently finished two collections of essays; Regulating Deviance (Norrie et al eds., 2009), and Prevention and the Limits of the Criminal Law (Ashworth et al eds., 2013). A majority of the contributions to these volumes questioned the increased tendency of legislatures in USA, England, and Australia, to introduce legislation allowing arrest and detention of persons to prevent commission of harms. This upsets the traditional liberal argument of intervening only when there is some harm that has been caused. This is countered by governments pointing to the highly uncertain times wanton acts of terrorism have brought in. Prevention, after all, was always preached as being better than a cure.

Unsurprisingly, the horrible events of the previous decade (World Trade Centre, London Bombings, Madrid Bombings, Mumbai Train Blasts, for instance), propelled the move for harsher, stricter laws. At which point I was surprised at none of these essays referring the Indian experience, for the Indian Constitution since its inception legalised preventive detention and a withdrawal of rights for those so detained. Such a constitutional denial of liberty in Article 22 sits right next to the clause guaranteeing the right to life. Yet, little discussion is evoked by having this clause today. One might say that India is thoroughly normalised to preventive detention being part of the bargain. 

This new series on Preventive Justice in India is my effort to help spur some discussion on the limits of criminal law in India. Preventive Justice is an extremely populated field in India and the first set of posts will cover the constitutional text and statutory avatars will only come in later. Similar to how this blog earlier covered some issues serially, the a thorough engagement with the text will be followed by discussing how the Supreme Court has fashioned the limits of that text. The next post will re-live the very interesting history behind Article 22 of the Indian Constitution. 

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.