Coercive Powers in Tax Matters - The Judgment in Radhika Agarwal v UOI

On 27.02.2025, a Three Justices' Bench of the Supreme Court delivered its verdict in a large batch of petitions which raised issues about the manner and exercise of the power of arrest without warrant under the Customs Act 1962 and the Central and State GST Acts. The judgment, reported as Radhika Agarwal v. Union of India & Ors. [2025 INSC 272 ('Radhika Agarwal')], consists of two opinions — one penned by the CJI for himself and Justice Sundresh, and a separate, mostly concurring, opinion by Justice Trivedi for herself. 

This post will engage mainly with the majority opinion and its two main themes: (i) applying the Criminal Procedure Code 1973 [Cr.P.C.] to warrantless arrests made under the Customs Act and GST Acts, and (ii) regulating exercise of warrantless arrests under both these acts. There are some smaller issues / aspects, which I take up under a 'Miscellany' head. The post then turns to the separate opinion of Trivedi J. where I try and explain its synergy, and dissonance, with the majority opinion. A small concluding section ends the post.

Extending the Cr.P.C. to Warrantless Arrests under Revenue Laws

Radhika Agarwal unambiguously extends Cr.P.C. provisions regulating warrantless arrests by police to the exercise of such powers under the Customs Act / GST Acts by revenue officials. This means that officers conducting arrests must wear clear badges, must inform relatives about arrest, maintain diaries to note progress of investigation, furnish grounds of arrest in writing to an accused prior to them being taken before a magistrate for further custody, and allow the arrested person to meet with legal counsel during interrogation (though not for its entirety) [Paras 23-28]. 

One may reasonably argue that this extension is hardly a perceptible shift, as practically all of the above requirements were already being adopted by the relevant departments. The argument about extending the Cr.P.C. regime to arrests under the Customs Act / GST Acts regime was not to make sure that officers wear name tags while arresting persons — nobody goes to Court for that. The gain for petitioners and accused persons here was to firstly get clarity on whether Section 41-A Cr.P.C. applies to arrests under the Customs Act / GST Acts, and secondly get a ruling that officers conducting arrests under the special laws are police officers, which in turn would impact the evidentiary value of any statements recorded by them. On both these aspects, Radhika Agarwal rules in favour of the Union on my reading — slightly ambiguously in respect of the Section 41-A issue, and very resoundingly on the 'police officer' issue. 

Section 41-A Cr.P.C. pertains to issuing notices to join an investigation. It has been used by the Supreme Court to foster a regime where today, for offences up to seven years, ordinarily such notices are sent to secure the cooperation of accused persons as opposed to rushing for an arrest. Extending it to the Customs Act / GST Acts regime would, in turn, help in staving arrests as most offences under these special laws are punishable up to seven years. Interestingly, the majority opinion in Radhika Agarwal is entirely silent on whether Section 41-A Cr.P.C. applies to the Customs Act / GST Acts regime on arrests. What to make of this? Technically, since Section 41-A is pre arrest and the judgment is concerned with post arrest issues, one may argue that the issue is left open. At the same time, nothing stopped the Court from looking at the clause, especially since the judgment refers to neighbouring Sections 41-B and 41-D of the Cr.P.C. It is fair to say that this issue may yet be litigated further. 

Moving on, Radhika Agarwal decisively rejects the contention that officers arresting persons under the Customs Act / GST Acts regime are 'police officers'. It does not on the strength of its own reasoning, but by relying purely on precedent which recognised this distinction. This precedent has been extensively discussed elsewhere on this blog here, and in a paper here, with my view being that the distinction needs to be revisited. That the Court chose not to do so is a win for the government, since treating such officers as 'police officers' would have dealt a bodyblow to the evidentiary value of statements recorded by them during the course of an inquiry or investigation. 

Nevertheless, reading Radhika Agarwal I wonder just how long this artificial distinction between officers will continue to hold the field, at least when a person is arrested. Since the 1960s, which is when the Constitution Bench decisions creating this artificial distinction came, the law has not remained static. A big change has been the shift in judicial perspective. The older cases took a formalist and hyper-technical approach to the issue to play a game of spot the difference where if even one facet from the Cr.P.C. regime on investigations was absent from the special law, that meant the officers under special laws were not seen as police officers for any purpose. Over time, this formalist approach gave way to a judicial perspective focusing on the impact of coercive action on life and liberty, especially when it comes to arrests. Radhika Agarwal also adopts this approach and uses it to further bridge the gap between arrests by ordinary police officers and revenue officers by extending the Cr.P.C. explicitly to the latter. 

Warrantless arrests are a serious infringement with personal liberty. The gravity of this infringement does not alter on the basis of the department in question. Nor is there any difference in the consequential impact of arrests. If the evidentiary value of statements by arrested persons to regular police officers is deemed sketchy, nothing inherently changes the reliability of such statements by arrested persons when they are made to revenue officers. One hopes, therefore, that at least in the context of arrested persons, a bench of the Supreme Court will soon have the courage to simply apply the Duck Test, and treat all officers with the power of arrest without warrant as belonging to one category.

Regulating the Exercise of Arrest Powers

Unsurprisingly, the majority opinion in Radhika Agarwal extends the judicial approach recently taken by the CJI in Arvind Kejriwal [(2025) 2 SCC 248] which sought to regulate warrantless arrest powers under the Prevention of Money Laundering Act 2002 ['PMLA']. The PMLA arrest provision is quite similar to the Customs Act / GST Acts clause, allowing for easy transplantation. Essentially, this approach consists of two conjoint parts. First, an insistence upon rigid compliance with the statutory tests for warrantless arrests, and second, recognising that the exercise of this arrest power is amenable to judicial review.

The statutory test for warrantless arrest under the Customs Act / GST Acts has been reduced to a threefold exercise for ease of understanding: (i) the officer must have material in his possession, (ii) this material must be the basis to form 'reasons to believe' which are recorded in writing, that (iii) the person is guilty of having committed the alleged offence. Following Arvind Kejriwal, each of these three parts is developed by the Court in a way to ensure that the arresting power is not arbitrarily used. Thus, the 'material' must be translatable into legally admissible evidence and consist of all the material available and not deliberately exclude material that favours the accused. The 'reasons to believe' recorded in writing must be lucid and clear, and must be shared with persons. Lastly, the legislative mandate in requiring for reasons to believe a person is 'guilty' of the alleged offence suggests a higher threshold as compared to arrests governed by the Cr.P.C. provisions which prescribe a lighter test in the form of requiring only a reasonable suspicion (more on this later). 

A little more time must be spent on the recording reasons part of the exercise here. The warrantless arrest power under the Customs Act / GST Acts regime is not recognised for all crimes. Instead, it triggers only if a certain monetary threshold is crossed (in most cases). For instance, only if the alleged tax intentionally evaded by the accused is beyond 5 Crores does the warrantless arrest power come alive under the GST Act. What Radhika Agarwal clarifies is that the recording of reasons must also explain on what basis has an officer decided that the monetary threshold was crossed. While this is undoubtedly a significant move, the Supreme Court does not go quite as far as the Delhi High Court had back in 2016, when in context of service tax laws it had restricted the warrantless arrest power as contingent upon a tax assessment order being passed quantifying the tax demand as crossing the monetary limit.

Significant also is the fact that the majority opinion deals with a contention that the threat of arrest was being used to coerce persons into paying tax dues. Obviously, the Court holds that arrest powers cannot be used to coerce persons into paying up, but it takes the issue a step further to hold that aggrieved persons can take their pleas to court and, if found true, then they would be entitled to refund of any dues so coercively paid. Whether this remedy is a meaningful one or not is difficult to say, considering judicial delays and the difficulty to establish coercion.

Which brings us to the second part of the regulatory exercise — judicial review of arrests. The existence of having statutory tests regulating the exercise of arrests is meaningless without the possibility of judicial review, and one reason for the Court to insist upon strict and documented compliance with statutory tests for arrest is to ensure fairer exercise of judicial review. At the same time, the majority opinion itself notes, in line with Arvind Kejriwal, that the review here is not a 'merits' review by, for instance, testing whether the material itself was correct or not. Rather, it is akin to judicial review of administrative action, allowing courts to step in if the action is, for instance, found to be entirely unreasonable, perverse, arbitrary, or is an action based on jurisdictional error. The import of proportionality analysis will aid this exercise. Though it must be flagged that a key issue within a proportionality assessment of whether the necessity of an arrest can be reviewed was referred to a larger bench in Arvind Kejriwal and remains pending.

I will return to the theme of judicial review when dealing with the separate opinion. Before that, a slight detour to cover some miscellaneous findings of interest. 

Miscellaneous Findings

There are some other notable points in the majority opinion, out of which I would want to flag two given their connection with the blog. First, the opinion has again remained faithful to precedent where it notes that persons who have received a notice to cooperate with the inquiry etc. under the revenue laws are not persons 'accused of an offence' for purposes of Article 20(3) of the Constitution. Second, the opinion notes that even though such persons may not be falling within the scope of Article 20(3), they can still avail of their remedies to seek anticipatory bail, where they can demonstrate that a threat of arrest exists. In doing so, the Court overrules the contrary view taken by some benches last year, which was also criticised on the blog here.       

The Separate Opinion

Justice Trivedi's short separate opinion is restricted only to expressing her views on the manner in which judicial review of the exercise of arrest powers ought to be conducted. Is it a concurrence, or a dissent, or yet another one of those separate opinions which is a bit of both? While on first blush it appeared that the third category is the safest bet, on a re-reading of her opinion I do believe that it is a concurrence which is merely emphasising the note of caution which is inherent in the majority opinion itself. At the same time, I also sense a divergence of views on a more fundamental aspect of what is the purpose of arrests in context of revenue laws. 

Justice Trivedi recognises the power of writ review in context of warrantless arrests, but urges that courts should ordinarily be 'loath' to interfere with use of the power by the concerned authorities under laws that concern serious financial crimes. Thus, while she agrees that non-compliance with the statute would be a valid ground for review, she cautions that this should not prompt courts to use a 'magnifying glass' to blow up minor procedural lapses on part of officers and confer undue benefits upon accused persons.

This, according to me, is just a more cautious way of expressing the same idea as the majority: do not go for a merits review, and do not interfere unless the decision is found perverse or arbitrary. Minor technical violations would not pass muster even under the Arvind Kejriwal standard, which Justice Trivedi does not disagree from specifically within her opinion. 

I would submit that a large part of Justice Trivedi's concerns, and the seeming differences in her view from the majority, stem from deeper differences in how the two opinions viewed the use of the arrest power. For the separate opinion there is a tight nexus between arrest and investigation, requiring a wider berth to be granted to agencies. Thus, one finds that Justice Trivedi urges caution while reviewing arrests because the investigation may be at a 'very nascent' stage. Whereas for the majority opinion, a legislative mandate that allows warrantless arrest only upon gathering material sufficient to form reasons to believe that a person is guilty of the offence assumes that an investigation has progressed to a degree. In fact, the majority opinion at one place in its discussion on the GST regime specifically notes that the arrest "cannot be made to merely investigate whether the conditions are being met." Thus, the arrest power in these revenue laws is not primarily used as an investigate tool, but a step later on in the inquiry and adjudicatory process. 

In this regard, while I understand the perspective of Justice Trivedi, it is understandable why the majority opinion does not begin from that standpoint. In rare cases, arrests in revenue laws may occur at a nascent stage and there the usual caveats may apply, but that is not the norm. After all, it is because arrests are not routine parts of investigations under revenue laws that courts have sustained the distinction between the traditional crime versus the revenue offence, and used this distinction to conclude that the revenue officers are not 'police officers'. The legislative mandate must be respected in full, and the majority opinion rightly does so.

Conclusion: Confronting Two-Track Justice

The majority opinion in Radhika Agarwal re-emphasises that the power of warrantless arrests is drastic. It places this perspective at the heart of its reasoning to adopt conclusions which, in the eyes of the Court, aim to assist in the better regulation of how this drastic power is exercised. In pushing for better regulation the Court implicitly admits that the current scenario was suboptimal. 

If the current scenario is indeed suboptimal, that calls for some pause to think and reflect. Throughout Radhika Agarwal we are reminded that the scheme for warrantless arrests under the Customs Act / GST Acts is different from the scheme governing such arrests for ordinary crimes made under the Criminal Procedure Code (now Bharatiya Nagarik Suraksha Sanhita 2023). The threshold under the special laws for exercising this power is higher than the threshold under regular criminal law, and what Radhika Agarwal does is to tighten the bolts even further to ensure better regulation. At the same time, the total number of persons arrested under the special laws (and we can even add the PMLA here) is incomparably lesser than persons arrested everyday under the Cr.P.C. / BNSS for ordinary crime. Not only this, but the demographic of persons ordinarily being arrested under both sets of laws is also incomparable. Those arrested under the special laws are, usually, the 'haves' with access to money and resources, whereas the ordinary criminal accused are the 'have-nots' who are struggling to make ends meet.

There is, in practically every legal system, a two-track system of justice: one for the 'haves', and another for the 'have-nots'. The law cannot completely rid the handicap that the have-nots suffer from because of their lack of resources and access to capital, but what a fair legal system can try and do is to make sure that it is designed to reduce the impact of this inequality. For instance, in context of warrantless arrests, a fair legal system would prescribe the same threshold for arrests under crimes traditionally linked only with the 'haves' — such as tax fraud — and the usual crimes which traditionally mostly ensnare the 'have nots' to ensure that the law is not compounding the ill-effects of the latent inequality. Instead, what we have, is the exact opposite in place. A two-track system of justice with an arrest regime having strong safeguards under laws that primarily concern the haves (made even more robust by court) and an arrest regime with weak safeguards when it comes to the 'have nots' ensuring their liberty remains imperilled. 

This is a manifest injustice at the heart of this entire regime governing warrantless arrests. Rather than the ordinary law being dragged down to further improve upon the safeguards for warrantless arrests in special laws, one hopes that future benches of the Supreme Court and High Courts use the good work done by judgments such as Radhika Agarwal to raise the standard even for arrests under ordinary crimes. A start has, arguably, already been made in recent judgments on supplying the grounds of arrest. While the first judgments were indeed under a special law — the PMLA — the subsequent judgments affirmed this rule as applicable to all arrests. One hopes that a similar effect is felt in context of the arresting power itself, to tighten the bolts around the 'reasonable suspicion' standard under the Cr.P.C. / BNSS as well. Such an outcome would ensure that the drastic power of warrantless arrests is better regulated in its application to lakhs of Indians, as opposed to the few hundreds who are alleged to be evading taxes. 

Dimple Happy Dhakad and Normalising Preventive Detention

“Preventive Detention” is a phrase that is inextricably bound with the history of the Indian Constitution. The Constituent Assembly affirmed the power for future governments to pass such laws, and only later got around to debating the restraints surrounding them. As a result, despite Article 22 having been inserted to serve as the minimal constitutional threshold to check abuse of preventive detention, it has often been treated as a constitutional recognition for the notion that the fundamental right to personal liberty requires restraints “For the good of the people“.

The decision of the Supreme Court in Union of India v. Dimple Happy Dhakad [Crl. Appeal No. 1064 of 2019 & connected petitions, "Dhakad"] shows a clear preference for the latter, mistaken view, over the former. By affirming the use of preventive detention in a situation where no “prevention” was really at stake, while at the same time diluting the high burden usually imposed on the state for requesting preventive detention in such cases, the Supreme Court took a dangerous step towards normalising what was meant to be a measure of the absolute last resort. In doing so, it compounded the slide towards normalising preventive detention already being witnessed across states, which have used this tool to deal with bullying and cattle theft, among other issues. 

Understanding Preventive Detention

Despite the perceived familiarity with preventive detention, it still serves us well to remind ourselves just what exactly is meant by the phrase, and how different this regime is from the normal “punitive” system of criminal justice. 

In the regular course, the police or other agencies can only take steps to restrain personal liberty after some illegal conduct has taken place. There must be something, beyond mere thoughts, to justify why a person should be arrested and thus denied the most basic of freedoms. This regular course is turned on its head under the preventive detention regime. Here, waiting for some conduct to manifest itself is considered a fatal delay, and therefore, the police is allowed to arrest persons merely suspected of engaging in illegal activities, or about to engage in them. 

The dissimilarities with the regular process only increase from this point. In the preventive detention regime, a has no right to be informed immediately about the grounds of arrest and detention, and in some cases might never learn of the grounds if it is against public interest. The detenu can challenge the detention order, but has no right to legal assistance. Further, all hearings take place behind closed doors, robbing a person of the sense of fairness that a public hearing entails. Although one can challenge Detention orders in writ proceedings, the Writ Court can only interfere on limited grounds. 

At its very best, preventive detention is a useful tool to ensure the safety of society. At any other level, it is a convenient means to suppress dissent, disregard individual liberty, and nullify the presumption of innocence. It can very quickly transform into a tool to justify the continued incarceration of “unwanted” persons through a process with minimal procedural safeguards, without ever making efforts to prove their alleged infractions. 

Preventive Detention in the Ordinary Process

The legal position on passing preventive detention orders against persons already in custody, in connection with cases filed in the regular criminal justice system, is perhaps one of the most peculiar aspects of the Indian criminal process. One would think that since a person is already in custody, the urgency surrounding preventive detention is all but lost. This is not so. 

Time and again, detention orders are passed against persons who are anticipated to be released on bail at any moment. The perceived threat from their release is considered so grave as to justify a detention order anticipating this eventuality. 

The litany of judicial decisions covering this peculiar aspect of our criminal process always struggle to maintain a balance between the interests of security and the interests of liberty. It would be fair to say that a common theme through all these decisions is a requirement that the government must clearly establish that there is an imminent possibility of release, and that there is a grave likelihood of the person returning to the prejudicial activities that had necessitated his arrest/detention in the first place. [See, Rekha v. State of Tamil Nadu, (2011) 5 SCC 244]

Dimple Happy Dhakad 

Having thus fleshed out the basic legal position on these issues, we can now proceed to the recent decision in Dhakad. This was yet another case where persons who had already been arrested under the regular criminal process were made the subject of a Preventive Detention order [Under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA)]. Here, the arrests occurred in March 2019 in connection with alleged gold smuggling. Bail applications filed by the accused in April had been rejected once. When the accused filed fresh bail applications in May, then the government authorised the Detention Order. The Bombay High Court set aside the orders (W.P. 2844 of 2019, decided on 25.06.2019), and this decision is what was overturned by the Supreme Court. 

The arguments in Dhakad were on the lines as above. Appealing against the Bombay High Court order, the Union of India laid stress on the gravity of the allegations and the security interests at stake. The respondents/accused strived to show that the detention orders had not been passed with the required degree of care and attention, and had instead been passed in a most routine and mechanical manner. They were assisted by the fact that the Detention order did not even mention anything about an imminent possibility of release, or about the likelihood of the accused persons returning to their prejudicial activities. 

Moreover, in their haste to pass the Detention orders, the authorities had committed basic errors; such as (i) adding documents created after the decision to pass the detention order had been made, as part of the material relied upon for passing the Detention orders and (ii) not supplying the said relied upon material together with the grounds of the detention order, despite the order stating that this material was in fact being supplied. While it was never expressly mentioned in the Supreme Court’s opinion, the fact that the investigation had been ongoing for almost 2 months before the Detention orders were passed was a circumstance that had found favour with the Bombay High Court, to conclude that there was no reason for any delay in them being supplied with the materials upon which the authorities had relied for passing the detention orders.

Issue 1: Non-Supply of Documents

There is limited value in dissecting all that is wrong with the Supreme Court‘s decision in Dhakad, so let us focus on the core aspects. The Court spends great time in telling us that Section 3(3) of the COFEPOSA, and Article 22(5) of the Constitution, have not been breached because all documents were supplied within the statutorily prescribed timeframe of five days. Similarly, it tells us that non-compliance with Executive Guidelines is no grounds for setting aside the Order. Sadly, that is besides the point, because the argument was not about a statutory lapse on part of the authorities or about non-compliance with Guidelines per se. Instead, it was argued that by failing to provide documents, even after specifically noting in the Detention Order that the same are being provided, showed a clear lack of care on the part of the authorities and laid bare the mechanical manner in which the orders were passed. Further, the Supreme Court seems to have ignored the point, that a document prepared after the decision to pass the detention orders was made had found a place in the list of materials relied upon to pass this order, again suggesting that the Detention order had been passed without proper application of mind.

Issue 2: Failure to Consider Pre-Existing Detention 

Which then brings me to the main issue, on the usage of Preventive Detention in cases already being prosecuted under the regular criminal process. The Supreme Court seems to have entirely missed the point about holding the government to a high standard of care in situations where both, the regular criminal process and the extraordinary means of preventive detention, are employed. The recitations of decisions emphasising the urgency of preventive detention, in a case where the accused persons had already been arrested and had been languishing in jail for almost 2 months, is almost laughable if it were not tragic. 

The Court reasoned that the existence of an imminent possibility of release, as well as likelihood of further prejudicial conduct by the accused persons upon release, were issues that depended upon the “subjective satisfaction” of the authority and thus was beyond the scope of judicial review. Now, there is no debate that the scope of judicial review of Detention orders is limited. But, at the same time, it is also true that the Supreme Court has made consistent efforts to expand the possibilities for review to ensure fairness. Two examples are striking. First, the Court judicial created a requirement that the allegation must have a “live link” with the present to justify a need for preventive detention, in a bid to prevent persons being detained on the basis of stale allegations that had not been tested for years [See, Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465]. Second, the Court also assented to testing the grounds to examine whether they were so arbitrary and vague so as to render it impossible to challenge the Detention order [See, Prabhu Dayal Deorah v. D.M., Kamrup, (1974) 1 SCC 103]. 

This trend of heightened review is what led to the common theme identified in the previous section, of the Supreme Court consistently placing a higher threshold on detention authorities to justify use of Preventive Detention in cases already being processed in the regular criminal process. Requiring that the Detention order explicitly refers to the possibility of release and likelihood of re-offending does not impinge upon the subjective satisfaction of the authority. It only provides a clear basis for assuming that the authority did indeed consider these issues, and prevent the kind of inferential exercises that the Court resorted to in Dhakad.

Post-Script

The most telling circumstance in Dhakad only emerged after the Detention orders were passed and thus is not expressly mentioned in the Supreme Court decision: The customs authorities failed to complete their investigation within the statutorily prescribed time limit, entitling Dhakad and others to statutory bail under Section 167(2), Cr.P.C.. The only reason why they were not released was the Detention orders. Thus, the customs authorities had used Preventive Detention to cover their inability to finish an investigation in time, and also deny the accused yet another vested right in the criminal process. It is practice that has been chided by the Delhi High Court on different occasions (See, here, and here), but has not been the subject of consideration in any reported Supreme Court opinions that I could find. 

Thankfully, the opinion in Dhakad does not expressly record that the possibility of being released on statutory bail is a compelling enough reason to invoke Preventive Detention. But this is perhaps the only positive note that the decision strikes. Yet again, the Supreme Court ended up being drawn in by the lure of preventing a politically undesirable outcome — the possibility of releasing alleged gold smugglers on bail — and in the process ended up glossing over the procedural safeguards that are the bedrock of the liberty it is constitutionally committed to protect.

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]