Perpetual Ordinances in India - Part Two

The last post on this point mainly aimed to put the context out there of the point of discussion: there are ordinances in force today which were enacted during 1940-1946, and are used quite frequently. The example most common in my sphere of work is use of the Criminal Law (Amendment) Ordinance, 1944: an ordinance brought in to deal with war-time corruption and embezzlement. In the last post, I tried to see what reasons might compel a system to make war-time ordinances permanent without any intervention by the legislature. There didn't seem to be much in it. Barring of course, a reason in the form of the nation's judiciary consistently holding that the ordinance attained legal permanence not warranting any legislative dealing. Here, lets look at the judicial opinion on the point - both before and after independence.

The Privy Council and High Courts before 1950
In 1944 the Privy Council decided King Emperor v. Benoari Lal Sharma & Ors [72 Indian Appeals 57] and upheld the validity of the India & Burma (Emergency Provisions) Act 1940. The issue of its permanence had obviously not arisen yet, this being a dispute before 1946. What this decision is important for is the words used by Viscount Simon L.C. to describe the effect of the 1940 Act. He said the "operation of the words 'for the space of not more than six months from its promulgation' was suspended during the period therein specified." Suspended, not obliterated. The question did directly present itself before the Federal Court in J.K. Gas Plant Manufacturing Co. v. King Emperor [AIR 1947 FC 38].

The Appellants had been condemned by tribunals established by way of a combination of several war-time ordinances. An argument of the Appellants challenged the validity of the tribunal that condemned them, on the grounds that the ordinances must cease to apply after 01.04.1946. This claim was rejected by the Court. It understood the 1940 Act as not merely suspending the six-month validity for ordinances, but making those ordinances "subject to no time limit as regards their extent and validity". The Federal Court had lend support to the views of the Sind High Court [Duninchand Amboomai v. Crown (1947 Cri LJ 494)], and Madras High Court [In Re MS Mehdi (1947 2 MLJ 192)]. The Allahabad High Court arrived at the same conclusion soon after [Sridhar Achari v. Emperor (AIR 1948 All 182)], and within two years there seemed unquestionable validity for the idea of permanent ordinances.

Post 1950 and the Supreme Court 
The now-entrenched position was again followed by the Calcutta High Court in Mahabir Prasad Bajoria v. M.S. Biswas [AIR 1956 Cal 176]. But the seemingly obvious oxymoron of a permanent ordinance was bound to come up before the Supreme Court sooner or later. The validity of the High Denomination Bank Notes Demonetisation (Ordinance) 1946 was challenged and it went all the way to the Supreme Court. Five judges ultimately handed down the decision in Hansraj Moolji v. State of Bombay [AIR 1957 SC 497] and held permanent ordinances, although oxymoronic, were quite legal.  The Court held ordinances made by the Governor General were akin to acts of the legislature, and every act without a time limit is a perpetual act. As the phrase imposing the six month limit was "omitted" for all ordinances during the operation of the 1940 Act, this made them permanent.

This decision follows a simple logic: Ordinance = Act; Act if without time limit = Perpetual Act; therefore Ordinance without time limit = Perpetual Law. QED. I believe this is too simplistic. An ordinance in effect is akin to an Act but this does not mean the two are the same. The court somehow did not consider the fundamental nature of an ordinance being executive action as important. But this is what makes ordinances very, very different. What's more, the court was so content with the text of the Act that it did not deem appropriate to consider the intent or context of the 1940 Act. Neither was any reference made to the 1915 Act made by the British to extend operation of war-time ordinances. In my opinion, some more consideration of these issues was merited.

Conclusion
The Constitution Bench verdict in Hansraj Moolji has sanctified the legality of an irrational and seemingly illegal concept of permanent and perpetual ordinances. I admit, rationality is (sadly) no yardstick to test constitutionality. But colourable exercise of power is, and by allowing perpetual ordinances the court has enabled the executive to do indirectly what it could not do directly. This seemingly harmless pre-independence era relic of perpetual ordinances can be used to devastating effect if you think about it, and install a rather grim version of the "Ordinance Raj" some people have been fearing.

(the title of this post was changed from Permanent Ordinances in India - Part Two to Perpetual Ordinances in India - Part Two on 24.08.2015)

Some Thoughts on the Ordinance to Protect Health Care Workers

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

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

A Temporary Solution

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

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

The Problem with Criminalising

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

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

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

The Problem with This Manner of Criminalising

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

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

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

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

Section 3C

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

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

Section 3D

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

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

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

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

Conclusion

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

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

The Rajasthan Ordinance, and Seeking Sanction to Prosecute and Investigate Public Servants in India

In September 2017, the Rajasthan government issued an ordinance that sought to (i) make it necessary for investigating authorities to first get sanction from the government before pursuing allegations against a public servant, giving the government up to six months to consider, and (ii) bar any person from disclosing any details about the concerned official until this permission had been granted. The Government has since moved a bill in the legislature to make the law permanent, while the ordinance itself has been challenged before the Rajasthan High Court which is yet to decide the case. News media has seen few supporters barring a Junior Law Minister in the Union government supposedly considers the ordinance 'perfect and balanced'. Most others are challenging it for stifling investigations and illegally curbing the constitutionally protected freedom of speech.  

Are there any merits to, if not all, then some parts, of the Ordinance? Might we see more such ordinances across states in the near future if Rajasthan's version passes judicial muster? I have been thinking about these questions, and here, I try and understand them through this post. Understanding needs context, which is often absent from discussions of sanction in India. This post begins with a brief historical introduction to the 'sanction to prosecute', flagging the recent constitutional problems surrounding the concept. I then try and suggest that the Rajasthan ordinance is the logical aftermath of the judicial treatment of sanction. This means, unfortunately, that this is a rather long post. I hope it isn't long and pointless.

The Imperial Lineage of Sanction to Prosecute

Most legal systems recognise the right of an individual to pursue legal remedies when her rights are violated. If you beat me up, I have the right to pursue a case in court against you. In India, this can happen by either approaching the police who might take the case to court after investigation, or by going to court yourself. Now, it is easy to imagine the possibility of this (or any) right being abused - I might bring a false case to harass my opponent. We address this through preventing or punishing such conduct. The idea of seeking permissions to bring lawsuits fits in the former, which is basically what seeking 'sanction to prosecute' is. An administrative superior acts as a filter to ensure frivolous cases are not brought in court against public officials. The Criminal Procedure Code 1973 [Cr.P.C.] carries this filter in Section 197, which requires prior sanction to 'prosecute' (this is important) public servants (both serving and retired ones) only when allegations concern things they did actually in the course of duty, or purporting to be so.      

But why public officials, you might ask. An educated guess is India's colonial context informed this decision to protect those associated with government. The colonial regime introduced sanction in its first comprehensive criminal procedure code of 1861 [Section 167, at page 186 of the link], and kept it in the 1872 Code [Section 466, at page 509]. The modern version of this which I referred to above came in the 1898 Code [also Section 197, at page 141]. Broad protections shielded those working for the government who, to put it mildly, did not hesitate to step beyond the bounds of law while discharging their duties. A harsh terrain mandated harsh methods, and to allow prosecutions would stifle the governance project (opening for potential historical research examining if native and British persons were treated differently when it came to granting sanction!). Though speculative, I think this idea fits better than the arguments floated in London to defend similar restrictions to prosecute (the link is for debates in 1934, but the law remained the same even before). English law focused more on the nature of the offence rather than the offender - sedition, corruption and other potentially sensitive allegations could only be pursued with the Attorney General's consent, while the Indian version focused on the identity of the defendant and covered every person under the pay of the government. 

Over time it seems this justification changes, as seen from debates in the House on the Government of India Act 1935, which gave constitutional bases to protections for public servants from suits and prosecutions [Sections 270-71, at page 105. Fascinating, showing the crown was concerned about soon-to-be-elected local governments possibly changing the law on this front]. The legislature spent more time discussing civil suits, but the debates are useful for the criminal prosecution issue nonetheless. Mr. Thorp (column 54) spoke of how it was 'introducing a dangerous principle'  to India and could hurt genuine cases, while the Duchess of Atholl (column 55) spoke of apprehensions that the clause 'falls short of what civil servants feel to be necessary'. This largely mirrors the divide that we see today. Bureaucrats consider it necessary to have these protections to perform their duties while aggrieved persons consider them as impediments of entitlement. 

Independent India and the Opportunity Doctrine 

What became of the requirement of sanction in independent India? Well, it was quickly subjected to a constitutional challenge. In Matajog Dobey [AIR 1956 SC 44] the petitioner argued that Section 197 violated the equal protection clause by giving public servants protections from legal proceedings that others did not have. The Court swatted this aside by holding that public officials 'have to be protected from harassment in the discharge of official duties' while ordinary citizens did not. The vast category of public servants under the pay of the government - both union and state - was thus recognised as a class separate from all others, a distinction that has not been displaced. 

This did not mean the judiciary was not concerned with the debates that I highlighted above. In fact, the concern was palpable. High Courts before independence, and later the Supreme Court too, were acutely aware of the tightrope being tread - read the requirement too narrowly and you render the protection illusory, but read it to cover everything a public servant does and you make accountability a mirage. The judicial device created to navigate this problem was what I will call the 'Opportunity Doctrine' - if public office merely gave an opportunity to commit crime, then there was no need to get sanction. But where the alleged criminal acts were inseparable from the office and were 'integrally connected' to official duty, sanction was a must. So, if a public official misuses the privileges of office (goes on a joyride with government sponsored fuel) then prosecuting that offence should not require sanction. But if a municipal authority colludes with one real-estate developer to allot land at cheap rates, then we may need prior sanction to prosecute.          

The malleability of the Opportunity Doctrine should not go unnoticed - beyond the obvious cases it left a huge middle ground to be navigated with little more than gut instinct. For instance - what about the bank official who pilfers funds for his own use? Did his job merely grant an opportunity, or was it integral to the crime? The judicial grappling with sanction had a significant impact on the text itself. For starters, the test ignored that Section 197 never required an integral connection with duty: it's needs were met even if the acts were purportedly in discharge of duty. Since sanction was a tool to filter cases at the outset, it naturally required this broad scope. Considering whether sanction was needed in post-conviction review (appeals) by courts slowly dislocated it from its preventive roots. After all, how willing would a judge be to reverse a conviction arrived at after a lengthy trial on the technicality of there being no sanction to prosecute an official? This version undoubtedly tapers over the cracks but it would be difficult to argue that the broad shifts are not as I suggest.  

The Intra-Branch Dialogue and Sanctions to Investigate 

Thus we see how courts assumed control of the sanction to prosecute after having refused to strike it down as unconstitutional. Did this happen in a vacuum? Or did the legislature and executive - consisting several public servants protected by sanction - react? They did, and pretty quickly. In 1969 the government passed directions to the Central Bureau of Investigation that prevented it from starting any investigations against high-ranking public servants before getting permission. This was the 'Single Directive'. The thinking is clear - courts are applying a hindsight test which does not filter well, so lets go further back in time and filter at the institution of criminal cases. While doing this, the government impliedly admitted that the sanction protections are too broad to justify the rationale of their protecting public decision-making. Of course decision-makers must be treated differently from the ordinary rank-and-file bureaucrats, and so the latter would not be granted these protections.    

The Supreme Court did not agree that the public servants could be segregated like this. When the Supreme Court held this arrangement illegal, the government responded by re-introducing it almost immediately. When the Court slapped on the government's knuckles it retreated and withdrew the proposed change. But in 2003, it went ahead and amended the law to give it firm footing. While India's major political parties often don't look eye to eye, these moves were made both by the Congress and BJP led governments, showing a fairly clear indication of legislative will. What happens next? This statutory provision [Section 6-A of the Delhi Special Police Establishment Act 1946] was also struck down as invalid by the Court in 2014. On both occasions when the court struck down this protection, it did not overturn the Matajog decision to find sanction requirements were bad for creating an invidious classification between persons. Instead, the Court held that protecting only a class of bureaucrats was bad. How do you read this? Is the Court saying sanction should be limited to instituting prosecutions as done in the CrPC? Or is it saying that some public servants are not more equal than others, but all public servants are more equal than the rest of us. The second is a fair reading, and it was something the Court had agreed to in MK Aiyappa while handling sanction requirements under the Prevention of Corruption Act 1988 (a blistering commentary on the case can be read here). If the court reads the law this way, does it come as a surprise that others, such as the Rajasthan and Maharashtra governments, are doing the same? 

Past, Present, but what of the Future?

Maybe it is just me, but I can't help but notice patterns in how the law on sanctions to prosecute has been developing over time. There is a constant back and forth between the court and government - the court restricts its scope, the government expands it again. All of this was happening within the bounds of the constitution until the Supreme Court upped the ante and held the Single Directive to be unconstitutional in 1998. The government had been running the initiative for nearly thirty years to ensure lax sanction rules did not affect decision-makers, and the Court decided it didn't matter in the language which it could use - the Constitution. Was it inopportune? Perhaps. If the Court had a problem with having a sanction requirement then it should have said it outright. If it didn't, then there were better methods of dealing with the situation than refusing to acknowledge the few merits in the Single Directive scheme and starting a power tussle with the government. Today, because of how the Court avoided the forest for the trees, I think it will be hard for the Rajasthan High Court to hold that needing permission to start an investigation against public servants is unconstitutional. That might just convince the remaining BJP led states to pass similar laws, eventually bringing us back to the Supreme Court. Might the Court finally reconsider its position on all public servants being a separate class from the public?  

Errantry - Exploring the quotidian CBI archive

As is fairly well known, the Central Bureau of Investigation [CBI] traces its origins to the Special Police Establishment [SPE]. This agency operated without statutory backing at first, but then was conferred legal basis first by way of an Ordinance [No. 22 of 1943] and then by the Delhi Special Police Establishment Act of 1946 [DSPE] — which remains on the statute book even today. 

The primary task of the SPE was rooting out corruption from public service; or more specifically, central agencies and their officers. The need to combat corruption is perhaps one of those political and legal issues that resonates across time and space in independent India's history. Which is what makes the archive of the SPE a fascinating site to explore for anyone interested in how has the enforcement of laws fared in the past— either for pure, unsullied historical interest, or to draw lessons for the present.

This is the rabbit hole that I stumbled into after having found a copy of the Report published by the Bakshi Tek Chand Committee, or the "Report of the Special Police Establishment Enquiry Committee" (1952). It is a remarkable document in more ways than one. For instance, I did not know that permanent commission for the SPE itself was an uncertainty for many years. Nor did I know that staffing concerns undermined the agency as poorly back in 1952 as they did in the 1990s-2000s, when the Supreme Court decided it had to do something about the CBI's functioning.

The 1952 Report was merely the most visible part of the iceberg. Publicly available material pertaining to the SPE archive extends to providing us with a quotidian account of how the fledgling agency was being run at a time of unparalleled significance for the country. Just before independence we find letters being written to the Chief Commissioner, Delhi, for issuing Curfew Passes to SPE officers as they all lived in Old Delhi and could not manage to travel for work (!). It also has an interesting portrait of the officer in-charge of the agency in its initial years, one T.A. Bambawale. 

The organisational setup shows how threadbare the operation was, a feature of the fiscal constraints as well as constraints imposed upon by partition on the availability of officers. We see detailed progress reports of cases being maintained and circulated, as well as acquittal reports with remarks by officers. There is protracted letter-writing on financial questions such as who should bear costs of hiring special counsel running a trial — a debate running from 1948 till 1953.  

The archive shows us the other side of the story too: petitions to various authorities by persons aggrieved of their prosecutions. Writing to the agency the grounds invoked are in the language of law. And when that leads to no avail the aggrieved parties did not hesitate to write to the ministers themselves, invoking the idea of a "people's government" for good measure. All of this, mind you, was happening in the immediate aftermath of Independence Day on 15.08.1947 so as to curb further hearings scheduled for October — the wheels of justice continuing to turn and to give glimpses of the every day in an extraordinary moment.

For the lawyer, I particularly enjoyed glimpses from the archive about how legal procedures played out. A few of these vignettes pertained to one case — a prosecution against M/s JK Gas Plant and its directors for (essentially) illegal sale of iron during the War [part of the same group which is today responsible for other 'JK' businesses in India]. While I could not locate the fate of the trial which was proceeding before one of the Special Tribunals constituted through an Ordinance during the War [and retained pursuant to a logic of perpetual ordinances], the archive shows us that it was a somewhat sensational case where one of the accused [B.B. Mathur] sought police protection alleging threats to his life in August 1947 made by / on behalf of the other director of the company. His plea was found genuine and he was granted protection, up till July 1948 when it was withdrawn on his own request. Far more mundane was the affair surrounding summoning of a key prosecution witness for the trial. This witness was now in Pakistan, and a government employee. In a series of events all too familiar to criminal lawyers today, the government bungled up the manner in which summons had to be served on a witness residing abroad, delaying the trial. In a series of events all too familiar to witnesses, the case kept getting adjourned on multiple dates thereafter when the witness was present. Ultimately, the Pakistani authorities wrote to their Indian counterparts to complain about the sheer wastage of time this exercise had occasioned, and requested if a commission could come to Pakistan whenever the proceedings did decide to record evidence.

Unsurprisingly, some effort appears to have gone into thinking about publicising the work of this agency in which such faith was instilled. The publicity drive extended to more general efforts at informing the public about the existence of the SPE [a more low key version of governments doing automated calls to inform citizens about anti corruption bureaus]. In an odd twist, the generic piece so published ended up suggesting there was too much corruption, not the kind of messaging the government wanted. The solution became to share all draft articles with the government before publication. Careful measures were taken to publicise convictions, with press notes being circulated by the government through agencies like the AP etc and also being placed in newspapers of the day. Much of these pertaining to cases where officers were caught "red handed". 

The catching of officers "red handed" is a technique that remains prominent to this day. Today these are called 'trap cases' where often the officer is entrapped into taking a bribe, with witnesses at hand to catch him in the act. Back in the day, a feature of the traps laid by the SPE appears to have been using judicial officers are eyewitnesses to the exchange of bribes. Such a 'committed' judiciary might have been the stuff of dreams for some in new India, but it was not palatable to more conventional heads such as the Justices of the Calcutta High Court [AIR 1951 Cal 524], who strongly deprecated the practice in 1951. A few years later [1954 SCR 1038], dealing with a set of appeals against convictions resulting from prosecutions launched by the SPE, the Supreme Court also dealt with a trap case. Here, not only had the SPE made an Additional District Magistrate a witness, but it had also supplied the bribe money for laying the trap [a princely sum of Rs.25,000/-]. While the Supreme Court accepted that laying of traps may be necessary on occasion, it strongly condemned the SPE having supplied the bribe money and having used members of the judiciary as witnesses for the trap. 

The archive suggests that one of the reactions at the level of the SPE was to quickly reorient itself to make sure that it could use the technique of entrapment effectively. Accordingly, a memo was issued to all the ministries to depute officials who could serve as independent witnesses whenever the SPE asks, citing the need for independent witnesses to bolster the legitimacy of the entire exercise. It would be interesting to see what memos were generated in respect of the SPE using its coffers to set the trap itself!

Perpetual Ordinances in India - Part One

The fact that a thing such as "perpetual ordinances" exists should strike you as rather odd. Well, maybe not if you had the chance to glance through the Law Commission's recent reports on obsolete laws (or some news reports about the Law Commission's work). The Law Commission over a course of what are currently four reports (available here) has highlighted several ordinances created during the Second World War continue as valid laws today. Not only do I find it very interesting that pre-independence ordinances govern us today, but also the very idea of a perpetual temporary law strikes me as brilliant. I admit, it is quite common for India to have arcane laws which don't matter as you might be thinking. But these ordinances don't always fall into that harmless category: the 1944 Criminal Law (Amendment) Ordinance is actively used today in litigation to attach properties. Can this be legal? Well, yes. Should it be so? Honestly, No. Part one of this two part entry considers the history behind perpetual ordinances.

Brief Background

Ordinances are peculiar creatures of the law - conferring legislative powers on the executive head of state and blurring the dearly held separation of powers model. While some (including the current NDA government) would argue ordinances are essential to ensure the state machinery keeps running where parliament takes too long to deliberate. Others call this a convenient backdoor for the ruling government to enforce its decisions when it fails to convince in parliament. Perhaps to balance both views, most ordinances come with stipulated time limits. Ordinances in India both before and after 1950 came with an upper limit of six months, following which they would automatically be repealed.

Few would argue though about the necessity of swift decision-making in particular situations, such as war. It was during the Second World War that the Colonial Government introduced a mechanism for swift decisions in the India and Burma (Emergency Provisions) Act, 1940. The Act did not create any law, but did alter this idea of limited ordinances. Broadly, the six month limit on operation of ordinances was done away with for ordinances passed during a time frame set out by the Act. A hugely convenient measure in an era where legislation was the domain of the infrequent meetings of the Governor General in Council (as the 1935 Government of India Act had not been enforced in its entirety). 

A Story of Two Wars

This was by no means extraordinary. In fact, the British had done the same thing during the First World War with the Emergency Legislation Continuance Act, 1915. Barring linguistic differences, it is difficult to say that the laws pursue differing objectives. The 1915 Act recognised that "owing to the state of war existing between His Majesty the King Emperor and certain foreign powers it is expedient to provide for the continuance in this Act mentioned of the provisions contained in those ordinances". The normally temporary ordinances were made permanent "during the continuation of the present war and a period of six months thereafter" through Section 2 of the Act.

In the 1940 Act, there were no recitals barring the economical reference to this being "an act to make emergency provision with regard to the government of India and Burma". What was vastly different was the phrasing of provisions removing time limits over ordinances. Section 1(3) needs to be quoted at length:

Section 72 of the Government of India Act (which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor General power to make Ordinances in case of emergency) shall, in respects Ordinances made during the period specified in section 3 of this Act have effect as if the words: 'for the space of not more than six months from its promulgation' were omitted ....

What happens after 01.04.1946?
This period mentioned in Section 1(3) ran from 27.06.1940 till 01.04.1946. During that six year period, nearly 190 ordinances were brought into force. Would they continue to remain in force beyond six months after 01.04.1946, or would 190 laws lapse as the emergency for which they were enacted ceased to exist? This would have been a telling question, and unfortunately there is little material in the public domain on the deliberations that might have occurred on the subject then. Most of the material makes it appear that there were no discussions. What we have are court decisions, which we shall come to in the next post. But despite not having the deliberations, we do have clear evidence of their conclusions: out of the 190 laws 127 are reported as being allowed to remain in force after 01.04.1946. The others were specifically repealed over the course of time [see, Hans Raj Executive Legislation in Colonial India (1989) and Shubhankar Dam, Presidential Legislation in India (2015)]. 

Conclusion
I avoided discussing judicial opinion here to see whether one can arrive at this conclusion of retaining ordinances through independent reasons. Why would we need to retain ordinances made during the emergency created during Second World War after the emergency ceased. If these laws are useful - what stops a parliament from re-enacting them (as currently happens with ordinances)? The lack of any debate on those 190 odd ordinances in the subsequent parliament of independent India is astounding. I would argue that quick, context-laden, decisions, should be reviewed in a neutral setting. Further, given the peculiar war-focus of those war-time ordinances, it would be best for the default to be termination of those laws with there being need for specific retention. But none of this was done, and we have been left with the strange legacy of colonial executive decisions governing us today. I admit that my involvement in these issues might have biased me into thinking there are no independent reasons, which is why I'd love to have comments. 

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

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

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

Judicial Decisions: A Skewed Archive

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

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

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

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

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

Section 144, Political Speech, & the Seditious Meetings Acts

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

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

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

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

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

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

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

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

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

Next Post: Emergence of a Repressive Law

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

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

The Indian Evidence Act - Ringing the Bell for Reform

As an undergraduate student, my professor stressed on the beauty of the Indian Evidence Act 1872 [IEA] before leading us down a traumatic three months. I did not know it then, but he was echoing a very commonly held sentiment of reverence for the statute (for instance, the Indian Law Commission in its 69th Report thought the IEA was entitled to a 'place of pride' in the statute book). During my brief experience in the trial courts, I saw the IEA in operation and have also had opportunities to talk about some issues under its specific provisions on this Blog. But the more I think about, I can't help but arrive at the conclusion that the IEA is a horribly antiquated piece of legislation that has served us well beyond its time. It must go. I am hardly the first or the last person to come to this conclusion - but what surprised me is most of my predecessors have not been from India. Instead, I was exposed to rich argumentation from Singapore and Tanzania, countries where the IEA was transplanted by colonialism. Here, I first take up structural issues and then address functionality concerns, both of which strike at the heart of the statute's existence. My comment heavily borrows from these debates and while the articles are not all freely available, I have indicated sources at the end for reference.*

No Jury, No Problem? 

The 69th Report of the Law Commission (referred to above) was a momentous effort. The Report is massive and provides introductory material on the law of evidence, then considers all lengthy 167 provisions in minute detail, and records notes of dissent. But the context of its birth is as impressive as its comprehensiveness. Democracy had just been revived in India after being thrown into a comatose during a two year long Emergency. The Janata Government had won elections, and riding a wave of popularity undertook a project to review various laws. The 69th Report was part of this project and we get a sense of the urgency from the Introduction which the Chairman ends by saying: "At present the Commission is engaged on the study of Transfer of Property Act; and this task again is arduous and exacting. But let me assure you that the Commission has undertaken this task with the full confidence that it will be able to forward to the Union Government its report on the subject before its tenure expires on the 31st of August this year [the introduction is dated May 9, 1977].** 

  

In this massive, 915 pdf page document, I was dumbstruck to find not a single discussion about the abolition of the jury system in India and its effects on the IEA. The only mention of jurors and assessors is on printed page 869 which recommends deletion of Section 166 IEA, which referred to the role of jurors and assessors where they were part of a trial. All the Commission said was "the system of trial by jury has been abolished ... this section should therefore be deleted." Is this the limit to which a jury system affected the IEA? Absolutely not. 

In a jury system, judges are not triers of fact but decide issues of the law being applied to the dispute. Laypersons decided the factual matrix and whether innocence or guilt flow from this consideration. Admittedly, the IEA was not only written with that idea in mind and was designed to be as effective for judges trying the facts as for cases where juries were triers. But, logically, Stephen was required to cater to the lowest minima rather than design rules for judges in designing the legislation. While Stephen thought judges in India were not top notch, like most Englishmen he thought worse of juries, which explains the strictness of his rules if we think of them as being designed for jurors of poor ability. Moreover, certain rules were clearly designed to limit their prejudicial effect on the minds of jurors that have no basis in a case being tried solely by judges. This includes the 'similar fact' rule, the desirability of which has been questioned in several articles written in the Singaporean context.

Trials had the judges screen the material before it came before a jury to ensure it complied with the rules in the IEA. This system makes objections central: since you can't 'unring the bell', you have to ensure the dubious material never reaches the jury in the first place. Replacing the jury with the judge does not reduce the force of that argument at all for, after all, judges are only human. In retaining the same structure of evidence rules we continue in foolishly hoping for judges to 'unring the bell' by deciding on relevance objections themselves after having seen the material. In fact, this has only been worsened after the Indian Supreme Court held in Bipin Shantilal Panchal v State of  Gujarat [(2002) 10 SCC 529] that objections have to be recorded and then decided at the end of trial during final arguments. Effectively, we now let judges see the evidence, touch it, keep it with them while the case develops, and hope that in the end they can exclude that evidence from their consideration of the case.

Conflating Relevance and Admissibility - Stephen's Splendid Mistake 

That is how Pollock described the idea most central to the IEA. He was joined by Thayer who noted that inverting the English position and fitting in all of evidence law within narrow rules of relevance is what deprived Stephen's work of 'permanent value'. Let me give some context. Traditionally, the basic rule of evidence is that everything relevant is admissible. The Federal Rules of Evidence in the United States explain relevant evidence through Rule 401 as anything making a fact more or less probative, which fact is material to the case at hand. This loose formulation leaves it for the trier to decide whether things are relevant. This enquiry is governed by a framework which excludes relevant evidence for policy concerns, for instance, excluding confessions elicited through use of prohibited force.

In the IEA, Stephen reversed this logic. He prescribed strict rules for determining what is, and is not, relevant. He had his reasons as I briefly mentioned above - judges and lawyers being poorly trained in India, juries needing more careful handing. But beyond this reversal, Stephen did not change much of the English law of evidence - what were, traditionally, inquiries of admissibility, had been converted to be understood as questions of relevance and bundled together through Sections 5-57. Out of these, I would term some as hard rules and others being soft. For example, the exclusion of confessions to police officers by accused persons under Section 25 was a hard rule because it did not allow for the evidence to be considered at all. Whereas provisions such as Section 7 (explaining how certain facts are relevant if they establish cause and / or effect) are soft rules because they allow for facts to be looked at, and then applied.     

Keeping aside the slurs on judges in Indian courts, one can imagine a trial working with a jury in largely the traditional manner, albeit with tighter restraints on what is fed to the jury. The judge still exercises oversight, and lawyers raise objections to prevent bad material from being considered. But take the jury away, and it simply does not work anymore. What we have then, is judges ignoring all the soft rules on relevance with all hard rules being conflated with admissibility. The ignorance of soft rules is compounded by the extremely convoluted and overlapping nature of those provisions, which in effect are treated as statutory verbiage for the traditional rule that whatever the judge thinks is relevant, is admissible. I am not making heretical claims here - a bare perusal of appellate decisions confirms how judges have a free reign on bringing in evidence as long as it is not barred. Relevance, as Stephen originally created in the IEA, has thus ceased to function.

Conclusion

The Law Commission reviewed the IEA again in the 185th Report (access it from the link) which was even longer than the 69th Report. Yet, there was no consideration of these issues and all the Commission did was express its agreement that Section 166 ought to have been deleted (which it was). The IEA is a bad statute. Its core is rotten, its context altered, and several provisions - the ones on judicial notice and presumptions especially - either just don't make sense or can be significantly reduced in size. And this post does not utter a word about how the Supreme Court has tortured some of the text over time. 

Why, then, must we continue to carry the burdens of this clunky, nearly 150 year old document? The easy answer is the cynical one - lawyers don't want things to change because they will go out of business soon enough if the law became simpler. But that can hardly suffice. The other answer can be found in the same 69th Report where the Law Commission gave the IEA 'place of pride'. It went on and noted that "respect for its excellence should not amount to blind adoration bordering on deference." The deference, as I have tried to show, is entirely unwarranted.

---

Notes:

* 

The Singapore Evidence Act first came in as the Straits Evidence Ordinance in 1893 and, barring a few modifications, is a nearly complete copy of the Indian Evidence Act 1872. I have relied upon the following pieces from the Singapore context: (i) Robert Margolis, Evidence of Similar Facts, the Evidence Act, And the Judge as Trier-of-Fact, 9 Sing. L. Rev. 103 (1988); (ii) Robert Margolis, The Concept of Relevance: In the Evidence Act and the Modern View, 11 Sing. L. Rev. 24 (1990).

Tanzania has the Tanzania Evidence Act 1967 which, again, is a nearly complete copy of the Indian Evidence Act 1872. In 2011, the Tanzanian Government initiated a project to reform the law and the team included Professor Ronald Allen. Their efforts were published in a three part series run in the Boston University International Law Journal which I would strongly urge everyone to read: Part One, Part Two, and Part Three is the Draft Law prepared.

**

The Janata Party failed to get any of the criminal law reform bills passed through parliament.