Book Review: Kalpana Kannabiran, “Tools of Justice”

Tools of Justice: Non-Discrimination and the Indian Constitution, Routledge 2012, available for purchase here.

This is a densely-argued, interdisciplinary work, focusing on non-discrimination under the Indian Constitution. The overall framework of the book centres upon Articles 15 and 21, and the link between discrimination and the deprivation of liberty. The materials that Kannabiran works with are historical, sociological, anecdotal and legal. Discrimination is examined from the perspective of numerous constituencies: disability, caste, sex, ways of life (adivasis/tribals), religion, and sexual orientation.

Clocking in at 450 pages, an overall survey in a brief review is close to impossible. What I will focus upon is a few of the key, important themes that emerge out of the text.

(i) Norm and Nature: Throughout the course of the book, Kannabiran demonstrates how the Indian judiciary, when examining discrimination cases, operates with a set of political and ideological norms, which it considers as natural. A claim of discrimination will succeed if the Court perceives that the differential treatment violates this norm, and it will fail if the Court is of the opinion that it coheres with the norm. The starkest examples are present in cases involving sex-determination. Kannabiran shows how the Court’s judgments are repeatedly driven by a set of ideas about the role that men and women do – and ought – to play in society, as well as their aptitudes and talents: women’s primary role lies in the domestic sphere, as carers, while the role of men is to actively participate in the exchange economy. Therefore, for example, where workplace regulations attach disabilities (loss of job, downpayment etc.) to pregnancy, they have been upheld by the Courts (as reinforcing the norm of the separate spheres occupied by men and women).

In other realms, it is more difficult to isolate the norm, as well as its political foundations, perhaps because the norm has become more deeply ingrained in our consciousness as natural. For instance, in the case of caste-based reservations, the Supreme Court has justified reservations on the ground that they fulfill a vision of substantive equality as opposed to mere formal equality (N.M. Thomas), and has then sought to balance the demands of substantive equality with the goal of maintaining efficiency in the civil services (Article 335 of the Constitution). The unarticulated major premise underlying this set of cases is that “efficiency”, as a normatively desirable goal, has certain requirements, which are best fulfilled through “merit-based” selection procedures. Kannabiran skilfully interrogates the assumptions that ground this idea of merit; in this way, what comes out is the fact that understanding reservations as a departure from the basic requirement of efficiency-through-merit, which must then be justified by the principle of substantive equality (and thereby putting limits on the quantum of reservations), is simply one, consciously-chosen framework that automatically defines and restricts the manner of arguments that can be made. This comes out with particular clarity in the Balaji decision, where Kannabiran points out that despite studies showing that reservations had no discernible impact on efficiency, the Court was so firmly in the grip of this belief, that it simply dismissed the findings, and created a legal fiction to the effect that reservations were simply bound to have an effect on efficiency, whatever the studies actually said.

Similarly, in disability law in the workplace, the norm is that of the “able-bodied worker”; the Courts never challenge that assumption that links the actual needs of the workplace (and associated concepts of efficiency, profit-making etc.) and the requirement of being able-bodied, and therefore miss the fact that (quoting Minae Inahara) “[the] binary categorical system which defines disability in opposition to an able-bodied norm and suggest[s] that the disabled body is a multiplicity of excess which undermines this able-bodied norm… the complexity of disabled ability does not fit into able-bodied notions of ability.” 

(ii) The Transformative Constitution: A crucial point that Kannabiran makes at the beginning of her work, and returns to repeatedly, is that the interpretation of constitutional provisions cannot be untethered from its historical context, and the goals and values that the framers were seeking to achieve. Previously on this blog, we have discussed extensively the interpretive issues that arise in the case of a “transformative Constitution” – i.e., a Constitution that is written with the express goal of transforming the political institutions or values of a society. Kannabiran points out that the purpose of the Constitution was to create “an order that displaces the unfreedoms internal to the society as well as the unfreedom of colonization… the constituent assembly, in recognition of the fact that the constitution was being introduced in an unequal and discriminatory society, debated and drafted the constitution with the explicit purpose of dislodging the status quo.”

This has important interpretive implications for the interpretation of colonial-era statutes, as well as questions of clashes between fundamental rights and a claimed public morality (where the argument is to restrict or narrow the scope of fundamental rights so that they cohere with public morality – an argument made in Naz Foundation). For instance, it is questionable whether colonial-era statutes, based upon an entirely different set of values, should enjoy the presumption of constitutionality; and, as Kannabiran points out, it becomes rather problematic when the Court, in some of its judgments, invokes the authority of Manu as a “lawgiver”, given that, arguably, one of the goals of the Constitution was to reverse the hierarchical and stratified nature of society, which, in theological imagination, is believed to owe its existence to the edicts of Manu.

This issue, however, requires far more historical excavation than is provided in the book. It is trite wisdom that no period, however revolutionary, marks a complete break with the past. Every Constitution has transformative as well as conservative elements. For instance, in the recent Tax Tribunals judgment, the Court was probably right when it held that the “Westminster model of governance”, in the specific context of judicial independence and the separation of powers, was a continuation from colonial times – and that therefore, the interpretation of constitutional provisions setting out the structures of governance would be enriched by turning to common law. Thus, we must be wary of too facile an invocation of the “transformative Constitution”: each interpretive claim must be backed up by rigorous historical reasoning.

(iii) Historical retrieval: The most interesting aspect of this book (for me) is Kannabiran’s challenge to the dogma that concepts of equality, anti-casteism, women’s rights, and so on, are imported Western concepts, and that in interpreting the Constitution, due regard must be paid to indigenous ideas of nature and society. There are two ways of responding to this claim, both of which were invoked by critics of the Supreme Court’s Koushal judgment last year. One is to argue that these “traditions” ought to play no role in constitutional interpretation; the constitution has explicitly committed itself to political liberalism through its bill of rights, judicial review and other such substantive, as well as structural, provisions. The other is to take the claim from tradition head on, and argue that it rests upon a narrow and cribbed reading of Indian history, religion and philosophy. In Tools of Justice, Kannabiran takes the latter tack. She argues that throughout Indian history, there have been powerful, dissenting Indian voices against the caste system, inequality, sexual subordination, and so on. Drawing upon the Bhakti movement, Kabirdas, Periyar, and many others, she argues that if, indeed, we are going to take into account Indian history, religion and philosophy when we interpret the meaning of our Constitutional guarantees, then this particular history has as much a claim to our attention as its opposite, dominant strand.

In his six modalities of constitutional interpretation, the legal scholar Philip Bobbitt lists tradition as one of them. In American constitutional jurisprudence, the Supreme Court treats as suspect any legislation that impinges upon rights that are “deeply rooted in American history and tradition” (e.g., the right to jury trial). Insofar as tradition is – and has been – a tool of interpretation invoked by the Indian Courts, Kannabiran argues for a radical re-reading of that very tradition.

These three themes, I think, make Tools of Justice stand out as a highly important and relevant work of recent times. I do feel, however, that often the book falls short of the goals that it lays out in its theoretical and methodological framework. It presents detailed sociological and historical analyses of caste and sex discrimination, for instance, but does not tell us – or at least, does not adequately tell us – the implications that would have for constitutional interpretation, or how it would change the outcome in specific cases. The idea of weaving in sociology and history into constitutional interpretation is a laudable one; but there must also be a distinct, legal peg on which to hang them. Or, in other words, there should be legal, interpretive tools – tools within the legal tradition that can justify and create a space for sociology and history to enter into our analysis of constitutional provisions and cases. It is in this respect – that is, in linking sociology, history and law into one, coherent interpretive scheme that is legally defensible – that Tools of Justice sometimes falls short. But for all that, it is a book that repays close study, and is highly recommended.

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Foucault, Rubenfeld, Naz Foundation, and Article 15(1)

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in Article 15 included “sexual orientation” as a prohibited ground of discrimination. Unlike the South African Constitution, there is no support for this proposition within the four corners of the text. What, then, justifies this interpretation? Clearly, it must be shown that sexual orientation is in some way analogous to the stipulated Article 15 grounds: religion, race, caste, sex and place of birth. One popular argument is that Article 15 – and, more broadly, Part III of the Constitution, through other provisions such as Article 25 – protects personhood: i.e., it stipulates that one’s equal moral membership in society (or, one’s right to be treated with equal concern and respect) must not be made contingent upon those characteristics most fundamental to one’s sense of personhood, or the most basic markers of one’s identity: religion, race, sexual orientation etc.

The argument from personhood is a popular one. In the United States, it was used to uphold abortion laws in Planned Parenthood vs Casey,  and subsequently invoked by Justice Kennedy in Lawrence vs Texas, the American Supreme Court case which held that criminalising homosexuality is unconstitutional:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In National Coalition for Gay and Lesbian Equality vs Minister of Justice, the case which struck down South Africa’s sodomy law, the Constitutional Court – speaking through Ackermann J., held:

The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait.”

There is, of course, something intuitively attractive about the personhood argument. It is, for one, closely connected with other, similarly attractive ideals, such as autonomy and dignity. The idea that there is a core set of beliefs, practices and world-views that define who a person is, and must therefore be held inviolable and subjected to no interference by the State, seems a powerful one, and speaks deeply to our conceptions about what freedom means.

There may, however, be good reasons not to advocate a personhood-based justification for Naz Foundation, or, for that matter, for the philosophy underlying Article 15 and/or Part III in too facile a manner. One set of arguments to this effect are grounded in the work of the philosopher Michel Foucault.

In his three-volume series, The History of Sexuality, Foucault argues against what he called the “repressive hypothesis”; i.e., the idea that, in the eighteenth and nineteenth centuries, sexuality was systematically “repressed” through a practice of official censorship, legal prohibition (including the criminalisation of sodomy), and the dull compulsion of social relations – and that this repression is only now beginning to be shaken off. Foucault contends, on the other hand, that a closer look at historical evidence demonstrates that the eighteenth and nineteenth centuries witnessed a proliferation of discourses about sexuality:

“Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite… rather than a massive censorship, beginning with the verbal proprieties imposed by the Age of Reason, what was involved was a regulated and polymorphous incitement to discourse.”

This happened through numerous practices of surveillance, taxonomy, the re-classification of sins as medical aberrations, religions confessions, and so on (the complete argument may be found in chapters two and three of Volume 1). Foucault then lists four ways in which there was an “incitement” to sexualised discourse. In the second category, which he calls “a new specification of individuals”, he deals with homosexuality. In an extended passage, that deserves quoting, Foucault observes:

“As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterized – Westphal’s famous article of 1870 on “contrary sexual sensations” can stand as its date of birth – less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”

But this is precisely the personhood argument writ small. What Foucault is describing (and perhaps, at the same time, warning us against) is the dangers of allowing a set of acts or practices to become the full measure of human beings.

And because of this, Foucault goes on to write, “scattered sexualities rigidified, became stuck to an age, a place, a type of practice.” What is crucial to understand, ultimately, is that subordination must depend, primarily, upon classification and definition: and there is no more effective way of classifying than by holding that a certain set of actions define, or constitute, what a person is. Seen this way, personhood suddenly becomes less of an emancipatory tool, and more of a trap. It also, as Foucault points out, both ossifies and excludes: by holding that one, defined set of practices constitutes the core, immutable being of an individual, it denies the possibility of the practice itself being malleable (for instance, by excluding other forms and conceptions of sexuality) and open to change, as well as denying the same to the “individual”.

We may pause here to notice a moment of irony: in Koushal, when the Supreme Court overturned Naz Foundation, it rejected the Article 14 argument on the ground that S. 377 classified between acts and not between persons. This reasoning was excoriated on the ground that the Court simply ignored how central sexuality and sexual acts are to persons. But, as Foucault points out here, it is the acts-to-persons shift that is precisely what we should be wary about embracing too uncritically!

The application of the arguments in A History of Sexuality to personhood-based claims in constitutional law has not gone unnoticed. In a 1989 article called The Right of Privacy, Jed Rubenfeld subjected personhood-based definitions of privacy to a Foucauldian critique. As Rubenfeld reads Foucault:

“In Foucault’s description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the “disease” of homosexuality. It generated a division be-tween homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals.

In a brilliant series of passages, Rubenfeld then explains the connection between classification and subordination, and how the personhood argument – by engaging in the former – undercuts its own emancipatory potential by facilitating the latter.

“Those who engage in homosexual sex may or may not perceive themselves as bearing a “homosexual identity.” Their homosexual relations may be a pleasure they take or an intimacy they value without constituting - at least qua homosexual relations - something definitive of their identity. At the heart of personhood’s analysis is the reliance upon a sharply demarcated “homosexual identity” to which a person is immediately consigned at the moment he seeks to engage in homosexual sex… thus, even as it argues for homosexual rights, personhood becomes yet another turn of the screw that has pinned those who engage in homosexual sex into a fixed identity specified by their difference from “heterosexuals.

Of course, it might be argued that there is no necessary connection between classification and subordination, and that identities, if put to emancipatory purposes, need not become the trap that Foucault describes them to be. To that, Rubenfeld says:

These two “moments,” [of classification and subordination] however, are not really distinct. Or rather, if we call them distinct, the impulse toward hierarchy actually precedes and produces the differentiation in identities. Obviously, differences of sexuality, gender, and race exist among us. These are not, however, differences in identity until we make them so. Moreover, it is the desire to count oneself “superior” to another, or even to count oneself “normal,” that converts such differences into those specified identities in opposition to which we define ourselves. To protect the rights of “the homosexual” would of course be a victory; doing so, however, because homosexuality is essential to a person’s identity is no liberation, but simply the flip side of the same rigidification of sexual identities by which our society simultaneously inculcates sexual roles, normalizes sexual conduct, and vilifies “faggots.” Thus personhood, at the instant it proclaims a freedom of self-definition, reproduces the very constraints on identity that it purports to resist. Homosexuality is but one instance of this phenomenon. The same flaw can be shown in the context of interracial marriage: once again, for the parties directly involved, to say that the challenged conduct defines their identity, and therefore should be protected, as-sumes that marrying out of one’s race is in some way the cataclysmic event its opponents pretend; it thus repeats the same impulse toward rigid classification presupposing the discrimination sought to be undone. Interracial marriage should be protected because it is no different from intraracial marriage, not because it is so different.”

A caveat is perhaps important here: this is not, by any means, an argument for “colour-blindness” – i.e., a legal system that ignores socially-constructed markers of identity altogether. Whether we like it or not, it is a simple truism that sexual orientation, race, caste, religion, sex and so on have been historical (and present) sites of oppression and subordination; and that subordination cannot be resolved by now ignoring their existence altogether. This is a well-worn argument in the affirmative action debate in the United States: the key, in reading Foucault, however, is the insight that in attempting to philosophically ground our anti-discrimination law in a manner that is sensitive to historical, group-based injustices, we should not fall into the trap of using “personhood” in a way that only entrenches and rigidifies group markers which – in the last analysis – cannot ultimately be the tools of emancipation.

If personhood is not the basis of Article 15, or other aspects of Part III, then what is? In his article, Rubenfeld advances what he calls the “anti-totalitarian argument“. Continuing within the broad, Foucauldian framework, he argues:

“The distinctive and singular characteristic of the laws against which the right to privacy has been applied lies in their productive or affirmative consequences. There are perhaps no legal proscriptions with more profound, more extensive, or more persistent affirmative effects on individual lives than the laws struck down as violations of the right to privacy. Anti-abortion laws, anti-miscegenation laws, and compulsory education laws all involve the forcing of lives into well-defined and highly confined institutional layers. At the simplest, most quotidian level, such laws tend to take over the lives of the persons involved: they occupy and preoccupy. They affirmatively and very substantially shape a person’s life; they direct a life’s development along a particular avenue. These laws do not simply proscribe one act or remove one liberty; they inform the totality of a person’s life.

Anti-totalitarianism, as a grounding for a right to privacy, is an interesting suggestion; for non-discrimination, it might not work so well. Another option – broadly on the lines of the South African Equality Act, is to simply identify the historic sites of discrimination, and prohibit practices that perpetuate such discrimination (South African hate speech law is expressly based on this premise), without any further assumptions about personhood. In this context, it might also be interesting to see what the Constitutional Assembly Debates have to say about historically-oppressive markers of identity, such as caste and sex, and their remedies for amelioration.

In any event, given the central place occupied by the idea of “personhood” in judicial decisions world-over (including India), this is a debate that will continue; nor is it a purely academic concern, because the philosophical ground if rights is, ultimately, what determines their reach and their limitations.

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Bombay High Court on the Right to Declare “No Religion” – and more!

Last week, in a brief and interesting judgment, the Bombay High Court held that Article 25 of the Constitution requires the government to allow persons to declare “No Religion” on governmental forms that require declarations of religion. The petitioners were the members of the “Full Gospel Church of God”, which believes in Jesus Christ, but not (!) in Christianity, or any other organised religion. The Petitioners made an application to the State Government printing press to issue a gazette notification stating that they were not Christians but, rather, belonged to “No Religion”. This application was rejected. Consequently, they approached the Court, via PIL. Their prayer, which the Court quotes in its judgment, was as follows:

That this Hon’ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents to recognise “No Religion” as a form of religion and not to insist on writing/mentioning/specifying/quoting religion in any of its forms or declarations.”

The judgment follows a standard Article 25 framework. It cited precedent for the proposition that the term “religion” under Article 25 is not limited to theistic religions, or religions centred upon a God. Subsequently, it noted:

The right of freedom of conscience conferred upon a citizen includes a right to openly say that he does not believe in any religion, and therefore, he does not want to practice, profess or propagate any religion.”

Since the requirements of stating a religion impinged upon the freedom of conscience of atheists, the Court held that it was unconstitutional, and set aside the order of the government printing press.

So far, so unexceptionable. The Court’s judgment follows the trend in most liberal democracies that have a freedom of religion and conscience clause: the question of what constitutes a religion is for neither the courts or the clergy to decide, but for the individual. The Courts will not inquire into whether an individual’s belief system tallies with any one of a list of approved religions, but will only initiate a prima facie enquiry into the depth and sincerity of her beliefs (whether, for instance, they are central enough to her life to properly be understood as having “religious” significance), and go no further before extending constitutional protection.

If that was all, this would be a fairly straightforward case. But the position is significantly complicated by the fact that throughout its judgment, the Court runs together two very different concepts, as if they were one: the right to declare no religion, and the right against compelled disclosure of religion. In its opening paragraph, the Court states:

The contention of the petitioner is that the State cannot compel any citizen to disclose his religion while submitting forms and/or declarations. The Contention is that the petitioner has a right to claim that he does not believe in the philosophy of any religion and therefore he does not practice or profess any religion. The contention in short is that a citizen can always claim that he belongs to “No Religion”.”

But these are not the same contentions at all! Given that the Court’s own argument is that religion – in the Article 25 sense – need not be theistic at all, the fact that you are stating, on a form, that you belong to “No Religion” does not mean that you are not disclosing your religion – in fact, it means exactly the opposite: you are disclosing your “religion” as being non-theistic or a-theistic.

Even without this strained reading of “religion”, the distinction should be clear. It is the same as the difference, for instance, between asking for “Other” under the “Gender: M or F” category, and asking that nobody should be compelled to declare their gender. A guarantee against compelled disclosure of religion would amount not to an extra box stipulating “No Religion”, but either a removal of the question from forms altogether, or still another Box stating “I Prefer Not to Disclose”.

The distinction is crucial, because admittedly, the freedom to state “No Religion” – asking for parity of treatment between theists and atheists – is an Article 25 claim; but the freedom from compelled disclosure is an Article 21 privacy claim (or, to a lesser extent, an Article 19(1)(a) claim against compelled speech). The privacy claim – unlike the Article 25 argument – is not restricted to religion. It would extend to other features of one’s personality that are as central as religion, and which one could, conceivably, want to keep private: ethnicity, race, sex (perhaps). That is certainly a tenable argument (and the legal scholar Jed Rubenfeld has a brilliant conceptual defence of it here), but would require the Court to go into the niceties of privacy law, and carve out a new concept of privacy, one which goes beyond privacy-as-freedom-from-surveillance (under the Gobind-PUCL line of cases), and privacy as a private right against disclosure of sensitive medical information (the Mr X vs Hospital Z-Sharda vs Dharmpal line of cases). That, again, would be an exciting (and in my opinion, correct) development, but it would require substantially more reasoning and argument than the Bombay HC has engaged in.

The two different issues are conflated throughout the judgment, and even plague the prayer. Under clause (a) of the Prayer, the Court holds:

“We   issue   a   writ   of   mandamus   directing   the Respondents not to compel any individual to declare or   specify   his   religion   in   any   form   or   any declaration.” 

Whereas clause (b):

“We declare   that   by   virtue   of   Article   25   of   the Constitution of India, every individual has right to claim that he does not belong to any religion and that he does not practice or profess any religion.”

It is clear from the context that what the Court meant was only (b), and it (mistakenly) considered (a) equivalent to (b). But it has done both (a) and (b) – provided a guarantee against compelled disclosure, as well as brought atheists on par with theists in terms of disclosure. It will be interesting to see if this issue is subsequently resolved, and if so, in which way.

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The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

Last week, in a judgment that caused quite a stir, the Supreme Court held the National Tax Tribunal Act (and, consequently, the National Tax Tribunal, a centralised adjudicatory for the purpose of deciding and harmonising substantive questions of tax law) to be unconstitutional. I have written a detailed analysis of the judgment elsewhere; in brief, the Court held that the NTT Act transferred the jurisdiction of the High Courts to the Tax Tribunal without ensuring that the Tribunal had sufficient trappings of a Court (e.g., independence and qualifications of its judges etc.) Consequently, it fell foul of the L. Chandra Kumar judgment, and the principle of separation of powers (which the Court rather mysteriously treated as a “constitutional convention”). In a pithy concurring opinion, which is well worth a read, Nariman J. held that it was impermissible to remove the judicial power of deciding substantial questions of law from the High Court.

In this post, I want to focus on two issues thrown up by the judgment, which have been discussed before on this blog, albeit mainly from a theoretical perspective. In its judgment, the Supreme Court relied extensively on the 1975 Privy Council case of Hinds vs The QueenHinds was an appeal from the Court of Appeals of Jamaica. The Jamaican Parliament had passed the “Gun Court Act”, which set up a parallel court system to try certain firearm-related offences. One of the courts it set up was vested with the jurisdiction and powers otherwise enjoyed by the higher judiciary, but its officials possessed neither the independence, and nor the qualifications, that were also enjoyed by the higher judiciary under the Jamaican Constitution. The Privy Council found the act to be unconstitutional, since it violated the principle of the separation of powers between executive and judiciary, which – it held – was a “necessary implication” flowing from the structure of post-colonial, commonwealth “Westminster Constitutions”; it had done so, specifically, by transferring the jurisdiction of the senior judiciary to a parallel court, without guaranteeing the judicial independence of the officers of that court through the rules of tenure, appointment and retirement that applied to regular, senior judges.

In its NTT judgment, the Supreme Court quoted extensively from Hinds. In particular, consider this quotation, which comes after the Privy Council referred to Canadian, Australian and other commonwealth Constitutions (notably, not the Indian):

“All of them [Constitutions] were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive, and judicial power as it had been developed in the unwritten Constitution of the United Kingdom. As to their subject matter, the peoples for whom these new Constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new Constitutions, particularly in the case of unitary states, were evolutionary, not revolutionary. They provided for the continuity of government through successor institutions, legislative, executive and judicial, of which members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.”

Previously on this blog, I’d drawn a distinction between two types of constitutional provisions: conservative and transformative. Most Constitutions are framed at a point of a decisive break with the past, with its institutions and its values, and certain aspects of a Constitution reflect the “transformation” from one set of values and institutions to another; but the past is never a wholly foreign country, and many institutions and structures not only survive revolutionary moments, but are actually entrenched and strengthened in a Constitution, through its “conservative” provisions. A good – albeit schematic – example is that of the American Constitution: its Bill of Rights was (largely) conservative, seeking to guarantee to the American citizens the ancient and deeply-rooted common law rights (e.g., to a jury trial, against unreasonable searches and seizures etc.) enjoyed by British subjects. On the other hand, the Constitution proper was transformative, replacing British monarchy with a system of representative, republican government, exercised through three separate wings of State.

Whether a particular constitutional provision is conservative or transformative, and to what extent it is transformative can have profound implications for constitutional interpretation. For instance, it is sometimes argued that the American Nineteenth Amendment, which guaranteed women the right to vote, transformed not only their voting status, but the entire legal and political framework, based upon the inferior political and legal status of women, that underlay and justified the denial of their right to vote until that moment. Consequently, the Nineteenth Amendment is used by scholars to ground a jurisprudence of sex-equality and non-discrimination within the American Constitution.

Earlier, in the context of India, I’d tried to argue that the transformative nature of Article 15 justified Naz Foundation (Delhi HC’s) reading of “sexual orientation” into “sex”: in providing a universal guarantee of non-discrimination on a set of grounds that were traditionally the sites of social oppression, the Constitution was signaling a shift from a society in which moral membership in society was contingent upon certain unchangeable aspects of one’s personality (race, caste, sex, place of birth, religion) to one in which ever individual was guaranteed equal moral membership, regardless of those unchangeable aspects (and sexual orientation was one such).

In Madras Bar Association, the Supreme Court applies this interpretive technique, by holding that the Constitution’s structural provisions, which set up the institutions and modes of government, are conservative: they entrench the “Westminster model” that was in practice in colonial India, one of whose features was the separation of powers and concomitant independence of the judiciary, guaranteed through appointment processes and security of tenure. Notice that this interpretive technique is based, ultimately, on a historical claim: whether this “Westminster model” was actually made part of our Constitution and, if so, to what extent, needs to be deciphered not merely from the constitutional text, but from a detailed investigation into its history. Unfortunately, the Supreme Court does nothing of the sort: it glibly assumes that the Westminster Model is the model of our Constitution, and decides the case accordingly. This is problematic because the Constitution was, after all, framed in a post-colonial moment, and it requires much argument to demonstrate what set of structures and institutions the framers simply wished to see carry on unchanged into the new republic; however, the use of the analysis itself is promising, and bodes well for the future.

The other paragraph from Hinds that the Court quoted was:

“Because of all this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in a new constitution of a governmental structure which makes provisions for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government… [and] what is implicit in the very structure of a Constitution on the Westminster Model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the Judicature, even though this is not expressly stated in the Constitution.

Previously on this blog – also in the context of Naz Foundation – we had discussed constitutional structure as one of the bases for interpretation. A structural analysis derives constitutional obligations or principles not from a textual reading of individual or aggregated provisions, but – as the American jurist Charles Black explained – from the “structure and relations… created by the text… and the inferences drawn from them.” Or, to put it in more linguistic terms, there are things that a Constitution says, and there are things that it does not say, but which, when it is taken as a whole, it necessarily implies.

In the Hinds case, much of the argument was historical: separation of powers and independence of the judiciary simply was a basic feature of Westminster governance. But, as we saw in the excerpts, the Privy Council speaks of the “structure” of the Constitution on the Westminster model, and uses the term “necessary implications”. The structural argument is quite straightforward: Constitutions are the fundamental documents creating and detailing the division of powers among the governing institutions in society. A deliberate and intentional division into three separate wings, with specific duties attached to each wing, presupposes that (in the absence of clear contrary evidence), the Constitution requires that the domains that it has marked out for each of the wings be protected from encroachment by the others. Thus, separation of powers and the independence of the judiciary simply come out as structural corollaries of the Westminster-type Constitution.

Something along these lines was the reasoning of the Privy Council in Hinds. Unfortunately, the Supreme Court walked down a very different path: it held that separation and independence were constitutional “conventions”, and accordingly, had to be upheld. This is unfortunate, because of course the meaning of convention is, precisely, that which is not legally enforceable. Thus, the Court’s decision is deeply problematic on this point.

Notwithstanding that, however, these two issues remain fascinating for the debate over constitutional interpretation. The conservative/transformative model is perhaps truest to Indian history, and can serve as an interpretive guide to a number of provisions; and, constitutional provisions flowing necessarily from the structure of the Constitution can have as much legal force as the text itself. The judgment in Madras Bar Association opens the gates for a further decision to engage with and clarify these interpretive points; whether future courts will accept the invitation is something that remains to be seen.

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Privacy, Self-Incrimination and the Constitution – IV: Selvi and the Middle Way

Selvi vs State, decided by a three-judge bench in 2010, is the Supreme Court’s most recent – and by far most detailed – engagement with Article 20(3). Selvi involved a batch of appeals challenging the constitutionality of three investigative techniques: narco-analysis, the polygraph test, and the Brain Electrical Activation Profile. The nature of these processes is important. In narco-analysis, an intravenous injection of a drug into a subject’s blood-stream sends her into a hypnotic state, lowering her inhibitions, and making her more likely to divulge information.  In discussing the comparative jurisprudence on narco-analysis, the Court quoted both Horvath vs The Queen, which we had discussed in the last post, and the American Supreme Court case of Townsend vs Sain, in which Warren J. held that “if an individual’s “will was overborne” or if his confession was not “the product of a rational intellect and a free will,”, his confession is inadmissible because coerced.”

A polygraph test, on the other hand, measures various physiological responses (respiration, blood pressure, blood flow etc.) during questioning, and makes determinations about the truth or falsity of the subject’s statements, based on the changes in those responses.  Similarly, the Brain Electrical Activation Profile (BEAP) test measures responses within the brain, in order to ascertain whether or not the subject has recognised the stimuli to which she has been exposed.

Obviously, out of these three tests, only narco-analysis involves “testimony” in the classic sense: communicating information through words, written or spoken. One of the central issues in the case, therefore, was whether recording physical stimuli amounted to compelling a person to be a “witness against himself”. It is in this backdrop that the Court embarked upon a detailed analysis of whether these investigative procedures fell foul of Article 20(3). Up front, it laid out the conceptual foundations of the Article:

“Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily… when a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the `rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable… the concerns about the `voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination’ is a vital safeguard against torture and other `third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations.” (paras 91 and 92)

The first of the Court’s rationales – reliability – straightforwardly corresponds to the crime-control model. The second – voluntariness – seems, at first sight, to correspond to the due process model, but in answering the question, “why is voluntariness important?”, the Court complicates the issue: it mentions bodily integrity and dignity (in the context of torture and other third-degree methods), but also notes that the “diligence” required for “meaningful investigations” will be “compromised” if the investigators can take short-cuts such as torture. It is unclear, therefore, that even within the “voluntariness” framework, whether the focus is on (due-process based) concerns of dignity and integrity, or of (crime-control based) diligent investigations.

After examining a plethora of precedents on self-incrimination the world over, the Court then clarified some of the basic tenets of Article 20(3): “accused of an offence” covered a wide ambit, that included people formally charged of offences, as well as people whose answers could expose them to criminal charges (paragraph 109); incriminatory statements included statements that the prosecution could directly rely upon to further its claims, as well as derivative statements. The corse of the Court’s analysis, however, was in examining whether “testimonial compulsion” was involved in the three impugned techniques. Precedent – as we have seen – drew a distinction between testimony and physical evidence (fingerprints, blood samples etc.) In Kathi Kalu, this distinction had been rationalised on the ground of “volition”, in the sense of unchangeability. Under this logic, narco-analysis would be borderline unconstitutional (depending on whether or not you take answers given under hypnosis to be “volitional” or not), whereas polygraph tests and brain-mapping would be definitively constitutional.

This argument was buttressed by the fact that Ss. 53 of the CrPC allows for the examination of the accused on the request of the police, of “blood, bloodstains, semen… sputum… sweat…” etc., through the use of “modern and scientific techniques including DNA profiling and such other tests…” It was argued that the three impugned techniques ought to be read into this Section. The Court, however, rejected this argument, holding that S. 53 clearly referred only to the examination of “bodily substances”, whereas the impugned techniques involved “testimonial responses” That, however, is not self-evident: what is it about physiological reactions of the brain and other parts of the body, that put them within the category of “testimonial responses”?

The Court answered this question by going back to Kathi Kalu, and holding that a testimonial act is equivalent to “the imparting of knowledge by a person who has personal knowledge of the facts that are in issue.” (paragraph 158) And then the Court noted:

Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)

And, immediately afterwards:

“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”

Of course, in a trivial way, being forced to provide a blood sample or a fingerprint also involves conveying personal knowledge (of your blood group or your fingerprint pattern) irrespective of your volition. In earlier cases, the Court had gotten around that by arguing that a blood sample or a fingerprint was innocuous in itself – only when subsequently corroborated with another piece of evidence (fingerprints at the scene of the crime), did it become incriminatory. However, that reasoning is not open to the Court here, because physiological responses to stimuli are also innocuous in themselves. On the other hand, it seems clear from paragraph 160, that what the Court was concerned about was – in a phrase – the privacy of the mind. This becomes clearer subsequently, when after an excursion into the constitutional right to privacy under Article 21, the Court noted:

While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes... so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)

The shift from Kathi Kalu is crucial. In that case, “volition” – in the sense of changeability – played the crucial role, and we saw how it was conceptually connected with the crime-control model: information that you had no power to change could not possibly be fabricated. In Selvi, although the Court embarked upon a discussion of the reliability of the investigative techniques, ultimately, the distinction it drew was between “physical privacy” (blood samples, fingerprints) and “mental privacy”; linking the word “witness” to testimony, and then understanding “testimony” as the impartation of information present within a person’s mental sphere, the Court placed a certain conception of mental privacy – understood as autonomous mental processes – at the heart of the guarantee against self-incrimination.

While the result of Selvi was the unconstitutionality of three specific investigative procedures, its implications for criminal/constitutional jurisprudence are more significant. In Selvi, we have a strong recognition of the role of the due process model as the foundation of criminal procedure and associated constitutional guarantees. It therefore provides a template for future cases where the crime-control model and the due process model pull in opposite directions, and the Court is obliged – as it was in Selvi – to balance the two.

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Privacy, Self-Incrimination and the Constitution – III: “Volition”

In the last post, we saw that in Kathi Kalu Oghad, the Supreme Court held that what distinguished a compelled fingerprint scan from compelled self-incriminatory testimony was the issue of volition: one’s fingerprint pattern was independent of one’s volition, while testimony (spoken or written) was not. In linking volition with changeability, the Court seemed to adopt the crime-control model as the basis of Article 20(3). The reason why non-volition brought fingerprints out of the scope of Article 20(3) was because the accused was powerless to change or affect them in any way; in other words, fingerprints had an objective, verifiable existence beyond the control of the accused, and consequently, were not amenable to deception or falsification. Thus, because of their accuracy (as opposed to spoken or written testimony), even producing them through compulsion passed constitutional scrutiny.

In linking voluntariness with veracity (via changeability), the Court was tapping into an established common-and-statute law tradition. Consider Section 24 of the Evidence Act which, in popular parlance, is understood to exclude involuntary confessions. Section 24 renders irrelevant confessions that are obtained through “inducement, threat or promise… proceeding from a person in authority and sufficient… to give the accused person grounds… for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” The purpose is clear: there is a good chance that statements made in order to obtain a benefit or avoid an evil are false. More specifically, Halsbury’s Laws of England define a person’s statement to be “voluntary” as long as “it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in author­ity, or by oppression.” This rule – in almost exactly the same wording – was also laid down by the Privy Council in the 1914 case of Ibrahim v The QueenAgain, the concern seems to be – following the crime-control model – that fear of prejudice and hope of advantage are likely to taint the accuracy of the statement in question.

It is in this context that the 1979 Canadian Supreme Court decision of Horvath v The Queen assumes tremendous importance. In Horvath, the appellant’s mother was murdered in her bed one morning. The appellant, who was seventeen years old, was arrested, and subjected to a three-hour interrogation. He then confessed, but soon retracted. The next day, he underwent a four-hour interview with a polygraph operator, during which he made certain self-incriminatory statements, and at the end of which he wrote a signed confession. At the trial, a psychiatrist testified that for certain periods during the interview, the appellant had been in a “light hypnotic state“. The question before the Court was whether statements made under and immediately after light hypnosis were “voluntary” or not. The trial judge held that the statements were inadmissible; the Appeals Court reversed, on the basis of the narrow definition of “voluntary” in Ibrahim v The Queen. The case went up in appeal before the Supreme Court. By a narrow, 4 – 3 majority, the Supreme Court allowed the appeal, reversed the decision of the lower court, and restored the trial court’s order of acquittal. The dissenting judges based their decision on a strict understanding of “voluntary”, as per Ibrahim. They held that Ibrahim referred to a closed set of categories that could not be judicially expanded, as per certain other Canadian decisions.

However, it is the majority opinion of Beetz and Pratte JJ that is of considerable interest to us. Analysing the effect of the “interview”, the two judges concluded that there was a similarity between light hypnosis and narco-analysis, in the sense that “emotional controls are less inhibited than they are in a fully conscious state and the subject is assisted to say what he was not able to say voluntarily because of the emotional intensity of it.” The use of the word “voluntary” here is crucial, because it suggests a different understanding of the term, one which goes beyond fear of prejudice or hope of advantage. Immediately afterwards, the two judges went on to develop their theory of “voluntariness”, arguing that the “principle” underlying the Ibrahim rule necessitated its expansion when required:

“… if a mere threat or a mere promise are considered to have such an impact on mind and will as to render involuntary the confession of an accused who is not under induced hypnosis, whose state of conscious­ness has not been altered, who is in full and voluntary control and possession of his faculties and who is therefore quite capable to resist sugges­tion, then Horvath’s statement made under hypno­sis in the circumstances described above was a fortiori involuntary even though the cause of involuntariness was neither hope of advantage nor fear of prejudice.”

In other words, something was “voluntary” only if it was done under full control and possession of one’s faculties. What is the basis for this understanding? The Court held that:

“… through the use of an interrogation technique involving certain physical elements such as an hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind… it is my view that this was a form of violence or intrusion of a moral or mental nature, more subtle than visible violence, but not less efficient in the result than an amytal injection administered by force.”

Here is a new and powerful understanding of the interests protected by the voluntariness requirement. It is not, after all, about accuracy, but about privacy: the right of every person to choose whether or not to reveal what is in their minds, to keep their mental maps hidden from view, or to reveal it to the world, as they wish. Unsurprisingly, then, towards the end of its judgment, the Court expressly abandoned the veracity basis of the voluntariness requirement:

“Apart from the untrustworthiness of confessions extorted by threats or promises, other policy reasons have also been advanced to explain the rejec­tion of confessions improperly obtained. But the basic reason is the accused’s absolute right to remain silent either completely or partially and not to incriminate himself unless he wants to. This is why it is important that the accused understand what is at stake in the procedure. In a voir dire, voluntariness not veracity governs admissibility. Dr. Stephenson’s expert opinion as to the truthful­ness of Horvath’s confessions is accordingly not determinative of the issue of admissibility… I wish to add that the accused’s absolute right to remain silent includes not only the right to censor any information which is on his conscious mind but also the right to control the administration of artificial processes whereby unconsciously held information might emerge into consciousness. In this sense, the accused has the absolute right to censor his unconscious mind as well as his con­scious one.”

Let us return to Kathi Kalu Oghad. We can now see that the volitional requirement in that case could be read in one of two ways. Volition as non-changeability conforms to the narrow definition of “voluntariness” in the common law, based upon the crime-control model, and permissive of (arguably) narco-analysis, brain-mapping and other such intrusive tests that escape unconstitutionality by being neither threatening some prejudice, nor promising some advantage. On the other hand, volition as understood by the Canadian Supreme Court in Horvath, based upon the due-process model, is broader, and focuses on the right of the accused to mental privacy, to choose precisely which part of his mental landscape he or she wishes to reveal to the world. The tension between these two approaches must be kept in mind when, in the next post, we discuss the most recent Supreme Court decision on 20(3), one that was directly about narco-analysis and brain-mapping: the 2010 case of Selvi vs State.

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Privacy, Self-Incrimination and Article 20(3) – II: Kathi Kalu Oghad

M.P. Sharma vs Satish Chandra, as we saw in the last post, held that the meaning of the phrase “to be a witness”, under Article 20(3), was analogous to “to furnish evidence”. This broad interpretation of Article 20(3) was questioned, and in 1961, an eleven-judge bench of the Supreme Court, in State of Bombay vs Kathi Kalu Oghad, had occasion to reconsider the scope of the constitutional guarantee against self-incrimination. The basic question, in Kathi Kalu, was whether fingerprints and handwriting samples were hit by the Article 20(3) bar – or, in other words, whether compelling an accused to provide their fingerprints, or a handwriting sample, was equivalent to compelling them to be a “witness” against themselves. Incidental to this central question, the case also involved constitutional challenges to some of the provisions that made it possible: S. 73 of the Evidence Act, which empowers the Court to direct a person to provide handwriting or signature samples; Ss. 5 & 6 of the Identification of Prisoners Act, which allowed a Magistrate to obtain a photograph or measurements of any person; and S. 27 of the Evidence Act which allow, in evidence, statements made by the accused while in the custody of a police officer, which result in a discovery (of other relevant evidence).

There can be no doubt that if – following M.P. Sharma vs Satish Chandra, “to be a witness” meant “to furnish evidence”, then compelled taking of fingerprints or handwriting samples surely come within its meaning. The Court held, however, that Sharma’s observations, on this point, were incorrect. It noted that:

“… though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Further more it must be assumed that the Constitution-makers were aware of the existing law, for example, s.73 of the Evidence Act or ss. 5 and 6 of the Identification of prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so.” 

There are two glib assumptions here that are very troubling: first – that a Constitutional guarantee – a fundamental right, no less – is to be bound by the scope of traditional English common law (which has never been too friendly to the accused); and secondly – that a fundamental right must be interpreted in light of colonial-era legislations such as the Evidence Act and the Identification of Prisoners Act, and not the other way round. The other possibility – that the Constitution was the culmination of a decades-long struggle against a repressive police State (observations to this effect abound in the Constituent Assembly Debates), and that therefore, its fundamental rights ought to be read not as continuing an authoritarian tradition, but as marking a decisive break with it in favour of an expansive notion of civil liberty, was never even considered by the Court – let alone analysed.

There is a further problem. In the cited paragraph, the Court laid out the accepted dichotomy, between protecting an accused from self-incrimination, and serving the goals of law-enforcement. But surely, just as taking the impressions of parts of a body is often necessary to help in the investigation of a crime, torturing a person to make him confess may be equally necessary in an investigation. In either case, not allowing the police to do so becomes an “obstacle” towards bringing criminals to justice. The Court’s reasoning – that the constitutional framers could not have intended to throw up obstacles in the path of law-enforcement therefore does nothing to explain what the scope of the self-incrimination guarantee is, because any protection of individual rights is bound to make the job of the police harder. So if we do accept that Article 20(3) guarantees some rights, we must look elsewhere for their ambit.

This the Court did by looking at the issue from “another angle”. It noted that “the giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not “, to be a witness”. “To be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.”

But surely there is nothing in the inherent meaning of the word “witness” that requires this constricted interpretation. The Oxford Dictionary, for instance, defines the word “witness” both as “a person who sees an event”, and, more simply, as “evidence; proof.” The Court’s thinking was revealed soon afterwards, though, when it held that “the giving of a “personal testimony’ must depend upon [the accused's] volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character.”

The underlined portion is crucial, because it demonstrates that, underlying the Court’s seemingly textual interpretation of the word “witness”, is a deep-sated fidelity to the crime-control model. Finger impressions and handwriting have an “intrinsic character”, that is changeless, beyond the accused’s control and – ultimately – verifiable. The content of a “statement”, on the other hand, is entirely within the control of the accused, and if it is self-incriminatory, then it is just that much more likely that it is distorted or untrue.

The Court put another gloss upon its holding, by stating that the testimony – to fall within Article 20(3) – must itself have a tendency of incriminating the accused – i.e., “it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with.” Notice how “innocuous” is run together with “unchangeable”, although they do not – for one moment – mean the same thing. Once again, underlying all this is the concern with determining true, accurate information, that can make the process of identifying the guilty efficient and accurate.

In their concurring opinion, Das, Sarkar and Da Gupta JJ. maintained – following M.P. Sharma – that to be a “witness” included furnishing of evidence. They held, however, that “evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions., identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person. or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself.” Immediately afterwards, the concurring judges noted that “this view, it may be pointed out, does not in any way militate against the policy underlying the rule against “testimonial compulsion”… there is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person.” The concurring opinion, thus, is even more transparent about is allegiance to the crime-control model: the whole point of the guarantee against testimonial compulsion is to ensure that the investigator doesn’t become “lethargic”, because he has the option of squeezing self-incriminating information out of the accused, and thereby fails to collect other relevant or valuable evidence.

We therefore see how, in Kathi Kalu - unlike in M.P. Sharma – the basic conceptual framework within which Article 20(3) is analysed is the crime-control model. In focusing on volition and unchangeability, however, the eight majority judges left a zone of doubt for investigatory techniques such as narco-analysis and brain-mapping, that operate at the interface of volition/no volition, and accuracy/unreliability. The Court, therefore, would have another chance at conceptualising its understanding of Article 20(3). That will be the subject of the next post.

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