Guest Post: The Right Against Self-Incrimination and its Discontents – II

(In this second and concluding post, Abhinav Sekhri, a Delhi-based criminal lawyer, discusses the application of Article 20(3) to persons “accused of an offence”)

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Recap

Previously, we talked about how the words ‘person accused of an offence’ present in Article 20(3) of the Constitution of India have been interpreted by the Supreme Court. We saw that the Court had understood this phrase as describing a person subject of a formal accusation, akin to a FIR. This naturally created a lacuna for the time it takes for an informal accusation against one to become a formal accusation. While ordinary investigations for IPC offences may confer little investigative mettle to the Police before a formal accusation, the same is not the case in statutes creating socio-economic offences, such as smuggling. Statutes such as the Customs Act 1962, and the NDPS Act 1988 vest officers with extensive investigative powers before a formal accusation is levelled.

The Supreme Court during the 1960s consistently held that no self-incrimination could arise if persons were compelled to give evidence against themselves at these stages. I have expressed deep reservations about this approach, and in this part of my argument, I flesh out a possible alternative approach to answering the problem. While nothing would be better than an amendment to either the Constitution or the Cr.P.C. for providing clarity, we know how remote the possibility of such a non-political amendment getting tabled in Parliament is today, and must make do with innovating from the existing morass of laws. I thus propose that the phrase ‘person accused of an offence’ must be understood to include detention in custody by any authority during an investigation. I will elaborate on the benefits of this later, and require the reader to be content with just understanding my proposal for now. Simply put, if an authority seeks your detention for more than the 24-hour minimum period (before it needs to produce you for the first time before a magistrate), you necessarily must be able to exercise your right against self-incrimination.

Deepak Mahajan and a Lost Opportunity

The judicial history of interpreting Article 20(3) reflects a certain reluctance to re-evaluate basic premises and stick to formulas. The near-vehement consistency in the Supreme Court’s decisions M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] onwards on the point is remarkable. There is not one stray decision in all those years. The scope for innovation when arguing this issue before a Division Bench in the 1990s was thus quite slim. Still, Directorate of Enforcement v. Deepak Mahajan [AIR 1994 SC 1775], is a landmark decision in its own right.

The offence in question was under the erstwhile Foreign Exchange Regulation Act 1973 [FERA], which followed in the footsteps of all socio-economic offences in vesting great investigative powers before filing of a formal accusation., including that of detention in custody [Section 35 FERA]. The Respondent here had been arrested and detained under Section 35 FERA – the issue was whether a Magistrate could remand him to judicial custody. Section 167 Cr.P.C. provided for remand by magistrates, but applied during investigation. But the Supreme Court itself had created a fiction that what officers did under the FERA and other such offences is not an “investigation”. To now apply Section 167 Cr.P.C. would mean that it was investigation, and that the person detained was a ‘person accused of any offence’ since investigation presumed formal accusation. Interestingly, the Delhi High Court held that Section 167 Cr.P.C. did not apply for these reasons.

Reading the decision, it is clear that the Supreme Court knew exactly how tricky the issue was. It reversed the conclusions of the High Court and held that Section 167 Cr.P.C. would apply to allow those arrested under Section 35 of FERA and other socio-economic offences to be remanded to judicial custody. While doing so, the Court did not extend the protection of Article 20(3) to such persons who are remanded to custody. With due respect, the basis for this decision is utter rubbish, and the Court horribly let itself down. The refusal to extend Article 20(3) was despite the admission that the “words ‘accused’ or ‘accused person’ is used only in a generic sense in Section 167(1) and (2) denoting the ‘person’ whose liberty is actually restrained on his arrest by a competent authority on a well-founded information or formal accusation or indictment.”

This was the first time in nearly 50 years that the Supreme Court had to consider the text of Section 167 Cr.P.C. together with the right under Article 20(3). The decision shows how the Court goes to absurd lengths to try and avoid this connection, where at one point it distinguishes the binding Constitution Bench decisions on Article 20(3) by saying that none of them applied to the ever-so slight issue of actual detention but only with admissibility of evidence. This is the reason why I term the decision a lost opportunity, for I argue that a far more consistent and coherent approach to Article 20(3) lies in considering it together with Section 167 Cr.P.C. and the idea of remand.

Re-Drawing Lines in Article 20(3)

The illogical approach of the Supreme Court was pushed to theoretically unbelievable limits in Deepak Mahajan where it held that persons arrested under laws such as the erstwhile FERA could even be remanded to judicial custody under Section 167 Cr.P.C. yet remain beyond the pale of Article 20(3). If nothing else, this by itself should make the reader a bit concerned about how the basic premise of Article 20(3) is being understood today. I propose a simpler alternative not located in the judicial precedent – connect the idea of remand to custody with terming someone as ‘accused of any offence’.

Why do we have a right against self-incrimination in the way we do under Article 20(3)? There is no one-size-fits-all rationale here, but several that apply. An interpretation of the right that tries to be in sync with these different claims is bound to bring a more wholesome solution to the problem. By providing this right, the legal system attempts to expel potentially unreliable evidence obtained through coercion. But protection from being compelled to incriminate oneself is also a basis to ensure protection from coercion itself, and all the necessary evils a system using coercion brings. At the same time, having an unbridled right to stay silent can naturally dent any investigation and we often see potentially sensitive legislation contain relaxations from certain legislative expressions of self-incrimination [the erstwhile Prevention of Terrorism Act 2002 allowed judges to draw an adverse inference against persons refusing to tender voice samples]. Not providing the right to every person but only those accused of any offence is the Constitutional balancing act.

The fact that Section 167 Cr.P.C. is the first place in the criminal process that the word ‘accused’ finds a mention to describe the affected person is not pithy phrasing. The reason being that a request by an officer seeking further remand to custody of any person shows that at that time that there is something in the allegations against that person. Otherwise what is the need to seek further custody in the first place? It is irrelevant whether the person so detained is not ultimately proceeded against. To hold that self-incrimination should only protect such eventual accused is solely looking to the evidentiary purposes of the right and completely ignores the idea of personal protection it entails. 24 hours also protect the needs of investigation, and is a Constitutionally prescribed limit [Article 22].

Furthermore, such a statutory approach allows for a more wholesome take on the investigative and evidentiary process at large. Having begun by looking at the Cr.P.C., we must now turn to the Evidence Act 1872; Sections 25 and 27 more specifically. These provisions address two concerns that arise from my proposal from the standpoint of both prosecution and defence. If you are forced by the police to confess before expiry of 24 hours, does that render you defenceless? Section 25 negates such a conclusion, for it says that “no confession made to a police officer shall be proved as against a person accused of any offence”. This ‘person accused’ is at the trial, remember, and would cover our initial un-protected suspect. On the other hand, what investigation can the police conduct with Article 20(3)? Section 27 of the Evidence Act becomes relevant here, and allows the limited use of information if any fact is discovered consequent to such information being provided by the accused.

Conclusion

The current approach to the words ‘person accused of any offence’ in Article 20(3) established from the decision in M.P. Sharma was useful but short-sighted. It was useful because it provided a simple solution to a difficult problem. It was short-sighted for it failed to consider the problem from all angles. This became evident with the growth of a peculiar form of socio-economic offences. The interaction of the right against self-incrimination with the procedure created under these offences that have come to represent a vast section of the criminal law in India, is illogical at best and horrendous at worst leaving the right utterly redundant. I am the first to admit that my alternative setup to Article 20(3) suffers from critical flaws of design. I do consider, however, the need for other ideas imperative, and the essence of my own argument as being sound.

Guest Post: The Right against Self-Incrimination and its Discontents

(In a two-part series, Abhinav Sekhri, a criminal lawyer, explores some of the problematic issues with the operation of the constitutional right against self-incrimination)

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Article 20(3) of the Constitution of India is extremely fascinating. Tersely worded, it can be quoted in full: No person accused of any offence shall be compelled to be a witness against himself. Three components can be identified: (i) the protection applies to a person accused of any offence, (ii) it prohibits said person being compelled to be a witness, and (iii) this prohibition applies only to the person concerned. The issues also become clear, therefore. How do we understand ‘accused of any offence’? What amounts to one being compelled? And, of course, when is someone a ‘witness against himself’? In this series of posts, I wish to address only the first of these three issues. In this post, I look at three decisions of the Supreme Court on the point to show how the approach adopted by the Court towards interpreting ‘accused of any offence’ suffers from serious flaws, and leads to seriously problematic consequences. In the next post, I’ll continue on this thread and suggest a different approach to answering the interpretive conundrum posed here.

Phase I

Phase I concerns the first proper decision on Article 20(3), M.P. Sharma v. Satish Chandra [AIR 1954 SC 300]. The facts were simple. Investigations ordered by the Registrar of Joint Stock Companies revealed certain companies were engaging in fraudulent transactions. The Delhi Special Police Establishment (now CBI) required to seize the books of the concerns, and separate First Information Reports (FIR) were registered against different companies. Search warrants under Section 96 of the Cr.P.C. 1898 were issued and documents seized. The proprietors filed petitions under Article 226 challenging the searches as violating their fundamental rights under Articles 20(3) and 19(1)(f) of the Constitution. Only the Article 20(3) question was considered important. Eight judges delivered a unanimous decision, rejecting the claim. The Court noted the historical development of self-incrimination in India and mentioned how the idea always contained problems of balancing the needs of investigation with the protection. With this in mind, the Court explained all three of the facets identified above. I’ll restrict myself to the aspect of Article 20(3) being limited to a person accused of any offence. The Court held that the right extends to beyond the courtroom (yes, I’m cheating. This came in context of the ‘being a witness’ part), and then had to draw a line on how far did the right extend. In rather vague fashion, the Court said limited it to “a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution”. Importantly, the Court observed “whether it is available to other persons in other situations does not call for a decision in this case”.

The importance of this decision cannot be reduced despite the years that have passed. In choosing to expand the scope of Article 20(3) beyond the courtroom despite it having a qualifier (accused of any offence), the Court took an important decision. However, I argue that nevertheless the Court got this one slightly wrong. The problem is lies in the vantage point the Court adopts while viewing Article 20(3). The Court decides against a narrow approach, yes, but it still bases its decision by looking at the protection from that standpoint of the eventual proceedings in court. Compelled evidence is inherently unreliable for trial (for people lie when tortured), and such tainted evidence can arise from compulsion exercised beyond the courtroom. This reasoning is commonly touted as the basis for the protection only for such claims to be convincingly rebuffed time and again [For instance, Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37(4) U. Cin. L.Rev. 671 (1968); Amar & Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857 (1995)]. The reason why focusing too much on eventual proceedings is a problem is not hard to fathom. Imagine a situation where you are not named in the FIR as an accused but are picked up by the police, forced into writing a confession, but the matter ultimately never goes to trial and are thus released from custody. The detention is not unlawful – the police can arrest suspects – so no Article 21 violation occurs. You were forced to incriminate yourself. But, according to M.P. Sharma, it is difficult to claim this as a violation of the right under Article 20(3). Difficult and not impossible, only because of the caveat, which was to get forgotten soon after.

 Phase II

The formal accusation referred to by the Supreme Court in M.P. Sharma must also be one that normally may result in prosecution (Thomas Dana v. State of Punjab, AIR 1959 SC 375). Prosecution refers to initiation of legal proceedings, i.e. a trial in this case. A formal accusation appears to have been used with the intention to create different classes of accusations. Formal here would mean ‘official’ (the other definition of the word being based on etiquette must be excluded), and the Court perhaps wanted to separate official accusations from those by private individuals. The police registering an FIR, is different from me filing a complaint against you at the local police station. So we find a gap emerge in the process; in the time when an accusation becomes a formal accusation. Here, remember, the Court issued a caveat – its judgment did not preclude an extension of the right under Article 20(3), but only provided some sort of minimum. This gap might yet be covered under Article 20(3), as the Court didn’t discuss such cases. The Court would have been wise to clothe the caveat with more flesh, as hindsight would suggest.

Phase II will look at two cases. The first is the unanimous decision of 5 judges in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [AIR 1961 SC 29]. The case was similar on facts to M.P. Sharma; the only difference being that here there was no FIR against the companies or proprietors. An Inspector appointed under the Companies Act, 1956, called upon the appellants to furnish certain information. The Appellant challenged this investigation as being inter alia, contrary to Article 20(3). While observing the earlier judgment of M.P. Sharma, the 5 judges concluded that “the effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Art. 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution.” Did the inquiry here amount to such an accusation? No, it was more like a fact-finding commission and “the fact that a prosecution may ultimately be launched against the alleged offender will not retrospectively change the complexion or character of the proceedings”. The unanimous answer thus being, no violation of Article 20(3). The Court seems to have been referring to the caveat to the end of its decision. It observed “even if the clause ‘accused of any offence’ is interpreted in a very broad and liberal way it is clear that at the relevant stage the appellant has not been, and cannot be, accused of any offence.” Only to then say that such a broad interpretation does not appear to be “consistent with the tenor and effect of the previous decisions of this Court”.

This leads us to the second case, another 5 judge unanimous decision in Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940]. This case arose out of the old Sea Customs Act, 1878 (replaced by the Customs Act, 1962). The Appellant had been searched at Dum Dum Airport, Calcutta, and this search lead to recoveries of jewels and currency worth several lakhs of rupees. He was questioned under Section 171-A of that Act (after possibly being arrested, which is not entirely clear from the judgment), where disclosures lead to further recoveries. These discoveries made pursuant to this inquiry were assailed as being the result of the Appellant being compelled to incriminate himself. The Court’s reasoning while denying that Article 20(3) extended to the case is important: “a person arrested by a customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act … he is not accusing the person of any offence punishable at a trial before a Magistrate”. With this it would appear that the Court has taken a clear and consistent view on how to consider that gap we identified in the process. Anything prior to the formal accusation means no protection.

The Problem

Have a look at the procedure under the Customs Act 1962 and other socio-economic offences such as the Foreign Exchange Management Act 1999, and the Narcotics, Drugs and Psychotropic Substances Act 1985. The formal accusation in these cases is a Complaint filed by the authorised officer, which is the result of an investigation. Here, there is no pre-investigative accusation drawn up by the authority like an FIR required under the Cr.P.C. The reason for this is a ridiculous deeming fiction which requires that we don’t call these officers police officers and by extension call these investigations enquiries, despite the officers having the same powers of investigation as conferred under Chapter XII of the Cr.P.C. [on this, see Sekhri, Confessions, Police Officers and Section 25 of the Indian Evidence Act, 1872, 7 NUJS L. Rev. 1 (2014)].

These socio-economic offences thus have extensive pre-trial powers during the ill-phrased enquiry stage. The Customs Act 1962 (successor to the Sea Customs Act, 1871), allows customs officers powers of ‘searches, seizure and arrest’. A customs officer can summon any person [Section 108] and examine her during the course of an enquiry into the smuggling of goods [Section 107]. Persons summoned are “bound to state the truth upon any subject respecting which they are examined or make statements”, and these enquiry proceedings are deemed to be judicial proceedings for Section 193 and 228 of the Indian Penal Code. So if you lie, perjury charges can follow. On top of this, the customs officer can arrest [Section 104] upon having reasons to believe that the person committed an offence punishable under Section 132, or 133, or 135, or 135-A or 136 of that Act. Detention can and will follow, and could possibly extend to 60 days as specified under Section 167, Cr.P.C. What the Supreme Court has done, is to exclude the right of self-incrimination from this entire process because of its focus on the actual realisation of proceedings as first seen in M.P. Sharma.

 The steady growth of powers during this enquiry stage under socio-economic offences supports the theory that the Legislature is not blind to the line-drawing adopted by the Supreme Court. So what do we draw from this? Today you can be questioned under the threat of prosecution to supply potentially incriminating information. You can be arrested and detained during this process, but still the right under Article 20(3) remains beyond reach. Why? Because the accuser might not have found all that was needed from you to incriminate yourself.

 

 

Guest Post: The Curious Case of Salient Features: Exploring the Current Relevance of the Basic Structure Doctrine in Pakistan

(In this guest post, Aratrika Choudhuri, a student at the National University of Juridical Sciences, Kolkata, discusses the recent discussion of the Pakistani Supreme Court on the basic structure doctrine)

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The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament. While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations (e.g. Bangladesh) to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in Pakistan in an identical manner to India. In fact, a different doctrine was developed and upheld- the Salient Features Doctrine (“SFD”). Due to the considerable befuddlement surrounding this area, this essay analyses the SCP’s interpretation of SFD in the understanding of Pakistan’s unique politico-constitutional history, and critiques its understanding of the differences between BSD and SFD.

Put very briefly, the Basic Structure Doctrine, as enunciated in the landmark Indian case Kesavananda Bharati v. State of Kerala, implies that the Constitution of India has certain immutable basic features, which cannot be damaged or destroyed by constitutional amendments enacted by the Parliament, and that the Judiciary has power to strike down such amendments. While the Supreme Court of India has deliberately and steadfastly refused to provide an exhaustive list of “basic features”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure.

In the SCP’s decision, the petitions challenging the 18th Amendment (laying down a new procedure of judicial appointments) and 21st Amendment (setting up a series of military courts to try cases involving terrorism) to the Constitution were heard together as they involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment. The SCP, by aforementioned majority, answered both questions in the affirmative, saying that Article 239(5) (“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”) and Art. 239(6) (“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament to amend any of the provisions of the Constitution”) still left room for judicial review of constitutional amendments.

The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v. Federation of Pakistan, the SCP has consistently held that the BSD has been recognized only to the extent of identifying salient or fundamental features of the Constitution. On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for BSD in Pakistan are shaky (p. 38)- (1) a stray remark in Mahmood Khan Achakzai v. Federation of Pakistan merely identifying three basic features- federalism, parliamentary form of Government, blended with Islamic provisions (contemporaneously interpreted by two other judges sitting on the same bench as not validating the basic structure theory); (2) a rhetorical unanswered question in Wukala Mahaz v. Federation of Pakistan (“If the Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as an Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment?”); and (3) a restriction imposed by the SC on military dictator Pervez Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan from altering the afore-mentioned basic features. Nowhere, however, has such a basic structure as commonly understood in India to be left deliberately vague and undefined, been recognized by the SCP.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary (p. 77). Justice Nisar, concurring, made a passing remark that the earlier trend of passing draconian amendments (e.g., the 5^th amendment seeking to “tame” the judiciary, as evinced in Article 280 of the Constitution of Pakistan) has generally ceased and therefore, unlike their Indian counterparts, recent constitutional amendments in Pakistan generally have a unique beneficial intent and effect (p. 535-536). This argument appears to attribute the very “heroism” to elected representatives, which he denounced in case of the Judiciary, and seems optimistic in its assumption that the Parliament would not relapse into such tyranny (1).

Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s power to amend the Constitution is constrained by limitations which are both political and subject to judicial review, that the expression “amendment” (ordinarily implying correction and improvement) does not extend to abrogation or destruction and, therefore, SCP has the power to strike down a Constitutional amendment which transgresses these limits (p. 90). He affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan need not rely on individual proclivities to circumscribe powers of State organs, like Indian judges do (p. 132-133). The dispensation of representatives’ fiduciary obligations in Pakistan would thus be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself– the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not through resort to the polemical realm of abstract philosophical theories, or to extra-constitutional material. Thus, the intractable conundrum of identifying a constantly shifting “supra-constitution” (whose provisions themselves are unknown and identified on a case-by-case basis), despite their immutability in legal prescription, emblematic of judicial aggrandizement and autocracy, could be avoided in Pakistan (p. 522).

 However, even the SFD as recognized by Khawaja, differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed- while the former rooted them in the Preamble, the latter said that the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features” (p. 371). While they did not provide an exhaustive list, the 8 judges expressly recognized that Democracy, Parliamentary Form of Government and Independence of Judiciary “are certainly included in the Prominent Characteristics, forming the Salient Features” (p. 234). Thus the 13 judges who approved the SFD themselves did not articulate a unanimous theory of what the SFD precisely entails, and whether the prominent features of the Constitution or judicial discretion would reign supreme while interpreting Salient Features, which may lead to potentially very different implications.

Moreover, the Chief Justice opined that subsequent incorporation, of the amended Objective Resolutions 1949, (which was originally just a manifestation of the founding fathers’ desires while enacting the Constitution, and hence could not be interpreted as supra-constitutional grundnorm in the face of clear language of the Constitution itself) as substantive part of Constitution under Article 2A, through the 8^th amendment, makes it difficult to accept it as an integral, basic feature of the Constitution initially promulgated (p. 73). Justice Khosa posits that acceptance of any one of the basic features as a touchstone or a test of repugnancy or contrariety qua the other provisions of the Constitution would render the entire Constitution vulnerable to challenge in courts of law (p. 585). This would inevitably call for value judgment by the courts instead of allowing the people deciding as to what is good for them, which “would bring serious damage and destruction, if not doom,” to the present constitutional system in Pakistan (p. 586). Further, Justice Nisar asserted that the opening words of the resolution “…the will of the people of Pakistan to establish an order -Wherein the State shall exercise its powers and authority through the chosen representatives of the people” succinctly delineates sovereignty and authority in the body of elected representatives, not judges (p. 474). Nonetheless, as Justice Isa mentions in passing, it may also be argued that substituting the inanimate State with ‘the people’ reveals the precedence of the body-politic over their representatives, and owing to the transient nature of Parliament for prescribed period, it cannot preserve, protect and defend the Constitution at all times- a function which the Judiciary is oath-bound to fulfill (p. 862). Thus widely different strands of interpretation of Pakistan’s constitutional history and epistemology are observed in the judgment.

Thus the SCP’s verdict does not explain how a scheme reflecting the Constitution’s Salient Features which define the Constitution is realistically different from a basic structure, especially when the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features”. It is open to question how far Justice Khawaja’s own cautionary words against mindless transnational borrowing- “grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body” – have been actually heeded by him and the judges who delivered the majority verdict. This attempt to chart a neutral middle path between complete non-interference and the BSD fails to distinguish itself materially from the BSD, even after the presentation of afore-mentioned arduous and long-drawn arguments.

It is pertinent to mention that critics such as Babbar Sattar have opined that the judgment allows the court to irresponsibly appropriate power for itself, diverting attention from the narrative that roots public support for military courts, in the failures of Pakistan’s criminal justice system, such as failings in ‘due process’ and ‘fair trials’ before ordinary courts, now widely regarded as a sanctuary for terrorists. It is also noteworthy to mention that the concomitant vital question- whether such institution of military courts, without any technical or operational discussion of international and national counterterrorism practices which would actually aid in ending the internal war in Pakistan- has been studiously ignored.

 

 

• See Dietrich Conrad’s famous argument, widely attributed to be the foundation of the BSD in India- “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper? Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period – discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”

Individual, Community, and State: Mapping the terrain of religious freedom under the Indian Constitution

     The Indian Constitution’s religious freedom clauses (Articles 25 and 26) constitute an extremely complex web of relationships between individual, community and State. To navigate this web, the Courts have developed two broad doctrinal tools: a distinction between the religious and the secular, and the “essential religious practices” test. To achieve clarity on what is certainly a very confused aspect of Indian constitutional jurisprudence, it is important to map out the factual background within which these tools have been employed, the methodology used by the Court, and the manner in which the conclusion has been reached.

A look at the text of Articles 25 and 26 reveals that in order to effectively interpret what the Constitution requires, the Courts are required to – at least to some extent – ask and answer substantive questions about religion. Let us take a close look at the text:

Article 25(1) guarantees the right to freedom of conscience, and the freedom to profess, practice and propagate religion. This right is made subject to a prefatory sub-clause, in the interests of “public order, morality, and health.” Article 25(1) is similar to the religious freedom clauses in other liberal commonwealth jurisdictions, and standing by itself, would present no unique interpretive difficulties. However, Article 25(2)(a) allows the State to make laws “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.” In some ways, the relationship between Article 25(1) and 25(2)(a) mirrors the relationship between Articles 26(b) and 26(d), which deal with the rights of religious denominations. Article 26(b) guarantees the right of religious denominations to manage their own affairs in matters of religion, and Article 26(d) allows the denomination to administer property in accordance with law (i.e., subordinating the right to manage property to State-made law).

What this scheme reveals is that the Constitution itself draws a distinction between the religious and the secular. Article 25(2)(a) provides three illustrations of the secular – the economic, the financial, and the political. 26(d) does something similar with the administration of property. Now if you think of situations where there is a dispute between the State and religious practitioners over whether a particular practice is, say, “political” or “religious”, the Constitutional text itself provides no further guidance on the issue. It is therefore clear that, ultimately, this is a question that the Courts must decide, and consequently, to an extent, the Courts will have to answer questions about whether something is religious or not.

Article 25(2)(b) further allows the State to make laws “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” There are at least four questions thrown up by the text. First – to what extent can the Court sit in judgment over whether a particular law is for “social welfare or reform”? Second – does such a law completely override religious freedom? Thirdly – what happens when a particular sect claims that it is not “Hindu”, and therefore not subject to the second part of Article 25(2)(b)? And fourthly – what happens when a Hindu temple claims that it is not of a “public character”? It is clear that the last two questions, at least, will require the Court to ask questions pertaining to the nature and character of religion.

With all these questions in mind, let’s consider the following Table, that attempts to map the manner of judicial intervention into religious questions:

Download Table

On a close reading of the cases in the Table, the following aspects stand out.

1. The Supreme Court’s religious freedom cases can be broadly divided into two types: cases involving State intervention into the management of temples, durgahs, maths, gurudwaras, which primarily include administration of estate, and appointment of officials; and cases involving the relationship between the members of religious communities, or practices of those members (beef eating, bigamy, excommunication, tandava dancing). Of course, the line might be blurred sometimes (Seshammal and Adithyan are examples).

2. In the first decade of the Supreme Court’s jurisprudence, the religious/secular distinction was evolved to deal with the first type of case, and the essential religious practices test was invented to deal with the second type. As argued above, there is some justification for the Court dealing with the religious/secular question on the basis of the constitutional text itself (although one might disagree with how the Court has drawn the line), and the nature of the claims before it. However, the essential religious practices test was invented out of whole cloth. In fact, in each of the cases that used it – Narasu Appa Mali, Ram Prasad Seth, and Qureshi – there were alternative means, rooted in the constitutional text, available. In fact, in the first two cases, the Court expressly upheld the law on the basis of Article 25(2)(b) as well as holding that it was not an “essential religious practice.” In the third, the Court’s own reasoning would have allowed it to reach the same conclusion on the basis of the “health” restriction under Article 25(1).

3. In Swamiar, the Supreme Court held that what practices are deemed religious will be decided on the basis of what the religion itself claims. This, very clearly, is an unworkable proposition. If the entire scheme of Article 25 and 26 is to draw a line between the religious and the secular, then the determination of what constitutes religion cannot, under the risk of vicious circularity, be left to the religion itself. This is evident from the fact that the Court, while paying lip service to the proposition throughout its history, has never seriously applied it. In Ratilal, for instant, the Jains argued that the whole point of temple property was its use for religious purposes. The Court simply dismissed the argument by asserting that management of property was incidental to religion, without substantiating the same. In Sardar Sarup Singh, the Court made a half-hearted attempt, stating in one line that no text had been produced to show that direct elections to the management committee were part of the Sikh religion. However, even in that case, the Court dodged the main issue by reframing it: it had been argued that the Management Committee performed religious functions. The Court expressed no opinion on that contention, but stated that the impugned provision was only about elections to the committee, and therefore, what the committee actually did (once elected) was irrelevant. This reasoning is unconvincing. Throughout its history, the Court has consistently failed to provide a set of principles to distinguish the religious from the secular. Instead, it seems to have decided the cases on a priori definitions that change with every judgment.

4. In the 1960s, Gajendragadkar CJI substantially muddied the waters by invoking both tests together. In Durgah, which classically fell into the first category (management of estate), he conflated the two tests, and then further added another, holding that practices born out of mere “superstition” could not be considered religious (this proposition was disagreed with in Seshammal). Then, in Govindlalji – another estate management case – he first invoked the essential religious practices test, but applied it to draw a distinction between the religious and the secular. While in Seshammal the Court stuck to the religious/secular distinction, the confusion returned in Adithyan, and continues to this day.

5. In determining what constitutes an “essential religious practice”, the Court has failed to lay down a set of consistent principles. It has often referred to Swamiar (again, a case in a different context), but has not applied it. In some cases, it has referred to texts such as the Quran, in others it has referred to judgments of the Privy Council, in still others it has looked at how old the practice is. Again, while paying lip service to Swamiar’s proposition that the religion itself should be allowed to determine what is religious, the Court has, effectively, arrogated to itself that power, relied upon sources of dubious authority, has never explained why it has chosen the sources that it has and ignored others – and most importantly – has elevated the essential religious practices test to the first, and often last, enquiry that it conducts.

6. Each of the cases that the Court decided on ERP grounds could have been decided on the basis of the constitutional text. We have discussed the three cases in the 50s; furthermore, in Saifuddin, Faruqui and Avadhuta, ERP was an entirely extraneous consideration. In fact, it is unclear what role, as an analytical matter, the essential religious practices test plays in the first place. It would be one thing if Justice Ayyangar’s concurring opinion in Saifuddin was law. In that case, proving ERP would insulate a religious practice even from Article 25(2)(b). However, that is not law. What the essential religious practice achieves is that it spares the Court from actually upholding a law on the basis of Article 25(2)(b), or the prefatory sub-clause of 25(1). Instead, it allows the Court to hold that religion, the Constitution, and the State are not in conflict, because the practice sought to be regulated isn’t “integral” or “essential” to the religion at all, and so outside the scope of constitutional protection. This might be a convenient doctrine politically (and scholars have made that argument), but it is entirely contrary to what the Constitution prescribes.

7. In sum, therefore, while Articles 25 and 26 are unhappily worded, the Court’s messy jurisprudence is entirely of its own making.
   1. The essential religious practices test is an entirely arbitrary doctrine that has been grafted onto the constitutional text, in effect to make 25(2)(b) and the first part of 25(1) as redundant as possible.
   2. The Court has regularly mixed up doctrines originally evolved in two very different contexts. The question of the extent to which the State can intervene into the management of religious institutions is very different from the extent to which it can intervene into intra-community relationships and individual practices – the Constitutional text itself treats the two very differently. This has led to absurd results, such as Avadhuta II.
   3. The Court has failed to develop a coherent jurisprudence on the two basic tests that it has used: what principles are to be applied to distinguish between the religious and the secular? And what is the methodology and sources to determine whether something constitutes an “essential religious practice”?
   4. At the same time, the present confusion is easy enough to resolve. It can be resolved by getting rid of the ERP test, replacing it with a deferential – but watchful – application of Article 25(2)(b) and 25(1), using the illustrations provided in 25(2)(a) and 26(d) to draw the distinction between the religious and the secular when it comes to the first category of cases, and applying a civil-rights based standard (as evolved in Justice Sinha’s dissenting opinion in Saifuddin, discussed earlier on this blog) in the second category of cases.