- COFEPOSA: Allows for preventive detention for “conservation and augmentation of foreign exchange and prevention of smuggling activities.“
- NSA: Persons acting “prejudicial to the defence of India, the relations of India with foreign powers, or the security of India” as well as those acting “prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
- Black Marketing Act: Allows for detention in cases for prevention of “blackmarketing and maintenance of supplies of commodities essential to the community.”
In a judgment delivered earlier this week, a three-judge bench of the Supreme Court issued directions to the states and union territories to desist from granting licenses for the sale of alcohol along national and state highways, and also directed that no liquor shop be located within five hundred metres of the highway. Although the Court began its judgment with a nod to judicial review, in my view, it failed to demonstrate the legal source of its power to pass the directions that it did. This is evidenced by its reference, in paragraph 24(vii), to the constitutional catch-all:
“These directions issue under Article 142 of the Constitution.”
As I have argued before, however, Article 142 is not a carte blanche; it specifies that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” A preliminary condition for the applicability of Article 142, therefore, is that the Supreme Court act within its jurisdiction. One aspect of this, surely, is that the Court act in accordance with the separation of powers, even if it is the loose and flexible separation of powers that exists under the Indian Constitution. Now, under the Constitution, the power to grant liquor licenses rests with the states (under List II of the Seventh Schedule), and indeed, this legal fact was admitted by the Court in paragraph 13. Directions to the state governments not to grant licenses for alcohol shops appear to encroach directly upon the legislative function, and therefore – prima facie – fall outside the “jurisdiction” of the Court.
The Court made two arguments to justify this exercise of power. First, it referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents. It also referred to the fact that the union Ministry had issued circulars “advising” the State governments not to grant any new licenses to liquor shops along the highways. However, at no point did the Court hold or observe that these policy documents or circulars had any kind of statutory or legal force. And in any event, as the Court itself admitted, the circulars were limited to the national highways, since the Union had no jurisdiction over state highways. In its judgment, however, the Court extended its directions to both national and state highways, and provided this by way of justification:
“The power of the states to grant liquor licences is undoubted. The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative.”
With respect, this is not the issue. The issue is whether the Court is acting within its jurisdiction by taking over the function of the state legislatures to regulate liquor licenses, and on that question, the judgment remains silent. While the reasoning would be unexceptionable if it was in the Statement of Objects and Reasons of a Bill being tabled in a state assembly, it fails to address the essential issue of the Court’s jurisdiction, which is the precondition to the exercise of Article 142 power. Reference to the “expert determination” of the Union government does not help, because the question is not whether the Union government’s determination was correct or incorrect, but which body is authorised to act upon that determination.
Secondly, the Court made a brief mention of Article 21, observing that “… the court [is] not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies.” While this pithy formulation is not developed further, an argument could be made that in granting liquor licenses along state highways, the state governments are failing in their positive duty to protect the fundamental right to life under Article 21 of the Constitution. Consequently, the Court’s directions – under Article 142 – are within its jurisdiction, since the Court is only performing its constitutional duty to ensure that the State abides by fundamental rights (whether in their negative or their positive aspects).
However, if this was the legal foundation of the judgment (and I can see no other), then the Court – I would suggest – was required to rest it on firmer evidentiary foundation than it did in the present case, and also, to provide a legal test for the degree of proximity required between State (in)action and the loss of life, for Article 21 (in its positive aspect) to be attracted. There are a lot of things that the State does or does not do, that ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the State was to ban all junk food. That, however, would not justify the Court invoking Article 21 and directing the State to ban all junk food.
The Court – as pointed out above – referred to the Union’s circulars and policy documents, which had found a correlation between access to liquor along highways and road deaths, and then observed that it would defer to these findings. However, this was not a case where the Court was adjudicating upon the validity of administrative action, where a simple, deferential approach would be appropriate. Here, the Court was using the Union’s policy documents to make a finding that the states were in breach of their obligations under Article 21. This, I would submit, requires more exacting scrutiny (and a legal test of causation) than what the Court engaged in.
Lastly, although the Court correctly followed precedent in holding that there was no fundamental right under Article 19(1)(g) to trade in alcohol, in my view, it missed an important aspect: while the right to trade in alcohol might not be a fundamental right, surely the right to consume alcohol – as an aspect of personal choice – is a fundamental right (Article 21). The Court may still have returned a finding that the limited removal of access to alcohol along highways did not affect the content of the right in any meaningful way, but it at least ought to have acknowledged the existence of the right, and engaged with the fact that there was some interference with it.
Unlike some recent orders delivered by other benches, the Supreme Court’s judgment in this case made a substantive attempt to ground itself within the parametres of the Constitution. In my view, however, in order to be persuasive, its reasoning needed to be substantially stronger than what it was.
Yesterday, a three-judge bench of the Supreme Court upheld a Muslim airman’s discharge from the Indian Air Force for keeping a beard. At issue before the Court was Regulation 425 of the Armed Force Regulations, 1964, which prohibited the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face.” (425(b)) Although the Court referred to various policy directives issued by the Air Force from time to time, the case ultimately turned on whether the Airman was covered by Regulation 425(b). The Court held that he was not, although its reasoning on the point was rather brief:
“During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which “prohibits the cutting of hair or shaving of facial hair”. Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”.
Since the Court did not go into the question, it remains unclear what manner of evidence would have actually been sufficient to convince it that the airman’s case fell within Regulation 425(b). From the question that the Court put to the airman’s counsel, it appears that it was looking for some kind doctrinal evidence demonstrating that Islam prohibits the cutting of facial hair, regardless of the appellant’s own views on the issue. This is in line with the Court’s “essential religious practices” test, which I have criticised earlier.
However, a distinction needs to be drawn between two kinds of religious claims. Most of the cases that have come before the Court have involved the status of practices that can be broadly understood as group or community practices (for instance, the Supreme Court’s 2004 judgment on whether the public performance of the tandava dance was an essential part of the Ananda Margi sect’s beliefs). Although the essential religious practices test remains deeply problematic, in such cases, it is understandable that the Court might want to look for authoritative sources to ascertain the status of the practice within the religion/sect. However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith. In such a case, the essential religious practices test seems even less defensible, because effectively, it prohibits any individual departure from the officially sanctioned tenets of the religion. And in such cases, the test that is followed in other jurisdictions, throughout the world – the test that asks merely whether the individual in question had a sincere and genuinely held belief in the validity of the religious claim – seems far more appropriate.
Although the distinction between community-oriented and individual-oriented religious claims has not yet been drawn by the Supreme Court, in my view, a three-judge bench was ideally placed to do it, and to limit the scope of the essential religious practices test. The case, therefore, represents a missed opportunity by the Court to develop its religious freedom jurisprudence in a more progressive direction.
It is also unclear to me why, after having held that Regulation 425(b) was not applicable to the airman’s case, the Court found it necessary to make the following observations:
“The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force.”
This was unnecessary, because the argument from uniformity/cohesiveness would arise only if the Court had first found that the airman had a right to keep a beard, and was then assessing whether the Air Force was justified in curtailing the right. As the Court correctly pointed out, Article 33 of the Constitution expressly permits Parliament to modify the application of fundamental rights to members of the Armed Forces – which it did, for instance, through Regulation 425. Consequently, the Court’s enquiry should have begun and ended with Regulation 425 (where, I have tried to show, it ought to have applied a different test).
Additionally, the questioning of balancing rights, in such cases, is a complex one, and requires a more detailed analysis than what the Court undertook. In some jurisdictions, for instance, a distinction is drawn between ostentatious or very visible religious markers of identity, and more innocuous ones; some jurisdictions require employers to demonstrate that their restrictions serve a “bona fide occupational requirement“, and furthermore, are reasonably tailored towards achieving it. Admittedly, after its finding on Regulation 425(b), the Court did not need to address this question; however, it nevertheless chose to do so, in doing so, its observations about unity and cohesiveness unduly simplify a very complex issue.
Furthermore, during the course of its observations, the Court ended up making a statement that is incorrect as a matter of law, but could have unfortunate consequences going forward. Towards the end of its judgment, the Court remarked that:
“Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”
While it is nobody’s case that the regulations intended to discriminate against religious beliefs, it is incorrect to also state that they do not have that effect. The only basis for that claim would be the assumption that religious dicta and personal appearance are entirely separate from each other; a quick look at the core tenets of Sikhism demonstrates that that assumption is false. Indeed, the Court’s reference to “object and purpose” in the next line was itself a statement about legislative intent; but by running together intent and effect, in my view, the Court conflated direct and indirect discrimination in a manner that could stifle the future development of indirect discrimination jurisprudence in India (a concept still in its infancy).
[Posted on behalf of Professor Tarunabh Khaitan].
Routledge, Taylor & Francis is delighted to announce the launch the Indian Law Review. Edited by a global team of exceptional scholars, we are excited to be publishing the first volume in 2017. Authors are now welcome to submit manuscripts. Its current Editors are Arun Thiruvengadam, Dev Gangjee, Farrah Ahmed, Prabha Kotiswaran, Sudhir Krishnaswamy, Tarunabh Khaitan, and TT Arvind.
The Indian Law Review is an academic – led, double- blind peer-reviewed, generalist journal on Indian Law. It aims:
- to publish top quality scholarship on Indian law spanning all areas of law including comparative perspectives that include Indian Law.
- to offer a forum for the community of scholars of Indian Law both within and outside India.
- to take a broad interdisciplinary approach to the study of Indian Law, thereby reaching a wide readership, including legal academics, philosophers, criminologists, anthropologists, sociologists, historians, political scientists, legal practitioners and others.
The Indian Law Review‘s scope is broad, and extends to all work relevant to Indian law (including comparative perspectives). The journal is not limited in terms of legal themes or methodology; the only limitation is jurisdictional, and submissions are welcome from scholars located worldwide. Indian Law Review may also publish a small number of high quality pieces relating to the law of other South Asian and Southeast Asian jurisdictions with historical and geographical connections to India.
The Indian Law Review publishes three issues per year. Each issue aims to contain three to five articles, one to three book reviews, a literature review, and notes on recent case and statutes. Its editorial policy requires anonymised submissions, and strictly follows double-blind peer review.
Indian Law Review is accepting submissions
The Indian Law Review uses Editorial Manager to manage the submission and peer review process, and is now accepting submissions for articles, literature reviews, case notes, legislative notes, and book reviews. To submit your manuscript please visit the Journal’s submission page. For information on preparing your submission please visit the Instructions for Authors page.
(In this second post of a series, Abhinav Sekhri continues with his genealogical analysis of the Constitution’s preventive detention clause. This essay has been cross-posted from The Proof of Guilt blog.)
Last week, the Supreme Court mandated the compulsory playing of the national anthem in cinema halls, without considering whether it had the jurisdiction or power to do so under the Constitution. The disease seems to be infectious. Yesterday, the High Court of Uttarakhand took it upon itself to ban the consumption of alcohol in three districts in the State of Uttarakhand. Like the Supreme Court’s order, the strange thing about the Uttarakhand High Court’s judgment (which runs into 34 pages) is that the public interest petitioner never even made a prayer for banning. The petition was about the alleged fact that the Government had opened a liquor bar in Haridwar, in contravention of its own Government Order, passed in 2002, which imposed prohibition within a 1.6 kilometre radius of Haridwar.
This is a rather narrow and specific prayer. That does not, however, stop the High Court from embarking upon a moralising homily about alcohol consumption and its ill effects. After that, the High Court cites a number of Supreme Court judgments for the proposition that there is no fundamental right to trade or conduct commerce in alcohol. And then comes the zinger:
“The State Government has imposed a ban on sale of liquor at Char Dhams but in order to give more sanctity to the government order and with a view to save the health of people living in the districts where these Char Dhams are located, the State Government should impose complete prohibition. The prohibition in these areas would bring peace and harmony. It is the poor segment of the society which spends more money on liquor than on food leaving their family and children in misery. The loss of revenue would be compensated by restoring the health of the society. The societal interest in every individual is prolonged by ensuring his healthy life. The use of intoxicants, drugs and liquor, in fact, affects the morality. Use of alcohol causes depression. It damages the liver. It may cause Cancer as well. The long-term consumption of liquor/alcohol results in death of brain cells. It may result in cirrhosis including Pancreatics. It also affects the social fabric of the society. Large number of devotees from all over the country visit Chardham in the State of Uttarakhand… The State Government, though, has taken laudable steps for prohibiting the sale of liquor in specified areas but taking into consideration the ever increase consumption of alcohol, more particularly in younger generation, the complete prohibition on possession, distribution, collection, sale, purchase or consumption of liquor/alcohol, including beer and intoxicants, is required, at least, in the districts where Chardhams are situate, to begin with. Similarly, the possession, distribution, collection, sale, purchase or consumption of tobacco is also required to be totally prohibited within a radius of five kilometres from Nanakmatta, Ritha Sahib and Hemkund Gurudwaras.”
This is all very lovely and quaint. It’s also legally irrelevant. All the Supreme Court decisions that the High Court cites are about the constitutional validity of a complete or partial State-imposed prohibition, not about the Court itself imposing prohibition in the absence of any law. Much like the Supreme Court last week, the High Court seems to suffer from a rather basic confusion between what is desirable, and what is legal. Throughout the 34-page long judgment, the High Court cites exactly one constitutional provision: Article 47, which provides that “the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” The Court goes to the length of quoting the Constituent Assembly Debates for the purpose behind Article 47, but strangely, seems to be unaware of the existence of Article 37, which begins with the words “the provisions contained in this Part shall not be enforceable by any court…”
There is little ambiguity in the phrase “shall not be enforceable by any court“. To convert it from passive to active voice, it means that the Constitution prohibits the Court from enforcing a Directive Principle of State Policy. One would have expected the Uttarakhand High Court to at least invoke Article 21 in order to provide the regulation, customary fig-leaf of legitimacy, but even that is nowhere to be found in the judgment.
Under a Constitution that makes the judiciary the final arbiter of its own powers, the only effective check upon it is self-restraint. The last two weeks have shown that when it comes to directly encroaching upon personal rights and freedoms, that self-restraint is in short supply.
(In the first in a series of guest posts, Abhinav Sekhri discusses the antecedents of the Constitution’s preventive detention clause. This essay has been cross-posted from The Proof of Guilt blog)
India’s Constitution elaborates on certain Fundamental Rights guaranteed to individuals. Some are limited as citizenship rights [Article 19] while others extend to all persons within the Union [Article 21]. As the title suggests, this post is concerned with Article 21’s not-so-celebrated cousin, Article 22 [the cousin terminology is deliberate, as I will show later]. I first came across the very interesting history behind Article 22 while reading Granville Austin’s Cornerstone of a Nation, and then traced the discussion in the Constituent Assembly Debates while supplementing it with some independent research. It is also discussed by Mr Seervai in his commentary on Articles 19-22 but only to the extent necessary for furthering his argument. In this post, I first look at the text of Article 22 and then the history behind its inclusion in the Constitution.
Right to Freedom – Articles 19-22
Part III of the Constitution runs from Article 12 to Article 35, but we often end up missing how the framers grouped certain rights together. Articles 19-22, for instance, are couched under Right to Freedom. One possible explanation offered is that Article 19 confers positive freedoms while Articles 20-22 confer negative freedoms by limiting what the State can do. Article 21 states that No person shall be deprived of his life or personal liberty except according to procedure established by law.
This is followed by Article 22, which immediately tells us exactly how the State can take away this right to life and personal liberty. So, we find general protections in Articles 22(1) to (3): every person arrested must be informed of the grounds of arrest and be permitted to engage legal counsel of her choice [Article 22(1)], as well as be produced before a magistrate within 24 hours of being detained [Article 22(2)]. This, interestingly, is followed up by 22(3) which specifically takes away these rights in case of enemy aliens and persons arrested and detained under preventive detention laws. The remainder of Article 22 – clauses (4) to (7) – moves on to lay down the limits of preventive detention laws and confer certain limited rights upon detenus. Thus, ordinarily preventive detention is capped at three months unless reviewed by an Advisory Board which recommends otherwise [Article 22(4)], where the case is not of a category warranting special treatment [Article 22(7)]. Detenus have a right to be informed of the grounds behind a detention order as soon as may be [where disclosure is not contrary to public interest as per Article 22(6)], and also to make a representation against the order [Article 22(5)].
The majority of Article 22 appears a precision-based instrument chipping away the edges of the basic rights guaranteed by Article 21. It has frequently been attacked throughout the history of independent India, with detractors often pointing to the worst excesses of the Emergency in 1975 as indicative of the misuse Article 22 allows. What if I told you that Article 22 was introduced into the Constitution in order to prevent the worst excesses from materialising? That is the lesson we learn from history, to which I now turn.
Draft Articles 15 and 15-A and the ‘Due Process’ Fallout
The use of procedure established by law to safeguard the right to life under Article 21 of the Indian Constitution, as against the due process clause, is a wonderful story in itself [It is part of a separate file in the National Archives of India no less titled Article 15: Due Process of Law]. The initial Draft Article 15 (which became Article 21) contained the words due process. While the Constituent Assembly was mulling over the draft in India, Sir BN Rau – who was the Official Constitutional Adviser – had been entrusted with the task of eliciting opinion from important personalities abroad. During this time he met Justice Frankfurter, who strenuously advised him against the incorporation of the due process clause.
Sir BN Rau considered these suggestions important enough to send a memorandum across by airmail dated 11 November 1947 (a very expensive proposition back then). He subsequently sent across his views in a formal Report in December, 1947. KM Pannikar, an Assembly Member, wrote to Sir Rau on 30 December 1947 discussing this report, and his happiness that “Munshi’s [KM Munshi, member of the Assembly] due process clause has got a knockout blow from Justice Frankfurter.” On 7 April 1948, Sir Rau wrote to Justice Frankfurter to inform him of the Assembly having substituted due process with procedure established by law in Article 15 of the Draft Constitution. 1948 saw fervent efforts to re-introduce due process led by KM Munshi. On 13 December, Dr. Ambedkar was asked to give his final reply on this tussle between the Legislature and the Judiciary. He is famously quoted as saying “It is rather a case where a man has to sail between a Charybdis and Scylla and I therefore would not say anything.”
The stoicism in this statement does not mean that Dr. Ambedkar was simply going to accept this changed state of affairs. He supported the due process clause, and was affected by the intense criticism this withdrawal of due process drew from various circles. In September 1949, months before the conclusion of the debates, the Drafting Committee (headed by Dr. Ambedkar) cited this backdrop and introduced Article 15-A in the Assembly. This, today, is Article 22 barring some minor modifications. Article 15-A was introduced as a measure of “compensation for what was done then in passing Article 15” since removal of due process meant Article 15 conferred a carte-blanche on the executive to arrest and detain persons. Equally, existence of preventive detention as a subject on the Federal and Concurrent Lists of Business without due process protection meant the legislature could not be checked in passing oppressive legislation. These twin factors seemed to have convinced Dr. Ambedkar of the need to have express fetters placed on the possibility of arrest and detention of persons in independent India. Dr. Ambedkar spoke for the Drafting Committee when he said that “we providing for the substance of the law of ‘due process’ by the introduction of Article 15A“.
Conclusions and Questions
Therefore, Article 22 was in fact a measure to protect, rather than curtail, the right to life and personal liberty. Mr Seervai discusses this in his Commentary, to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a separate Article for the exclusions. Looking at what happened subsequently, a differently drafted Article 21 might have led to a differently written judgment in Maneka Gandhi. It might have prevented the Supreme Court from going so far as to incorporating the substantive due process standard that the Constituent Assembly so painstakingly chose to avoid. Where does Maneka Gandhileave the due process that Article 22 represented for the Constituent Assembly and Dr. Ambedkar? The Supreme Court has not considered this question fully, yet, although some seepage of Maneka jurisprudence into Article 22 has definitely resulted. In the next post we will address some of these questions arising out of the Supreme Court’s engagement with Article 22 of the Constitution.