CPR Conference on Land Rights and Land Acquisition

CPR Land Rights Initiative and Chr. Michelsen Institute, Bergen are pleased to invite you to a conference on Land Rights, Land Acquisition, and Inclusive Development in India

Thursday and Friday, 2-3 March 2017, 9:30 a.m.

Conference Room II, India International Centre

India faces serious challenges in creating development processes that generate economic growth while being socially inclusive, ecologically sustainable, politically feasible, and in accordance with the Rule of Law. Equitable and efficient acquisition of land by the state for economic development projects, including infrastructure and industry, lies at the heart of these challenges. Simultaneously, securing constitutionally guaranteed land rights to the poorest and most vulnerable communities in India, especially the Scheduled Tribes, against the state and other dominant communities, has been considered crucial to their economic and social empowerment. Land is not only an important economic resource and source of livelihoods, it is also central to community identity, history and culture. Unsurprisingly then, throughout India, dispute over state acquisition of land that deprives people of their land rights spans various dimensions of economic, social, and political life. How do we mitigate this conflict? The conference will feature the launch of the CPR Land Rights Initiative report on “Land Acquisition in India: A Review of Supreme Court cases from 1950-2016”, that attempts some preliminary answers to this question. Despite its persistent and polarising nature, the debate on land acquisition has been marked by a lack of systematic and comprehensive data in support of particular positions. Existing studies on land acquisition have tended to focus on particular issues, like compensation, or on particular conflicts, or have been otherwise limited in terms of geography and time. The CPR Land Rights Initiative Report is the first comprehensive country wide study of land acquisition disputes before the Supreme Court since India’s independence. The Report analyses these disputes along various metrics, such as public purpose, procedure for acquisition, compensation, pendency of claims, and tracks trends with respect to distribution of disputes across geography and time, and central and state laws. The Report findings will be discussed and debated by stakeholder representatives, including the government, lawyers, international development agencies, and civil society groups, as well as expert researchers from the fields of economics, sociology and political science, and law. Our previous seminar showcasing the first phase of this research can be accessed here. The conference will also feature findings from an ongoing CPR and CMI research collaboration on “Land Rights and Inclusive Development in the Scheduled Areas”, that will describe the political economy of land rights in areas governed by the Fifth and Sixth Schedules of the Constitution, with particular focus on the states of Gujarat, Andhra Pradesh, Telangana and Meghalaya. Representatives of community groups and civil society organisations will comment on these findings and highlight challenges, both individual and representative, faced by tribal populations in these four states. A detailed agenda of the conference will be updated here. Please register at this link.

Judicial Evasion and the Referral in Delhi vs Union of India

The conflict between the government of Delhi and the central government has been one of the more enduring political stories of the last few years. The conflict stems out of Delhi’s unique status as more-than-a-union-territory-but-not-quite-a-state, defined by Article 239AA of the Constitution. The political controversy, in brief, turns upon a dispute between the elected Delhi government, and the central government, on the location of governing power, and the status of the Lieutenant-Governor (a central government appointee). To put it simplistically, the Delhi government argues that, subject to the specific exceptions carved out in Article 239AA, the L-G’s role is (akin to that of the President) that of a rubber stamp, bound by the “aid and advice” of the Council of Ministers. The central government argues otherwise, advocating a much broader role for the L-G.

After substantial political controversy, with the Delhi government alleging that the L-G was deliberately stymying its functioning at the behest of the central government for political gain, the matter reached the Delhi High Court. The High Court handed down an elaborate judgment siding with the central government. Naturally, the Delhi government appealed.

Proceedings in the Supreme Court

The Supreme Court’s orders can be found by searching for “SLP (Civil) No. 26200/2016”, on the “Daily Orders” page. The first date of hearing was 5th September, 2016, where the matter was posted to an appropriate bench. On 9th September, before a bench of Justices Sikri and Ramana, notice was issued, and the parties were asked to complete the formalities. The case was listed for 15th November. On 15th November, it was adjourned by two weeks. On 28th November, it was adjourned for another week. On 5th December, it was listed for 12th December. On 14th December, the Court directed that a reply be filed to one of the I.A.s, and that the case be listed in the third week of January. It was mentioned before the Chief Justice on 18th January, who directed that it be listed on 31st January before the appropriate bench. On 31st January, it came to Justices Sikri and Agarwal, who began hearing it. It was heard in part, and listed for 2nd February. The Court then heard it on the 2nd of February, on the 8th of February, on the 9th of February, on the 14th of February, and on the 15th of February. On the 15th of February, the Court decided that in view of Article 145(3) of the Constitution, this case raised issues of considerable constitutional importance, and needed to be heard by a bench of five judges. The case was referred accordingly.

The Prospect of Judicial Evasion

From the 5th of September to the 15th of February is more than five months, and it is perhaps unfortunate that it took the Court that long to decide that the case raised substantial questions of constitutional importance. More than that, however, what is important is this: the term of an elected government is five years. The present case has been in the Supreme Court for almost ten percent of that time. The Delhi government’s argument is that the L-G is deliberately not allowing it to function as it should, and to fulfil its electoral promises. Whatever the merits of that argument, it is the definition of a political crisis, and – to an extent – a constitutional crisis. In this context, it’s also important to note that the status quo – that is, the High Court’s judgment – favours the central government. In other words, the more the Supreme Court delays setting up the Constitution Bench, the closer this case gets to becoming infructuous (the next Delhi election is in 2020), and the more an unbalanced status quo – that has serious political ramifications – continues.

It is something akin to what would have happened if the UK Supreme Court had simply sat on the Brexit case, instead of hearing it in December and handing down a judgment in January. Whether it wants to or not, the Court is neck-deep into a political conflict, and as the Constitutional arbiter, its task is to decide that conflict in accordance with the Constitution.

Five months, admittedly, is not too great a delay in the Indian legal system (although, in the context of five-year election terms, it is already a great deal of time lost). However, the closer we get to 2020, the closer this case will get to yet another instance of judicial evasion; like Aadhaar and demonetisation, like Bihar’s alcohol ban, like the denial of a tax exemption to a film on homosexuality, and like the constitutionality of the Central Bureau of Investigation, it will be another case which raises crucial constitutional issues, but is effectively decided without a reasoned judgment by the Supreme Court (all these cases, it needs to be reiterated yet again, involve basic fundamental rights; the Delhi case is as important, because it involves the question of governing power).

So, one can only hope that the Constitution Bench to hear this case will be constituted as soon as possible.

 

The Gujarat High Court’s Voice Spectrograph Decision – II: Guest Post – Between a Rock and a Hard Place

(In this Guest Post, Abhinav Sekhri carries forward the discussion on the Gujarat High Court’s recent judgment on the constitutionality and legality of voice spectrography).

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A Single Judge of the Gujarat High Court handed down the decision in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017], which formed the basis of the last post on this Blog. To recount, the decision agreed with the Supreme Court’s conclusions in Ritesh Sinha [(2013) 2 SCC 357] that compelling a person accused of an offence to undergo ‘Voice Spectrography’ does not amount to making her a witness against herself. Having held so, Pardiwala, J. then considered whether there was any statutory basis to permit such testing by the police. This was the issue on which the two judges in Ritesh Sinha disagreed, and is now pending before a larger bench for resolution. Pardiwala, J. found no such basis, and thus held that the Petitioner could not be compelled to undergo Voice Spectrography. This brief post follows up on the analysis offered previously and develops those ideas further.

‘Evidence’ in Article 20(3) and the Physical-Mental Divide

To decide whether or not the right against self-incrimination, guaranteed under Article 20(3) of the Constitution, is violated, three questions need to be affirmatively answered. First, that the person concerned is accused of an offence. Second, this person is required to give evidence against herself. And, finally, that the person must be compelled to incriminate herself. In Devani, only the second of these questions arose: Pardiwala, J. had to decide whether the taking of voice samples/exemplars could amount to evidence?

Section 3 of the Indian Evidence Act contains a very broad definition of the term ‘evidence’. Does the same definition apply here? It doesn’t. As Gautam pointed out, the interpretation of this part of Article 20(3) is governed by State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10] which was decided by eleven judges. Deciding whether or not handwriting samples and blood samples were within the pale of Article 20(3), the Supreme Court gave us the term ‘physical evidence’. By prefacing ‘evidence’ in this manner, the Supreme Court excluded blood samples and handwriting samples from the mix. The logic essentially being, that these materials were inherently immutable and were only being used for drawing comparisons with material already collected during the investigation. Enter, Selvi v State of Karnataka [(2010) 7 SCC 263]. Decided by three judges, it considered whether an accused could be compelled to undergo either brain mapping (BEAP), polygraph tests, or narco-analysis. The three judges held that compelling a person accused to undergo any of these would violate the constitutional right under Article 20(3). Now, you may correctly ask, that was it proper to place all three tests in the same bracket? After all, the drugged state of narco-analysis involves persons making statements, as opposed to polygraph tests relying upon physical responses to stimuli (usually questioning). On the issue of polygraph tests, the Court held that such a physical response was as good as a statement. The response involved a unique communicative value, which ordinary ‘physical evidence’ would lack.

I agree that Pardiwala, J. is not entirely correct in narrowly construing the contours of Selvi by suggesting that the decision was solely concerned with what he calls ‘psychiatric evidence’. The problem really is how broad the conclusions in Selvi were, as Gautam pointed out. While it attempts to distinguish Kathi Kalu Oghad, the logic employed for bringing polygraph tests within the confines of Article 20(3) does not hold firm. This is because even in a polygraph test the physical responses are used to compare. There is a set of normal readings taken when the person responds to supposedly harmless questions. After this, the uncomfortable questions are asked, and the readings obtained by both the sets of responses are then compared. There is a way to keep both Kathi Kalu Oghad and Selvi, perhaps. This would look at how the preliminary readings in polygraph tests are also obtained under coercion, as against a case like blood samples where material is obtained wholly independently.

Self-Incrimination and Voice Exemplars

The previous post made important observations about the logic behind Article 20(3) which receives scant attention. Gautam argues that the employment of the ‘physical evidence’ concept was an attempt to balance the dual claims of the crime control vs. due process approach. Developing his thoughts further, one may suggest that Selvi shows a shift from focusing on the crime control aspects to the issues of due process. In Kathi Kalu Oghad, we get a clear idea that the Court saw Article 20(3) as a means to ensure the quality of evidence at trial remained of a sterling quality. While persons may give false testimony under pressure, blood never lies, and so it made no sense to exclude it from the possible evidence that a judge may consider to decide issues at trial. Fifty years later, the three judges in Selvi are at pains to link Article 21 to Article 20(3). There is as much attention placed upon the manner in which the evidence is obtained, rather than solely judging its quality. Thus, the Court appears more willing to look at issues such as particular techniques violating the mental privacy of the accused which it earlier would not rarely consider.

The problem with making claims about ‘shifts’ is that there needs to be something more to suggest a trend. Unfortunately, I can offer nothing by way of evidence, and would rather classify Selvi as a one-off event in the largely depressing judicial history of Article 20(3). On each of the three questions that I identified, the Supreme Court has consistently narrowed the scope, only to render this constitutional protection non-existent for large swathes of the criminal law that are today administered by agencies other than the khaki-clad police.

Moving on to considering the particular issue at hand, then. I agree with Gautam that the ‘physical evidence’ conception is not the answer for a conceptually rigorous model for understanding the right against self-incrimination. But I do not think that the issue of voice sample poses any great difficulty to the existing setup and thus calls for reform will not find many takers, yet. If we were to look at this issue of voice samples from the lens of Kathi Kalu Oghad, it would be argued that the voice sample is obtained to compare it with the tape recording. Voice, like handwriting, is quite immutable, making it a fit for the ‘physical evidence’ category. The approach offered by the Selvi would offer the same result. The voice samples here have no communicative quality of their own: they are purely for purposes of comparison with evidence that exists independent of the person. The big flaw in this entire claim is the idea that the human voice is immutable since there is material to suggest otherwise (something that Devani does not fully address). Assuming there is some certainty on that front, it is difficult to argue that the technique of Voice Spectrography would violate Article 20(3).

Creating a Statutory Basis

The second part of the decision is a familiar tale of woe. Pardiwala, J. traverses through the entire gamut of statutes in the field in his search for some basis to ground this technique, only to end his search in vain. He concludes that Voice Spectrography could therefore not be compelled upon an accused, and offers pointers to the State Government on how to remedy the situation before finishing his decision. The tale is familiar because it can be recounted for most investigative developments in India. My blog had earlier considered one example in Section 311-A of the Cr.P.C.; how it took several decades for such a common investigative tool (taking handwriting samples) to receive statutory support, only for it to be riddled with problems.

The Criminal Procedure Code, 1973 is a curious mixture of highly particular rules combined with vague standards. The part on police investigations are a good example. Police discretion on when to investigate a case is couched in vague terms, coexisting with provisions stipulating meticulous rules for things such as inquests. Do we, then, really need a clear statutory basis for what techniques can the police administer? Pardiwala, J. himself suggests that there may not be such a need when he invites the State Government to consider bringing in Rules to permit Voice Spectrography. Regardless of where one stands on the security-liberty paradigm, few would dispute the need for law to keep pace with technology and for the police to have up-to-date investigative tools at its disposal. This raises  questions on whether it makes sense to continue requiring concrete statutory backing for the particular techniques that the police can adopt, in an environment that is notorious for belaboured law reform. The spectre of abuse and misuse looms large though, leaving us with that familiar feeling: of being between a rock and a rather hard place.

 

The Gujarat High Court’s Voice Spectrography Judgment, and the Limits of Selvi vs State

On the 18th of January, in Devani vs State of Gujarat, a single judge of the Gujarat High Court handed down an interesting ruling on the constitutionality and legality of voice spectrography as an investigative technique during criminal proceedings. The writ petitioner had been charged with offences under the Prevention of Corruption Act. The main piece of evidence was a telephone conversation between the petitioner and the person from whom he had allegedly demanded a bribe. The Investigating Agency wanted to subject the Petitioner to a voice spectrography test, so that it could compare the two voice samples. The Petitioner challenged this.

The Court’s decision was delivered in the context of a split opinion by a two-judge bench of the Supreme Court, delivered in 2012, in Ritesh Sinha vs State of U.P. Justice Aftab Alam had held that in the absence of express statutory authorisation, investigative agencies could not compel an accused to undergo a voice spectrography test. Justice Ranjana Desai had disagreed. While the two judges were in apparent agreement over the proposition that voice spectrography did not violate the right against self-incrimination under Article 20(3) of the Constitution, in view of the disagreement between them, they referred the case for resolution by a three-judge bench. This bench has not yet been constituted.

In Devani, the Gujarat High Court agreed with Justice Alam and disagreed with Justice Desai, holding that the investigating authorities could not legally compel an accused to undergo a voice spectrography test. The Court based its judgment on statutory interpretation, finding no warrant for the taking of voice samples under the existing criminal procedural framework. However, it also found that the taking of voice samples did not violate Article 20(3) of the Constitution. It is to this finding that we turn first.

Article 20(3)

The Court’s examination of the self-incrimination issue took place – as it had to – in the context of the Supreme Court’s 2010 decision in Selvi vs State (previously, on this blog, we have discussed Selvi and the right against self-incrimination under the Indian Constitution in some detail). Readers will recall that Selvi – a three-judge decision of the Supreme Court – had clarified some of the conceptual underpinnings of the right against self-incrimination that had been left open in the previous judgment of Kathi Kalu Oghad. The question in this case was how the Gujarat High Court would interpret Selvi, and how it would thread the needle between Kathi Kalu Oghad, which had held the taking of fingerprints and handwriting samples was consistent with Article 20(3), and Selvi, which had held that narco-analysis, brain mapping, and the polygraph test, were not. In other words, what was the deeper conceptual basis that underpinned the spectrum between fingerprints and narco-analysis, and where did voice spectrography fall on this spectrum?

The Gujarat High Court’s reading of Selvi was as follows: Selvi, it held, had prohibited the compulsory psychiatric examination of the accused. However, a voice spectrography test – which only involved the subject speaking something into a recorder, and subsequent analysis of his voice patterns – did not come within the ambit of “psychiatric examination“. Consequently, voice spectrography was not hit by the Selvi bar, and was therefore constitutional (paragraph 44).

It is submitted, with respect, that the High Court’s reading of Selvi is unnecessarily narrow, and is not borne out by the decision and reasoning in that case. Recall that, in the last analysis, in Selvi, the intellectual foundation of the Court’s judgment was the idea of mental privacy. In paragraph 160 of that judgment, the Court held:

“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)

On, in other words, the right against self-incrimination (among other things) was aimed at protecting the mental inviolability of an accused during the course of a criminal proceeding.

The Court in Selvi went on to note:

“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.”

And:

“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)… 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)

Consequently, Selvi went much further than simply prohibiting compelled “psychiatric examinations”. It located its decision within the framework of personal autonomy, the right to remain silent, and mental privacy.

However, it is precisely within this context that the issue of voice spectrography attains an almost intractable difficulty. If you look at the issue from one perspective, it seems clear that voice spectrography falls squarely within the Selvi prohibition. The mind is centrally involved in the act of speaking, and if “mental privacy” is to be understood in this sense, compelling a person to speak, and then using his voice to determine other relevant facts in a criminal proceeding, is certainly an invasion of mental privacy. Compelling a person to speak certainly violates their choice between speaking and remaining silent. It is certainly an interference with her “mental processes“. And finally, it does seem that what happens in a voice spectrography test is very similar to polygraph tests and brain mapping – bodily stimuli are mapped and measured. The fact that in one case, it is stimuli from the brain, and in another, voice patterns, ought not to make a difference, because – as discussed above – speaking is a direct result of mental activity.

Examined another way, however, the issue is much more complex. While speaking is a result of brain activity, the crucial thing to note in a voice spectrography test is that it is not about what the speaker is saying – that is, not about the content of her voice – but about her voice as a bodily, physical phenomenon. In this sense, voice spectrography seems much closer to fingerprints, blood samples, and DNA, than it does to narco-analysis. In a similar sense, it seems a stretch to say that the examiner is deriving knowledge from the subject’s mind. Although speaking is a result of a mental process, given that the brain is, ultimately, responsible for keeping the human body alive, every other bodily function can, ultimately, be traced back to the brain. Here, again, given that the content of what the speaker says is not at issue, it does seem that voice samples are physical phenomena, in the same sense that blood or DNA is.

What this reveals, I suggest, is that ultimately, Selvi’s neat distinction between the physical and mental, between the taking of physical samples (blood, DNA, hair swabs, fingerprints) on the one hand, and interference with mental processes and invasion of mental privacy on the other, breaks down on closer examination. It breaks down in cases such as voice spectrography, where the physical/mental binary simply loses its valence as an explanatory device.

As I had argued in my essay on Selvi, the distinction between the physical and mental in that case was drawn in an attempt to strike a balance between two models of the criminal process: the crime-control model, which seeks to remove obstacles from investigating agencies in their attempt to discover the “truth”, and the due process model, which places great stress on the fundamental rights of the accused. By limiting the right against self-incrimination under Article 20(3) to invasions of mental privacy, the Court attempted to balance the two models. A case like Devani suggests that more work needs to be done to achieve a clear and coherent balance.

Statutory Analysis

Although not strictly within the scope of this blog, a word ought to be said about the second part of the judgment. The Court undertakes a thorough analysis of laws such as the Identification of Prisoners Act, the Code of Criminal Procedure, and the Evidence Act, all of which allow for various situations – and methods – by which investigating agencies and judges can act upon the body of the accused (compelling her to yield blood samples, DNA, sputum, hair swabs, fingerprints etc.) The Court finds that nowhere is there an express authorisation to take a voice sample, and nor can such an authorisation be read into the statutes. Consequently – and despite its misgivings on this issue as a matter of policy – the Court holds that, under the existing legal regime, compelled voice spectrography is not permissible. The Court’s analysis – from paragraphs 47 to 100 – repays close study, not simply because it is an excellent piece of statutory interpretation, but also because the Court subordinates its own sense of what might be desirable as a matter of legal policy to an autonomous reading of the existing law as it stands, and refuses to step an inch beyond the law. This is a phenomenon that has been falling distressingly out of fashion in recent years.

 

 

 

ICLP: Call for Writing Internships

This April onwards, the Indian Constitutional Law and Philosophy blog will experiment with (paid) writing internships. A writing intern will, over the course of one month, work with the blog editor, and author four (4) blog posts (two on themes suggested by the intern, and two on themes suggested by the editor).

Applications are welcomed from law students in their fourth year or above (including graduates). If you’re interested in applying, please email the following to gautambhatia1988 at gmail dot com:

1. A brief statement of interest, detailing your previous experience with legal writing.
2. A writing sample of not more than 1500 words (footnotes are not necessary, but will be included in the word count) that sets out a novel constitutional argument.
3. An academic CV.

Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)

Additionally:

“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.

 

Judicial Censorship and Judicial Evasion: The Depressing Story of Jolly LLB 2

In 2013, Jolly LLB, a comedic satire about the Indian legal profession, ran into legal trouble. Two lawyers initiated “public interest litigation” in the Delhi High Court, asking the Court to direct the Film Certification Board to cancel the license that it had granted to the film under the Cinematograph Act. The Court dismissed the PIL, finding nothing of “public interest” in it, and also finding it to be premature, because it had been filed purely on the basis of trailers. An appeal to the Supreme Court was dismissed in limine, Justice Lodha memorably remarking, “if you don’t like it, don’t watch it.”

Four years later, the sequel, Jolly LLB 2, was not so lucky. This time, another petitioner tried his luck in the Bombay High Court, and after a series of proceedings that I shall proceed to describe, succeeded in having the Court direct “cuts” to the film. In between, the filmmakers went to the Supreme Court, which declined to interfere.

What has happened with Jolly LLB 2 over the last two weeks reveals a confluence between two alarming trends that I have highlighted before: judicial censorship (the Court censoring speech without the authority of any law) and judicial evasion (the Court effectively deciding cases without adjudicating them – i.e., without passing reasoned judgments – simply by keeping them hanging).

The Events

On January 20, it was reported that a lawyer had filed a petition before the Aurangabad Bench of the Bombay High Court, arguing that the trailers of the film revealed an “attempt to project the Indian Judiciary and the Indian legal system in a derogatory manner.” The petitioner had a problem with the fact that scenes in the film showed lawyers dancing in the court, and people playing cards, and asked that the word “LLB” be dropped from the the title of the film.

Instead of dismissing this petition at the threshold, the Bombay High Court issued notice on January 27 and asked the filmmakers to reply. On January 30, the Court found that there was a “prima facie” case of contempt of court. It ordered that the petition be converted into a PIL, and constituted a three-member committee (out of which two members were lawyers) to watch the film, and submit their report on Monday (February 6).

Since the film was scheduled to be released on Friday, February 10, the producers moved the Supreme Court on February 3. Before the Supreme Court, it was argued that the Bombay High Court had no jurisdiction to pass the order that it did, because, effectively, it was setting up a parallel censorship mechanism that had no basis in any law. Instead of deciding the jurisdictional question, the Supreme Court reposted the case for hearing on Tuesday, one day after the Bombay High Court-appointed “committee” was to submit its “report”.

On Monday, February 6, the “Committee” submitted its “Report”, recommending the deletion of four scenes from the film. The producers attempted a compromise, promising a partial deletion. The Bombay High Court accepted this compromise, and passed an order requiring deletion and re-certification of the film.

On Tuesday, February 7 (i.e., today morning), the producers appeared before the Supreme Court, and withdrew their petition challenging the Bombay High Court’s order of January 30, while keeping the question of law open.

Judicial Censorship by the Bombay High Court

Let us first consider the Bombay High Court’s actions in finding a prima facie case of “contempt”, and deciding to set up a “Committee” to watch the film. The procedure for the certification of films is contained in the Cinematograph Act of 1952. The Act makes it clear that film certification is to be conducted by a Board of Censors, who are to take their decision in accordance with the freedom of speech provisions in the Constitution, and government-mandated guidelines. If a person is aggrieved by the Board’s refusal to grant a certificate, or to grant a certificate that only allows restricted viewing, she may appeal to an appellate Tribunal (note that the Act only contemplates an appeal in the case a certificate is denied or restricted; it does not contemplate a person appealing in cases where a certificate is granted – for obvious and good reasons).

What role does a Court have in these proceedings? The short answer is: none. The statutory body that decides on the issue of certifying films for public exhibition, and on requiring cuts and modifications, is the Censor Board, with an appeal lying to an Appellate Tribunal (under the Act, the Government also has revisional powers). Under the Cinematograph Act, the Courts have no power to certify, modify, or refuse certification of films.

Of course, this does not mean that the Courts are excluded altogether. Film-makers and producers who believe that the Board – and the Appellate Tribunal – have acted illegally in denying a certificate or requiring cuts, and have violated their right to free speech, can approach the High Court (and, if that fails, the Supreme Court). The Courts can – and have – set aside decisions of the Board and the Tribunal on this basis.

Another way in which the Courts get involved is if, notwithstanding the Censor certificate, there is an allegation that the film has broken the law. To what (limited) extent a censor certificate grants film producers “safe harbour” from prosecution has been long-debated in the Courts, but is not of relevance to this case.

The third way in which the Courts can get involved is if third parties object to the grant of a certificate by the Censor Board, and move the Court against that decision. This is what was famously done in the Phoolan Devi Case. The grant of an “A” certificate to the film was challenged by members of the Gujjar community before the High Court. The High Court quashed the certificate. The Supreme Court set aside the judgment of the High Court.

One might begin by asking what standing a third person has to challenge the grant of a film certificate by a Tribunal to a film-producer; however, the limitless rules of standing that now exist in Indian Courts have made that question more or less redundant. Let us assume, then, that a third person approaches the Court (as in this case), and argues that the Censor Board misapplied the provisions of the Cinematograph Act and the Guidelines, and wrongly granted the Certificate. In the first instance, it is important to note that, in light of the fact that the Cinematograph Act clearly envisages the Board as the certifying authority, the Court should not lightly substitute its views for those of the Board (a proposition that has been repeatedly upheld); the Court should only intervene when there is a clear illegality in the grant of the certificate. There is, however, a further question: what form should that intervention make? It is here that it becomes crucial to note that in the absence of a law that authorises it to do so, a Court cannot censor speech. As I have pointed out before, under Article 19(2) of the Constitution, speech can only be restricted by a “law” made by the “State”. For the purposes of Article 19(2), it has been held multiple times that the Court is not the State, and its orders are not “law”.

Consequently, in the absence of a law, it is not for the Court to order cuts to a film. At best, the Court can find that the Censor Board made an error, point out what the error was, and then remand the case back to the Board to decide once more in accordance with law (the Bombay High Court’s 6th February order does ask the Censor Board to re-certify the film, but also makes it clear what the cuts are).

What the Court certainly cannot do is to set up an entirely parallel censorship authority – in this case, a “committee” of three people to watch the film and suggest cuts. No law contemplates that, and since Article 19(1)(a) is abundantly clear on the requirement of a “law” for censoring speech, the Bombay High Court’s setting up of the “committee” was entirely without jurisdiction. It is an instance of what I have called “judicial censorship“, a trend that is growing frighteningly in recent times.

Judicial Evasion by the Supreme Court

Before the Supreme Court, this exact plea – that the Bombay High Court had no jurisdiction to set up a parallel censorship authority – was taken. To this threshold question, the Supreme Court made a truly astonishing remark: it told the film producers to go and raise this objection at the High Court itself. On being informed that the objection had been made only to be rejected, the Supreme Court then said: “the Committee will make its report on Monday. We’ll keep the matter for Tuesday. Come back to us then if you have a problem.”

In other words, when it was argued before the Supreme Court that the Bombay High Court had illegally set a procedure (for censorship) in motion, the Supreme Court’s answer was “let’s wait and see what the outcome of this disputed procedure is, and then you come back to us.” This is patently illogical. The Supreme Court had to decide the question one way or the other: either to uphold the High Court’s jurisdiction in setting up a “committee”, or to set it aside. It elected to do neither.

However, the Supreme Court’s non-action was scarcely neutral. By the time that the “Committee” released its “report” on Monday recommending cuts, the film’s release date was four days away. The producers had a simple choice: contest this, risk a potentially costly delay and a potential defeat at the end of it – or accept the cuts, and ensure that the film was released on time. In view of everything that the Bombay High Court had done until then, and the Supreme Court’s clear disinterest in protecting the free speech rights of the filmmakers and producers, they took the sensible course of action: accepted the cuts, and moved on.

The Supreme Court’s refusal to hear and decide the question of jurisdiction on Friday, therefore, was a case of what I’ve described as judicial evasion. When faced with a crucial constitutional issue, and one that requires a decisive decision one way or another, the Court’s response is to refuse to decide, and to keep the case hanging. In doing so, the Court effectively decides – in favour of the status quo, which more often than not amounts to contracting rights – but also exempts itself from the necessity and responsibility of giving reasons for what would be perceived as a regressive and anti-rights decision. This is precisely what happened in the Jolly LLB 2 case.

Misapplication of Law

Lastly, not only was the Bombay High Court’s decision to set up a “committee” entirely illegal and without jurisdiction, its two orders – on January 30 and February 6 – are patently erroneous. Its initial prima facie finding of “contempt” on the basis of online trailers goes against a range of Supreme Court judgments that make it clear that films have to be seen as a whole (in fact, this was the exact reason that the Delhi High Court dismissed the PIL against Jolly LLB 1). And secondly, the findings of the “Committee” that four scenes did amount to contempt is erroneous on two counts. First, no deference is shown to the findings of the Censor Board. The “Committee” – whose existence has no legal basis –  acts as if it is an entirely fresh censor board, and thus reduces the statutory Board itself to a nullity.

Secondly, it has now been made abundantly clear – both in case law and by a 2006 amendment to the Contempt of Courts Act – that contempt of court is not about protecting the “reputation” of the judiciary, but about ensuring that the course of justice is not interfered with. There is no analysis to show how scenes from a satirical film about the legal profession would have interfered with the course of justice. Is it the (implied) case of the “Committee” and the Court that the “reputation” of the judiciary rests on such fragile foundations that a comic film can end up interfering with the course of justice?

Conclusion

Let us recap what happened to Jolly LLB 2. A film that had been cleared by the Certification Board was nonetheless held by a High-Court appointed “committee”, which was constituted by pure judicial fiat, to be in “contempt of Court”, and required to delete four scenes. This order rested upon no other foundation than the Court telling the film producers, “I am doing this because I can.” The Supreme Court refused to intervene. In other words, through judicial evasion, the Supreme Court enabled the Bombay High Court’s judicial censorship.

And now consider the consequences: this entire incident will give a fillip to persons with “hurt feelings” to file petitions and PILs against films that have been granted certificates by the Censor Board. As long as a petitioner is lucky enough to find judges such as those of the Bombay High Court who agree with him, the film will have to go through a fresh round of reviewing and censoring. And the Supreme Court will not interfere. True, in this case, the “question of law” was left open – but one wonders when it will come to be decided, and in what fashion.

I have written before that over the last few years, it is neither the legislature nor the executive that is the greatest threat to the freedom of speech, but the judiciary. Whether it is Article 21 or Article 142 or PILs, the judiciary is not only failing to act as a shield to protect free speech against State encroachment, but is acting like a sword to cut down free speech. To the framers of our Constitution, who saw an independent judiciary as the only bulwark between civil rights and State power, this would be a matter of great dismay.

And lastly, consider the optics of this whole situation. A film was made that satirises the legal profession. A lawyer filed a petition against it. Two judges decided that this film – which satirised the legal profession – was prima facie in contempt of court. They constituted a “committee” – a majority of whose members were also lawyers – to watch the film and decide whether their own profession was being permissible satirised (in Law School, one of the first principles we were taught is thou shalt not be a judge in thine cause – except, it seems, when you literally can). Two Supreme Court judges were asked to intervene. They refused. The “committee” – with its lawyers – found that the film “defamed” the judiciary, and ordered cuts. These cuts were implemented by two other judges. To a film that satirised the legal profession.

Whichever way you want to slice this, it does not look good.

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(Disclaimer: this writer was involved in the Supreme Court hearing on February 3, on behalf of the film producers. The account of the Supreme Court proceedings on that day is based on first-hand experience).

Contrapuntal Reading: Outlines of a Theory

In his classic book, Culture and Imperialism, Edward Said proposed a new way of reading literary texts: “contrapuntally“. Said argued that some of the most important works of the Western literary canon rested upon a submerged and unacknowledged foundation of colonialism. For example, in Jane Austen’s Mansfield Park, the protagonist’s benefactor owns a plantation in Antigua (and profits from the imperial slave trade), a fact that is mentioned in passing, but for most of the novel, is “off-stage”, as it were. The first part of Said’s contrapuntal reading (the term “contrapuntal” is derived from music, and refers to melodic lines that are in “counterpoint” with each other, but maintain their independence) required readers to “connect the structures of a narrative to the ideas, concepts, experiences from which it draws support.” In Mansfield Park, for instance, it would require an acknowledgment of the fact that Fanny Price’s wealth, and the possibilities of action open to her, depended upon the political, social, and economic relationship between the British Empire and its colonies.

The second – and critically important – part of the contrapuntal reading involved “not only the construction of the colonial situation as envisaged by the writers, but the resistance to it as well.” (Culture and Imperialism, p. 79) Said wrote:

“We must therefore read the great canonical texts with an effort to draw out, extend, give emphasis and voice to what is silent or marginally present or ideologically represented in such works. The contrapuntal reading must take account of both processes – that of imperialism and that of resistance to it, which can be done by extending our reading of the texts to include what was once forcibly excluded.” (Culture and Imperalism, pp. 78 – 9)

A contrapuntal reading of Camus’ famous L’Etranger, for example, would identify and resurrect the whole previous history of France’s colonialism and its destruction of the Algerian state, and the later emergence of an independent Algeria (and Kamel Daoud’s The Meursault Investigation is a recent, controversial attempt to do just that). A contrapuntal reading of Rudyard Kipling’s Kim would entail examining the fact that:

“Kipling’s India… has a quality of permanence and inevitability that belongs not just to that wonderful novel but to British India, its history, administrators, and apologists and, no less important, to the India fought for by Indian nationalists as their country to be won back. By giving an account of this series of pressures and counter-pressures in Kipling’s India, we understand the process of imperialism itself as the great work engages them, and of later anti-imperialist resistance. In reading a text, one must open it out both to what went into it and to what its author excluded.” (Culture and Imperialism, p. 79)

Said’s contrapuntal reading bore a strong affinity the work of the anthropologist James Scott. In a book called Domination and the Arts of Resistance, published three years before Culture and Imperialism, Scott argued that the historical relationship between dominant and marginalised groups is marked by a “public transcript” of official discourse, visible to history and to the public consciousness. However, parallel to the public transcript, there also exists a “hidden transcript”, which operates as a mode of resistance, and a form of subversion, through “speeches, gestures, and practices that confirm, contradict, or inflect what appears in the public transcript.”

Scott and Said’s important insight, therefore, was that any literary artefact – which takes the form of a narrative – is fundamentally constituted by both inclusion and exclusion. The former makes the visible artefact, and the latter is hidden, “off-stage”, or submerged, but equally important to the existence of the artefact. The task of contrapuntal reading is to both identify and resurrect what is invisible and excluded.

Law, Text, Narrative, and History

In his famous 1982 article, Nomos and Narrative, Robert Cover pointed out that “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning… a legal tradition is hence part and parcel of a complex normative world.” Narratives, however, are never singular. While one set of institutions – i.e., the Courts – have been granted the power to select one narrative as authoritative, this does not prevent individuals and communities from locating legal and constitutional texts in alternative narratives. Through the course of his article, Cover explored the proliferation of legal meanings and narratives through a range of of examples, taken from American history. For instance, in the mid-19th century, the “radical constitutionalists” challenged the American Supreme Court’s interpretation of the relationship between slavery and the Constitution. Instead, they:

“… worked out a constitutional attack upon slavery from the general structure of the Constitution; they evolved a literalist attack from the language of the due process clause and from the jury and grand jury provisions of the fifth and sixth amendments; they studied interpretive methodologies and selfconsciously employed the one most favorable to their ends; they developed arguments for extending the range of constitutional sources to include at least the Declaration of Independence.”

Cover’s argument about the inevitable pluralism of “meanings” that circulate around legal and constitutional texts, as well as the pluralism of the “narratives” within which those texts come to be located, along with his analysis of the legal and moral tensions that arise when the selection of meaning and narrative by the Courts is challenged by dissident individuals and communities (who build their alternative systems of meaning instead), is an important and path-breaking one (a good recent example of this in the Indian constitutional context is the disagreement between the majority and the minority in the Supreme Court’s judgment on appeals to religion during election campaigning). Here, however, I want to take Cover’s argument in a slightly different direction, focusing not upon the plurality of legal meanings and narratives, but upon non-legal ones, which play an equally important role in constituting any judicial decision. The distinction between legal and non-legal is a slippery one, but for now, let us bracket the problems that that entails.

Let us start with Cover’s invocation of the American author and historian, Mark DeWolfe Howe, which he flags, and returns to briefly towards the end of his essay, but does not develop in any great detail:

“Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related. The one is the power, through an articulate search for principle, to interpret history. The other is the power, through the disposition of cases, to make it…  I must remind you, however, that a great many Americans tend to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports.”

In other words, legal claims before a Court (and this is especially true of constitutional claims) often rely upon non-legal arguments for support, including arguments from history, from economics, from sociology and anthropology, from science. These claims are challenged, and the Court’s task then becomes to adjudicate between them, and to provide official, authoritative sanction (enforceable by violence and coercion, if disobeyed) to one set of claims at the expense of the other. This – presumably – is what Howe meant when he said that the Supreme Court has the power not only to interpret history, but to make it.

A fascinating example of how a Court “makes” history is found in an essay by the Italian oral historian, Alessandro Portelli, called ‘The Oral Shape of the Law’ (part of a book of essays called The Death of Luigi Trastulli). In this essay, Portelli described the “April 7 Case”, an Italian terror trial arising out of (but not limited to) the kidnapping and murder of the former Prime Minister, Aldo Moro, an act that was carried out by the Far-Left “Red Brigades”. However, the trial expanded to covering a gamut of charges of sabotage, conspiracy and insurrection against political and intellectual leaders of the Far-Left, which left – in the words of Guiliano Scarpari – “the judiciary [with the task of] the reconstruction of fragments of this history (of the New Left), especially of those which eventuated in terrorism.” (‘The Oral Shape of the Law’, p. 246) Consequently, Portelli observed that:

“The magistrates were… involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history – oral history specifically – given the nature of most sources used.” [‘The Oral Shape of the Law, p. 246].

The framing, Portelli went on to point out, was done in terms of a “criminal conspiracy”, through an informal network of relationships within the broader terrorist “Organisation”. This meant – Portelli noted – that “terrorism… is then described… as a conspiracy, rather than a social movement… mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaders whose influence on the working class was never more than marginal anyway.” [‘The Oral Shape of the Law’, p. 249] In other words, the Court took an event (“political terrorism”), and attributed its occurrence to one set of historical causes (individual conspiratorial acts) while rejecting another (social causes). The Court interpreted history. But it also made history because, as Portelli pointed out at the end of his essay:

“Historical truth is hardly ever more than a descriptive hypothesis; legal truth, on the other hand, has a performative nature, measured in years in jail. Also, legal truth has a tendency to become historical truth, in the sense that future historians will rely on the court sentence and trial records for their reconstruction of the political history of the 1970s.” [‘The Oral Shape of the Law’, p. 269]

To these two ways in which a Court “makes” history (by creating a historical record of its own, and by enforcing its interpretation in real life through the organised coercive apparatus of the State), we can add a third: the Court’s reading of history carries a particular moral, or normative force, by virtue of its position in society as a neutral, unbiased, and objective arbiter. A Court is a more powerful historian than professional historians, a more powerful economist than professional economists, and a more powerful anthropologist than professional anthropologists, because its “findings” on historical, economic and anthropological issues have moral, performative, and actual, tangible force.

Contrapuntal Readings

We are now in a position to combine Scott and Said’s insights about the existence of submerged narratives with Cover and Portelli’s analyses about the role of Courts in selecting and imposing narratives. This gives us the outline of a theory of contrapuntal reading of judicial texts:

“A contrapuntal reading of a judicial decision excavates the competing, non-legal narratives that were offered to the Court for it to ground its legal decision (whether they are visible or invisible in the text of the actual judgment), identifies the Court’s chosen narrative, and finally, resurrects the rejected narratives on their own terms.”

Let us study two examples of the contrapuntal reading, in practice.

Example 1: The Interpretation of the 1856 Hindu Widow Remarriage Act

In 1856, in response to a movement for social reform initiated by the likes of Ishwar Chandra Vidyasagar, the colonial British government passed the Hindu Widows’ Remarriage Act. The Act was ostensibly for the benefit of Hindu widows who – it was argued – were prohibited from remarrying after the death of their husbands. Section 2 of the Act stated:

“All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed to the same.”

Or, in other words, a widow, on remarriage, would forfeit the property that she had inherited from her dead husband.

As Lucy Carroll points out, the interpretation of this Act raised an immediate problem, because the bar on widow remarriage was, predominantly, an upper-caste prohibition. Among the lower castes, widow remarriage was permitted, without accompanying forfeiture of property. What, then, was the fate of lower-caste Hindu widows who remarried after the 1856 Act had been passed? Would they forfeit their property in accordance with the Act, or keep it in accordance with their custom?

The question came before the Bombay High Court in 1898 (Vithu vs Govinda), and the Court decided against the widow, holding that Section 2 “only declared what was a universal practice.” However, this finding was predicated on the assumption that it was, actually, the universal practice of Hindus to compel forfeiture of property in case of remarriage. Consequently, the Court either denied the existence of those caste customs that did allow the widow to keep her property on remarriage, or denied them any normative validity in its assessment of what constituted “Hindu law”.

A contrapuntal reading of Vithu vs Govinda – which Carroll undertakes in her essay – would begin by identifying the choice before the Court: the existence of a unified “Hindu” law, or the existence of diverse caste customs; it would then show how the Court reasoned its way to selecting the former (i.e., reliance upon geographically limited legal compendia, and the metaphysical belief that in Hindu law, the wife and husband were part of the same body); and lastly, it would resurrect the rejected narrative – the caste customs that allowed remarriage sans forfeiture of property – and place it, on its own terms, alongside the Court’s narrative of unification. Interestingly, a proto-reading of this sort was actually conducted by the Allahabad High Court in 1932, in Bhola Umar vs Kausilla, where the Court not only recognised the existence of competing customs and granted them normative validity, but also dismissed the same-body image as a “picturesque metaphor.”

Example 2: Education, Moral Capacity, and Rajbala vs State of Haryana

Contrapuntal readings are obvious, and relatively easy, when we’re dealing with colonial judgments, and especially those that deal with personal laws. It is even more important, however, to undertake contrapuntal readings of the post-Independence Supreme Court, because of the near-absolute presumption of legitimacy that its judgments enjoy, and because of its exalted status under the Constitution. In this context, consider the Court’s 2015 judgment in Rajbala vs State of Haryana, which upheld educational disqualifications for contesting local government elections. The Court’s response to the constitutional challenge to the Haryana Act, which was based on equal treatment and Article 14 of the Constitution, was to say that “it is only education which gives a human being the power to discriminate between  right and wrong, good and bad.” 

A constitutional critique of the judgment would point out the evidence-free nature of this claim, its departure from accepted principles of rational-review scrutiny under Article 14, and its refusal to consider disparate impact. A contrapuntal reading would go one step further. It would locate within the Court’s statement not simply an endorsement of “education“, but an endorsement of the centralised system of formal education controlled or approved by the State. It would argue that in elevating this system of formal education to a level where it served as a pre-requisite for the very existence of moral capacity among citizens, the Court effectively delegitimised – without argument or reason – alternative, non-formal traditions of education, and the role played by them in constituting the interior moral landscape of individuals. It would then resurrect these alternative traditions through testimonies and evidence from those who had not been part of the State’s centralised structure of education, but had nonetheless been part of its local governance structure (and, at that time, numerous such testimonies were taken).

Qualifications

It is important not to overstate the case, and to introduce some qualifications. To start with, it is a banal fact that every judicial decision, that is the outcome of an adverserial process, involves the selection and rejection of competing sets of facts and narratives. A property dispute requires the Court to accept one version of events and reject another, as does a murder trial. A contrapuntal reading, therefore, is not simply a resurrection of the story told by the defeated party in a litigation. As the Rajbala example shows, it is meant to apply to cases where the selection between a plurality of competing narratives bears a direct relationship with the nature, scope, and limits of the basic rights of citizens.

Secondly, there are areas of (constitutional) law where contrapuntal readings – although not by that name – are prevalent: most famously, within the realm of the Court’s religious freedom jurisprudence. In cases such as Sastri Yagnapurushadji and Acharya Avadhuta, where the Court is literally substituting its view of religious content for those of the adherents of that religion, a contrapuntal reading is the first form of interpretation that comes to mind (most recently, the Rajasthan High Court’s santhara judgment gave rise to numerous contrapuntally-oriented critiques about the true nature of the santhara practice). However, as cases such as Rajbala demonstrate, contrapuntal readings are equally important in other domains, especially where the Court’s selection and rejection of narratives is much less obvious.

And lastly, the legal/non-legal distinction drawn above is, I admit, a slippery one, given how intertwined legal and non-legal facts are in any complex judicial decision. For instance, in his book, The Horizontal Effects Revolution, Johan van der Walt criticises the German Constitutional Court’s “radiating effects” doctrine, calling it – in effect – a totalitarian imposition of a single set of values upon society. To what extent would a contrapuntal reading apply to a case where the selection is of a set of values in this manner? I am not sure; however, I do think that despite these troublesome issues at the border, the contrapuntal reading can serve as a useful guide to interpreting and understanding judicial decisions in a rigorous and critical manner.

 

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

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The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:

• Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
• Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
• Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.

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Testing Article 14

In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.

The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).

In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.

Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.

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Just, Fair, and Reasonable?

The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.

In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.

As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.

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Violating the Basic Structure?

The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].

Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.

Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”

ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ — Roundup

Over the last ten days, the Indian Constitutional Law and Philosophy Blog has hosted a book discussion of Anuj Bhuwania’s new work on PIL, titled Courting the People: Public Interest Litigation in Post-Emergency India. The discussion has featured Aparna Chandra, Suhrith Parthasarathy, myself, and Anuj. Here is a round-up of the essays:

1. A Radical Revision: An opening summary of the book, which aims to distil its core claim in the form of seven theses about PIL (the redundancy of the petitioner, the power of the amicus, no hearing of stakeholders, departure from the rules of evidence, unanticipated consequences of poly-centric disputes, incorrect conceptual framing of issues, and outcome-based reasoning).
2. Swords, Shields, and Where Do We Go From Here?: In my analysis of the book, I argue that PIL adjudication has bled into civil rights jurisprudence, to the detriment both of core civil liberties, as well as the development of a meaningful equality jurisprudence. I also argue that PIL has now become a sword that is being used to cut down civil rights, whether on the whetstone of the Directive Principles, or broader ideas of public good. Nonetheless, I’m not sure whether Bhuwania has successfully demonstrated that certain aspects of PIL – such as loosened locus requirements – cannot be separated and welded into a form of jurisprudence that is both progressive, and maintains constitutional fidelity.
3. Substance and Process: In her critique, Aparna Chandra argues that the judicial populism which Bhuwania locates at the core of PIL, exists across the board in the Supreme Court’s jurisprudence. Additionally, she points out that PIL was not simply a revolution in terms of judicial procedure, but equally a revolution in terms of substantive law – in particular, the vast expansion of Article 21 of the Constitution. Finally, she raises two methodological concerns: on the question of how and why PIL achieves the outcomes that they do, and on the applicability of John Hart Ely’s representation-reinforcement theory of judicial review, which Bhuwania endorses as a possible alternative to PIL jurisdiction.
4. The Case for the Defence: In his essay, Suhrith Parthasarathy makes the important argument that, at least as far as the loosening of locus requirements goes, PIL has a strong textual foundation in the wording of Articles 32 and 226. Furthermore, in cases such as PUDR and Bandhua Mukti Morcha, where the State was engaged in blatant violations of rights, it is difficult to see what course of action was open to the Court apart from intervening; and indeed, a case like PUDR demonstrates that judicial intervention, through PILs, need not necessarily abandon fidelity to the Constitution. Parthasarathy nonetheless cautions us that these cases, while being founded on correct principles, nonetheless also exhibited disturbing signs with respect to the manner in which the judges framed the key questions at stake.
5. The Author Responds: In the concluding essay, Bhuwania responds to our arguments. He points out that not only has the logic of PIL adjudication migrated to civil rights cases (e.g., the issuing of “guidelines”), but also, the Court rarely ends up adjudicating on the non-implementation of the guidelines that it itself has issued. Responding to Chandra’s critique, Bhuwania distinguishes between three modes of teleological (i.e., goal-based) arguments in the judicial discourse, and points out that what is unique about PIL teleology is not merely that the Court uses purposive arguments to creatively interpret the law, but invokes purpose to transform the judicial process itself. He argues, further, that the expansion of Article 21 cannot be separated from the rise of PIL, and that the two should be understood together. And lastly, responding to Parthasarathy’s textual argument about locus, Bhuwania concludes by distinguishing between “representative standing” and “citizen standing”, and argues that the loosening of locus should be limited only to the first class of cases.

It remains for me to thank all Aparna, Suhrith, and Anuj for taking out the time and making this book discussion a reality. This is an exciting time in Indian constitutional law, with new works of scholarship being published on a frequent basis. We hope to host more such discussions in the coming weeks and months.