The ConCast: Episode 2 (27 June 2022)

In this second episode of the ConCast, Abhinav Sekhri and I look back at the month that was: judgments on the right of the accused to a lawyer, voting rights, the Supreme Court’s judgment on the Gujarat riots, and judicial power.

The podcast is embedded below. It is also available on Podbean, Apple Podcasts, Google Podcasts, and (soon!) Spotify.

The ConCast: Episode 4 (5 August 2022) The ConCast

A podcast about the Indian Constitution, the Supreme Court, and beyond, hosted by Gautam Bhatia and the Indian Constitutional Law and Philosophy Blog. Episode 4, feat. Gauri Pillai, on 5 August 2022: on abortion laws and reproductive rights in India, in view of the recent High Court and Supreme Court orders dealing with a 24-week-pregnant woman's petition to abort her foetus.  
  1. The ConCast: Episode 4 (5 August 2022)
  2. The ConCast: Episode 3, Part 2 (31 July 2022)
  3. The ConCast: Episode 3, Part 1 (30 July 2022)
  4. The ConCast: Episode 2 (27 June 2022)
  5. The ConCast: Episode 1 (27 May 2022)

Readings discussed:

Directorate of Enforcement vs Satyendar Kumar Jain.

Poolpandi vs Superintendent, Central Excise.

Indo-Steam China Navigation vs Jasjit Singh.

Anukul Chandra Pradhan vs Union of India.

Zakia Jafri vs State of Gujarat.

Mirjan Damaska, The Faces of Justice and State Authority.

Responding to Illegal Home Demolitions: The Doctrine of An Unconstitutional State of Affairs

Previously on this blog, we have discussed the recent spate of home demolitions that have been carried out at the behest of various state governments (see here and here). These home demolitions follow a familiar pattern. A protest takes place in a locality or neighbourhood, which turns violent. Soon after, the police declares that a certain individual, or set of individuals, have been identified as the “masterminds” behind the violence. Immediately after that, the municipality declares that these individuals are residing in unauthorised buildings (often – as in the most recent case – with backdated notices of doubtful authenticity). The buildings (homes) are then demolished. In the normal course of things, the time period between the police declaring that it has identified the masterminds behind the violence, the municipality declaring that the buildings are illegal, and the actual demolition, is under twenty-four hours.

On this blog, it has been pointed out that on its own terms – that is, even assuming that the rationale for the demolitions is illegal constructions, and not collective punishment – this modus operandi violates both local and municipal laws, the rule of law, and the Constitution. What, then, is the remedy? As the case around demolitions at Jahangirpuri in New Delhi showed, the speed at which demolitions are undertaken ensures that even where there is judicial intervention, it is often too late to accomplish anything meaningful. Things are even worse when demolitions happen far away from Delhi, or in places – and to communities – where immediate access to courts is substantially more difficult.

This post proceeds upon the important assumption that, at present, the Supreme Court has the will and the desire to address the serious challenge of the executive flouting the rule of law through the pattern of home demolitions across the country. If that assumption is true, then the question is – given the facts laid out in the above paragraph – how the constitutional violation ought to be framed, and how a remedy may be crafted.

I suggest that at present, our constitutional jurisprudence may not have the precise vocabulary to address the issue: as the Jahangirpuri demolitions showed, the Court was minded to treat the demolition as an individual State act, which it would scrutinise for compliance with the law and the Constitution. As the copycat actions across different states have shown, however, a specific instance of home demolition is not an individualised act, but is part of an evolving pattern of collective punishment by the State. To capture this, I suggest, new vocabulary might be needed. One place where this can be found is the Latin American doctrine of an unconstitutional state of affairs.

The doctrine of an unconstitutional state of affairs originated in Colombia, and was later adopted in Brazil. As the term suggests, an unconstitutional state of affairs is specifically meant for a situation where the violation of rights is not individualised, but structural. According to a definition:

The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution. 

The importance of the unconstitutional state of affairs doctrine, therefore, lies in its focus upon the widespread and systematic violation of fundamental rights. In the present situation, not only are the criteria for the application of the doctrine met, but it is the only truly effective doctrinal tool that the Supreme Court can apply to deal with the situation. There are two reasons for this. The first is that as long as the Court considers individualised cases of demolitions, it needs to take at face value the entirely implausible assertion that the police action in “identifying” the alleged rioters is separate from the municipality’s action in demolishing the home. In true Orwellian fashion, the Court has to ignore the “evidence of its own eyes and ears” – i.e., the chronology of events that is police identification – municipality declaration – demolition, all within the space of a day. This, in turn, means that the Court is forced to examine what is essentially a case of collective punishment, within the framework of municipality laws.

The unconstitutional state of affairs doctrine, however, expands what the Court can consider, both in time and in space. It allows the Court to take into account the “systematic nature” of this practice, both in the recent past, and in its spread across the country. This is crucial, because it is only from the pattern of home demolitions that the Court can extrapolate the fact that collective punishment has become an informal part of State policy. After all, it might plausibly be argued that a single occasion happens to be a coincidence; when, however, the same thing – police identification, municipality declaration, demolition – repeats itself over time and space, it becomes evident that it is State policy.

Now, once an unconstitutional state of affairs has been identified (on the basis, of course, of evidence collected over time and space), what remedy follows? Here, we are back in familiar territory: the Brazilian and Colombian Courts have developed the remedy of a structural injunction, or – as we know it in India – the continuing mandamus. The continuing mandamus allows the Supreme Court to take cognisance of the situation, issue interim orders, and monitor for compliance – which, crucially, will not be limited to single cases, but will extend to the unconstitutional state of affairs at large. What might those interim orders look like in this situation? That, I think, would depend upon how lawyers and justices might want to craft the relief, but at a pinch – for example – mandatory judicial sanction before demolition as an interim measure is one possibility; the crucial thing to note, however, is that to be effective, the remedy must be: (a) preventive, and (b) extend to all cases. Under present circumstances, where demolition cases are being treated on an individual basis, neither is possible. The unconstitutional state of affairs doctrine, however, provides the Supreme Court with a vocabulary to do both.

Guest Post: The Delhi High Court’s Interim Order on the Right to Counsel

[This is a guest post by Abhinav Sekhri, cross-posted from the Proof of Guilt blog.]

It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten days, was entitled to have counsel present within visual range while he was being interrogated. The reasoning adopted by the High Court to grant interim relief is straightforward: the directions in the Trial Court’s order are seemingly contrary to judgments of the Supreme Court and the Delhi High Court, and so it was appropriate to stay their operation. 

The High Court was swayed by the decision of the Supreme Court in Poolpandi & Ors. v. Superintendent, Central Excise & Ors. [(1992) 3 SCC 259 (“Poolpandi“)] and an order of a Division Bench of the Delhi High Court in Sandeep Jain v. Addl. Director, DRI [Rev. Petition 387 of 2019 (Order dated 10.12.2019) (“Sandeep Jain“)], pressed into service by the Enforcement Directorate. All the Supreme Court judgments relied upon by the Respondent Satyendar Jain were distinguished simply because they, apparently, do not consider Poolpandi; the Bombay High Court judgment cited by his counsel was not relied upon due to the existence of Sandeep Jain which according to the High Court held a contrary view.

This admirably straightforward argument, which the High Court has accepted, has one small problem — it is wrong in law. A careful reading of the two main planks of the Enforcement Directorate’s contentions, viz. the judgments in Poolpandi and Sandeep Jain, shows that they were entirely inapplicable to the facts before the High Court in this case of Satyendar Jain. Importing Poolpandi and Sandeep Jain to this factual matrix is worse than comparing apples to oranges.

In Poolpandi the pure issue presented to the Supreme Court was this: do the persons summoned for being questioned under the Customs Act 1962 or the erstwhile Foreign Exchange Regulation Act 1947 have a right to presence of counsel while they are questioned. It was contended that the source for this right was Article 20(3) which protected accused persons against compelled self-incrimination, and alternatively in Article 21 as the questioning by agencies was necessarily coercive. The Supreme Court disagreed, primarily on that (incorrect) technical objection that persons being questioned under Customs Act etc. were not ‘accused’ thereby failing to trigger the Article 20(3) guarantee. As for Article 21, the Court refused to accept a presumption that questioning by agencies was necessarily coercive.

In Sandeep Jain, a review petition was filed challenging the dismissal of a writ petition by a single judge on entirely new grounds. This was, patently, outside the scope of review jurisdiction of the High Court, and the Division Bench rightly observed that the petition deserved an outright dismissal. In light of this, whatever followed was obiter dicta, and that is what has been treated as binding by a Single Judge in Satyendar Jain’s case. Be that as it may, what were the facts in Sandeep Jain? Again, it did not concern an arrested person; it involved a person who had avoided summons under Section 50 of the Prevention of Money Laundering Act, but now sought presence of counsel, within visual range, during his questioning. The Court declined to grant this indulgence, citing that no allegation of any threat existed justifying presence of counsel. The contrast with a case in which the person is arrested and remanded to ten days custody of the law enforcement agency could not be starker.

Critically, the issues before the Supreme Court in Poolpandi and the High Court in Sandeep Jain did notextend to considering whether persons who have been arrested and are undergoing custodial detention are also without any right to counsel during questioning. The scenario was purely about a set of people who had only been summoned, which is why none of the petitioners resorted to Article 22(1) of the Constitution which, plainly, guarantees to all persons who have been arrested the right to be defended by counsel of their choice. Since 2008, with the enactment of Section 41-D of the Criminal Procedure Code 1973, this aspect of Article 22 rights have been given clear and unambiguous statutory footing. Nothing in the Prevention of Money Laundering Act 2002 prevents the application of Section 41-D, and in any event, nothing in a statute can ever override the constitutional mandate of Article 22. 

The position of a person at liberty cannot be compared with a person under arrest. In doing so, and by ignoring the letter and spirit of Article 22(1), the High Court has unfortunately erred and has potentially set a rather dangerous precedent, perilously tilting an already skewed balance between rights of arrested persons and the powers of investigators even more in favour of the latter. There is more which can be argued to contest the legal soundness of the view taken by the High Court here, but it warrants a second look on this primary ground itself.