Category Archives: Constitutional interpretation

Guest Post: On the presumption of constitutionality for pre-constitutional laws

(As the 377 hearings continue into their second day, this is a second guest post by Professor Tarunabh Khaitan).

Given the colonial pedigree of s 377, especially its effort to impose a 19th century Victorian morality on the subcontinent, the status of colonial laws in our constitutional scheme is moot. As reported on Bar and Bench’s twitter feed, an interesting exchange took place between the Court hearing the challenge to s 377 and one of the lawyers: “Is there any judgment of this court that pre-independence laws will not have benefit of presumption of constitutionality?” asked CJI Dipak Misra. “No no”, was Senior Advocate Datar’s reply. This negative reply notwithstanding, Justice Chandrachud reportedly observed that “Courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, due to absence of Parliamentary will.” In this post, I will show that Senior Advocate Datar might have overlooked some important precedents while replying to the query from the bench.

The most important case with regard to the presumption of constitutionality of pre-constitutional laws is the Supreme Court’s landmark judgment in Anwar Ali Sarkar, decided by a bench of 7 judges in 1952. In that case, Justice Fazal Ali said that “The framers of the [impugned] Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to Article 14 of the present Constitution. … Article 14 … is bound to lead to some inconvenient results and seriously affect some pre-constitutional laws.” [22, emphasis added] He went on to say that “Article 14 could not have been before the minds of those who framed it because that Article was not then in existence.” [25]

In Sarkar, even the dissenting judgment of CJI Sastri acknowledged that the pre-constitutional character of a law mattered, when he distinguished the case at hand from Romesh Thapar thus:

“In Romesh Thapar case, the impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions.” [16, italicised emphasis in the original, underlined emphasis added]

The partially concurring opinion of Justice Bose in the same case explained the importance of the history of pre-constitutional context as well as the ethos that framed the values of the Constitution:

“What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question that can be answered in the abstract, but … in the background of our history” [95]. He added, “I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times.” [90].

Read together, these opinions in Anwar Ali Sarkar set a clear, if usually ignored, precedent of a 7-judge bench that pre-constitutional laws do not deserve the presumption of constitutionality. The idea was revisited even more strongly in the Supreme Court’s opinion in Anuj Garg (2007):

When the original Act was enacted, the concept of equality between two sexes was unknown. The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible but it is trite that when the validity of a legislation is tested on the anvil of equality clauses contained in Articles 14 and 15, the burden therefor would be on the State.” [20]

This opinion very clearly refuses to extend the presumption of constitutionality to the impugned statute. As I pointed out in this article discussing the case, “It is possible, to give it a narrow interpretation, that the case only establishes that the court shall not presume the constitutionality of pre-constitutional laws. A more radical reading will see the rule to be established in all cases where a law (whether pre- or post-constitutional) makes a classification on any article 15 ground.” (p. 201-2) So, on a narrow reading of Anuj Garg, the notion that pre-constitutional laws do not get the presumption of constitutionality was confirmed by a 2-judge bench.

In Naz Foundation (2009), the Delhi High Court expressly read Anuj Garg as an authority for the following proposition:

“At the outset, the Court observed that the Act in question is a pre- constitutional legislation and although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. There is thus no presumption of constitutionality of a colonial legislation.” [105, emphasis added]

The Supreme Court, following the High Court’s progressive ruling animating constitutional interpretation with the value of swaraj, will do well to lay the foundations of a decisively anti-colonial jurisprudence by confirming that pre-constitutional laws are not owed the presumption of constitutionality.

(Dr Tarunabh Khaitan is an Associate Professor in Law at Oxford and Melbourne, and the General Editor of the Indian Law Review. The views expressed are his own, and not attributable to any of these institutions.)

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Round-Up: Constitution Bench Judgments on Assisted Dying and Parliamentary Standing Committee Reports

Ever since the present Chief Justice assumed office, he has been presiding over what is effectively a permanent Constitution Bench, that has been hearing – and is scheduled to hear – a total of thirteen cases. In the first half of the year, the Bench handed down two judgments that have constitutional implications. The first was Common Cause v Union of India (now better known as the “passive euthanasia” case) and the second one was Kalpana Mehta v Union of India (the “parliamentary standing committees” case).

I do not think that either of these cases require a granular examination; the questions before the Court were broad, and were answered in broad terms. I shall briefly summarise the holdings, but before I do so, I think it is important to note, in passing, that Common Cause clocks in at 538 pages, and Kalpana Mehta at 338 pages. The length of both these judgments could be significantly shortened if the Chief Justice resisted the temptation of spending reams of pages philosophising about life and death in the first case, and about democracy in the second case. They could also be significantly shortened if the judges – none of whom dissented in either case – resisted the temptation of writing 100+-page concurring opinions (Common Cause has four separate opinions, Kalpana Mehta three).

For example, in Common Cause, Justice A.K.. Sikri wrote:

“My purpose is not to add my ink to the erudite opinion expressed in otherwise eloquent opinions penned by my learned brothers. At the same time, having regard to the importance of the issue involved, I am provoked to express my own few thoughts, in my own way, which I express hereinafter.” (paragraph 8)

It is respectfully submitted that the eminently laudable purpose of not adding ink is best served by, well, not adding ink. The provocation to express one’s own thoughts in one’s own way is an understandable one, but judges are, after all, meant to be made of stuff stern enough to recognise and avoid such provocations. This is not to say that the concurrences shouldn’t exist – for example, in Common Cause, Chandrachud J. has a significant disagreement with the other judges on the issue of causation, a disagreement that can be expressed only through an opinion that concurs in the result, but sets out its own separate reasoning. That apart, however, in both these cases, the five judges agree on almost everything. In such circumstances, a single opinion of the Court would make everyone’s life much easier.

In Common Cause, the Constitution Bench unanimously held that passive euthanasia was legal, grounded in the “right to die with dignity” under Article 21 of the Constitution, and ancillary concepts, such as the freedom of choice (to refuse medical treatment), personal autonomy, bodily integrity. The Court only legalised passive euthanasia (that is, to put it simply, the removal of life-supporting machinery from a terminally ill patient), not active euthanasia (mercy killing) or suicide. Following the Vishaka model, the Chief Justice laid down detailed guidelines (which immediately proved controversial) to facilitate the right through the mechanism of “Advance Directives”, and to prevent abuse.

There are perhaps two interesting jurisprudential points that emerge from the judgment. Four of the five judges grounded the distinction between “active” and “passive” euthanasia in the philosophical distinction between acts and omissions:

In case when the death of a patient occurs due to removal of life-supporting measures, the patient dies due to an underlying fatal disease without any intervening act on the part of the doctor or medical practitioner, whereas in the cases coming within the purview of active euthanasia, for example, when the patient ingests lethal medication, he is killed by that medication. (Opinion of the Chief Justice, para 46)

Justice Chandrachud – in my view, correctly – recognised the incoherence of this distinction, especially in the context of something like euthanasia. As he observed:

Against the background of the duty to care, the moral and legal status of not saving a life due to failure to provide treatment, can be the same as actively taking that life.A doctor who knowingly allows a patient who could be saved to bleed to death might be accused of murder and medical negligence. The nature of the doctor-patient relationship which is founded on the doctor’s duty of care towards the patient necessitates that omissions on the doctor’s part will also be penalised. When doctors take off life support, they can foresee that death will be the outcome even though the timing of the death cannot be determined. Thus, what must be deemed to be morally and legally important must not be the emotionally appealing distinction between omission and commission but the justifiability or otherwise of the clinical outcome. Indeed, the distinction between omission and commission may be of little value in some healthcare settings. (paragraph 40)

I’m not quite sure how this split in the approaches towards the act/omission distinction will play out in future cases, but – for obviously reasons – it seems to me that Justice Chandrachud’s approach – which detaches justification from the analytical classification of an event into an act or an omission – is far sounder (later on in his judgment, he – again, correctly in my view – recognises that the distinction is nevertheless maintained in the penal law, and therefore, active euthanasia can only be legalised by the legislature (para 93); and then, still later – this time, wrongly, in my view – links it to mens rea (para 98)).

The second interesting feature that I want to highlight is a little more abstract. When you pare it down to essentials, Common Cause was about a right of refusal. At one level, it was the right to refuse life-prolonging medical treatment. At a second level, however, it was also a right to refuse unwarranted technological intervention into one’s body, or – to put it in another words – the right to refuse being conscripted into a technological system, whatever its beneficial purpose. All the judges recognised this – whether it was the Chief Justice with his striking question about whether an individual should be made “a guinea pig for some kind of experiment”, or Justice Chandrachud’s repeated use of the word “intervention”.

When you combine this with the judgment’s invocation of privacy and autonomy, you get the germ of a concept that I’d like to call “technological self-determination.” In a piece written soon after the judgment, I attempted a definition:

Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice. Let us call this the principle of technological self-determination: or the right of every individual to determine how, on what terms, and to what extent, she will engage with technological systems.

In Common Cause, the stakes were relatively low; however, in the years to come, as technology becomes ever more ubiquitous and ever more intrusive, the idea of technological self-determination will become crucial. One does not even need to look to the future: technological self-determination is a key aspect of the Aadhaar constitutional challenge, presently awaiting judgment. Aadhaar is a complex technological system that operates at the stages of collection, storage and use of personal data; mandatory Aadhaar authorises the government to set the terms by which individuals must engage with this system.

Technological self-determination may or may not feature in the Aadhaar judgment, but it has, at least, made an incipient appearance in Common Cause, and gives all of us something to build on for the future.

The Constitution Bench’s second judgment dealt with the use of Parliamentary Standing Committee reports in Court. The reference arose out of a PIL, which is unsurprising: it is primarily in PILs – where broad and far-reaching (and often continuing) remedies are sought, and the Court takes on the role of an administrator – that the findings of Parliamentary Standing Committees become particularly useful.

In a forthcoming blog post, Karan Lahiri will critique the judgment in some detail; reading it, however, was a somewhat strange experience, because both sides appeared to agree on a lot of issues. Both sides agreed that the credibility of a member of Parliament could not be impugned in Court, through the production of a PSC, since the doctrine of parliamentary privileges and the principle of the separation of powers militated against it. Both sides agreed that a Parliamentary Standing Committee could be used in an interpretive enquiry – that is, while interpreting ambiguous statutory provisions, as a part of the legislative history and record. The Court accepted both these straightforward propositions. The Court also held that – in terms of the law of Evidence – a PSC could be treated as a “fact.” Broadly, this means that the existence of the PSC and the existence of its contents (including, presumably, which Minister said what) are factual, and can be relied upon in Court without dispute. However, the contents themselves cannot be relied upon. For example, if a PSC states that “x was the situation prevailing at y time”, then the fact that the PSC says can be cited in Court (say, to interpret a law, or for some other purpose), but the question of whether x was actually the situation at the time has to be demonstrated independently, and using the rules of evidence:

From the aforesaid, it clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same. (Opinion of the Chief Justice, para 117)

And:

“… whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.” (Opinion of the Chief Justice, para 124)

There is some doubt on this last point, as it appears that Justice Chandrachud and Sikri’s joint opinion envisioned a slightly more prominent role for PSCs, where it factual determinations could be impacted by virtue of being part of a PSC (this is my reading, and I am open to correction on this). However, even if that was the case, it would put them in a minority: on my reading, the majority holding in Kalpana Mehta is what I extracted in the paragraph above.

Doctrinally, it is interesting to note that, in the course of extensive discussions by the three separate opinions on issues of parliamentary privileges, democracy, and the separation of powers, it was only Justice Chandrachud, in the joint opinion, who addressed the elephant in the room: that with PIL becoming such a dominant part of the Court’s docket – which includes, inter alia, the Supreme Court often assuming the role of the first and final trier of fact – the application of separation of powers and parliamentary privileges necessarily needs to change, just to maintain internal consistency. In cases where the Court issues a continuing mandamus and monitors government action on a hearing-by-hearing basis (such cases are legion by now across India), the entire approach that was founded on the Executive being the primary implementing authority, needs to be modified. As the joint opinion observed:

“In matters involving issues of public interest, courts have been called upon to scrutinize the failure of the state or its agencies to implement law and to provide social welfare benefits to those for whom they are envisaged under legislation. Courts have intervened to ensure the structural probity of the system of democratic governance. Executive power has been made accountable to the guarantee against arbitrariness (Article 14) and to fundamental liberties (principally Articles 19 and 21).

Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a parliamentary committee. The work of a parliamentary committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts under Article 226 or of this Court under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by parliamentary committees in the field. The work of the committee is to secure alacrity on the part of the government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of parliamentary committees which is to secure accountability, transparency and responsiveness in government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a parliamentary committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the parliamentary committee and the adjudication by the court….

… The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute rule can be laid down in that regard.” (Joint Opinion authored by Chandrachud J., paras 65 – 66)

I do not know if this addresses the problem to the fullest extent – to be fair, I don’t know if the problem can be addressed within existing legal vocabulary, which simply doesn’t envisage the Court as permanent administrator – but it does, at least, acknowledge the misfit, and make a start towards addressing it. Justice Chandrachud’s invocation of the “transformative Constitution” at the end of the Opinion, as an anchoring principle, is interesting, and I shall examine it in some detail in a subsequent post.

(This ends the Round-Up Series, that dealt with important constitutional pronouncements in the first half of 2018.)

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From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur

The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs Union of India is now four-and-a-half months old. The verdict, which held that there exists a fundamental right to privacy under the Indian Constitution, has been analysed threadbare. Its implications for decisional autonomy, personal choice, State surveillance, informational self-determination, and many other facets of privacy, have been debated and discussed. In the coming months, the Supreme Court will have an opportunity to cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these issues. However, there is one aspect of the judgment that has received universal approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted to mark the “lowest point” in the Court’s history.

Recall that ADM Jabalpur concerned the question of whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition. The background context was the existence of a Presidential proclamation of a State of Emergency; this Proclamation also suspended the the locus standi of all individuals to move the Courts for relief, in case they were detained. A majority of the Supreme Court held that the Presidential Proclamation had validly suspended the remedy of habeas corpus under the Constitution; and because there existed no rights or remedies outside the confined of the Constitution, the Presidential Proclamation acted as a complete bar to exercising the fundamental right to life and liberty. Consequently, a detained person could not approach the Courts arguing that his detention was illegal or unconstitutional.

In Puttaswamy, Justice Chandrachud (writing for a plurality of four judges), Justice Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was that there were certain basic rights that were recognised by the Constitution, but not conferred by it. These rights were inalienable, and inhered in all human beings simply by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.

A narrow view of Puttaswamy would limit it to doing only so much. I think, however, this would be a mistake. It would be a mistake because ADM Jabalpur’s ruling on the character of rights under the Constitution cannot be taken in isolation. It was part of a larger judicial logic that, following the South African Constitutional scholar Etienne Mureinik, I shall label the “culture of authority.” And the repudiation of ADM Jabalpur in Puttaswamy, I will argue therefore, was a repudiation of the culture of authority itself; Puttaswamy is best understood as providing a bridge – a bridge from ADM Jabalpur to a new understanding of the Constitution, an understanding that is based on the “culture of justification.”

ADM Jabalpur and the Culture of Authority 

Recall that in ADM Jabalpur, there were two issues. The first was whether the Presidential Proclamation of Emergency acted as a complete bar to the enforcement of the individual right to life and personal liberty in the courts. The second was the constitutional validity of Section 16(9A) of the Maintenance of Internal Security Act, that allowed for a detenu not to be given access to the grounds of his detention. The broader political context, of course, was Prime Minister Indira Gandhi’s decision to impose an Emergency on the basis that there was a grave internal disturbance that threatened the life of the nation.

Consequently, ADM Jabalpur was delivered during a “state of exception” – that is, a situation where the Executive has suspended the normal functioning of the state, ostensibly to deal with an existential threat. The four majority opinions reflect this in granular detail. The reasoning that culminated in the majority holding that the detenus could not approach Court challenging their detention was based on four principal prongs, each of which reflected the logic of the state of exception.

A. The State of Exception 

The first prong was based on the proposition that the questions of when circumstances arose that justified the imposition of a state of exception (“Emergency”), and what rights and remedies citizens were to be allowed during a state of exception, were to be decided solely by the Executive. As Justice Beg observed:

Laws and law Courts are only a part of a system of that imposed discipline which has to take its course when self-discipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled by forces operating from within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals, wherever placed, could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.

Similarly, Justice Chandrachud wrote that “the facts and circumstances leading to the declaration of emergency are and can only be known to the Executive… Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts of law.” He went on to state that:

The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes ins personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one’s own pre-disposition. is conducive to a more realistic appraisal of the emergency provisions.

At the heart of this articulation is not only the idea that extraordinary times call for extraordinary measures, but also that the determination of when extraordinary times have come upon us, and what extraordinary measures are needed, are for the State to decide. As the Nazi legal theorist Carl Shmitt wrote, “the sovereign is he who decides the State of exception.” According to the Jabalpur majority, this aspect of sovereignty lay solely with the Executive. So, Justice Chandrachud was able to write:

The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament, while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.

The same logic was at play in the Majority’s decision to uphold Section 16(9A), with Chief Justice Ray noting that:

The reason why Section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power… the grounds of detention and any information or materials on which the detention and the declaration were made are by Section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.

A corollary to this was that the very act of vesting such extraordinary power with the Executive raised no constitutional concern. Justice Bhagwati, for example, held that the mere possibility or hypothesis that power might be abused was no ground to deny the existence of the power itself. And Chief Justice Ray noted that:

People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious alignment of the governance of the country. Quite often arguments are heard that extreme examples are given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

B. Rights and Remedies

Secondly, ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the existence of a right. The Presidential proclamation in question provided that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution would remain suspended for the period of the Emergency. All four judges in the majority held that by virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was removed or ceased to exist; it was simply that a detenu could not approach the Court under writ proceedings to enforce his right under Article 21.

C. Jurisdiction of Suspicion 

Thirdly, ADM Jabalpur endorsed and authorised what Justice Beg referred to as a “jurisdiction of suspicion”:

Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim; which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a “jurisdiction of suspicion.”

The crucial point was that the validity or reasonableness of the suspicion was entirely up to the Executive to decide. Since the right to move Court stood suspended, no detenu could approach a judicial authority and attempt to prove that the “suspicion” on the basis of which he had been detained was actually groundless, or illegal, or motivated by mala fides. Here again, the overarching justification was that of national security.

D. Salus Populi Est Supreme Lex

Lastly, ADM Jabalpur stood for the proposition that the liberty of the individual was not a paramount value under the Constitution, but simple one among many values to be weighed in the scales – and, in particular, always to be overriden by the principle of “salus populi est supreme lex” (“regard for public welfare is the highest law”). For example, Justice Beg warned against “a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking a principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from the belief that individual liberty was a “gift” bestowed by the Constitution and the State, which could be withdrawn during a state of exception. For this, all for judgments of the majority relied upon the wartime British judgment in Liversidge vs Andersen, which had upheld the untrameled power of the Home Secretary to detain people, free from the constraints of judicial review. As Justice Beg wrote:

Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justiciable, but a political or administrative issue.

Let us now sum up the elements of the “culture of authority” that was at the foundation of the majority opinions in ADM Jabalpur.

  • There exists a state of normalcy and a state of exception (the paradigmatic example of which is an Emergency).
  • The Executive has the sole prerogative of determining when circumstances exist that a State of Exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during a State of Exception.
  • The Executive is guided by the principle of “salus populi est supreme lex” (regard for public welfare is the highest law). It is not for the Courts to ask whether:
    1. The conditions requiring the state of exception to be called really exist or not (summed up by defining Court defining the preventive detention powers as a “jurisdiction of suspicion”, and disclaiming the need for showing proximity.
    2. Whether the Executive’s actions actually serve public welfare or not.
  • During the State of Exception, the Executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy.
  • The fact that such a power is vested in the Executive and is capable of abuse is no ground for the power not existing. The Executive is always presumed to act in good faith.
  • In sum: “salus populi est supreme lex” is like the Ninth Schedule of constitutional interpretation.

The Foundations of Justice Khanna’s Dissent

In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this entire way of thinking. Justice Khanna’s dissent was not based merely on a difference with the majority about the question of whether rights existed outside the Constitution or not. Rather, his different was more fundamental, and went to the root of what it meant to live under a Constitutional republic. According to Justice Khanna, at the heart of a constitutional republic was the maintenance of a balance of power between State and individual. The issue was not whether the State may or may not abuse its powers, and the manner in which it might abuse its power in order to violate individual liberty. The issue, rather, was that the very existence of certain kinds of power with the State was a violation of liberty. As he noted:

“…experience should, teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion-of their liberty by evil-minded persons. Greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of few.”

And:

Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that Article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty. In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.

Constitutionalism meant curtailing what the State was able to do its citizens. To give the State power to both determine the state of exception, and then also to determine what rights and remedies citizens had during such a period, simply on the invocation of salus populi, was to make a mockery of the very idea of a constitutional republic. Consequently, Justice Khanna rejected the argument that, in the interests of public safety and public welfare, the Executive could be left to solely determine the scope and ambit of rights enjoyed by citizens, noting that “the power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law.”

A corollary of this was Justice Khanna’s rejection of the “jurisdiction of suspicion” – that is, the idea that during the state of exception, the Executive was vested with the sole power of curtailing the liberty of any individual it suspected of being a threat to the established order:

Normally, it is the past conduct or antecedent history of a person which shows a propensity or a tendency to act in a particular manner. The past conduct or antecedent history of a person can, therefore, be appropriately taken into account in making a detention order. It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a particular manner. In order to justify such an, inference, it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time. It would, for instance, be normally irrational to take into account the conduct an activities of a person which took place ten years, before the date of ins detention and say that even though after the said incident took place* nothing is known against the person indicating ins tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that ins detention is necessary. It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular’ foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting; in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the) detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.

Towards the Culture of Justification 

Justice Khanna’s dissenting opinion in ADM Jabalpur, reminiscent of Lord Atkins’ dissent in Liversidge vs Andersen, exemplified the “culture of justification”. Mureinik writes thus:

If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.

The phrase “every exercise of power is expected to be justified” is at the heart of this vision of constitutionalism. In particular, it is a complete repudiation of salis populi supreme est lex. The State cannot simply decide to compel its citizens by invoking the larger goal of public welfare. The State must, rather, justify every act of compulsion. It must justify, for example, that its exercise of power will actually serve public welfare. It must explain how it will do so. It must explain that the only way of doing so is through the route of force and compulsion. It must prove that there is no other non-coercive way of achieving that goal, and that it is not imposing any more compulsion than is strictly required in the interests of public welfare. It must show that the amount of power it arrogates to itself in order to carry through its coercive action is proportionate to the importance of the goal it seeks to achieve. And the State cannot impose a regime of permanent suspicion: a regime in which the only justification for the exercise of coercion is that all citizens are potential criminals, and preventive compulsion is the only effective mechanism of preserving the public good. The culture of justification prohibits the State from presuming criminality and law-breaking.

And most importantly, the State cannot be the sole judge and arbiter of these questions. It is the constitutional courts that must carefully examine and scrutinise each of these issues, where the exercise of power is concerned. The courts need not attribute bad faith to the State, or assume the existence of abuse; rather, as Justice Khanna pointed out all those years ago, the Court must be “most on… guard to protect liberty when the Government’s purposes are beneficent.” Therefore, it is precisely when the State claims salus populi, and asks the Court to back off so that it can freely exercise compulsion in order to secure public welfare, that the Court must be at its most vigilant. It is then that the hardest and most searching questions must be asked of the State, and the State put to strict proof in answering the questions outlined above. To adopt a hands-off approach on the basis that these are questions of “high State policy”, and that it is not for judicial authorities to enter into the realm of policy-making and second-guess the State on issues of general welfare, would be only to repeat the mistake of ADM Jabalpur, and ignore the lesson of Justice Khanna.

In the coming months, the Court is scheduled to hear a number of constitutional cases that have far-reaching effects on individual freedom and State power. When it decides those cases, the shadow of Puttaswamy and of Justice Khanna will loom large. It is now for the Court to complete the transformation from the culture of authority to the culture of justification, which was the promise of the Constitution, the hope of Justice Khanna when he dissented, and the beginning of the path outlined in Puttaswamy.

This is, after all, a Constitution that chose to make the individual its basic and most fundamental unit.

 

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Filed under Article 21 and the Right to Life, Constitutional interpretation, Personal Liberty, Political Theory, Privacy

The Supreme Court’s Right to Privacy Judgment – IX: Living Constitutionalism, Natural Law, and Other Interpretive Issues

The Puttaswamy case came to Court because the Indian Constitution does not have a textually guaranteed right to privacy. Each of the six judgments spent considerable time establishing why, despite the constitutional text, privacy was a fundamental right. Many different arguments were advanced, and in the first two posts in the series, we discussed one of them: privacy was a fundamental right because without it, effective enjoyment of textually guaranteed rights such as the freedom of speech, the freedom of association, personal liberty, and so on, was simply impossible. Consequently, as paragraph 3 of the operative order stated, “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” 

Living Constitutionalism

There were, however, other arguments as well. In all of the judgments, for example, we find references to how the constitutional meaning is not fixed or static at its point of origin, but must evolve with time; or, in other words, the Constitution is a “living document.” This argument was fleshed out in the greatest detail in Justice Kaul’s opinion, in a full section titled “The Constitution of India – A Living Document” (paras 23 – 49). Justice Kaul argued that the Constitution must be continuously updated to keep up with the times, and that it has certain “core values” that “manifest themselves differently in different ages, situations and conditions.” (para 40) The values themselves were derived from the Preamble, with dignity given pride of place.

The arguments against the living constitutionalism approach to constitutional interpretation are well-known, and need not be rehearsed here. What is disappointing about Puttaswamy is that (with a couple of exceptions that I shall come to), the judges did not address them at all. In one paragraph, Justice Kaul pointed out that the framers themselves were aware of changing realities, and consequently, faithfulness towards their “original intent” would itself require a dynamic and innovative approach to constitutional interpretation (para 31). That is not enough, however: one cannot simply argue that the Constitution should be interpreted dynamically, and stop at that. There must be standards that guide this organic interpretation, standards that go beyond invocations judicial wisdom. The Preamble itself, with its broad principles, underdetermines this enquiry. From time to time, the judgments referred to the freedom struggle (paragraphs 111 and 115, Chandrachud J; paragraph 18, Chelameswar J), but once again, there was little discussion on what, precisely, was the connection between the freedom movement, and the interpretation of the Constitution.

The problem is quite simply this: we may agree that the Constitution lives and grows, but in which direction ought it to grow, at what pace? How do we know what is “organic growth”? To simply say that the Constitution adapts and evolves with the times, and that judges are charged with updating it, is not enough (what if, for example, the change in social attitudes is towards the contraction of rights instead of their expansion?). There needs to be an interpretive approach that is grounded in the constitutional text, its structure, its history, and the social and political circumstances in which it was drafted, and the broad problems that it was designed to respond to.

It is perhaps in Chelameswar J.’s separate opinion that we do see an effort towards developing such a theory. In Footnote 19 of his opinion, during his discussion of the Constitution’s dark matter, he observed that:

“This court has progressively adopted a living constitutionalist approach. Varyingly, it has interpreted the Constitutional text by reference to Constitutional values (liberal democratic ideals which form the bedrock on which our text sits); a mix of cultural, social, political and historical ethos which surround our Constitutional text; a structuralist technique typified by looking at the structural divisions of power within the Constitution and interpreting it as an integrated whole etc. This court need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a living constitutionalist interpretation. Depending on which particular source is most useful and what the matter at hand warrants, the court can resort to variants of a living constitutionalist interpretation. This lack of rigidity allows for an enduring constitution.”

In the same footnote, he then pointed out:

“The important criticisms against the living constitutionalist approach are that of uncertainty and that it can lead to arbitrary exercise of judicial power. The living constitutionalist approach in my view is preferable despite these criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning. Second, it is still the text of the constitution which acquires the requisite interpretative hues and therefore, it is not as if there is violence being perpetrated upon the text if one resorts to the living constitutionalist approach.”

This is crucial, because it acknowledges that no credible interpretation of the Constitution can afford to ignore its text. Issues of structure, purpose, political ethos, and framework values must supplement the text, but they cannot supplant it (readers will recognise a broad similarity with Dworkin’s approach of “law as integrity” here). Judicial discretion is, of course, a central part of the interpretive exercise, but that discretion must be shaped by the constitutional text, structure, history, and overall purposes. It cannot simply reflect a judge’s view of how the Constitution is to be updated with the changing times, within the over-broad framework of the Preamble.

Natural Law

Both the plurality and Justice Nariman expressly overruled the notorious judgment of the Supreme Court in ADM Jabalpur vs Shivakant Shukla. Recall that in ADM Jabalpur, the Court had upheld the suspension of habeas corpus during a proclamation of Emergency, on the basis – among other things – that the source of rights was confined to the four corners of the Constitution itself – and given that the Constitution itself authorised their suspension in an Emergency, there was no basis on which detainees could move Court and claim any rights. In Puttaswamy, a majority overruled ADM Jabalpur on this specific point, and held that there were certain rights that could be called “natural rights”, inhering in people simply by virtue of their being human. The Constitution did not create such rights, but only recognised them.

In a full section dedicated to this argument (Section G), Chandrachud J, writing for the plurality, observed that “privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.” (para 40)

Variants of this statement were repeated at various points in his judgment, and in paragraph 119, ADM Jabalpur was overruled on this ground.

In his separate opinion, Justice Bobde noted that “privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.” (para 12) Justice Nariman observed that “we do not find any conflict between the right to life and the right to personal liberty. Both rights are natural and inalienable rights of every human being and are required in order to develop his/her personality to the fullest.” (para 45) He also overruled ADM Jabalpur on this point (paras 90 and 91). Justice Sapre held that “in my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.” (para 25) And Justice Kaul noted that “primal natural right which is only being recognized as a fundamental right falling in part III of the Constitution of India.” (para 76)

But if privacy is a “natural right” whose existence is only recognised by the Constitution, then two questions arise, neither of which (in my view) were answered satisfactorily by the bench. The first is: how do you determine the content of natural rights? In the history of natural law theorising, at one point, the doctrines of the church were believed to be the source of natural rights; at another point, human reason replaced canon law; Justice Bobde referred to “universal moral agreement”; and Justice Nariman invoked international law (in particular, the Universal Declaration of Human Rights). In my view, however, if the judgments were going to take the significant step of overruling ADM Jabalpur, and unequivocally stating that the source of (at least a few) fundamental rights is natural law, then it was incumbent upon them to develop at least the basics of an interpretive approach towards identifying the content of natural law. We face here the same problem as we did with the living constitutionalism approach: ultimately, without clear standards, there is too much power in the hands of the judges. Today, liberal judges may seek to expand rights by incorporating a “natural right” to privacy, that predates and pre-exists the Constitution; but what is to stop a judge, in the future, from invoking his own conception of natural rights (or, for that matter, natural duties) to contract liberty?

Interestingly, Justice Chelameswar seemed to recognise the problem, because throughout his judgment, there is not one reference to “natural rights”. This was surely not an unintentional omission. And indeed, in para 19, he noted that:

“To comprehend whether the right to privacy is a Fundamental Right falling within the sweep of any of the Articles of Part-III, it is necessary to understand what “fundamental right” and the “right of privacy” mean conceptually. Rights arise out of custom, contract or legislation, including a written Constitution.”

He then went on to observe that:

“All such Constitutions apart from containing provisions for administration of the State, contain provisions specifying or identifying certain rights of citizens and even some of the rights of non-citizens (both the classes of persons could be collectively referred to as SUBJECTS for the sake of convenience). Such rights came to be described as “basic”, “primordial”, “inalienable” or “fundamental” rights. Such rights are a protective wall against State’s power to destroy the liberty of the SUBJECTS.” (para 20)

This is a crucial paragraph, because while Chelameswar J used the same language as his brother judges had used (“primordial” and “inalienable”), he consciously used it not to signify natural rights that pre-existed the Constitution, but rights that, after Constitutions had been created “came to be described as” primordial and inalienable. And again:

Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. (para 40)

Consequently, on the issue of whether natural rights, which pre-date the Constitution, are the sources of fundamental rights, the Court was not unanimous; rather, it split 8 – 1, with Chelameswar J the lone dissent. This, however, raises another question: what if, tomorrow, a fresh constitutional convention was called, the Constitution replaced, and a new Constitution brought in to substitute it? What if that Constitution (for example) expressly stated that privacy was not a fundamental right, or expressly espoused an hierarchical, anti-egalitarian ordering of society? Would the natural rights continue to exist and be enforced by the Court, notwithstanding the terms of the new Constitution? On the majority’s view, the answer would have to be yes.

Perhaps, though, if things came to that, we’d all have more pressing worries.

Conclusion 

Puttaswamy advanced two important theoretical propositions about constitutional law. The first was the doctrine of living constitutionalism, and the second was the endorsement of natural rights. I have my reservations about both propositions, but in this essay, my point has been that they needed a substantially stronger defence than what we find in Puttaswamy. That task, perhaps, is now left to future benches.

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Filed under Constitutional interpretation, Natural Law and the Constitution, Privacy

Review: Proportionality, Punishment and Judicial Review: A Response to Jeydev C.S.

(This is a guest post by Puneet Dinesh.)

In this Guest Post, Jeydev C.S examines a topical issue given the recent political developments of awarding life sentences and death penalty for cow slaughter. The post revolves around an important legal question: Whether the courts can review the proportionality of punishments linked to a crime?

While Jevdev analyses some crucial questions surrounding the issue, it is an interesting exercise to examine the manner in which the variants of proportionality gets incorporated in different parts of the Constitution.

I. Importing principles from Art. 19 to Art. 21

The post while examining whether the standard of proportionality can be found within Article 19, refers to the Supreme Court’s decision in State of Madras v V.G Row to argue that ‘proportionality’ can be read under the ‘reasonable restrictions’ under Article 19(2). The argument then takes the help of Maneka Gandhi to import the standard of proportionality, found in the ‘restrictions’ under Article 19(2) to Article 21. While Maneka Gandhi allows for a harmonious and combined reading of Article 19 and 21, it is crucial to understand what exactly this means. The question really is, when can a principle under the ‘reasonableness’ test be invoked for a Article 21 challenge? Bhagwati J, in Maneka provides some guidance in this regard:

The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article”.

For Bhagwati J, the challenges under Art. 19 can only be tested, if a freedom under Art. 19 is affected. However, this leaves us in a difficult position- any penal law prescribing punishment ipso facto violates various freedoms under Art. 19. Bachan Singh, when faced with the same question two years later after Maneka, observes that a penal law prescribing punishment cannot affect Art. 19 rights. Interestingly, Bhagwati J, writing his dissent in Bachan Singh two years later after the majority’s opinion, criticizing the majority for applying the wrong test to arrive at the conclusion that Art. 19 rights are not affected, also refuses to answer if a penal law stands to violate Art. 19 rights.

Is there another way to understand the harmonious reading of Art.14, 19, 21 per Maneka? The alternative reading that makes sense is to consider the principles of due process developed under Art. 14 and 19 in an Art. 21 inquiry. It is through this reading, that proportionality as a principle can be examined in an Art. 21 inquiry. It is a different matter altogether (as will be addressed later) the impact of the contents and the variants that proportionality takes within Art. 19 on Art. 21. The limited point being, proportionality as a principle can be considered through the harmonious reading of freedoms under Art. 19 and 21. In fact, a similar reading can be expected in the Canadian and South African Constitutions which subjects all rights to the proportionality standard.

II. Vikram Singh’s discussion on the Eighth Amendment in the United States and ‘substantive due process’

Jeydev’s post later relies on the observations by Vikram Singh on the appropriate standard to examine the proportionality of punishment. Vikram Singh relies on a series of United States and Canada precedents to further the position that proportionality is part of judicial review when the punishment is ‘outrageously disproportionate’. However, in the United States, the Eighth amendment specifically requires the court to examine if the punishment is proportionate to the crime and Section 12 under the Canadian Charter of Rights and Freedoms also provides a right not to be subjected to cruel or unusual punishment. Therefore, the principles evolved for determining proportionality (as discussed in Ronald Allen Harmelin v. Michigan 501 US 957 (United States) and R v Smith (1987) 1 SCR 1045 (Canada)) were due to the legislative mandate provided under the Eighth amendment and Section 12 respectively. It is important to note that a parallel provision is absent in the Indian constitution and the absence has not gone unnoticed before the Supreme Court.

The court in Jagmohan Singh (1972) observed that “…so far as we are concerned in this country we do not have in our Constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply “the due process” clause”. Vikram Singh loses sight of this important distinction and proceeds to import the standard found in United States and Canada. Although Jagmohan Singh was prior to the Maneka Gandhi dicta, statues that define punishments forms part of the substantive due process review. (See Sunil Batra).While Bachan Singh and Mithu might help in arguing for a substantive review of a penal legislation, the bench strength in both the cases was lower than Maneka Gandhi.

The proportionality standard that ends up getting imported in the Indian context through Vikram Singh is nothing different from the Wednesbury standard of reasonableness. On this note, it is important to distinguish two different reviews of proportionality in cases of punishment. First, when the judiciary is reviewing the proportionality of a prescribed punishment in a penal law (Vikram Singh or the recent Bihar High Court’s prohibition judgment) Second, when the judiciary is reviewing the proportionality of a sentence given by a lower court (Santosh Bariyar line of cases). The analysis here is restricted to the former type of review.

III. Whether ‘proportionality’ is a constitutional standard?

The elevation of an administrative law standard as grounds for constitutional review has faced severe criticism from academic circles and the Supreme Court. The Supreme Court in Royappa v State of Tamil Nadu, while adjudicating on an administrative law matter, considered that mere ‘arbitrariness’ is sufficient to constitute an Article 14 violation. As Tarunabh Khaitan, points out, the case laws following this precedent has formulated the ‘unreasonableness’ test in the name of ‘arbitrariness standard’. It is in this context, an analysis on the proportionality test as a constitutional review standard becomes relevant.

Proportionality as an administrative law standard has been a recent addition to the list of standards open to judicial review for administrative actions. Om Kumar (2001) is perhaps the first case to add proportionality to the existing standards of administrative law review. As the court in McDowell noted, in 1996, ‘..The applicability of doctrine of proportionality even in administrative law sphere ..(was)..a debatable issue’ and further proceeded to note that, ‘It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled’. However, the incarnation that ‘proportionality’ has taken at least in the cases challenging the extent of punishment and administrative actions is nothing different from what the ‘arbitrariness’ standard has given us i.e ‘unreasonableness’ test or rather what the Supreme Court calls it the ‘Wednesbury principle of proportionality’.

Wednesbury standard and the proportionality test may constitute different or same standards of review depending on the relevant jurisdiction. In English law, the latter forms a higher threshold than the former, wherein, the proportionality standard involves a four-stage test examining if (a) the objective is necessary to limit a fundamental right, (b) the impugned measure is rationally connected to it and (c) there is minimal impairment of the right to accomplish the objective (d) balancing the rights against the restriction. In India, depending on the context, the proportionality standard has taken both the four-stage test (‘reasonable restrictions’ under Article 19(2)-(6) and the Wednesbury reasonableness (judicial review of administrative actions) approach. This scheme i.e different nature of proportionality tests for a constitutional case and an administrative law case, is worth noting for future evaluation of Vikram Singh.

Wednesbury standard, while consisting of several hierarchical standards internally, requires judicial interference only for decisions that are seriously unreasonable. Inspired by this standard, the Eighth amendment cases picks up on the ‘grossly disproportionate’ test, while the Indian counterpart, sticks to the ‘shockingly disproportionate’ test. Abhinav Chandrachud, analyses a plethora of administrative law decisions where the court uses the phrase ‘proportionality’ standard but ends up employing the Wednesbury standard of review blurring the distinction that Om Kumar had created (See Hazarila).

The four-prong test in the Indian jurisprudence has had a muddled journey so far. Mainly invoked in the context of ‘reasonable restrictions’ under Article 19 (2)- (6), the test has been severely misemployed. As Ashwita Ambast notes here, from ignoring to take certain prongs of the test into account (Brij Bhushan), disturbing the hierarchy of analyses and now, ignoring to apply the test after deliberating on it (Modern Dental College), the four-prong test is yet to be flawlessly applied. The constitutional status of this test was approved as early as in the year 1952 in VG Row. The judgment stresses on the requirement of ‘narrowest limits’ (minimal impairment) and ‘exceptional circumstances’ (necessity) – crucial aspects of the proportionality analyses. The reiteration of this test was elaborately made recently in the NEET judgment by AK Sikhri J. After making a detailed survey of the test referring to comparative sources, the court proceeds to observe the ruling in TMA Pai and PA Inamdar and satisfies itself of the ‘reasonableness’ test without making any analyses on the proportionality test. Therefore, there is very little value in the court’s effort to explore the contours of the four-prong test. The most important and the controversial part of this test is when the court examines if the impugned act is a ‘minimal impairment’ to accomplish the objective. This often requires the court to evaluate comparative sources and put forth its own ideas on what constitutes a ‘minimal impairment’. As seen earlier, Indian courts have shied away from applying this part of the test.

All these discussions, brings me to my core argument: the link between Article 19 ‘restrictions’ and Article 21 to employ the tool of ‘proportionality’

As mentioned previously, the restrictions under Article 19 have always demanded for a stricter proportionality analyses. While the traditional four-prong test might have not been employed, it is rarely the case that they have been substituted to the Wednesbury standard of reasonableness. (See Chintaman Rao). In a constitutional adjudication case, challenging the extent of punishment mandated by the legislation, the court in Vikram Singh and the recent judgment on prohibition of alcohol have employed the Wednesbury standard of proportionality. Therefore, even if one were to source ‘proportionality’ of punishments under Article 19, one cannot lose track of these difficult questions. However, since Vikram Singh’s analyses of proportionality did not originate from Article 19, it might be unfair to attack the judgment on that ground.

Where can we then place ‘proportionality’ as invoked by Vikram Singh in the Indian constitution? Article 14 is perhaps the only, but difficult, place for proportionality to clench. The scope of this essay does not extend to include Article 14 analyses but the ‘arbitrariness’ test developed post-Royappa has been unclear. Whatever one thinks of the dubious link between arbitrariness and inequality under Article 14, there are multiple instances wherein, the arbitrariness has taken the form of the ‘reasonableness’ test. In which case, it becomes easier to add one more administrative law standard i.e proportionality within the folds of Article 14 as the test essentially is one inquiring the ‘reasonableness’ of the impugned clause in the legislation. This link may be crucial to re-engage with the content of the ‘arbitrariness’ standard, a conversation which is much awaited. However, one can’t lose track of the impediments that 2G Reference; Subramanian Swamy and more recently, Rajbhala poses in this endeavor.

While the proportionality analyses for punishment clause stands on a weak footing in Indian constitutional law, it will certainly be interesting to see, the manner in which proportionality (especially, the variant of proportionality) will get invoked and incorporated in the Indian Constitution.

 

 

 

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Filed under Cruel and Unusual Punishment, Judicial Review, proportionality

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 Kausillawhere 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.

 

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The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – IV: (More on) Punishment

(In this guest post, Manish carries forward the conversation on the punishment clauses that was initiated by Abhinav yesterday.)

In a strongly worded and well-reasoned judgment, the Patna High Court on Friday struck down the Bihar government’s attempt to impose total prohibition in the state through amendments to the Bihar Excise Act, 1915 (“the Act”). Other aspects of the judgment have been dealt with elsewhere on this blog, and in this post I will discuss the Court’s reasoning with regard to the penal provisions of the Act, particularly in relation to due process. I argue that in deciding this issue, the Court used its strongest words, but not its strongest reasoning.

Prologue

As part of the amendments, punishments under the Act were drastically enhanced, ranging from a minimum of 10 years in jail and extending up to life imprisonment, and fines ranging from 1-10 lakh rupees. In the writ petitions before the Court, the enhanced punishment was challenged on three main grounds: first, that the imposition of high minimum punishments under sections 47, 53 and 54 was disproportionate to the offence and took away judicial discretion even where mitigating circumstances might warrant a lesser sentence; secondly, that the confiscatory power provided to the State to seal premises and destroy or forfeit property under sections 68A and 68G was excessive; and thirdly, that the mechanism of collective fine introduced in section 68-I was vague and lacked procedural safeguards. The only response of the State on record was that the legislature possessed “plenary power to legislate and provide for punishment” and that the Court could not interfere with legislative wisdom.

At the outset, it is submitted that the existence of “plenary power to legislate” is hardly an adequate response in a case where it is the exercise of the said power that is being challenged, particularly given that under Article 13 of the Constitution, this power is expressly subject to the provisions of Part III. Nevertheless, the Court proceeded to consider the amendments in some detail, and found all the challenged provisions to be in violation of Articles 14 and 21.

Reverse Onus and procedural due process

Importantly, the court prefaces its analysis with an examination of section 48 of the Act (itself not under challenge), which reverses the burden of proof for all offences under the Act. It explains how the lack of due process in cases where stringent punishment is envisaged can make the burden on the accused more onerous:

“…punishments by itself cannot be seen but have to be seen along with the procedure, for, the procedure may create certain liability, which, coupled with the punishment, would made things worse.” (Para 89.03)

The Court observed that while a reverse onus clause, such as section 48, would not by itself be unconstitutional, the presumption it created against the accused would render the substantive penal provisions subject to a higher standard of scrutiny. In doing so, it made a critical link between substantive and procedural due process i.e. using the absence of procedural safeguards to decide the validity of substantive provisions of the law: a variation on the integrated Article 14-19-21 approach that courts have followed since Maneka Gandhi.

Collective fines and subjective satisfaction

The Court then considered the provision relating to collective fines, under section 68-I, which reads as follows:

If the Collector is of the opinion that a particular village or town or any locality within a village or town or any particular group/community living in that village or town have been repeatedly violating any of the provisions of this Act or are habitually prone to commit an offence under this Act or are obstructing the administration of this Act, then the Collector may impose a suitable collective fine on such group of people living in such area of the town or village and may recover such fine as if they were Public Demands under the Bihar & Orissa Public Demands Recovery Act, 1914.

The Court observed that the entire process under section 68-I was dependent on the subjective satisfaction of the Collector. There were no guidelines for the identification of a locality or group within a village or town, no provision for any of the affected persons to be heard prior to imposition of the fine, and no means of appeal against the decision. In these circumstances, it struck down the provision as being in violation of Article 14 and 21 of the Constitution, terming it “draconian, completely vague, uncertain and unlimited”.

It should be noted that the provision of collective fines under the Bihar Excise Act is not a unique phenomenon. Most notably, section 16 of the SC & ST (Prevention of Atrocities) Act, 1989, read with section 10A of the Protection of Civil Rights Act, 1955, empowers the State Government to impose collective fines in cases of atrocities against members of the Scheduled Castes and Scheduled Tribes. However, these provisions contain substantially more procedural safeguards: the satisfaction of the State Government is to be determined on the basis of an inquiry; the apportionment of fine among the inhabitants of the area is based on the means of individuals to pay; and an appellate process is provided for by means of filing a petition before the State Government, which is to be disposed of only after providing the appellant with a hearing. It is submitted that the Bihar government would do well to emulate these safeguards, should it deem it necessary to continue with the mechanism of collective fines.

Life, liberty and property

The Court finally dealt with the reasonableness of the provisions relating to imprisonment, fine, confiscation and destruction of property. The ground for review was drawn from the requirement under Maneka Gandhi that procedure established by law for deprivation of a person’s life or liberty under Article 21 was required to be just, fair and reasonable. Using this due process requirement, the Court constructs the beginning of a case against excessively stringent or draconian penal provisions without procedural safeguards.

Unfortunately, it does not do so convincingly: while the reasoning is logical, the use of precedent is the shakiest in this part of the judgment. Two of the four cases it cites (Mithu and Dalbir Singh) were situations where the Supreme Court struck down a mandatory death sentence as being in violation of Articles 14 and 21, partly because judicial discretion in determining punishment and taking into account mitigating circumstances was taken away. In fact, one of the other cases cited (Vikram Singh) categorically upheld the validity of section 364A of the Indian Penal Code, holding that where even one alternative was provided, the punishment could not be challenged as being unreasonable or taking away judicial discretion. Relying only on these grounds, the punishments imposed under the impugned sections could be argued to allow for sufficient judicial discretion, and the decision to that extent stands on shaky ground. It is submitted that the court’s initial observations with respect to the reverse onus clause, and the lack of procedural safeguards, form a stronger ground for making a case for violation of due process requirements under Article 21.

Proportionality and substantive due process

This brings us to the final link in the argument – that of proportionality – which the Court does make to some extent. This thread of reasoning is as follows: in light of a reverse onus clause, a higher burden is already placed on the accused by the procedural provisions of the Act. Therefore, the substantive provisions must not be so onerous so as to take away all elements of due process from the accused. For a comparative standard of fairness, the Court looks at the NDPS Act, which also deals with punishments for possession and consumption of prohibited substances. In that Act, the Court observes, the punishment is graded, varying with the quantity of the prohibited substance in question. (Incidentally, the NDPS Act also contains reverse onus clauses, and the Supreme Court while upholding the validity of these clauses had invoked a standard of ‘heightened scrutiny’ while dealing with prosecutions thereunder.)

The Court also makes reference to the 47th Report of the Law Commission of India (1972), dealing with the trial and punishment of socio-economic offences. The suggestions of the report in relation to sentencing, particularly the disapproval of “mathematically identical sentences”, remain relevant even today and the Court takes note of them in relation to the offences under the impugned sections 47, 53 and 54, all of which provide for almost identical sentences of long imprisonment and heavy fines for manufacture, transport, possession and consumption of alcohol. The Court observes that in all three sections, the punishment imposed is disproportionate to the offence, and there is no scope for the Court to award a lesser punishment even when there are mitigating circumstances present.

Finally, in regard to sections 68A and 68G, which makes premises and properties used for committing offences liable to confiscation and sealing, the Court holds that the effect of these provisions is to virtually convert the state into a police state. It observes that the reverse onus clause read with these sections would lead to situations of an innocent owner of the premises being punished for acts committed by tenants, even when she had no knowledge of the same. It holds that the provisions are “clearly draconian and in excess of the balance need to be maintained [for achieving the social objectives of the legislation].” In conclusion, it strikes down all the impugned sections as being unreasonable, draconian and ultra vires Articles 14 and 21 of the Constitution.

The Court’s emphasis on individual due process is rather heartening, especially given the tendency of courts to side with the State in cases where reverse onus clauses and stringent punishments are provided for by law. Elsewhere, Mrinal Satish and Aparna Chandra have argued that in cases of anti-terror legislation, the Supreme Court has adopted a minimalist approach while adjudicating their constitutional validity:

The Court articulates its role in terms of balancing competing interests of national security and civil liberties; it provides broad deference to the legislature, not only to its policy, and its understanding of what is required and permissible to implement the policy, but also by engaging in a fair amount of legal gymnastics to uphold constitutionality of provisions. It evaluates legislative provisions not for their impact on Fundamental Rights of citizens, but to examine whether the provisions further the purpose of the Act on the one hand, and whether there are enough procedural safeguards to prevent misuse on the other. Where in spite of this curtailed review, a provision does not pass muster, the Court takes over the role of the legislative drafter and provides a procedural framework to prevent misuse, or recommends measures for the Parliament’s consideration. Very rarely, if at all, does it invalidate a provision.

In this context, the High Court’s decision to strike down the provisions in their entirety for being in violation of substantive due process norms under Article 21 is a promising step forward. One only wishes that its jurisprudential reasoning had been stronger.

Epilogue

The last word is yet to be said on prohibition in Bihar. In August 2016, the legislature passed a revised Prohibition and Excise Act, and reports have suggested that the State Government is considering notifying the new Act. An analysis of its provisions suggests that several of its penalties are similar to the ones that have been struck down, and it remains to be seen whether the Government makes appropriate changes to ensure adequate procedural safeguards.

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