Category Archives: Constitutional interpretation

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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The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – III: Proportionality in Punishment

(This is a guest post by Abhinav Sekhri, cross-posted with permission from his Proof of Guilt blog.)

==

Overview

The separate opinion of Justice Singh covers seven issues and he saves the best for last with his analysis of punishment clauses coming right at the end at Paragraph 89. Effectively, the law criminalised anything one did with alcohol (i.e. acts/omissions associated with its production, possession and consumption) contrary to the Act and rules. Punishments for these offences are neatly summarised into three categories in the judgment: (i) incarceration and fine (Sections 47, 53), (ii) confiscation of property (Sections 68-A, 68-G), and (iii) collective fines (Section 68-I) [There are other provisions on punishments in the Act as well that developed on these basic offences]. These were supplemented by the now-standard provision on reversing the burden of proof and presuming the accused is guilty (Section 48). The High Court unanimously held that these penal clauses were unconstitutional.

The Opinion

Out of these three categories, take categories (i) and (ii) separately from category (iii) which is collective fines. The collective fine provision is set aside for obvious violations of Article 21 of the Constitution as it imposed punishments contrary to a procedure established by law as no right of hearing or right of appeal was provided by the clause. Similar provisions for collective fines are present elsewhere that have these procedural safeguards [See, Section 16 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989].

Which brings me to the more interesting part of the decision concerning categories (i) and (ii). The primary plank on which these penal clauses are set aside is an argument on proportionality, i.e. the sentence imposed for an offence must be proportionate to the harm purportedly caused by the offence. This is a rather crude summation of what is a highly technical concept in sentencing theory [See, Andrew Ashworth Sentencing and Criminal Justice (5th edn., 2010); Andrew Von Hirsch Censure and Sanctions(1993)]. The High Court located the concept of proportionality in criminal statutes in Article 21 of the Constitution by relying upon the Supreme Court decisions in Mithu Singh v. State of Punjab [(1983) 2 SCC 277] and Vikram Singh v. Union of India[(2015) 9 SCC (502)]. The three judges in Vikram Singh framed the proportionality test as follows: “Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.

In this case, the harm as per the State of Bihar was the various evils associated with excessive alcohol consumption that are afflicting its people. The response was to introduce penal provisions that had these notable features:

  • A presumption of guilt which the accused must rebut without specifying whether the State had any burden to prove objective facts displaying commission of the offence;
  • Broad constructive liability attracting persons whose property was allegedly involved in the commission of offences. These persons would be subjected to the similar presumption of guilt which they must rebut;
  • Mandatory minimum punishments – warranting that a sentence of at least ten years’ imprisonment be awarded for possessing alcohol and at least five years for consuming it in a public place;
  • Sealing of properties allegedly involved in commission of offences and their confiscation upon conviction;

The Court posed to itself a question – was this response proportionate to the harm – and answered it in the negative as it found the penal clauses were notoriously overbroad and unspecific. There was no gradation of punishment to differentiate minor and major violations. Nor did the punishment clauses show any sensitivity to how different acts posed different harms. The NDPS Act was cited as an example of how such clauses can be provided within constitutional limits (to think that the NDPS Act would appear as a measure for principled criminal legislation!). Notably, Justice Singh did not restrict his opinion to the badly drafted punishment provisions for his proportionality analysis. It also looked at the various procedural conveniences incorporated by the 2016 Amendments, i.e. the reversed burdens of proof and coercive procedures of confiscation and sealing of property. Although persons could plead ignorance as a defence, broad constructive liability meant far too many people would be unfairly accused and subjected to these coercive procedures while having to prove their innocence. These dangers were not set aside by the stringent punishments imposed on vexatious actions by overzealous state agents.

Some Comments

The absence of any sentencing policy or guidelines has been a common lament for several criminal law scholars in India over the years. This decision puts the problems starkly into perspective. Imposing a minimum ten-year imprisonment for possessing alcohol and confiscating premises where nobody knew alcohol was present there seems to satisfy the outrageously disproportionate standard of the decision in Vikram Singh. However, the Supreme Court in both Mithu Singh as well Vikram Singh was at pains to stress the different position that the death penalty occupied from a sentence of imprisonment. In Mithu Singh, one may recall, Section 303 IPC was set aside because it only allowed for the death sentence without any alternative. The Supreme Court in Vikram Singh put it bluntly: “there are very few and rare cases of sentences of imprisonment being held disproportionate.” The Patna High Court decision is therefore remarkable, for it places the penal clauses in the Bihar Excise (Amendment) Act 2016 in this category of very few and rare cases. To my knowledge, this is the first decision to use the proportionality doctrine to set aside penal clauses despite no death sentence being involved.

There are deeper problems though. The decision in Vikram Singh provided a neat ‘sum up’ of principles on proportionality at Paragraph 52. It was a summing up of principles drawn from Canadian and American jurisprudence – both have specific constitutional prohibitions on certain kinds of punishment. India does not. In fact, the Supreme Court on an earlier occasion in Jagmohan Singh v. State of U.P. [AIR 1973 SC 947] specifically noted that American jurisprudence on prohibiting cruel and unusual punishment [flowing from the Eighth Amendment to the United States Constitution] could not be imported in India because the Indian Constitution did not have similar clauses. Of course, Maneka Gandhi came after Jagmohan Singh and expanded the boundaries of Article 21 allowing us to possibly incorporate the Eighth Amendment jurisprudence. The problems of having such an indeterminate constitutional jurisprudence have been seen with the tussles over the right to privacy and its scope. Therefore, it should be clear that proportionality analysis of punishment clauses does not have a sure footing in Indian constitutional law and the expansion by the Patna High Court may well be considered beyond its current scope.

Conclusion

 

For now, though, one can only be happy with how proportionality is invoked to set aside statutes inflicting persons with disproportionate terms of imprisonment. This experience is similar to what happened in Maharashtra with the beef ban, where again a proportionality argument was raised to set aside the reverse burden clauses. It shows us that High Courts are stressing on a more principled brand of criminalisation, something that has not been the hallmark of how criminal law developed in India over time. A refusal to budge especially when prohibition was such an integral scheme of the ruling government reflects a commitment to principles that must be lauded. The decision is kind, for it tells the legislature what can be done to fix the law. If the State of Bihar chooses to challenge the decision rather than amend the statute, the Supreme Court will be able to consider these important questions. One hopes it upholds how the Patna High Court applied proportionality to restrain the legislature from abusing its near-plenary powers in sending people away for a decade for having a pint.

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The Bihar High Court’s Prohibition Judgment: Key Constitutional Issues – I: Excessive Delegation and Ultra Vires

In a landmark judgment handed down yesterday (Confederation of Indian Alcoholic Beverage Companies vs State of Bihar, Civil Writ No. 6675/2016), a division bench of the Patna High Court struck down the Bihar government’s notification imposing total prohibition in the state, as well as Section 19(4) of the Bihar Excise Act of 1915, which was the statutory provision under which the notification was passed. Justice Navaniti Prasad Singh wrote a detailed judgment, with which the Chief Justice concurred on all points apart from whether the right to drink alcohol was protected under Article 21 of the Constitution, as a facet of the right to privacy. The case itself threw up a host of fascinating constitutional questions, which merit close scrutiny. In Part I, I will examine the Justice Singh’s reasoning striking down the Act and Notification on grounds of excessive delegation, conflict with policy, and ultra vires. In Part II, I will analyse the disagreement between Justice Singh and the Chief Justice on the question of fundamental rights. Part III will be a guest post on the issue of punishment.

Section 19(4) of the Bihar Excise Act, as it originally stood, read as follows:

“Notwithstanding anything contained in the foregoing Sub-sections, the Local Government may, by notification, prohibit the possession of any person or class of persons, either in the Province of Bihar and Orissa or in any specified local area, of any intoxicant , either absolutely, or subject to such conditions as it may prescribe.”

On 31st March 2016, Section 19(4) was amended to read:

Notwithstanding anything contained in this Act and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the State Government may by notification, absolutely prohibit the manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicant s either totally or subject to such conditions as it may prescribe.”

The same day, the Government issued a notification banning distribution, sale, consumption etc. of country liquor. A few days later, it issued another notification [“the impugned notification”], which extended the ban to foreign liquor (and thus made prohibition absolute):

“Notification No. 11/Nai Utpad Niti-01.03/2016-1485, dated 5th April, 2016. – In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act, 2016), the State Government hereby imposes ban on wholesale or retail trade and consumption of foreign liquor by any license holder or any person in the whole of the State of Bihar with immediate effect.”

The petitioners’ first prong of attack was that the phrase “any person” under Section 19(4) of the Excise Act did not contemplate “all persons“, and that therefore, the Notification was ultra vires. To substantiate this, they relied upon judgments of the pre-Independence Federal Court, which had interpreted the pre-amended Section 19(4) in this manner. This contention was swiftly rejected by Justice Singh, since those judgments had expressly held that because the term “any person” was immediately qualified by “class of persons“, it was not intended to include “all persons” within its ambit. The 2016 amendment to Section 19(4), however, had removed the term “class of persons” altogether. Consequently, it could no longer be held that on a plain reading, “any person” could not include “all persons“. This aspect of the judgment is self-evidently correct, and needs no comment.

This brought Justice Singh to the second argument: that of excessive delegation. He relied extensively upon the classic judgment of the Supreme Court in Hamdard Dawakhana vs Union of India to draw a distinction between conditional legislation (which left the determination of the time, place, and manner of the legislation to become effective upon the delegated authority), and delegated legislation (in which the legislature provided broad policy guidelines, and allowed the delegated authority to fill in the gaps). The key test for the validity of delegated legislation – as observed by the Court in Hamdard Dawakhana – was that it should not amount to abdication of the legislative function. In Dawakhana, the Court had invalidated Section 3(d) of the Drugs and Magical Remedies Act, which used the term “or any other disease or condition which may be specified in rules made under this Act”, on the basis that there was no legislative guidance on how these “diseases” were to be selected. Armed with this, the Justice Singh was then able to find:

“The first thing to be noticed is that except for Section 19 (4) of the Act, there is no legislative enactment in the Act, which would indicate the circumstances and the conditions, whereunder total prohibition could be notified by the State Government as a delegatee. A reading of Section 19 (4) of the Act would show that it authorizes the State Government to issue notification absolutely prohibiting various activities, either in the whole of the State or in specified local areas, in respect of all or any of the intoxicants, either totally or subject to such conditions as may be prescribed. There is no legislative guideline at all discernible from the Act in relation to the aforesaid delegation.” (paragraph 85.11)

What particularly weighed with Justice Singh was that Section 19(4) belonged to the Bihar Excise Act of 1915, which was primarily about “permitting, facilitating and regulating manufacture, storage and sale of intoxicants and for collection of excise revenue” (paragraph 85.14), and not about imposing prohibition. Indeed, there was a separate Bihar prohibition act of 1937, which had never been used, indicating clearly that prohibition as a subject was meant to be dealt with by a separate law altogether. This allowed the Court to hold that Section 19(4), in its present form, amounted to impermissible delegation, and was therefore void – along with the notification issued under it.

Justice Singh then considered the interaction between Section 19(4), the notification, and the Bihar government’s “New Excise Policy” of 2015. The New Excise Policy, which had been notified on 21.12.2015, had introduced the goal of total prohibition in Bihar, and it was following this that Section 19(4) was amended. The Court’s analysis of the interaction between the three legal instruments is a little curious. After finding that the NEP’s purpose was to achieve prohibition in a phased manner starting with the prohibition only of country liquor, Justice Singh then held that consequently, the notification was ulta vires and arbitrary because it extended the prohibition to foreign liquor as well (paragraph 86.21). In doing so, he followed the judgments of the Supreme Court in State of Bihar vs Suprabhat Steels Ltd and Secretary, Ministry of Chemicals and Fertilisers vs Union of India, both of which had held that a government policy, once approved by the cabinet and notified, acts as a subsequent self-limitation of powers – i.e., it is not open to the government – on the pain of arbitrariness – to entirely disregard an existing policy that it had already committed itself to, via notification.

However, a close reading of both these judgments raises some doubts about their applicability to the present case. The Supreme Court’s judgment in State of Bihar vs Suprabhat Steels is laconic and confusing; however, a perusal of the High Court judgment (which was appealed by the State of Bihar to the SC) reveals that a key issue was never argued. Paragraph 14 of the High Court’s judgment states:

“In course of his submission the learned Advocate General submitted that the Notification of 4th April, 1994 amounted to a change of policy by the Government. This was objected to by the petitioners, and they challenged the State to produce material to show that the Government had consciously changed its policy by incorporating such a condition. However, ultimately the learned Advocate General did not proceed on the basis that the Government had changed its policy, and submitted that the Notification dated 4th April, 1994 was not inconsistent with the policy decision.”

In other words, the entire argument before the High Court and Supreme Court in Suprabhat Steels was conducted on the question of whether the impugned Notification was or was not consistent with prior policy. Similarly, in Cipla, the debate was about whether the placement of certain drugs in the Schedule to the Drug Pricing Order was consistent with the government’s own Drug Pricing policy.

In the present case, however, circumstances were different. After the New Excise Policy of 2015, which planned to introduce prohibition in a phased manner, starting with the banning of country liquor, the Bihar assembly amended Section 19(4) of the Excise Act that – as we saw above – allowed for complete prohibition, and drew no distinction between country and foreign liquor. What stronger evidence could there be for a change in policy? Justice Singh attempted to get around this by holding that the amended Section 19(4) was intended to give effect to the New Excise Policy, and that consequently, Notifications issued under it must also conform to the Policy. That argument, however, is simply belied by the text of 19(4), which is substantially broader than the Policy. And when the text is clear, is it open to the Court to go behind the language and to the intent of the framers, in order to derive an implied limitation upon its language?

However, Justice Singh then also held the notification to be void on the much more straightforward ground of ulta vires. Before we consider the argument, it is important to dispel a confusion that might arise on a reading of paragraphs 87 – 87.08. At various points, Justice Singh seems to switch between holding that the Notification is ultra vires, and that Section 19(4) itself is ultra vires. Particularly confusing is paragraph 87.03, where he observes:

“I may also refer to certain judgments, where Courts have held that a legislation has an object and if it is sought to be extended beyond the object, the legislation would be open to challenge. The first decision, I would refer to is the case of M.C.V.S. Arunachala Nadar and others Vs. State of Madras and others, (AIR 1959 Supreme Court 300), wherein in paragraph 5 of the reports, this is what their Lordships have noted, the relevant part whereof is quoted hereunder: “5. ……..In order to be reasonable, a restriction must have a rational relation to the object, which the legislature seeks to achieve and must not go in excess of that object…….””

As a statement of law, the first sentence is plainly incorrect, since the legislative object is to be derived from the text of the legislation itself. Invalidating one provision of an Act because it goes against the legislative object would be tantamount to invalidating a provision of the original Constitution because it violates the basic structure. Arunachala Nadar does nothing to support Justice Singh’s case, since it was on a different issue entirely – that of the reasonableness of restrictions under Article 19.

Eschewing Paragraph 87.03, however, the core of Justice Singh’s argument was that the Notification was ultra vires because it went beyond the legislative object. Going into the history of the Act, it noted that the purpose of the Act had always been to “for regulating the manufacturing, trade and business of intoxicating liquor and for augmenting State revenue”, and never for imposing prohibition. After surveying case law on the point, he then held that:

“Section 19 (4) of the Bihar Excise Act, 1915, could only be used for furtherance of the object of the said Act and not to abrogate the Act itself. In other words, the power, conferred on the executive under Section 19 (4), cannot be used by the executive to be a self destruct switch to kill the legislation itself.”

The problem with this argument, however, is that if the Notification was valid in terms of the amended Section 19(4), then it clearly could not be held to be ultra vires because, in a broader sense, it went beyond the legislative object. In other words, Justice Singh had to make an argument that despite its clear textual wording – allowing the government to prohibit any person from undertaking “manufacture, bottling, distribution, sale, possession or consumption” of intoxicating substances – the amended Section 19(4) – in light of the Act as a whole – was subject to an implied limitation that did not permit the imposition of absolute prohibition. This he did not do; and none of the cases that he cited endorsed the proposition that, in case of a seeming conflict between overall legislative object and a single section of the legislation, delegated action that conformed to the single section could nonetheless be invalidated on the ground of ultra vires. This is, of course, subject to the assumption that there could be a conflict between legislative provisions. I would submit, rather, that provisions like Section 19(4) are better understood as carving out exceptions to the overall legislative object (excise) for certain, specified substances. If the Excise Act was to be understood in this way, then the argument on ultra vires would no longer hold.

Consequently, and with respect, it is my view that while Justice Singh was correct on his reading of the amended Section 19(4), as well as his holding that the Section suffered from the vice of excessive delegation, he was incorrect in holding the Notification void for conflict with the New Excise Policy, as well as for holding it to be ultra vires. The outcome, of course, remains correct.

(In the next post, we shall discuss the Court’s approach towards fundamental rights.)

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Filed under excessive delegation, Ultra Vires

The Bombay High Court’s Abortion Judgment: Some Unanswered Questions

On 19th September, a division bench of the Bombay High Court handed down a judgment on the interpretation of the Medical Termination of Pregnancy Act, 1973 (India’s abortion law). The case arose out of a suo motu PIL, which itself had arisen out of concern with the deplorable condition of a female prison inmate, but was subsequently expanded to deal with the termination of pregnancy of female prison inmates in general.

After considering the implementation of the Rules in the Maharashtra Prisons Manual, the Court moved on to an examination of the Medical Termination of Pregnancy Act. The relevant section(s) of the MTP Act are:

“Sec. 3(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

With respect to Explanation 2 being limited to contraceptive failure in case of married couples, the High Court held that “today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple.” (Consider the similarities with US vs Windsor) Unfortunately, however, the High Court provided no principled justification for this expansive reading of the term “married”. Presumably, the justification lies in the requirement that statutory texts must be interpreted in light of background constitutional principles (see here for a more detailed analysis of this doctrine); which constitutional principles was the Court applying, however? The answer would have implications going beyond the specifics of this case. For instance, if the background principle was equality, and the irrationality of drawing a distinction between married and unmarried couples, then a similar argument could potentially be raised to attack the married/unmarried distinction in the marital rape exception. On the other hand, if the background principle was the right of the woman to bodily integrity and decisional autonomy (something the Court went into subsequently), then there could be no justification for limiting the Explanation to couples living together as married. Consequently, it would be vulnerable to a possible future constitutional challenge asking the Court to strike off the word “married” from the statute altogether, and extend its application to all women. Therefore, the Court’s laconic reading of “married” to include relationships in the nature of marriage, despite its undeniably important practical implications, is something of a missed opportunity.

In subsequent paragraphs, the Court then examined pregnancy, and the unequal burdens that it imposed upon women. It observed that:

“There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health… it is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health.”

The Court’s focus on mental health – and its observation that because of its social, financial and other aspects, unwanted pregnancies affect women’s mental health – are important, because under Section 3, the medical practitioner must make a “good faith” assessment about whether the pregnancy is harming the woman’s mental health. Taking this forward, the Court then noted that:

“A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child… these are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”

And further:

“The right to control their own body and fertility and motherhood choices should be left to the women alone. Let us not lose sight of the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.”

The Court went on to affirm that the right to reproductive choice was a facet of ‘personal liberty’ under Article 21 of the Constitution. These observations, it would appear, lead to only one conclusion: if the woman’s right to bodily integrity and decisional autonomy is paramount, then, under Section 3, her decision to terminate the pregnancy must be dispositive of the question of good faith; in other words, the medical practitioner cannot, in “good faith”, contradict the woman’s informed choice to terminate her pregnancy, or substitute his judgment about what constitutes a threat to her mental health over hers. Inexplicably, however, the Court did not make this last – but crucial – interpretive step. After making its remarks about bodily integrity and decisional autonomy, the Court went back to the original question of prison inmate pregnancies, and passed directions to facilitate termination “in accordance” with the MTP Act.

Consequently, the Court’s treatment of Section 3 is – in my view – an even greater missed opportunity than it’s reading of Explanation 2 (where, at least, it returned a clear interpretive finding). Once the Court had gone as far as to say that an unwanted pregnancy, ipso facto, presented a substantial danger to a woman’s mental health because of its economic and social consequences, it required but a small, further step to hold that, in the background of Article 21, Section 3’s “good faith” requirement made the woman’s decision paramount. In the absence of a direct interpretive finding though, there is a risk that the judgment – like many other well-intentioned judicial efforts – will remain mere rhetoric.

It is also an opportunity missed from the perspective of the evolution of constitutional doctrine. What the Court was effectively doing, both in its reading of Explanation 2, and in its interpretation of Section 3, was interpreting statutory provisions in light of the Constitution, in order that they would yield a meaning that was not immediately obvious or intuitive. Reading statutes in light of the basic law is a practice that has nuanced variants in different jurisdictions. How far can a Court go? Is this mode of interpretation limited to situations where there are two equally valid interpretations of a statute, and the Court then selects the one that is more in conformity with constitutional principles (New Zealand)? Or – slightly stronger – may the Court select the meaning that is most in conformity with the Constitution, as long as it can be plausibly borne by the text (UK and the Human Rights Act)? Or can the background law become constitutive of statutory meaning (Germany)? The Bombay High Court, in this case, found itself on the strong side of the spectrum – it effectively used the background Constitutional principles to attribute meanings to “marriage” and “good faith” that could almost certainly not be supported independently (but were not entirely outside the bounds of possibility either). Indian doctrine has, at various times, adopted these differing standards, without a clear conceptual analysis about what the Constitution actually requires, by way of interpretation. The wait for that will continue.

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Filed under Article 21 and the Right to Life, Bodily Integrity, Constitutional interpretation