Category Archives: Punishment

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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Filed under Article 21 and the Right to Life, proportionality, Punishment

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.)

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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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