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Guest Post: Bail Provisions of Section 45 PMLA Struck Down – Some Hits and Misses

(This is a guest post by Abhinav Sekhri, which first appeared on the Proof of Guilt blog)

Two days ago, a Two Judges’ Bench of the Indian Supreme Court decided a batch of writ petitions led by Writ Petition (Crl) No. 67 of 2017 titled Nikesh Tarachand Shah v. Union of India & Anr. [Nikesh Shah] in which it struck down the parts of Section 45 of the Prevention of Money Laundering Act 2002 [PMLA] which concerned the grant of bail. The Court held that these parts violated Articles 14 and 21 of the Constitution – guaranteeing a right to equality, and protection against deprivation of the right to life and personal liberty by a procedure not established by law. The effect of this judgment is that bail petitions earlier subject to a stringent standard under Section 45 PMLA will now be tested on the less taxing standards of Sections 439 and 437 of the Criminal Procedure Code 1973 [Cr.P.C.]. This post has four parts – (i) explaining how money laundering and the PMLA work (which I’d urge you to skim through even if you’re a lawyer, because at times the judgment reflects some lack of knowledge on the Court’s part), (ii) charting out how the Court did what it did, (iii) showing where the Court goes wrong, and finally (iv) what this judgment might mean for the many other statutes with similar clauses that have not been examined by the Court yet.

What is the PMLA, What are the Schedules, and What does Section 45 do?

The PMLA is India’s answer to its global commitment to tackle money laundering, which (at the cost of oversimplification) means representing assets obtained through illegal acts as untainted. In line with global standards, the PMLA covers all kinds of conduct connected with this process of representing black as white (doing, aiding, abetting, attempting etc), as long as one knowingly did so [Sections 3 and 4]. The PMLA not only makes this is an offence but also triggers connected civil actions of attaching and confiscating the tainted assets themselves [Sections 5-8].

Notice how the entire idea of money laundering is linked to some underlying illegal act which results in generating some proceeds – cash or kind. While some countries don’t require that illegal act to be a crime, India does, and the PMLA calls it a ‘Scheduled Offence’ [Section 2(y)] i.e. offences that are part of the Schedules to the PMLA. There are three Schedules – A, B, and C – and Schedule A contains the bulk of offences and Schedule C is basically the same thing applied in a transnational context. Schedule B contains only one offence – Section 132 of the Customs Act 1962 which criminalises making false declarations before customs officers. Importantly, when the underlying offence is one from Schedule B, the PMLA will only apply if the allegations involve a value of at least one crore rupees. There is no such minimum monetary limit for cases with Schedule A offences. It wasn’t always like this, and the history behind these Schedules became quite important in Nikesh Shah which requires me to discuss it here.

When the PMLA came into force in 2005, Schedule A only had two paragraphs carrying offences punishable under the Indian Penal Code 1860 [IPC] for waging war against India and nine offences from the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. Schedule B contained the bulk of offences, along with a lower minimum threshold of thirty lakhs for the value of allegations. Then around 2010 India wanted to join the Financial Action Task Force [FATF] as a member. The FATF is a global body created by the G-8 for money laundering and membership is a big deal [India is the only South Asian member state till today]. When the FATF conducted its evaluation of Indian money laundering laws, it heavily criticised the monetary limit for the cases in Schedule B [paragraph 167 of the linked report]. The logic was that the limit would allow money laundering to escape under the radar as people would just deal in smaller tranches over a slightly elongated period of time. So the FATF recommended the limit be abolished [paragraph 175]. The government sought to do this by simply moving all Schedule B offences to Schedule A, which was done through the 2013 Amendment, leaving Schedule B empty for the time being.

In all this moving around offences, nobody thought fit to look at what impact it would have on the rest of the PMLA – specifically, on Section 45 which spoke about bail. Since the money laundering offence was tied to the Scheduled Offence, Section 45(1) looked at that underlying offence and this decided how difficult it would be to get bail. If it was a Schedule A offence with a sentence of more than three years, the law placed two additional conditions for getting bail: (i) the public prosecutor had to be given a chance to oppose bail, and if the prosecutor chose to oppose bail, then (ii) the court had to satisfy itself that the defendant was “not guilty of such offence” and was not likely to commit any offence on bail, and the burden fell on the defendant to satisfy the court. For all other Schedule A offences, and all Schedule B offences, the regular bail clauses from the Cr.P.C. continued to apply. You can see how the 2013 amendments to the Schedules completely changed the look of Section 45 – the exceptional process became the norm. This new normal was under challenge before the Supreme Court in Nikesh Shah.

SC on Section 45 – Violates Articles 14 and 21
Petitioners argued that the constitutional protections of Articles 14 and 21 were violated by Section 45 PMLA, and the Court agreed to both contentions. Rather than address arguments first and then move to the Court’s appreciation, I discuss both together for brevity.

Article 14
The Petitioners argued that linking the stringent bail clauses to offences in Schedule A that carried at least a three year maximum sentence was creating several irrational and arbitrary classifications which the Court encapsulated through examples [Paragraphs 24-27, and 35]. The Court found no basis to differentiate the harsh treatment meted out under Section 45 from the following hypothetical cases which according to the Court did not attract Section 45:

  • When there is only the PMLA charge as the trial for the Scheduled offence was complete;
  • When the PMLA allegation is based on a Schedule B offence;
  • When the PMLA allegation is based on a Schedule A offence carrying a maximum sentence below three years;
  • When a person is tried for a Part A offence with at least a three year term (versus a joint trial where the same person is tried together with the person with PMLA charges);
  • When the person is released on Anticipatory Bail under Section 438 Cr.P.C. for allegations of the Scheduled Offence, before the PMLA charge was brought in.

The Court was of the view that the seriousness of money laundering cases depended on the amount of money involved [Paragraphs 29-30]. Since Schedule A had no monetary limits, the Court concluded that the likelihood of being granted bail was being significantly affected under Section 45 by factors that had nothing to do with allegations of money laundering [Paragraphs 26-27]. When the Attorney General attempted to defend the scheme by painting the classification as a punishment-based one, the Court easily rebuffed his argument. First, the Court suggested there was no such scheme, but noted that even then, the idea should have something to do with the object of the PMLA. The Court showed how Schedule A had many offences that didn’t seem related to money laundering [taking particular objection in Paragraph 34 to offences under the National Biodiversity Act being there], leaving out others that might have more rational connections to money laundering such as counterfeiting currency [Paragraphs 29-30]. The Court also adversely commented on how Schedule A had lumped different NDPS offences together, at the cost of ignoring how the parent Act treated those offences differently [Paragraph 32-33].

The Court noted also that Section 45 of the PMLA was different from other laws that carried similar requirements such as Section 20(8) of the Terrorism and Disruptive Activities (Prevention) Act 1987 [TADA]. The ‘such offence’ in TADA required a court to be satisfied that the defendant was not guilty of the TADA offence in question before granting bail. But in the PMLA, ‘such’ offence referred to the Scheduled Offence instead of the PMLA offence. So, the restrictions imposed by Section 45 PMLA were held to have no connection to the objects of the PMLA itself and thus the rational classification, if any, violated Article 14 [Paragraph 28].

Article 21

The Petitioners argued that requiring defendants to satisfy the court that they were not guilty of ‘such’ offence violated Article 21 by reversing the presumption of innocence and required the defendant to disclose her defence at the outset of the case. In the judgment the Court doesn’t really address Article 21 independently – instead the Court suggest that because the provision violates Article 14 it cannot be ‘procedure established by law’ and therefore violated Article 21. Towards the end of the decision the Court begins discussing the argument though. It labels Section 45 a “drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence.” [Paragraph 38]. In the same paragraph it goes on to observe that “before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime. Absent any such compelling state interest, the indiscriminate application of section 45 will certainly violate Article 21 of the Constitution. Provisions akin to section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature.”

Hits and Misses
There are two questions that were at stake here: (i) did any part of Section 45 offend the Constitution, and if so, (ii) did the Court have no other option but to repeal the provision. Reading the decision, it seems like the Court felt there was so much wrong in the PMLA scheme it decided to throw the kitchen sink at one point rather than explain the issues. The Court answered both affirmatively but never explained to us whether any argument dispositive, or does every case need this sort of broad argumentation to succeed.

Classification and Article 14 first. After reading the legislative history behind the 2013 amendments and the FATF argument, do you think that the Court is right in concluding that higher the monetary allegations, more serious the PMLA case? I’m not so sure. Nor do I think there is much to be gained by placing emphasis (like the Court does) on how Schedule B today has a higher limit than the initial thirty lakhs to suggest that this is in fact the case. It is far more plausible that the one crore limit was placed keeping in mind the underlying offence (false declarations to customs officials in an enquiry) and the concerns of the export industry, which is already subject to Schedule A through Section 135 of the Customs Act 1962 (evading customs duty). Rather than attempt at answering what might be the basis for such a classification for the PMLA (and indirectly giving hints to the government on what might pass muster), the Court would have done well by restricting itself to answering whether the present classification between (i) PMLA allegations based on a type of Schedule A offences versus (ii) all other PMLA cases was intelligible and connected to the objects of the PMLA. As there was enough to show that the original intent (if any) behind Section 45 had not kept apace with the subsequent amendments to the Schedules in 2013, the Court could strike down this classification. But did that require striking down the whole clause?

This brings us to the other part of what did that classification achieve. If it sought to serve as a filter for PMLA cases when it came to administering a strict bail clause, we are left with no filter. Does that mean no PMLA case is serious enough to warrant an application of the clause, or will the clause apply to every PMLA case? Deciding this would need the Court to decide whether clauses such as Section 45 that required a court to find defendants ‘not guilty’ at the bail stage were constitutional. Rather than directly address this, the Court turned to how the text of Section 45 was flawed, as it referred back to the Scheduled Offence on deciding bail petitions. Since the scheduled classification had been struck down, there was nothing to refer to, and so the clause had to go. While there is little to fault this approach, I remain unconvinced that the Court had no option but to strike down the clause because of the text. The Court has performed far greater feats of legislative reconstruction than being asked to read ‘such offence’ in Section 45 PMLA as referring to the PMLA allegations rather than only the Scheduled Offence. After all, it stands to reason that a bail provision in the PMLA would want a PMLA special court to consider the PMLA allegations. In fact, many High Court decisions show this is how they were doing it. Heck, this is how the Court itself was doing it in Rohit Tandon at the start of November [Paragraphs 21-23 of the link]. I think this course was adopted as it helped secure two objectives. Not only did this take care of the PMLA clause which this bench of the Court clearly did not like much, it also helped to protect other statutes with similar clauses which the Court held met a ‘compelling state interest’ test.

This brings me to one last bit about Article 21 and the Eighth Amendment of the U.S. Constitution. The Court cites a previous decision in Rajesh Kumar v. State (NCT) of Delhi [(2011) 13 SCC 706] for the proposition that Article 21 of the Indian Constitution has incorporated the Eighth Amendment and its protection against excessive bail [Paragraphs 13, 19 of Nikesh Shah]. The Court also cites two American decisions [Paragraph 37] on bail for good measure. This is, unfortunately, wrong. Rajesh Kumar cited previous precedent in Sunil Batra to suggest that even though India did not have the Eighth Amendment or the ‘Due Process’ clause, the consequences were the same to prevent cruel and unusual punishment. Not only did both those decisions not mention the excessive bail clause, the references to the cruel and unusual punishment clause itself are highly contentious as an earlier bench of the Supreme Court had held it couldn’t be pressed in India, and that decision continues to be cited.

Conclusion

The slapdash manner in which the PMLA Schedules were amended in 2013 to appease the FATF had already caused some High Courts to address this issue of Section 45. The closest it came to striking down the clause was the Punjab & Haryana High Court’s decision in Gorav Kathuria v. Union of India & Anr. where it held the bail provisions would not apply retrospectively to offences previously in Schedule B [Paragraphs 43-45 of Nikesh Shah]. When the Court declined to hear an appeal against the High Court order in Kathuria I thought that it had indirectly affirmed the validity of Section 45. The judgment in Nikesh Shah comes as a surprise, and marks the first occasion when the Court has looked at any part of the PMLA through a constitutional lens. There are other parts that are equally problematic – the asset forfeiture scheme and the compulsion on witnesses to make truthful declarations, for instance – that litigants may take to the Court being encouraged by this judgment.

As for the future impact of Nikesh Shah on other statutes that carry the same ‘drastic provision’, the stage is set for some litigation on that front as well. The Supreme Court has only approved of the TADA and the MCOCA provisions in the past, leaving the many others open to scrutiny on this new test of whether the provision furthers a ‘compelling state interest’. The Court never answered that for the PMLA context while deciding the petitions in Nikesh Shah. Do you think it might conclude that the PMLA does not meet the test? What about the other statutes? I’ve re-pasted my list of statutes containing the clauses below after accounting for the ones that are not relevant anymore. Comments, as always, are welcome.

  1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
  2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  4. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
  5. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982.
  6. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982.
  7. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  8. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  9. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  10. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

 

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Filed under Article 14, Article 21 and the Right to Life, Bail, Criminal Law and the Constitution, Criminal Procedure, Cruel and Unusual Punishment, Equality

The Supreme Court’s Triple Talaq Judgment

Today, a narrowly divided Supreme Court held that the practice of instantaneous triple talaq (talaq – ul – biddat) [hereinafter “triple talaq” for short] which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was legally invalid. On the outcome, the Court split three to two: Justices Nariman, Lalit and Joseph in the majority, with the Chief Justice and Justice Nazeer dissenting. However, Justice Nariman (writing for himself and Justice Lalit) and Justice Joseph used different – and partially contradictory – reasoning to arrive at the conclusion. With what is effectively a 2 – 1 -2 split, there will be considerable controversy over what, precisely, the Supreme Court held in this case. Before discussing the different opinions, therefore, it will be useful to provide a brief overview.

The constitutional status of triple talaq depended, in part, upon its legal status. In particular, there was a dispute over whether triple talaq had been codified into statutory law by the 1937 Muslim Personal Law (Shariat) Application Act. This was important, because all statutes are subject to fundamental rights. However, under existing jurisprudenceuncodified personal law is exempt from fundamental rights scrutiny. Therefore, if the 1937 Act did codify triple talaq, then the Court could examine whether it was consistent with the Constitution. If it did not, however, then the Court would have to ask whether triple talaq was part of Muslim personal law; and if so, whether to uphold its existing jurisprudence exempting personal law from fundamental rights scrutiny, or to reconsider it.

Within this framework, this is how the Court’s three judgments mapped out:

A. Does the 1937 Act codify triple talaq under statutory law?

Yes: Nariman and Lalit JJ

No: Kurien Joseph J., and Khehar and Nazeer JJ

A1. If the answer to A is yes, then does triple talaq (as codified by the 1937 Act) violate the Constitution?

Yes: Nariman and Lalit JJ (Article 14)

No: _____

N/A: Kurien Joseph J., and Khehar and Nazeer JJ

B. If the answer to A is no, then is triple talaq part of Muslim personal law – that is, is it uncodified Muslim personal law?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J

N/A: Nariman and Lalit JJ

B1: If the answer to B is yes, then can triple talaq be tested under the Constitution? 

Yes: ______

No: Khehar and Nazeer JJ

N/A: Nariman and Lalit JJ, Kurien Joseph J

C. In any event, is triple talaq protected under Article 25 as an “essential practice” of Islam?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J., Nariman and Lalit JJ.

Therefore:

A majority of three judges held that the 1937 Act did not codify triple talaq. Beyond that, however, there is no clear majority for any consequential legal proposition in this case (apart from a momentous change on the legal status of the doctrine of arbitrariness, which I shall deal with in a separate post). Justice Kurien Joseph – the “swing vote” in this case – agreed with the dissent that triple talaq had not been codified by the 1937 Act. This was at odds with the foundation of the judgment of Justices Nariman and Lalit, who held that the 1937 Act did codify triple talaq. However, Justice Joseph then disagreed with the next step in the dissent’s reasoning, which was the proposition that triple talaq was part of Muslim personal law (this, naturally, brought him into agreement with Justices Nariman and Lalit on the issue that triple talaq was not an essential or integral aspect of Islam, and therefore protected under Article 25 of the Constitution). What we therefore get, at the end of the day, is a majority in terms of outcome (3:2), a different majority on the interpretation of the 1937 (3:2) Act, but no majority for the reasoning leading up to the outcome.

The Judgment of Nariman J (joined by Lalit J)

Justice Nariman began by noting that talaq – ul – biddat was only one of the many permissible forms of divorce under Islamic law, and a strongly disapproved one at that (paragraph 9). With this brief background, he analysed the 1937 Act. Noting the Statement of objects and Reasons of the Act, which recognised a demand from the Muslim constituency that “Muslim Personal Law (shariat) should be made applicable to them.” Section 2 of the Act then stated that “Notwithstanding any custom or usage to the contrary… regarding… marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaraat… the rule of decision in cases where parties are Muslims shall be the Muslim Personal Law (Shariat).”

Justice Nariman held that the plain meaning of Section 2 was that, after 1937, the shariat was accorded statutory sanction in India. Or, to put it in simpler language, after the 1937 Act, what made the shariat legally enforceable in India (as applied to Muslims) was the 1937 Act. Before the 1937 Act, colonial judges were applying and enforcing the shariat (presumably) directly as religious sanctions, drawn from the Quran, the Hadith, and other authoritative texts. The 1937 Act, however, now mediated between Islamic scripture and its application in concrete cases.

It was argued by the Muslim Personal Law Board that the opening words of Section 2 – “notwithstanding any custom or usage to the contrary…” implied that the purpose of the 1937 Act was not to enforce Shariat, but to remove “custom and usage” as sources of Islamic personal law. Justice Nariman swiftly rejected this argument, holding that to allow a non-obstante clause to determine the interpretation of a Section that was otherwise unambiguous, would amount to “the tail wagging the dog” (paragraph 16).

Consequently, Justice Nariman was able to conclude that the 1937 Act (which included the statutory sanction of triple talaq) “would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.” (para 21). In other words, if the Court found that the practice instantaneous triple talaq violated any constitutional provision, then to the extent that Section 2 of the 1937 Act authorised it, it would be unconstitutional and void.

This would be true, of course, unless triple talaq was saved by any other constitutional provision. The Muslim Personal Law Board argued that it was saved by Article 25, which guaranteed the freedom of conscience and religion. Justice Nariman rejected this argument, pointing out that under Indian jurisprudence, Article 25 only protected “integral” or “essential” aspects of religion. In view of extensive and uncontroverted religious authority holding that triple talaq was an “irregular” way of conducting divorce, it could not, under any circumstances, be held to be an essential aspect of Islam (or under the Hanafi school of Islam, which practiced it) (paragraph 25).

Having strongly affirmed that it was the duty of the Court to strike down unconstitutional laws, and not leave the task up to Parliament (paras 26 – 30), Justice Nariman then came to the core of the case – the examination of the constitutionality of instantaneous triple talaq (paragraph 31 onwards). Focusing on Article 14 of the Constitution, he asked whether a law or a statute could be invalidated on the ground of “arbitrariness” (for a summary of the constitutional controversy on this point, see Mihir’s guest post here). After a detailed and technical discussion, Justice Nariman found that arbitrariness had always been a ground of legislative review under Article 14 (paragraphs 32 – 55), and judgments that held to the contrary were incorrectly decided.

The standard of arbitrariness required that if a law was “disproportionate, excessive… or otherwise manifestly unreasonable“, then it would be struck down under Article 14 (paragraph 45). Applying the standard to instantaneous triple talaq, Justice Nariman then held, in his concluding paragraph:

“Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.”

Three things stand out in Justice Nariman’s judgment. The first is his refusal to consider the question of whether personal laws are subject to the Constitution (although, in paragraph 22, he specifically casts doubt on the correctness of Narasu Appa Mali, and opines that it might need to be reviewed). In a guest post on this blog, Praharsh Johorey argued that the triple talaq case was an ideal opportunity to reconsider a judgment as clearly wrong as Narasu; elsewhere, I argued that a judgment invalidating triple talaq could either do it narrowly, through the 1937 Act and the essential religious practices test, or by taking a broad route, and reversing Narasu Appa Mali. Justice Nariman chose the narrow route, and in that sense, there is a feeling of a remarkable opportunity missed. To be fair, technically, it is difficult to fault him for this: once he had held that the 1937 Act codified Muslim personal law, there was no need for him to consider any other question. On this blog, I have often argued that judges should not go charging like wild horses over constitutional terrain, and ought to decide cases on the narrowest grounds available to them. I cannot, in good faith, criticise Justice Nariman for doing precisely that. Nonetheless, the sense of regret remains.

The second issue is Justice Nariman’s reliance upon the essential religious practices test to deny triple talaq the protection of Article 25. On this blog, I have tried to point out before that ERP is both constitutionally unprincipled and impractical, because it involves a secular Court making ecclesiastical judgments. I am not alone in this criticism: for the last four decades, ERP has been criticised by both scholars and practitioners; apart from a dissenting judgment by Justice Lakshmanan in 2004, however, it has never been seriously challenged within the judiciary. This case marked an ideal starting point for the Court to jettison this seriously flawed approach, and hold – along with Ambedkar in the Constituent Assembly Debates – that Article 25 simply wasn’t applicable to the laws of marriage, divorce, inheritance, which had a tangible impact upon the civil status of parties; in other words, one cannot, under the cover of religion, claim a vast domain of human life off-limits from constitutional values. As Ambedkar had said:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

In this second sense, the judgment represents a chance missed.

And thirdly, it appears to me that – notwithstanding his spirited revival of the doctrine of arbitrariness – Justice Nariman’s constitutionality analysis misplaces priorities. The core problem with instantaneous triple talaq was not its arbitrariness, but how, in giving men a unilateral power of instant divorce, it discriminated against Muslim women. It was more a question of unequal power and inequality (Article 15) than the rule of law (Article 14). Again, technically, one cannot fault the reasoning; in a broader sense, however, it seems to have achieved the right outcome, for the right reasons, but perhaps not… the best reasons.

The Judgment of Joseph J (for himself)

Justice Joseph wrote a brief judgment. He held that the Supreme Court, in Shamin Ara, had already held that “instantaneous triple talaq” was invalid under Islamic law (paragraph 1). It was necessary for him to carry out this analysis, because – in his view – the 1937 Act only made Islamic personal law applicable to Muslims, but was “not a law regulating talaq.” (paragraph 4) Noting that the primary authoritative source for Islamic personal law was the Quran, Justice Joseph then examined the Quranic suras that dealt with talaq, and found that:

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” (paragraph 10)

Justice Joseph then cited multiple High Court judgments, leading up to the Supreme Court judgment in Shamin Ara, which had affirmed this proposition (paragraphs 11 – 23), and concluded that:

“Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

It is important to note that Joseph J. expressed no opinion on the question of whether uncodified personal laws are subject to the Constitution, and therefore, there is no majority in this judgment that supports that point of view. In paragraph 5, he made the limited observation that “I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.” That is, his disagreement with Nariman J. was limited to the question of whether triple talaq, through the 1937 Act, could be tested under Article 14; however, since Nariman J. himself expressed no opinion on whether, if triple talaq remained uncodified, it could be tested under Article 14 (by overruling Narasu), Justice Joseph could not possibly have disagreed with him on this point, because there was nothing to disagree with.

That said, Justice Joseph’s analysis of Section 2 of the 1937 Act does not seem correct. The distinction between the 1937 Act enforcing the shariat, and the Act “regulating” triple talaq, is irrelevant to the constitutional analysis. What matters is not that the procedure of triple talaq is contained in a statute, but that the source of authority of triple talaq is a statute. The moment that is conceded, the statute in question – and along with everything that it authorises – becomes subject to Part III and the Constitution. On this issue, Justice Nariman’s view appears to be the correct one.

The Judgment of the Chief Justice (for himself and Justice Nazeer)

The Chief Justice’s judgment has the merit that, after page 176, when the recording of submissions ends, and the analysis begins, it is clear and easy to follow. That, however, is its only merit. The judgment advances novel constitutional propositions unsupported by the constitutional text, history, or precedent, and it severely undermines the constitutional balance between individual rights and religious precepts.

The Chief Justice began by noting that the sources of Islamic personal law are not limited to the Quran (paragraph 121), and that, in fact, all parties have agreed that talaq – ul – biddat is “bad in theology but good in (Islamic personal) law” (paragraph 127). Declining to go into an interpretation of rival hadiths provided by both parties, he noted that:

“The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid form of divorce, is also not a matter of dispute. The very fact, that the issue is being forcefully canvassed, before the highest Court of the land, and at that – before a Constitution Bench, is proof enough. The fact that the judgment of the Privy Council in the Rashid Ahmad case1 as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that ‘talaq’ had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties. It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of ‘talaq-e-biddat’, has been very much prevalent, since time immemorial.” (paragraph 144)

And:

“We are satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal law’.” (paragraph 145)

The problem with this argument is that paragraph 145 does not follow from paragraph 144. Under the essential religious practices test, as applied by the Supreme Court over time, not everything sanctioned by religion is integral to it. The Chief Justice slid seamlessly between noting that instantaneous triple talaq is practiced by Indian Muslims as a part of their religion, to holding that is an essential part of it, without showing independently that the threshold of ERP has been met. Recall that the Supreme Court has held, in the past, that neither worshipping at a mosque nor cow-slaugher on Id, are integral parts of Islam, on the basis that Islam does not mandate either practice. Under this standard, in this case, it would under the ERP, it would have to be shown that Islam mandated instantaneous triple talaq. This, the Chief Justice did not show; and while I disagree with the ERP test, given that the Chief Justice had chosen to apply it, I think it important to point out that he applied it incorrectly.

The Chief Justice then advanced a proposition that is utterly bizarre. In paragraph 146, he said:

“‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a fundamental right. The elevation of ‘personal law’ to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, ‘personal law’ of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25.”

Notably, no authority is advanced to support this proposition. That is because there is none. No Court has held that “personal law” is a fundamental right. In fact, that sentence is incoherent – how can “personal law” have the “stature” of a “fundamental right”? Rights under Article 25 belong to individuals, not to “laws”. More importantly, Article 25 does not confer constitutional protection upon personal laws. It guarantees that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

To go from “all persons are equally entitled to… freely… practice… religion” to “Article 25 protects personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the Chief Justice been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1) protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice her religion; in other words, it does not protect religious norms, rules, or institutions, but individual rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that by denying him the option of triple talaq, his Article 25(1) right was being violated; such a case, however (apart form being decided on separate grounds altogether), is conceptually different from conferring the “stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is crucial.

Most of all, what is entirely unacceptable about this proposition is that, as the Chief Justice himself observed (in the extract quoted above), marriage affects an individual’s civil status and civil rights. The effect of holding that “personal laws” are protected under the Constitution’s religious freedom guarantee is to grant to religious bodies the power of determining individuals’ civil status (and their civil rights), without constitutional recourse. This seems to be a negation of the very basic meaning of secularism.

The Chief Justice then held that the 1937 Act did not codify triple talaq, but only negated the use of “customs and usages” in adjudicating cases between Muslims (paragraph 156). I have already argued above that this is a flawed reading of the 1937 Act. Consequently, he held that the only limitations upon personal law can be those found in the opening phrase of Article 25(1): “public order, health, and morality.” On this, he noted:

“… it is impossible to conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’. We are also satisfied, that it has no nexus to ‘morality’, as well.

But why? He provided no reasoning for this. If “morality” under Article 25(1) refers to the concept of constitutional morality, then surely gender equality and non-discrimination art part of that definition of morality? And if not, what else does morality mean? What does the Chief Justice think it means, and why is instantaneous triple talaq “moral”? There are no answers.

The other preliminary phrase in Article 25(1) is “subject to… the other provisions of this Part” (that is, Part III). The Chief Justice held that this is also inapplicable, because Articles 14, 15 and 21 – which triple talaq potentially violates – are only applicable to State action against individuals, and not to private violations of rights (paragraph 165). However, not only does this argument go against the Supreme Court’s recent liquor ban judgment, which the Chief Justice himself signed on to, and which held that Article 21 places an affirmative obligation upon the State to protect fundamental rights – but it also ignores the fact that triple talaq is only legally effective because it is sanctioned by the Courts. Triple talaq does not operate in some parallel, extra-legal domain; rather, it is not only recognised (as an aspect of personal law) by the State, but it can also be enforced through the courts. Therefore, the State involvement is inextricable.

Lastly, the Chief Justice addressed an argument that instantaneous triple talaq violates principles of constitutional morality, which he rejected by reiterating the proposition that personal laws themselves are a part of fundamental rights, and ending with this paragraph:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.” (paragraph 193)

It is a particularly stark irony that Chief Justice needed to replace the word “persons” (which is what Article 25(1) says) with the word “entities”, in order to sustain this unsustainable conclusion.

I have engaged with the dissent at some length, because a 3 – 2 split is a judgment by a hair’s breadth. Had one judge flipped, the dissent would have become the majority. While I feel that the majority opinions could have been stronger on some points, I feel – even more strongly – that the dissent, which elevates personal law to the status of the Constitution, and in fact, elevates it above all other fundamental rights in Part III, would – had it carried the day – done profound damage to the constitutional fabric. It would have fatally undermined the framers’ attempts to frame a secular Constitution, where religion could not become the arbiter of an individual’s civil status and her civil rights, and would, in a single stroke, have set back a long struggle for the rights of basic equality and democracy against the claims of religion.

What this divided judgment means for future jurisprudence dealing with the relationship between personal law and the Constitution, remains to be seen. The question is perhaps more open now than it ever was.

 

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Filed under arbitrariness, Article 14, Article 21 and the Right to Life, Equality, Freedom of Religion, Personal Law, Secularism

Guest Post: The Rejection of the ‘Arbitrariness Doctrine’ in the Panchayati Raj Judgment

(In this guest post, Mihir Naniwadekar explores the Supreme Court’s rejection of the arbitrariness test in the Panchayati Raj judgment).

There has been plenty of discussion on this blog in connection with the issues arising in the Panchayati Raj case. This (very) short post is not an attempt to discuss all the issues (or even one single issue exhaustively) arising from the decision. Instead, I only wish to draw the attention of readers towards part of the reasoning employed by the Hon’ble Court – in particular, the Court’s rejection of the ‘arbitrariness’ challenge to the impugned provisions.

When the Court rejects ‘arbitrariness’, it proceeds on the basis of AP v. McDowell. It seems that McDowell did not absolutely rule out arbitrariness, but only insisted that the mere formulation ‘arbitrary’ is meaningless: the issue of why something is arbitrary must depend on constitutional analysis. What the Court said was, “Some or other constitutional infirmity…” is needed. Naturally: nothing is invalid because one asserts that it is arbitrary: if one says something is arbitrary, one must point out why it is arbitrary having regard to the constitutional scheme. Nobody denies that: the Petitioners in Panchayati Raj were not saying that the law is arbitrary because they dislike it. Rather, the law is arbitrary because it restricts a constitutional right (and this is admitted by the Court) without any constitutionally valid basis.

Secondly, in Malpe Vishwanath, a Bench seems clearly to leave open the arbitrariness window for challenging laws. Dealing with certain legal provisions of the Bombay Rent Control Act, the Court concluded its judgment by noting:

“It is, however, made clear that any further extension of the existing [legal] provisions without bringing them in line with the views expressed in this judgment, would be invalid as being arbitrary and violative of Article 14 of the Constitution and therefore of no consequence.”

Thirdly, in Mardia, on the question of whether a condition of pre-deposit prior to filing an appeal was invalid, the Court held that this was “unreasonable and oppressive” and ultimately uses the arbitrariness standard to strike down a law.

Merely relying on McDowell then is not sufficient to reject the ‘arbitrariness’ challenge. What the Court ought to have done is examined why – having admitted the relevant rights to be on a higher pedestal than statutory rights – the restrictions were valid in the constitutional scheme. There does not seem to be any independent reasoning on this aspect.

Both Malpe and Mardia are cited only in footnote 34 of Panchayati Raj; and there is no independent analysis of these aspects. In footnote 34, the cases are cited as part of Petitioner’s submissions in another case. Nothing negative about these cases (on the grounds of arbitrariness) seems to have been stated in the other case.

In the circumstances, the present 2 judge bench should not have gone into this question to conclude that arbitrariness is irrelevant: at the highest this should have been referred to a larger Bench.

Furthermore, whatever one thinks of the correctness of Royappa, it is surely not open for a Bench of 2 Hon’ble Judges [and the Bench did not even indicate anything to the contrary] to reconsider Royappa. If one assumes Royappa to reflect the current position, there seems to be no reason in principle as to why the content of Article 14 would change depending on what is under challenge. Either Article 14 embodies an arbitrariness test or it does not. The answer to ‘what is the correct test as a matter of law under Article 14’ cannot turn on whether the challenge is to an executive action or to legislation, as the Court seems to indicate. Of course, what is being challenged may be relevant to the standards of review in the application of the test. Thus, one could argue that a legislative act requires greater deference than a purely executive act. At the same time, there are surely arguments which indicate that the standard of deference must also consider the nature of the rights at issue. I do not wish to examine issues pertaining to standards of scrutiny: the only point I wish to make is that the content of Article 14 cannot change in the manner suggested by the Court.

Perhaps, one could reconcile the cases and say that Article 14 embodies the standard equality test of whether there is a reasonable nexus with the object. However, the ‘arbitrariness’ keeps in check both, the object and the method for achieving the object. In other words, a law making it compulsory for red-haired IFS officers to get a haircut cannot be defended on the basis that “red-headed people are the butt of jokes, and having red headed people conduct international negotiations results in Indian prestige going down” [even if it is true that red-headed people in general are the butt of jokes]. In other words, ‘arbitrariness’ helps in determining what differential is intelligible and further, what methods are rational: and also reminds the State that constitutional morality means that certain objects and methods are always off the table.

Naturally, this requires the Court to analyze the Constitution to determine what is arbitrary in the constitutional sense. Not wanting to do this is, respectfully, not a ground for saying that one cannot challenge a law as arbitrary in any case.

[I do not add anything in this post on why the object is or is not arbitrary: that aspect has been dealt with in several other posts.]

(Mihir is a Bombay-based lawyer)

Blog Author’s Note: While agreeing with all that Mihir has said, I would add that Rajbala exhibits, in stark terms, the urgent need for a sustained judicial conversation about Article 14. At the root of Justice Chelemeshwar’s unease with the arbitrariness test appears to be, well, its arbitrariness. In Royappa, the arbitrariness test arose out of a justified judicial dissatisfaction with the formalism and emptiness of the traditional classification test under Article 14. As Mihir correctly notes, under traditional Article 14 scrutiny, you could have laws requiring red-haired IFS officers to get a haircut in the interests of maintaining national prestige. There is an intelligible differentia, a purpose, and a rational nexus. The deeper point is that at bottom, the classification test is empty and almost circular – any classification can be defended by producing some purpose with which it bears a rational nexus. Therefore, all that it achieves is to prevent governmental opacity – the State has to produce some justification, and the very requirement of making its reasons public will, in some sense, constrain the kinds of purposes it puts forth.

In order to move beyond this, a Court can do one of two things: put a constraint upon what counts as a “legitimate purpose” (this is what the High Court tried to do in Naz Foundation and in Subramanian Swamy), or subject the ‘rational’ nexus to more rigorous scrutiny. In her article on Indian gender discrimination law, Catherine MacKinnon reads E.P. Royappa to have attempted both through its new arbitrariness test: replacing doctrinaire equality with something more substantive. The problem is that the Court never really advanced upon this; ironically enough, one of the most egregious applications of the arbitrariness test was in Nargesh Mirza, where the Court held that compulsory termination upon first pregnancy was “arbitrary”, but upon the third pregnancy was not! Sitting here at the end of 2015, we’ve had 41 years since Royappa, and it is still unclear what the arbitrariness test is really about.

The absence of a meaningful complement to Article 14’s classification test must rank as one of the most serious failures in the Supreme Court’s history. This is compounded by the fact that it is precisely over the last forty years that other commonwealth jurisdictions have made great strides in their equality/discrimination jurisprudence. The United States has developed a tiered structure of review (strict scrutiny for race-based classifications, intermediate scrutiny for sex-based classifications, rational review for economic legislation etc.), which is focused upon the strength of the connection between the classification and the purpose. Canada and South Africa have developed a complex discrimination-law jurisprudence that speaks to preventing and ameliorating structural disadvantage, or remedying systemic indignities. The ECHR and the UK courts have made legislative and doctrinal advances of their own.

If we’re to escape from the Scylla of classification and its empty formalism, and the Charybdis of arbitrariness’ arbitrariness, going forward, the Court needs to have a serious conversation about the place of equality within our Constitutional scheme. This might require clarifying and concretising the arbitrariness test: what, exactly, does it mean for legislation to be ‘arbitrary’? Does arbitrariness rule out certain legislative goals that are contrary to the constitutional scheme (such as, say, endorsing invidious stereotypes or perpetuating group disadvantage)? Or does it require more rigorous levels of scrutiny, such as narrow tailoring and substantial relationship (instead of mere rationality), in certain specific cases, such as where vulnerable groups are involved? Alternatively, the Court might take its cue from Justice Chelemeshwar, and abandon ‘arbitrariness’ altogether in favour of a more direct approach to Article 14. Either way, it is a conversation that we can only hope will happen soon.

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Supreme Court Rules on Oral Hearings for Death Penalty Reviews

In a brief – and interesting – judgment today, a Constitution Bench of the Supreme Court ruled – by a 4-1 majority – that death penalty review petitions must be heard orally, in open court. The background of the case was that Order XL, Rule 3 of the Supreme Court Rules allows for review petitions to be decided by “circulation” – i.e., in the chambers of the judges, without oral argument. The constitutionality of Order XL, Rule 3 had been challenged before a Constitution Bench of the Supreme Court in P.N. Eswara Iyer vs Registrar, Supreme Court of India. Krishna Iyer J., writing for the majority, upheld the provision dispensing with oral arguments for reviews. The present Court, being bound by the judgment in P.N. Eswara Iyer, carved out a specific exception for the death penalty, because of its Article 21 implications. It did so by invoking specific observations made by Krishna Iyer J, in that case, namely “…presentation can be written or oral, depending upon the justice of the situation“, and “…the problem really is to find out which class of cases may, without risk of injustice, be disposed of without oral presentation.” (para 40)

Nariman J., writing for the majority, went into the judicial history of Article 21 from A.K. Gopalan to Maneka Gandhi, via R.C. Cooper, before holding that:

“… death sentence cases… are a distinct category of cases altogether. Quite apart from Art.134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other.” (para 29)

And, soon after:

… when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and files a review petition, the necessity of oral hearing in such a review petition becomes an integral part of “reasonable procedure” [under Article 21].

In addition, rejected the petitioners’ arguments that the review bench strength be increased from three to five (para 39). Regrettably, the Court also affirmed the Triveniben holding, that “time taken in court proceedings [in this case, thirteen and a half years] cannot be taken into account to say that there is a delay which would convert a death sentence into one for life”, and went on to say that its oral hearing rule would not apply to already-dismissed curative petitions.

One of the interesting aspects of today’s judgment is its setting apart of death sentences from all other sentences that have an impact on personal liberty, for special treatment under Article 21. The Court does so on the twin basis of the irreversibility of a death sentence, and the fact that different judges come to different conclusions about awarding death. The second point, however, is something that is common to all sentencing. Clearly, therefore, it acquires special constitutional significance when it is combined with the fact of irreversibility. In other words, irreversibility is what makes the possibility of arbitrariness in death sentencing (as opposed to ordinary sentencing) particularly problematic, and hence the need for the procedural safeguards under Article 21.

Recall, however, that in Bachan Singh vs State of Punjab, the Constitutional challenge to S. 354(3) of the CrPC, which requires judges to give special reasons, in writing, on the award of the death penalty, was dismissed. The majority, in that case, held:

The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment… The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused… In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.”

In Bachan Singh, therefore, the Court considered differential judicial outcomes to be an integral part of criminal sentencing (thus discounting even the possibility of arbitrariness). Santosh Kumar Bariyar more or less departed from this position by subjecting the death penalty to rigorous Article 14 analysis, and proposing standards such as the principle of prudence (which have since been honoured more in the breach than in the observance). Today’s judgment extends the Bariyar line of argument by affirming that the death penalty is not like ordinary criminal sentencing, and must be subjected to exacting constitutional scrutiny. At least potentially, therefore, it leaves the field open for a future challenge that is based on a showing that the administration of the death penalty in India has become so arbitrary and unpredictable (that is, judicial minds are arriving at diametrically opposite conclusions, notwithstanding the same facts), that it is no longer possible for the punishment to survive, and simultaneously remain consistent with Article 14. Or, to put it another way, today’s judgment added a procedural safeguard (open court hearings) to the death penalty scheme, in order that it remain consistent with reasonable procedure under Article 21 — and in particular, to mitigate the potential arbitrariness of different judges arriving at different conclusions, an arbitrariness that becomes constitutionally problematic under Article 21 because of the irreversibility of the death penalty. This implies, of course, that different judges reaching different conclusions (without any discernible basis) is, contra Bachan Singh, which saw that as a praiseworthy aspect of judging, is actually problematic when it comes to the death penalty. Consequently, empirical studies demonstrating precisely that (whatever procedural safeguards there may be) might constitute a strong ground – sometime in the future – to challenge the prevalence of death penalty in India.

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