Guest Post: Attachment of Property, Freezing Orders, and PMLA Investigations: The Need for Reasonable Exclusions

[This is a guest post by Abhinav Sekhri, first published on the Proof of Guilt Blog.]


In almost any prosecution, the property used to commit a crime becomes case property (a murder weapon). In some kinds of prosecutions, this extends to locking down the site of criminal acts (a brothel or a gaming house). There are also other prosecutions, such as those for money laundering, where a major focus is on identifying the property generated from criminal acts (flat bought by public servant from bribe money).

Countries across the world take the view that for effective deterrence of crime, law enforcement must also have powers to take away the proceeds of crime besides prosecuting the criminal act itself. In India, this translates into empowering law enforcement agencies with ability to pass orders for attachment / freezing of assets, to restrain anyone from altering / transferring property that is identified as part of the proceeds of crime. The pre-eminent example of this attachment / freezing order regime in India is the Prevention of Money Laundering Act 2002 [“PMLA”].

Broad Powers 

Currently, Section 5 of the PMLA confers upon investigating officers a power to provisionally (for upto 6 months) attach property which is believed to be “proceeds of crime” [Or property that is “involved in money laundering”, which may or may not be understood to mean a different thing]. To appreciate the breadth of this power, take a look at how Section 2(u) of the PMLA defines the phrase “proceeds of crime”:

“Proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

Explanation. — For the removal of doubts, it is hereby clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;

 

Keeping aside the fact that the exact scope of this definition is still uncertain even to courts and is almost infinitely broad, there are two key takeaways from the definition: (i) Proceeds of crime can either be the actual property obtained through criminal activity or its value; (ii) The criminal activity itself need only be relatable to a scheduled offence [the list of predicate offences which allow invoking the PMLA].

What we have, then, is a power conferred upon investigating officers to take away almost any asset or property that they can show as having links to the alleged acts of criminality in a case. For example, it means the agency can issue warrants of attachment of a house, as the accused would have invested some money in building / buying the house which will be shown to bear a link to the alleged acts of criminality that are connected to the scheduled offence. And where the property itself is not identifiable, then it would probably trigger an attachment order qua certain amounts lodged in bank accounts.

Safeguards

The breadth of provisional attachment powers under the PMLA necessitates the existence of some legal safeguards to prevent undue hardship at the hands of executive officers. Enter, the three-step logic of the PMLA. The argument, essentially, is that the PMLA contains a multi-level system of safeguards to prevent abuse:

  1. First level — Provisional Attachment: Provisional attachment orders are time-barred and can only be issued if there are “reasons to believe” that property is the proceeds of crime / involved in money laundering. These reasons must be in writing. Further, such orders cannot interfere with enjoyment of immovable property;
  2. Second level — Confirmation: Within thirty days of issuing a provisional attachment order, a complaint must be sent to the Adjudicating Authority which then decides whether or not to confirm the provisional order. This is an independent tribunal which operates totally separately from the criminal court. At this stage, everyone interested in the property has the chance to make their case to show why it shouldn’t be attached, and a reasoned order must be passed by the Authority to justify its conclusions. This process is, again, time-bound.
  3. Third level — Appeal: A right of statutory appeal before an Appellate Tribunal for Money Laundering exists for all persons aggrieved by the orders of the Adjudicating Authority.

In almost any writ petition challenging attachment orders, this is a standard response on behalf of the law enforcement agencies to argue that the matter should remain within the PMLA system and not be taken up by the court.

The Need for Reasonable Exclusions

The three-step logic of the PMLA does offer some safeguards, in theory at least. But even so, this setup has critical design flaws.

The broad attachment powers of the PMLA exist in a system where eventual confiscation of the proceeds of crime requires a prior criminal conviction for money laundering offences. Therefore, almost every attachment order will likely subsist for the several years that it takes for any prosecution to complete. It also means that once a person fails to secure any relief through the three-step PMLA process, she will not be entitled to any enjoyment of her own property.

While this might not be a problem for small, replaceable items, such as a watch or a laptop, it becomes an unimaginable problem where the property is a house. Or, far worse, is the situation where the property attached is money lying in bank accounts. Here, the three-step safeguards come to nought as all access to the property is gone the moment a provisional attachment order is passed. What this means, then, is that a person is rendered penniless, and crippled in her ability to sustain the long legal battle required to prove her case first before the tribunals and then later in the criminal trial.

This is not the only drastic scenario that I can imagine. Consider, for instance, a case where money in bank accounts is attached as the actual proceeds of crime have since been sold. But now, these monies are held in the accounts of a company that has nothing to do with any money laundering allegation and offers gainful employment to hundreds of people.

These routine examples from the world of PMLA prosecutions show just how unfair this legal regime is.  It is also squarely unconstitutional. This complete deprivation of property by passing attachment orders for the entire asset is by no means a reasonable or proportionate manner to secure state interests. If anything, it is a classic case of pursuing state interests by trampling upon the most basic rights of affected persons.

A way to make this regime more palatable would be to start recognising reasonable exclusions from the scope of any attachment orders. For instance, allowing persons to remain in possession upon payment of rent; or allowing certain limited withdrawals to continue running a business and paying salaries; or paying lawyers’ fees. These are not revolutionary ideas and are in fact already part of the law in other countries [See, e.g.Section 303Z5 of the U.K. Proceeds of Crime Act, 2002; Luis v. United States, 136 S. Ct. 1083]. By engrafting a process of recognising reasonable exclusions within the PMLA statutory framework — at the stage of provisional attachment orders for movable property and at the confirmation stage for immovable property — the core fairness and proportionality concerns would be answered to some extent. Moreover, it would also help save judicial time, as currently such reliefs are sought either through writ proceedings in High Courts or through interim orders before the Appellate Tribunal.

Conclusions

The PMLA has not been a statute shy of legislative tinkering. Often, this has been a response to some or the other gaps being pointed out in the scheme of the Act. The absence of any reasonable exclusions from the attachment regime is as big a gap as there can be. It leads to a disproportionate deprivation of the basic rights (and needs) of innocent persons, and also wastes valuable judicial time and effort. Ergo, a happy ending? Remember, it is the hope that kills you.

Guest Post: Acquitted but not yet Free – the Constitutionality of Section 437-A Cr.P.C.

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

The Criminal Procedure Code 1973 [Cr.P.C.] was subjected to significant amendments in 2009. The law on arrest was drastically altered following Supreme Court admonition, and victims were given a real foothold in the criminal process for the first time. Amidst all this, a provision was added to the section on Bail in the Cr.P.C.: Section 437-A. What does it say?

Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months [Section 437-A(1)]

Through this post, I will try and convince the reader that Section 437-A Cr.P.C. is unconstitutional. The post first cursorily explains the concept of bail and engages with the problematic consequences flowing from the text of Section 437-A. It then discusses the origins of the provision, before moving on to argue that it is contrary to Articles 14, 19, and 21. The last section considers that there are two options, reading down Section 437-A or striking it down completely, and I support the latter course.

Understanding Bail and the Text of 437-A
One often comes across “bail” in context of criminal trials and investigations. What does this mean? In such scenarios (and others), where a person is in the crosshairs of the legal system, the law wants to ensure that legal proceedings are not frustrated by persons fleeing the jurisdiction. An obvious way to address this is to arrest everyone. But that is hardly proportionate to the needs of law enforcement and is far too heavy a strain on State resources.

Bail is the answer to this problem. The person is notionally still in the custody of the court and not at liberty, but is not actually in fetters. Note, that as the law would always need a guarantee of personal appearance, all defendants once in the crosshairs of the system are either on bail or in custody. How does it ensure appearance when required? By imposing certain conditions while releasing the person, chief among which is a requirement to appear in court or before the police. Non-compliance with the conditions is met by the threat of arrest, often along with a threat of imposing financial consequences such as forfeiture of property to the State. The financial threat often extends to other persons called “sureties”, who are thus incentivised to ensure the defendant does not flee.

Now, consider the text of Section 437-A Cr.P.C. It is very broad: the court shall require bail bonds, with sureties, before conclusion of trial and disposal of appeal. This throws up a bunch of questions. First, does it mean that the court will not proceed with the trial or appeal before getting such bail bonds? Second, if the court does proceed with the trial / appeal and finds the defendant innocent, would she then remain in custody if she cannot find sureties or comply with the other conditions imposed for bail?

Section 437-A Cr.P.C. allows for both of these eventualities. And it is for this reason that the High Courts of BombayAllahabad, and Himachal Pradesh have clarified that courts within their jurisdiction must not apply the provision in a way that causes either of these results to follow. There will be some states that I have missed, but I am certain that there are many others where no such clarification exists today. Nor has any guidance been issued by the Supreme Court, and so, it is very possible that both of these problematic outcomes are being seen across the country. From here on, this post will focus on the second of the two outcomes: the continued detention of persons acquitted of all charges for their failure to post adequate bail bonds.

The Genesis and Object of Section 437-A
I mentioned that the guidelines issued by certain High Courts curbed certain uses of Section 437-A Cr.P.C. but have not yet explained how they wanted the provision to be applied. The Courts suggested that the provision is a means to ensure that an acquitted person is available to contest any eventual appeal by the State, and so the bail bonds should only be required at the end of a trial before judgment. They also suggest that bail might be given without sureties if an acquitted person cannot find sureties.

The history of Section 437-A supports this reading. Before it was added to the Cr.P.C. in 2009, the only other provision dealing with a need to detain persons pending an appeal against acquittal was Section 390 Cr.P.C. This empowers the appellate court to detain persons pending an appeal against acquittal, if it is convinced that of the threat of them evading the legal process. But in this scheme there still exists a period between the acquittal and appeal when a scheming defendant could still flee and frustrate the State’s appeal. Taking note of this (and abortive attempts by the Gujarat High Court to fill the gap) the Law Commission in Report No. 154 of 1996 recommended insertion of a Section 437-A Cr.P.C. Why? It said that the Cr.P.C. was “silent on the point of securing attendance” during an appeal, and there had been instances where appeals against acquittals were delayed or dismissed due to this failure in securing attendance.

Two problems are immediately apparent here. First, the Law Commission said that the Cr.P.C. was “silent” on securing attendance for appeals but did not even look at Section 390 Cr.P.C. which did cater to this need, albeit differently. Second, the bogey of appeals against acquittals being dismissed was raised without any empirical data about how many such dismissals happened and why. For instance, if the prosecution filed an appeal years after acquittal (as it often does) and then failed to find the original defendant, then it is rather unreasonable to claim that a person fled or frustrated the appeal and piggyback on the dismissal of the appeal to create a perceived need for Section 437-A

Importantly, the Law Commission acknowledged that this measure might be challenged under Article 21 of the Constitution. Its basis for concluding that the proposal was constitutional was simple: the Cr.P.C. allowed appeals against acquittals, and so seeking bail bonds till the limitation period for filing an appeal subsisted was not a “restraint” on personal freedom. Further, proposed Section 437-A was eminently reasonable where it involved no “restriction of liberty or his freedom of movement”.

When Section 437-A Cr.P.C. was ultimately passed by Parliament, there were two big changes from the suggested draft in Report No. 154. The final version of Section 437-A said that a court shall require bonds while the draft version did not make it a mandatory requirement. At the same time, the final version only needed the bail bonds for six months, down from the one year period that the Law Commission had suggested.

Unconstitutional Fetters on Personal Liberty
Practically, Section 437-A Cr.P.C. does not make much of a difference to defendants already out on bail during trial. In such situations, it is easy to extend the period of that bail bond for six months after acquittal by changing the form of the bail bond. But Section 437-A works very differently for those defendants who are in actual custody, unable to post bail by finding sureties or complying with any financial conditions that a court might impose. It is only for these persons that the two scenarios highlighted earlier – delayed trial and delayed effect of acquittal – are possibly realised.

On the face of it, Section 437-A Cr.P.C. though seemingly neutral, is very selective in its impact and discriminates against one class of persons. The classification that it effects is purely built on levers of wealth, influence, and privilege, rather than pursuit of the object behind Section 437-A (perhaps they indirectly affect that object, at best). The effect of this discrimination is to deprive such persons of their right to life under Article 21 of the Constitution, by not only possibly denying a trial itself, but more importantly, by not allowing them to enjoy the liberty that is the natural concomitant of an acquittal. Thus, Section 437-A in its present form offends the equality guarantee of Article 14.

Actual confinement of a citizen after acquittal obviously curtails the freedom of movement that she is guaranteed under Article 19(1)(d). But both the legal and actual fetters on personal liberty curtail the fundamental right that Article 21 protects. Which means we must consider whether Section 437-A Cr.P.C. is protected by the tests governing restrictions of these fundamental rights.

Section 437-A Cr.P.C. contains no sense of proportionality. It does not require the State to satisfy a court that an acquitted persons might possibly flee to avoid the appeal. Nor does it require the State to show that a person, if immediately released, will pose a threat to public safety. Instead, the provision demands every acquitted person to remain in custody of the court despite till the State can make up its mind about pursuing an appeal. Thus, the rights under Articles 19(1)(d) and 21 are rendered subservient to administrative convenience, pure and simple. And this after a person is declared “not guilty”, after a full-length trial or appeal.

Reading Down vs. Striking Down
No wonder those High Courts which have recommended that personal bonds be taken are effectively reading down the text of the provision (supported in this paper too, which discusses other issues with the provision). The constitutional problems in giving Section 437-A Cr.P.C. its fullest expression are obvious, and even the Law Commission in 2017 also suggested a relook is now necessary. But here, I argue that reading down cannot save the provision and it must be struck down altogether.

First, a question of means. Saving Section 437-A Cr.P.C. does not involve merely filling in gaps or creatively interpreting the text. It involves actively re-writing it, and that is something courts cannot do. The requirement that a court “shall” take bonds with sureties will be re-written as something it “may” do. Further, the scope of discretion is altered not to allow a court to forego the demand for bail bonds altogether, but to insert the words “personal bond” in Section 437-A to change the kind of bail bonds that are required.

But far more important is the question of principles. Section 437-A Cr.P.C. must be struck down for it automatically breaks the link between a judgment of acquittal and its legal effects, in the absence of any appeal preferred by the State. This is perhaps the most problematic part of the provision At one level, it creates a conflict within the Cr.P.C. Today, Section 354(1)(d) Cr.P.C. still states that a judgment of acquittal requires that a court direct the person be set at liberty. Without amending what it means to be acquitted directly, the legislature has indirectly rendered all acquittals subject to a condition of complying with Section 437-A. Can the legislature indirectly alter the very meaning of an acquittal at all stages within our criminal justice system in this indirect fashion? No, it cannot. Because this link between a judgment of acquittal and being set at liberty is protected through Article 21 itself. It cannot be severed, and certainly not to cater to administrative convenience.

Conclusions
Perhaps I am “fetishising” what an acquittal means – after all, it is not final till confirmed in appeal. But that finality is in respect of an acquittal being legally unassailable. It does not make the effects of an acquittal automatically contingent upon the possibility of appeal proceedings. Rather, not treating an acquittal as final allows an appellate court to delay giving it effect. This delay can only occur after giving a full hearing to both sides. Any other position would deprive the verdict of a lower court of all sanctity lest it be confirmed in appeal. Moreover, it would mean that persons are condemned from the date of arrest till their case is resolved by the highestappellate court, and continue to suffer all the collateral consequences of criminal convictions for this unconscionably long period of time as well.

This is why the remedy provided by Section 390 Cr.P.C. makes sense. The state can seek detention of the acquitted person pending appeal if it can show that it is necessary, but the default is still that a person remains at liberty. Moreover, an appeal having been filed gave the court proper jurisdiction to hold someone in custody. What if, after some empirical study, it is found that something like Section 437-A is necessary to prevent persons from fleeing and frustrating appeals? Then, a hearing similar to that under Section 390 is the answer, not a position that changes the default position. If the trial court / appellate court is satisfied of a need to detain after having heard both sides it could pass appropriate orders, with the denial of liberty narrowly tailored to account for how long the State might take to file an appeal rather than simply hold persons in custody for fixed periods.

Under no situation is Section 437-A Cr.P.C. the answer. Parliament cannot pass statutes that deem an entire population to be a suspect class for administrative convenience, even after a court of proper jurisdiction has pronounced them innocent. If this is so, then the guarantee under Article 21 might soon be no better than a fig leaf.

Guest Post: Navtej Johar v Union of India – What Remains of Section 377?

(This is a guest post by Vanshaj Jain.

Editor’s Note: The intersection between Sections 375 and 377, which constitutes the principal argument of this essay, has been examined by John Sebastian before the judgment in Navtej Johar, available here).

That consensual sex between adults lies outside the scope of s.377 is now certain, per Navtej Singh Johar. What remains within the confines of the provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth.

Sections 375 and 377 were originally intended to cover two mutually exclusive categories of sexual acts. While s.375 covered “sexual intercourse”, s.377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of s.377 was defined in opposition to s.375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ in s.375 was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature under s.377. Thus defined, the relationship between the two provisions could be conceived as follows:

Vanshaj1

However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of s.377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the section ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to s.375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of ss.375 and 377 under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict s.375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing s.377 and abolishing the ‘sexual intercourse’/‘carnal intercourse against the order of nature’ division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows:

Vanshaj2

It is this change in the conceptual interdependence of ss.375 and 377 that the Court seems to gloss over in Navtej Singh Johar. The opinions in Navtej erroneously presume that s.375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of s.377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended s.375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that:

…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implies that consensual non-traditional male-on-female sex is legal because it displaces such acts from s.377 to s.375, the latter having a consent requirement. As is argued above, the language of amended s.375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered both by s.377 and s.375 (under the phrase “sexual acts” added by the amendment).

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalizing all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance:

…the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution.

The basis for this conclusion is never made clear in the opinions in Navtej, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is strange to reason that merely because the actus reus of one provision (here: s.375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalized under any other provision (here: s.377), even if it falls within its definitional parameters. This seems patently incorrect.

The second concern with the manner in which the decision addresses s.377 relates to the phrase ‘carnal intercourse against the order of nature’. The concurring opinions indicate that this phrase lacks clear content:

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. [CJI]

At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid. [Chandrachud J.]

…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.]

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of s.377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither.

Instead, the Court reformulates the content of s.377 as follows:

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI]

 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of s.377 uncertain. It could, potentially, be conceived of in three possible ways:

Vanshaj3

Vanshaj4

Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, s.377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by s.375 – this reinterpretation could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability under s.377.

Option B indicates that s.375 and s.377 are not watertight categories; whereas s.375 criminalizes non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), s.377 covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for ss.375 and 377 to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act has shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that, both under Options B and C, s.377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under s.377, by virtue of this decision it now carries no sanction (due to the gendered nature of s.375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under s.377.

In conclusion, the normative content of s.377 is uncertain, and will, in all likelihood, require further clarification. What is clear, however, is that the judgment unfortunately glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.

Guest Post: Delhi HC Decriminalises Begging – An Outlier or the Start of Nationwide Reform?

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


Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 [“anti-begging law”]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, “Harsh Mander”]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional.

The Crime of Begging and its Punishment

Before going forward, let’s take note of what was being criminalised. Begging. The statute defined it as “having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms.” It also defined it as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale.” [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence.

The state saw the main problem being addressed through the law as one of organised crime – rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who “looked” poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case

The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg “ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction.”

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as “raising his front paws” rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21.

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions “manifestly arbitrary” and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to “ascertain the cause of poverty” is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the “contours” of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons “compelled” to beg is in the “teeth of Article 21” [Paragraph 33]. The Court also claimed another reason for reading down these provisions – the wastage of public funds as Certified Institutions were lying unused [Paragraph 39].

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government – both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising “specific types of forced beggary” and for curbing the “racket of forced begging” might survive constitutional scrutiny [Paragraphs 36, 46].

Conclusions

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed with which the verdict was delivered (the judgment was reserved on August 7), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court’s decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.

 

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere. I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply “technicalities of procedure.” They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent. For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard  (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.

 

 

 

 

 

Guest Post: Secret Laws and Retrospective Punishment – on the Unconstitutionality of the Official Secrets Act

(Previously on this blog, we have looked at the intersection between the Constitution, and criminal procedure. In this guest post, Abhinav Sekhri examines how the Official Secrets Act is constitutionally suspect by enabling the possibility of retrospective creation of offences. The post first appeared here, on the Proof of Guilt blog, and has been cross-posted with permission.)

Very little intelligent discussion happens concerning the Official Secrets Act [OSA] in India. You could say this lack of discussion is by design, and means the law is doing its job. Perhaps it is. What it also does is perpetuate a culture of secrecy surrounding decision-making by officials. With an increasing intensity surrounding the freedom of information movement, there was a spurt in questions being raised in the Rajya Sabha (see hereherehere and here. I am certain it was discussed in the Lok Sabha as well) about the Official Secrets Act. The tenor of government’s responses seemed consistently non-committal but implying that change is mooted. But this seems to have changed as momentum stilled (see here, and here). In the meanwhile, we had the Right to Information Act bringing its overriding clauses, and the 2nd Administrative Reforms Commission recommending a repeal of the statute altogether. Obviously, that didn’t happen. This post takes up the argument that the criminalisation under the OSA is unconstitutional.
 
Context
The OSA is acknowledged to be a British legacy, dating back to 1923 (earlier variants existed as well). The statute’s context belie the imposing title. The phrase “official secrets” does not find any definition or mention; the law primarily attends to cases of espionage by using broad definitions of the potentially sensitive information involved. Offences are not designed simply, stating that one who steals “official secrets” shall be punished. Offences (such as Section 3), require individuals to act “prejudicial to the interests” of India, and these acts must be the unauthorised acquisition or dissemination of “secret official code, or password, or any sketch, plan, model or other information” that is useful to the enemy and/or prejudicial to India’s interests. Cases can only begin on a complaint by the authorised officer, and a sanction to prosecute the official must be granted before cognizance can be taken.
The Issue of Knowledge
Two questions become important here, (i) how do persons know that a a code or sketch, plan model etc is potentially useful to the enemy or affects the security and interests of India and  (ii) does it matter whether they know or not? Dealing with the second issue first, all hints point to a position of law that disregards the need for an accused to have knowledge. I argue this on the basis of the two primary offences, Sections 3 and 5. Section 3 was mentioned above, and sub-section (2) therein supports my claims. It allows a conviction simply on the basis of the ‘conduct or known character’ of the accused and allows the court to dispense with a need to specifically prove that the person had some prejudicial purpose. Not only does this go against the basic tenets of treating character evidence (which has been blogged about earlier), but in a unique manner disregards both actus reus and mens rea requirements. Nifty.
Section 3 is prefaced by a mental element (the acts must be “with a purpose prejudicial to the safety or interests of the State“), regardless of how it is rendered nugatory. Section 5 contains no such preface and so makes the knowledge issue more potent. It has three sub-sections, out of which only Section 5(2) uses the words “knowing or have reasonable ground to believe“. Does that mean the other offences do not require any knowledge element? A Constitution Bench of the Supreme Court approves of this logic (seeRanjit Udeshi v. State of Maharashtra, AIR 1964 SC 881). It is nobody’s case that the accused is unconsciously in possession of the documents – possession is conscious. But does the accused need to know that the documents were, to wit, “likely to assist, directly or indirectly, an enemy“?
The statute clearly suggests that knowledge is not essential, nor is lack of knowledge a defence. Interestingly, the U.K. repealed its old statute (contemporary to ours) to insert lack of knowledge as a defence (UK Official Secrets Act, 1989). Thus it is a defence if the person did not know, or did not have reasonable cause to believe, that the material concerned was such that its disclosure was prohibited. This is not unconstitutional strictly speaking, but goes against a the basics of criminal theory that one could argue are part of substantive due process.
(Ed. Interestingly, in a judgment handed down yesterday, the Court of Appeals in the UK held that without an intent requirement as part of the definition of terrorism, the UK Terrorism Act was incompatible with human rights)
Classification and Clearer Unconstitutionality
I’m not a fan of the Article 21 is omnipotent school, and so try and make my case on clearer grounds by answering the first question I posed. The question was how do persons know whether documents are state secrets when the document hasn’t got TOP SECRET on its face. The answer exists, and is in the form of a Ministry of Home Affairs Manual on Departmental Security Instructions. After the RTI a request was made for disclosure of this Manual. This was denied by the Ministry, and contested right up to the Central Information Commission. The Commission upheld that decision to deny disclosure, reasoning that making the classification public would prejudice the safety of the state.
Since nobody but the State knows whether something was secret, and holding secrets is an offence, what stops the State from deciding something is secret after it goes public? Take an example. A journalist, X, gets his hands on a non-public pending legislative bill potentially legalising marijuana and makes it public. The Police arrest X, suspecting him of having secret information, and ask the Government whether such non-public legislative bills form information of the kinds barred by the OSA. Here is the problem. (A) Since I cannot know if the information I have is potentially secret, any determination made now is ex-post-facto and illegal. (B) Since nobody knows what information is secret, nothing stops the State from deciding how to treat papers ex-post-facto, rendering any offences which follow unconstitutional under Article 20(1).
(Ed. There are two issues here. One is the question of whether a secret law, by virtue of being secret, violates Article 20(1), since it enables the State to make (secret) changes to it after the commission of any act, by which that act can be criminalised. Now, it is well-established that the possibility of abuse under an Act is no ground for the Court to hold that the Act is unconstitutional. However, those cases are premised upon the assumption that you can go to Court against the abuse itself, and obtain a remedy. In case of a secret law, there’s no way of even knowing when abuse has taken place, in the form of a post facto modification of the secret law. In such a scenario, it would appear that the logic in Romesh Thappar’s Case – i.e., that a law that enables unconstitutional action is itself unconstitutional – is more apposite.
It seems to me, though, that a better argument would be to invoke vagueness. In Kartar Singh, and then in Shreya Singhal, the Court held that vagueness is a ground for striking down legislation, primarily because it does not allow people to plan their affairs in a manner so that the can comply with the law, and in the case of free speech, casts a chilling effect. A secret law is the vanishing point of vagueness – it’s the point at which you literally don’t know what’s legal or illegal. In such a situation, vagueness should be invoked to strike down the law.)
What’s the Point?
India, along with South Africa, remains the only prominent erstwhile colony to have not reworked its secrecy law in the wake of the freedom of information movement. The point, therefore, is that such a blanket secrecy law curbs journalistic expression and is fundamentally anti-democratic. The arbitrary noose of the OSA may be brought upon any unwitting reporter, making her think thrice about writing that story on Naxal rebels in the heartlands. This is an old, overused point, but it seems silly that we’ve retained a British law that Britain comprehensively repealed. They even make the classification public. If nothing else, Section 5 must go.
(Abhinav Sekhri is a Delhi-based advocate)