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)

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

(This is a guest post by Puneet Dinesh.)

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

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

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

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

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

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

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

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

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

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

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

III. Whether ‘proportionality’ is a constitutional standard?

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

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

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

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

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

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

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

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

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

 

 

 

Guest Post: Judicial Review and Proportionality of Punishment

(In the context of life sentences and even the death penalty being mooted for cow slaughter in some states, Jeydev C.S. examines whether the Indian Constitution requires proportionality in punishment)

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How far can the State go? It is a general proposition that duly enacted penal statutes can prescribe punishments for undesirable conduct. Recent political developments suggest that this legislative freedom may be taken further than ever before. From a constitutional standpoint though, it is far from clear if the state actually has untrammelled discretion in sentencing. For instance, can it execute someone for relatively minor offences like petty theft, or sentence a man to rigorous imprisonment for life if caught driving drunk? Screaming headlines and political ramifications aside, the underlying issue here is whether our Constitution can be concerned with proportionality of punishment while dealing with the legality of penal statutes. In this post, I posit that this specific legal question has been answered in the affirmative, considering the findings of leading case law of the Supreme Court of India while interpreting the text of the Constitution.

Article 21 provides that “No person shall be deprived of his life or person liberty except according to procedure established by law”. A perfunctory reading of this clause suggests that, as far as the state has, one, established a certain procedure through law; and two, such procedure is followed by the state while depriving a person of her life or personal liberty, then such an action of deprival by the state would be permissible. However, this has not meant that unchecked excesses by state agencies under the garb of procedural propriety have been condoned by the courts. In the case of Maneka Gandhi v. Union of India, the Supreme Court held that the “procedure established by law” must be just, fair, and reasonable so as to not be in violation of article 21. To put it another way, the Court read three non-textual pre-conditions into the nature of the administrative process, in the absence of which depriving actions of the state will be rendered unconstitutional. While arriving at this outcome, Chief Justice Beg particularly rejects the notion that articles 21 and 19 are independent compartments of rights; rather, they are available together (along with article 14, particularly with regard to reasonableness) when reviewing executive action. While Maneka Gandhi does much more in the realm of article 21 jurisprudence, this facilitative reading permits us to import certain relevant standards that have been laid out with respective to articles 19 and 14.

Article 19 of the Constitution primarily addresses the protection of certain rights (such as speech, assembly, association, movement, profession et cetera). These freedoms, as articulated in clause (1) are circumscribed by the limitations of clauses (2) through (6) – the common criterion of restriction under these clauses is that such restriction must be ‘reasonable’. While there have been many instances of the courts opining on the nature of what this actually entails, for our purposes, we may turn to the case of State of Madras v. V. G. Row. This case dealt with an action of the State of Madras (as it then was) whereby it declared a political organisation to be an unlawful association. In its opinion, the Court reaffirmed the reasoning of previous cases such as Dr. N. B. Khare v. State of Delhi, that article 19 restrictions must be substantially and procedurally reasonable, and that such reasonableness may be indicated by factors such as “the extent of the evil sought to be remedied”, “prevailing conditions”, and “disproportion of imposition”. Granted, Row only envisages this to be applicable to impediments imposed upon article 19 rights. However, Maneka Gandhi clearly expects a harmonious and combined reading of these standards which can help inform the contours of what may be reasonable for the purposes of article 21. Therefore, I contend that proportionality is a relevant consideration when reviewing law that deprives life or personal liberty.

In a similar tenor, I must now address article 14, which prohibits the state from denying to any person equality before the law or the equal protection of laws within India. Most famously, a constitutional bench of the Supreme Court held in E. P. Royappa v. State of Tamil Nadu that article 14 entails a prohibition on arbitrariness in state action. Drawing upon this precedent and Maneka Gandhi, the case of Mithu v. State of Punjab sought to apply the principle to a penal provision in a criminal statute. Section 303 of the Indian Penal Code, 1860, which provided for a mandatory minimum sentence of death for those who commit murder while serving a term of life imprisonment, was assailed against the combined significance of articles 14, 19, and 21. The Court struck section 303 down as unconstitutional, for such a sentence, which on no valid basis of classification discriminates between convicts and non-convicts, would be arbitrary – further, the automatic imposition of a sentence of death, which is expected to used sparingly per the judgment in Bachan Singh v. State of Punjab, would be disproportionately oppressive; for these reasons, the impugned section was held to be in violation of article 21. Chandrachud J illustrates the importance of a proportionality test for the purposes of sentencing – he notes that a savage sentence, such as amputation for theft, would run afoul of article 21; he actively adverts to the reliance upon article 19 standards of reasonableness to assess challenges under article 21. This further reinforces the importance of proportionality, which as we have noted, has been incorporated through Row.

It is true that a substantial bulk of Mithu dealt with the disproportionality parameter, in as much as a criminal statute took away sentencing discretion from courts during trial. However, perhaps the most forceful articulation of the need for proportionate punishment is seen in Vikram Singh v. Union of India. In this case, the appellants sought to challenge the constitutional validity of section 364A of the Indian Penal Code, 1860 on the grounds that it prescribed a sentence of death, thereby in violation of article 21, as clarified in Mithu. At the earliest, the Court sought to dissuade the notion of the appellants that section 364A amounted to a mandatory death sentence. As the provision itself reads, death is only one option before the trail court – it may also choose to impose a sentence of imprisonment for life. Therefore, this case is clearly distinguishable from Mithu as the mere option of death as a possible punishment for a crime does not violate article 21. Despite dismissing the instant appeal on this ground, Chief Justice Thakur addresses the general issue of proportionality. He opines that merely because courts are deferential to legislatures on matters of punishment, generally, does not mean that penalties that are “shockingly disproportionate” to the gravity of the underlying offence are immune from constitutional intervention.

The Court then proceeds to categorically import the principle of proportionality in punishment from foreign (particularly, North American) jurisprudence. In Weems v. United States, the Supreme Court of that country affirmed the proposition in favour of ‘graduated’ and ‘proportionate’ punishment, by finding grounding in the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishments. Similarly, cases like Enmund v. Florida, Coker v. Georgia, and Solem v. Helm have all held penal statutes to be in violation of the Eighth Amendment on account of being disproportionate to the gravity of the underlying offence. Chief Justice Thakur specifically cites the cases of Harmelin v. Michigan and Ewing v. California to be indicative of a prospective American standard, as culled from past jurisprudence – as far as there is a “reasonable basis for believing” the prescribed punishment “advances the goals” of criminal justice and was arrived at through a “rational legislative judgment”, such statutes may be deemed to be proportionate.

While affirmative reiterations of these principles exist throughout Vikram Singh, the most utility for our purposes in evaluating the Indian constitutional scheme may be derived from the enumeration of guiding considerations at paragraph 49 – first, the general principle is that punishment must be proportionate; second, that there exists a presumption that the legislature (unlike the courts) is best positioned to propose punishment; and third, that the courts must defer to its wisdom in this regard unless the prescription is outrageously disproportionate to the offence or so inhuman or brutal that it would be unacceptable by any standard of decency. This standard if further raised in cases where the prescription is one of death – the Court defers to the high standard of judicial care that is applied to the death penalty, in line with evolving jurisprudence on the issue, while also asserting that the likelihood of this punishment being deemed disproportionate is particularly high. I must reiterate however, that my quest here is to not comment on whether the death penalty is disproportionate in certain cases. Rather, it is whether any punishing statute (including, but not limited to the death penalty) is open for constitutional review on the grounds of proportionality.

It is altogether another matter that the Court in Vikram Singh chose to dismiss the appeal on the grounds that the impugned provision did not offend the aforementioned standard. Nonetheless, these principles undoubtedly constitute the ratio decidendi of this case. Being the leading Supreme Court judgment on this point, it shall be binding on courts throughout India. Hence, any criminal statute that prescribes punishment can be held against this test of proportionality; and if it is found to run afoul of this, that punishment may be declared by our constitutional courts to be ineffective on account of it being in violation of article 21. Whether the recent spate of amendments and legislative proposals merit such consideration is a question for another day.

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

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

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

Prologue

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

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

Reverse Onus and procedural due process

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

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

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

Collective fines and subjective satisfaction

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

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

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

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

Life, liberty and property

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

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

Proportionality and substantive due process

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

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

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

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

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

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

Epilogue

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

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

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

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Overview

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

The Opinion

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

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

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

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

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

Some Comments

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

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

Conclusion

 

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

Modern Dental College vs State of MP: The Supreme Court’s foray into proportionality and public goods

Earlier this week, a Constitution Bench of the Supreme Court handed down a unanimous judgment (with a majority and concurring opinion) in the case of Modern Dental College vs State of Madhya Pradesh. The Petitioner’s had challenged the constitutional validity of the ‘Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007′ [“the Act”], as well as the Admissions Rules, 2008 and the Madhya Pradesh Private Medical and Dental Post Graduate Courses Entrance Examination Rules, 2009, which were framed by the State Government in exercise of the power conferred upon it under the Act. Broadly speaking, the Act and Rules were framed to regulate private professional educational institutions. Among other things, they prescribed a compulsory common entrance examination administered by the government (Section 6), provisions for fee fixation by a government committee based on certain detailed criteria (Section 9), and for the reservation of seats. Before the Madhya Pradesh High Court, the petitioners’ primary contention was that the Act and Rules amounted to excessive interference in the autonomy of private educational institutions, and consequently, violated Article 19(1)(g) of the Constitution. The MP High Court rejected the petitioners’ arguments entirely, and upheld the validity of the Act and Rules. The High Court’s judgment was based upon the precedent in T.M.A. Pai, P.A. Inamdar, and subsequent cases, which had decided the extent to which the State could intervene into the functioning of private, unaided colleges.

Before the Supreme Court, the primary contention of the Petitioners was that “by the impugned legislation the State seeks to wipe out the choice available with the appellants institutions to devise their own admission procedure and the provisions of Section 6 read with Section 3(d) necessitate that the admission be carried out only on the basis of a CET to be conducted by the State Government or any agency appointed by it…  in addition, Section 9 of the Act provides for the Committee defined under Section 3(c) of the Act to ‘determine’ and ‘fix’ the fees to be charged by the appellants and thereby completely trample the rights of the appellants to determine and charge the fee…”, and that the provision of reservation violated the judgment of the Supreme Court in Ashoka Kumar Thakur’s Case. (paragraph 19) In other words, through the impugned Act and Rules, the State was effectively attempting to “take over the control of the affairs of the institutions” (paragraph 22), and that this could not be justified as a reasonable restriction under Article 19(6).

The petitioners’ arguments were rejected by the Supreme Court, which upheld the judgment of the High Court and the constitutional validity of the Act and Rules. The Court started by observing that “though education is now treated as an ‘occupation’ and, thus, has become a fundamental right guaranteed under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as ‘noble’. Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged.” (paragraph 30) Leaving aside for the moment the general merits of this view, effectively, the argument here seems to be that insofar as an educational institution is engaged in profiteering, it cannot invoke the protection of Article 19(1)(g) to start with. If this is the case, then there is no need to carry out an Article 19(6) analysis. This is precisely what the Court proceeds to do, however. Perhaps, then, a better way of understanding the issue (although the Court doesn’t put it this way) is that the prevention of profiteering is a weighty reason in support of the reasonableness of the restrictions placed upon the Article 19(1)(g) right.

Much of the analysis that follows is essentially a dense, textual reading of the T.M.A. Pai and Inamdar judgments, both of which bind the Court. There is, therefore, little profit in analysing the reasoning of this part of the judgment. Put briefly, the Court follows T.M.A. Pai in holding that the freedom of occupation of educational institutions under Article 19(1)(g) includes the freedom to admit, to set up a reasonable fee structure, to appoint staff, and to take action in cases of dereliction of duty (paragraph 33). T.M.A. Pai had then held that in the case of professional institutions, the admissions criteria must be “fair, transparent and non-exploitative” (paragraph 36), with the overriding consideration being merit. For this purpose, T.M.A. Pai had permitted the government to frame regulations (paragraph 37). Furthermore, P.A. Inamdar had held that the constitution of Committees for monitoring admissions and fee structure, in order to prevent exploitation, was constitutional (paragraph 42). Post-audit measures were insufficient for this task (paragraph 43).

Relying upon this precedent, the Court then considered the question of whether the impugned Act and Rules constituted reasonable restrictions under Article 19(6). In a rare instance of clarity and decisiveness when it came to Article 19, the Supreme Court expressly held that determining “reasonableness” required a proportionality enquiry. There is nothing especially novel or original here. As far as State of Madras vs V.G. Row, the Supreme Court had effectively read proportionality into the reasonableness requirement under Article 19(6):

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

In the intervening years, however, the Court has rarely fleshed out the contours of this test. The nadir of its Article 19(2) – (6) jurisprudence was undoubtedly Society for Un-Aided Private Schools vs Union of India,  where the Supreme Court upheld the RtE’s compulsory requirement that private schools admit students from under-privileged backgrounds to the extent of 25% of their strength, without even an attempt to analyse the restriction in the context of reasonableness under Article 19(6). At the very least, therefore, in its present judgment, the Supreme Court did well by bringing proportionality back upon the centre-stage of an Article 19(1)(g)-19(6) analysis:

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

The Court then went into a detailed survey of proportionality jurisprudence in other countries (paragraph 53 – 59), before endorsing the test in the context of Indian Article 19 jurisprudence.

Unfortunately, however, after laying out the test with admirable clarity, the Court failed to apply it to the present case. In paragraph 61, it noted:

“We are of the view that the larger public interest warrants such a measure. Having regard to the malpractices which are noticed in the CET conducted by such private institutions themselves, for which plethora of material is produced, it is, undoubtedly, in the larger interest and welfare of the students community to promote merit, add excellence and curb malpractices. The extent of restriction has to be viewed keeping in view all these factors and, therefore, we feel that the impugned provisions which may amount to ‘restrictions’ on the right of the appellants to carry on their ‘occupation’, are clearly ‘reasonable’ and satisfied the test of proportionality.”

This, however, is merely an assertion. Proportionality would require the Court to actively consider alternative options, and ask whether they were adequate to meet the goal of ensuring “fair, transparent, and non exploitative” procedures. For instance, the Court ought to have given cogent reasons as to why a post-admission audit (which infringes Article 19(1)(g) to a significantly lesser extent) was not adequate. The mere fact of prevailing exploitation and other malpractices was not enough to justify the particular State action in the present case, which – admittedly – constituted far-reaching interference with the autonomy of private educational institutions. The same problem plagues the Court’s analysis of fee-fixation: the Court rejected post-audit measures without explaining why – something that was not open to it if it was faithfully applying a proportionality test. (paragraph 73) Admittedly, the Court did make an attempt to do so in Paragraph 88, where it referred to numerous irregularities in privately-conducted entrance tests, and pointed to the greater accountability of State-administered ones (an assertion which, itself, would be open to doubt). This, however, is certainly not enough to reach such a strong conclusion about the reasonableness of the restriction.

This should not be taken to mean that the Supreme Court was necessarily incorrect. However, its application of the proportionality standard was certainly insufficient, since the whole purpose of that standard is a careful sifting of evidence, so as to ensure that restrictions are proportionate, and that if the same goal could be achieved by a different route, that did not infringe upon rights to the same extent, then it is the responsibility of the State to choose that route.

In addition to the discussion of proportionality, there is another significant aspect of this judgment that is worth noting. In paragraph 83, the Court observed:

“Thus, when there can be Regulators which can fix the charges for telecom companies in respect of various services that such companies provide to the consumers; when Regulators can fix the premium and other charges which the insurance companies are supposed to receive from the persons who are insured, when Regulators can fix the rates at which the producer of electricity is to supply the electricity to the distributors, we fail to understand as to why there cannot be a regulatory mechanism when it comes to education which is not treated as purely economic activity but welfare activity aimed at achieving more egalitarian and prosperous society by empowering the people of this country by educating them. In the field of the education, therefore, this constitutional goal remains pivotal which makes it distinct and special in contradistinction with other economic activities as the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human resource which would contribute to the socie-economic and political upliftment of the nation.”

This is crucial, because the justification for regulation under Article 19(6) has gone from the “charitable nature” of education, to education as a public utility. The latter is a far more defensible basis for regulation. The charitable activity argument, which has plagued the Court for quite a few decades, is little more than an imposition of the Court’s personal morality upon unwilling education providers, and entirely at war with reality. Education’s public function, however, is independent of the subjective intention with which providers engage in the business, and is also a constitutional basis for regulation. We can surely hope that the Courts will, after this, gradually abandon the no-profiteering-because-charitable-activity view of education, and move to a conceptual framework that places issues of public good and access at the heart of the enquiry.

Consequently, while parts of the reasoning of the Court’s judgment are open to serious question, there are two important things that the judgment does. First, it places proportionality at the centre of the “reasonableness” enquiry, and lays the groundwork for the future development of jurisprudence along these lines. And secondly, it initiates a shift in the discourse from the charitable character of education, to its role as a public utility. It remains to be seen whether either of these developments will have an impact in the coming years.