At the stage of triggering, in Kartar Singh, the Court upheld the power granted to the government to ‘declare’ an entire area as an ‘affected area’, to which the provisions of the Act would apply. It upheld a similar provision (with minimal judicial scrutiny for exceptional situations) in Naga People’s Movement for Human Rights v. Union of India, which challenged the constitutional validity of the Armed Forces Special Powers Act.73 Then, at the stage of implementation, in Kartar Singh, the Court upheld a provision that allowed confessional statements to be taken by ‘executive magistrates’, who were nominees of the central government, instead of ‘judicial magistrates’ (trained judges).74 The Court made the highly circular argument that because executive magistrates were given judicial functions to perform, they were ‘holding judicial office’.
Similarly, in Naga People’s Movement for Human Rights, the Court adopted the army’s own ‘List of Dos and Don’ts’ for soldiers exercising force under the Armed Forces (Special Powers) Acts (AFSPA) as ‘binding’, and went one step further—not only allowing executive supremacy under the regime of the state of exception, but effectively endorsing military supremacy. And finally, at the stage of accountability, in response to documented evidence of police abuses that were enabled by the legal regime established by the TADA, the Court’s response in Kartar Singh was that it was ‘heart-rending to note’ all of this, and it advised the enforcing authorities to ‘keep in view’ the considerations of dignity and equal rights, lest the Court be forced to exercise its ‘majestic judicial authority’.75 Similarly, while examining and upholding the impunity granted to the military by the AFSPA, the Court observed that a complaint about misuse or abuse of power ‘should be thoroughly enquired into … and the victim should be compensated by the State … and sanction should be granted to prosecute’.76 Here, the Court’s role was reduced to that of a concerned bystander doling out gratuitous and unenforceable advice.
It should now be clear how the judgements of the Supreme Court in Kartar Sigh (TADA), PUCL (POTA) and Naga People’s Movement (AFSPA) replicated the core logic of ADM Jabalpur: the executive remained supreme not only with respect to the decision to trigger a state of exception, but also with respect to what rights were permitted or prohibited to individuals living under that legal regime. And this executive supremacy, in turn, was justified not by turning to the Constitution, but to the unique, exceptional characteristics of the state of exception itself, characteristics that could only be truly understood and assessed by … the executive.
B. Denial of Remedies
At the heart of the Emergency regime was the suspension of the right to approach the courts to seek remedy for abusive State action. In the post-Emergency terrorism legislation, this defining feature was replicated in a slightly different form. Under the TADA and its successors, the POTA and the amended Unlawful Activities Prevention Act (UAPA), and a host of other ‘special laws’ dealing with organized crime and drug-peddling (among other things),77 a Court is not permitted to release an accused on bail unless it feels that there are reasonable grounds for believing that he has not committed the offence (and will not commit an offence if released on bail).78 In Kartar Singh, it was argued that this provision (a holdover from the Defence of India Rules of 1971) effectively made the grant of bail impossible, because it required criminal defence lawyers to disprove the prosecution’s case without the chance to put it to critical scrutiny in a trial, i.e., without the benefit of leading evidence and cross-examining opposing witnesses. The only way in which bail could be won was if the prosecution’s own case was riddled with tangible contradictions and infirmities even before it went to trial. It was, therefore, argued in Kartar Singh that the bail provision of TADA effectively reversed the foundational criminal law principle of ‘innocent until proven guilty’.79 However, the Court upheld the provision by employing the ‘larger public interest’ rhetoric of ADM Jabalpur:
… the courts while dispensing justice in cases … under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim … and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration …80
The upshot of this interpretation has been devastating. It is now a standard feature of terror trials that the accused remain in prison for over a decade, unable to get bail, while the trial progresses. In at least three high-profile cases between 2015 and 2017, the accused were acquitted after periods of seven, twelve, and fourteen years in prison. These statutes’ bail provisions, therefore, accomplish through the back door what preventive detention laws and Emergency provisions accomplished directly—long-term deprivation of personal liberty without a finding of guilt, by choking off the remedies ordinarily available under criminal law.
C. The Jurisdiction of Suspicion
In at least three distinct ways, the post-Emergency terror statutes replicate the jurisdiction of suspicion. The first is the power of the State to ban ‘terrorist organizations’. In PUCL v. Union of India, it was argued that the absence of a pre-decisional hearing before banning organizations under the POTA was unconstitutional, since it violated Article 19(1)(c)’s guarantee of the freedom of association. The Court’s response to this was curious:
Under Article 19(4) of the Constitution the State can impose reasonable restrictions, inter alia, in the interest of sovereignty and integrity of the country. POTA is enacted to protect sovereignty and integrity of India from the menace of terrorism. Imposing restrictions under Article 19(4) of the Constitution also includes declaring an organization as a terrorist organization as provided under POTA. Hence Section 18 is not unconstitutional.81
But somewhere between the first sentence and the last, the Court appeared to have forgotten about the existence of the word ‘reasonable’ in Article 19(4). The omission is crucial, because the requirement of proximity and rigorous judicial review—the heart of the Court’s civil rights jurisprudence—flows from the requirement that restrictions must be ‘reasonable’. By omitting the word, the Court was able to do away with both sets of constraints on State power, which it further justified (for good measure) by subsequently referring to the ‘peculiar background of terrorism’.82
The second way in which the Court internalized the jurisdiction of suspicion was by taking the perspective of guilt. This perspective is visible in the Court upholding witness anonymity provisions in Kartar Singh (that severely curtailed the ability of defence counsel to conduct cross-examination). This was on the grounds that witnesses who gave evidence in terror cases exposed themselves to the possibility of severe reprisal. Similarly, in upholding the denial of anticipatory bail, where the Court observed:
Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail.83
The strange thing about this observation, of course, is that it assumes that the person who applies for anticipatory bail is a terrorist or a disruptionist—labels that are only meant to be applied to people after they are convicted in a full-blown trial. In other words, the Court upheld the denial of basic procedural safeguards on the basis that terrorists would take advantage of them, while discounting the possibility that they would unjustly prejudice innocent people who had been unjustly accused of terrorism (and who, therefore, could neither intimidate witnesses, nor ‘misuse’ their liberty).
Thirdly, terror statutes embody a particularly crude and unreconstructed vision of guilt by association. Under the AFSPA, an entire area or region could be declared subject to the provisions of the Act and its regime of military impunity. TADA, POTA, and UAPA all criminalized (and criminalize) membership of terrorist or unlawful organizations. The concept of membership is a boundlessly vague one, that takes within its ambit a whole range of potential activities (such as tacit support, ideological agreement, or even presence at meetings) tha
t fall well short of actual commission of terrorist acts, or even of conspiracy to commit those acts. This effectively criminalizes association itself, once again eschewing the basic elements of reasonableness under Article 19.
D. Salus populi suprema lex
This is a legal regime, therefore, that is indistinguishable in effect from the regimes sanctioned by the courts under Article 22 (preventive detention) and Part XVIII (Emergency Provisions). It is a regime that is defined, characterized, and constituted by vesting in the State the power to deprive individuals of their personal liberty for long periods without trial and without proof of guilt. And the overall justification for the regime remains identical: the existence of exceptional background circumstances, which compel the State to take such action for the greater good.
A corollary of the salus populi suprema lex principle is an argument that, through repetition, has achieved the force of incantation: that the possibility of abuse of power does not render a statutory provision unconstitutional. This was the view the Court took in Kartar Singh. This was also the view that it took in PUCL, when it was pointed out that the ‘possibility’ of abuse was no longer a possibility, but that TADA (POTA’s precursor) actually had been misused, as demonstrated by the overwhelming number of acquittals under the Act.84 This was, yet again, the view it took in Naga People’s Movement for Human Rights, while rejecting the argument that the shoot-at-sight powers under the AFSPA were unconstitutional.85
But ultimately, this is yet another argument where the conclusion is smuggled into the premise. The Court divides up the constitutional objection into two discrete parts, viz., the nature of the provision, which is innocuous and inoffensive; and then its subsequent ‘abuse’ by mala fide actors, which is somehow detached from the provision itself. This, however, is a strained and artificial way of approaching the issue. The argument has never been that the provision and its abuse are two separate events. Rather, the argument is that the vesting of concentrated, unaccountable power in the executive, in a manner that fundamentally alters the relationship between the individual and the State, is precisely what constitutes abuse, and renders a statute unconstitutional.
The Constitution envisages a certain set of constraints upon State power. These constraints are exemplified by the insistence that State coercion, when it is justified on preventive grounds, must meet the standard of proximity, and its factual foundations be rigorously scrutinized by an independent judiciary. The unconstitutionality of the terror statutes, therefore, lies not in how the political executive might misuse them, but in how they remove these basic constraints that are designed to check the power of the State, and to prevent it from becoming abusive. In ADM Jabalpur, Justice Khanna recognized this clearly and sharply:
… experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent … [the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of few … whether such things [i.e., abuses] actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that Article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty. In other words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.86
ADM Jabalpur is now discredited, and Justice Khanna’s dissent is celebrated. But while Jabalpur lives on in the Supreme Court’s judgements in Kartar Singh, PUCL, and Naga People’s Movement for Human Rights, Justice Khanna’s dissent remains that ineffectual angel vainly beating its luminous wings in the void.87
E. Conclusion
The Supreme Court’s upholding of terror statutes has followed a specific pattern. At the beginning of its judgement, the Court constructs an uncontested factual narrative that makes the case for the state of exception. This narrative is flat, linear, and consists of a series of spectacularly violent events, without any further enquiry into causes or consequences.88 The terror statutes’ vesting of concentrated power in the hands of the executive, through clear departures from established rules of criminal law and criminal procedure, is then justified by referring back to the state of exception. To put it another way, instead of subjecting the state of exception to the Constitution and to constitutional standards, the Court effectively requires that the Constitution be moulded and modified so that it fits with the demands and requirements of the state of exception.
Effectively, therefore, the Court has read into the Constitution a third state of exception. Unlike the other two, viz., the preventive detention regime and the Emergency regime, this third state of exception is not contemplated by the Constitution. For this reason, it is not a discrete event that is bounded in time and space, and whose parameters are clearly spelt out. It is, rather, a self-reproducing ‘generalization of the security paradigm’,89 a state of exception that has woven itself so intimately into the fabric of the constitutional cloth that it is no longer clear what is normal and what is the exception.
V. Jyoti Chorge and the Transformative Constitution
In 2002, a group of young men and women formed a troupe called the Kabir Kala Manch, dedicated to using music and poetry to fight social injustices. A few years later they were in prison, detained under the provisions of the UAPA. The State argued that the Kabir Kala Manch was a cultural front for the banned Communist Party of India (Maoist), and its performers were members of the CPI-Maoist or ‘Naxalites’. According to the charge sheet, Naxalite literature had been found in their possession, as well as publicity material for the organization, and phone numbers and contact lists of other (alleged) CPI-Maoist operatives. They had, further, been performing plays that were ‘full of communist ideology’ and ‘instigative’ against the government.90 Witnesses (themselves ‘surrendered Naxalites’) claimed that they had seen some of the members of the troupe in the company of senior CPI-Maoist figures and carrying weapons at Naxalite training camps. Dhavala Rama Dhengale, one of the accused, confessed to having provided his house as a meeting place for CPI-Maoist leaders (he subsequently retracted this).
After spending a year and a half in jail, the bail applications of Jyoti Chorge and Sushma Ramtekke came up before the Bombay High Court. Recall that under the UAPA, a Court is statutorily barred from granting bail unless there are reasonable grounds to hold that the accused has not committed the offence. The question before the Bombay High Court, therefore, was a simple one: did the factual materials in the prosecution’s charge sheet, which the accused had not rebutted (indeed, they could not rebut, because the trial had not even started), make out an offence under the UAPA?
The prosecution argued that the accused were members of the CPI-Maoist, fully aware of its activities, and ‘had knowingly associated with persons indulging into such activities’.91 Even though there was no evidence to show that the accused had themselves committed acts of terrorism, it was argued that ‘the entire ideology and philosophy of the [CPI-Maoist] was dangerous, and was destroying the nation’.92 Here, therefore, we see the four elements of the state of exception: the supremacy of the executive in deciding who was a threat to the nation, the denial of legal remedies against the deprivation of personal liberty (in this case, bail), the jurisdiction of suspicion (guilt by association), and an overarching justification grounded in salus populi suprema lex. Under the continuing logic of ADM Jabalpur, this should have been an easy case.
It was not. Justice Abhay Thipsay began by noting that, on the basis of the State’s evidence, it was clear that in some sense the accused were ‘members’ of the CPI-Maoist. And membership had been defined very widely, and with drastic pen
al consequences (denial of bail and imprisonment for life). But at this point, Justice Thipsay parted company with the logic of the state of exception. His first observation, after noting the provisions of the UAPA, was:
Because of these drastic provisions, the concept of ‘membership’ that has been contemplated in section 20 and incidentally, in section 38 needs to be carefully considered, and properly interpreted in the light of Article 19 of the Constitution of India.93
Here, then, was a starting point that was the polar opposite of the approach of the Court in Kartar Singh and PUCL. While those cases had looked to the state of exception to justify ‘drastic provisions’, here the Court looked to the Constitution to draw a boundary around them. In this way, Justice Thipsay rejected the first limb of the state of exception, emphasizing constitutional supremacy over executive supremacy. The prosecution then changed tack and invoked the jurisdiction of suspicion, arguing that:
… there was a great danger to the whole nation from the [CPI-Maoist], and that the unity and integrity of the nation was already in danger because of their activities … section 20 of the UAP Act has been deliberately worded very widely by keeping these aspects in mind … mere association with such type of people, and sharing their ideology would make a person a member of their organization.94
That is, Naxalism was like ‘contagion’: anyone brought into contact with it must be deemed to have been infected, and requiring quarantine.95 However, Justice Thipsay rejected this argument in short order, relying upon three recent judgements of the Supreme Court. In Arup Bhuyan,96 Indra Das,97 and Raneef,98 a bench of the Supreme Court led by Justice Markandey Katju had held that there was a distinction between ‘passive’ and ‘active’ membership of banned organizations. Active membership, which alone could be criminalized, entailed actual incitement to violence or to lawless action. Citing these judgements, Justice Thipsay noted that:
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