… passive membership is not what is contemplated by section 20 of the UAP Act. It is very clear from the observations made by the Supreme Court that if section 20 were to be interpreted in that manner, it would at once be considered as violative of the provisions of section 19 of the Constitution of India …99
Consequently, Section 20 of the UAPA was read down in order to make it compatible with the Court’s civil rights jurisprudence (and, in particular, the requirement of proximity).
In sum, therefore, as Justice Thipsay correctly observed, the foundation of the allegations against the accused was no more than ‘they are sympathizers of Maoist philosophy, and that they are intending to, or likely to, play an active role in the organization in future’.100 Echoing the judgement of the Supreme Court in Ram Manohar Lohia, more than half a century ago, he then held that under the Constitution, this could not be grounds for denial of liberty. Bail was granted.
The judgement in Jyoti Chorge—and its companion case, Dhavala Rama Dhengale v. State of Maharashtra, in which Justice Thipsay granted bail to four more members of the Kabir Kala Manch in January 2013—provides a clean and stark counterpoint to the judgements in Kartar Singh, PUCL, and the other progeny of ADM Jabalpur. The distinction lies not so much in the outcome; after all, Kartar Singh and PUCL involved constitutional challenges, and consequently were far more likely to invite judicial caution than a bail judgement. The distinction lies in something deeper: as a matter of constitutional interpretation, Jyoti Chorge systematically repudiated the logic of the state of exception. And Justice Thipsay was able to do so because he remained unmoved by the incantation of salus populi suprema lex, instead countering it with the following words from Arup Bhuyan:
We are living in a democracy, and the above observations apply to all democracies.101
This was delivered almost as a rebuke to the logic of the state of exception. It put forth the view, instead, that what it meant to be democratic was to not allow the state of exception to come to dominate all other values. What it meant to be democratic was to test the state of exception and the extraordinary powers claimed by the State against the standards of the Constitution, and not the other way around. So, if the State wished to criminalize membership of banned organizations, then it was the Constitution that would impose constraints on how broadly the concept of membership could be stretched, and what manner of actions could be criminalized consistently with the guaranteed rights to freedom of expression, assembly, and association. These were rights that lost neither their valence nor their amplitude simply through the invocation of salus populi suprema lex.
Unsurprisingly, therefore, Justice Thipsay’s factual narrative was radically different from the factual narrative advanced in Kartar Singh or PUCL. In those cases, the Court framed TADA and POTA as responding to consistent, organized, and faceless acts of violence, which seemed to exist in a political and social vacuum.102 By contrast, Justice Thipsay, in examining the past conduct of the accused, observed:
A number of persons are influenced, and get attracted towards the Maoist Philosophy because of the oppression of the weaker section which they might have experienced in the social set up … it is impossible to hold that all such persons are to be treated as members of a terrorist organization, or that they are liable to be punished for having some faith in such philosophy, or for having sympathy for those who propagate such philosophy.103
What, for the Kartar Singh and PUCL courts, was a ‘scourge’ and therefore needed extraordinarily harsh measures (a state of exception) to contain, for Justice Thipsay was essentially a political and social problem that called for an equivalent solution, but required the court to apply its normal, liberty-protecting jurisprudence. The reasoning in Jyoti Chorge, therefore, was not simply a matter of legal doctrine, but also a matter of underlying constitutional foundations, as it must be. It challenged the very legitimacy of the permanent normalizing of the state of exception, with its attendant erosion of foundational civil rights.
VI. The Constitution and the Culture of Justification
The judgements in Jyoti Chorge and Dhavala Rama Dhengale were not born in isolation. In both cases, Justice Thipsay relied on the Supreme Court trio of Raneef, Arup Bhuyan, and Indra Das to apply the ‘active membership’ standard to interpreting the UAPA. These judgements themselves were part of an older judicial tradition. In Kartar Singh, while dissenting on the issue of the admissibility of police confessions, Justice Ramaswamy had observed ‘such an erosion [of constitutional safeguards] is anathema to the rule of law … and a clear negation of Article 50 of the Constitution’.104 Justice Sahai joined him in dissent on this point, and also held that Section 5 of the TADA, which automatically criminalized possession of arms and ammunition in a ‘Notified Area’, would have to be read down to apply only to those cases where there was some material to show that the person intended to use those arms for terrorist or disruptionist purposes.105 This interpretive technique was similar to that used by Justice Thipsay in Jyoti Chorge, and was likewise an attempt to push back against the incorporation of the principles of guilt by association and the jurisdiction of suspicion into terror statutes.106 And both dissenting opinions in Kartar Singh ultimately drew from Justice Khanna’s conviction that the Constitution simply did not permit the concentration of unaccountable power under the guise of a state of exception.
As we have seen, however, this view has remained an outlier. It is not the view taken by judgements dealing with the preventive detention regime, by Emergency judgements pre-ADM Jabalpur, or by judgements under terror statutes after the Emergency. The question then arises: was Justice Thipsay’s repudiation of logic of the state of exception correct?
I argue here that it was. And not only was it correct, but that it also exemplified and vindicated a crucial aspect of the Constitution’s transformative character. The Indian Constitution was transformative in the sense that it marked a transition from a permanent state of exception under the colonial legal regime to a regime defined by the rule of law, where exceptions were to be clearly defined, narrowly construed, and subject to rigorous judicial oversight. It was never the Constitution’s purpose that the executive be vested with virtually unreviewable powers of deciding both upon the existence of the state of exception and the scope of rights available to individuals for its duration. And the Constitution did not contemplate the existence of ‘a no man’s land between public law and political fact’,107 where the logics of the state of exception and the rule of law would become indistinguishable.
The argument is based on four prongs. First, that the colonial legal regime was characterized by a permanent state of exception, which was marked by executive supremacy, denial of remedies, and the jurisdiction of suspicion, under an overarching justification based on the special character of the colony. Second, political resistance against this state of exception, and the articulation of an alternative understanding of the relationship between the individual and the State, was an integral aspect of the freedom movement, which culminated in Independence and the drafting of the Constitution. Third, debates in the Constituent Assembly indicate that the insertion of Article 22 and the preventive detention regime was not to privilege a state of exception over the norm, but the reverse, i.e., to define and create a regime of accountability for situations where power might be concentrated in the hands of the State. Fourth, this reading makes sense if we understand the framing of the Constitution in two ways: as a transformation of Indians from subjects to citizens, and as a transformation from the culture of authority to the culture of justification.
A. The British Regime and the Permanent State of Exception
The permanent state of exception established by the colonial regime in India was anchored to the sweeping powers enjoyed by an unelected political executive, viz., the Governor-General. His office was vested with the power to issue ‘ordinances’ (having the force of law) in emergency situations, and this power was often used to authorize preventive detention.108 Even after the i
ncremental growth of representative institutions in India under the 1919 and 1935 Government of India Acts, the Governor-General continued to possess overriding powers of legislation, effectively making the (partially) elected legislative assemblies subservient to the executive. These powers were at the Governor-General’s ‘satisfaction’, and therefore virtually unreviewable.109
While executive supremacy, exercised through ordinances, was most frequently in use during the two World Wars, there existed a parallel legislative and executive framework that replicated the features of the state of exception, even in peacetime. As early as 1818, a Bengal Regulation authorized preventive detention for the ‘preservation of tranquillity’ and security from either foreign intervention or ‘internal commotion’.110 In the inter-war years, the notorious Rowlatt Act, which became the flashpoint for nationalist protests, authorized preventive detention for up to two years. The Emergency Powers Ordinance of 1932 was used both to ban organizations and to impose a regime of preventive detention.111
Moreover, in a striking foreshadowing of the UAPA’s targeting of associations and criminalization of membership, in 1871, the colonial regime enacted the Criminal Tribes Act, which embodied the jurisdiction of suspicion and guilt by association par excellence. The Criminal Tribes Act labelled entire tribes as presumptively criminal, and established a regime of surveillance, reporting to the police (subject to penal consequences), and forced relocation to labour camps. Actual commission of an offence was not required, as long as the official concerned formed a ‘subjective satisfaction’ that the individuals and groups in question had the ‘potential’ to commit crimes. Blood or kin relationships with designated ‘criminals’ was sufficient for the Act to apply, representing a complete inversion of the basic criminal law principle of individual responsibility.112
The justification for this repressive legal regime, a regime that established concentration camps and separated children from their parents, was located in the ‘special character’ of the colony. It was argued that as the natives were not yet ready for democratic self-government of the kind that existed in Britain, they could not yet be trusted to responsibly exercise the rights and freedoms available to British citizens.113 Indeed, so ingrained was this jurisprudence of permanent exception, that when the colonial courts struck down sweeping surveillance measures, Lieutenant-Governor Sir Donald MacLeod complained that this was because the courts’ experience was limited to ‘dealing with the crime after it has been committed’.114 In terms eerily similar to the prosecution’s argument for interpreting membership under the UAPA broadly in order to criminalize entire groups subscribing to a particular ideology, it was argued by the colonial regime that for the criminal tribes, ‘criminal behaviour was the defining characteristic of the group’s social existence’.115
B. The Nationalist Response
As discussed above, the permanent state of exception established by the British regime was a point of focus for the nationalist movement. The critique of the regime was primarily political, of course, but it also had a constitutional form. Soon after the passage of the Rowlatt Act, in two annual sessions of the Indian National Congress separated only by three years from each other, the Presidential Address focused on the relationship between personal liberty and concentrated executive power. In his 1919 address, Motilal Nehru critiqued the Rowlatt Act specifically for its endorsement of executive supremacy and imposition of a jurisdiction of suspicion, arguing that ‘[just] because there are … some persons who endanger public safety, the whole nation must submit to the disgrace of allowing this terror to hang over it … the only justification pleaded is that the Act is not meant for the innocent and the law-abiding who need have no fear of its application to them. But … the sole judge of the innocence or guilt of any person … is the executive’.116
After pointing to various aspects of the Rowlatt Act that enshrined executive supremacy, Nehru noted, ‘No executive in the world, however competent it may be, has any business to usurp the jurisdiction of duly constituted courts or deprive the people of the protection afforded by them.’ He went on to specifically reject the doctrine of necessity, i.e., exceptional situation, that was invoked by the British to justify the law,117and articulated an alternative framework focused on the ‘future inviolability of our civic rights’, specifically with a view to precluding a ‘reign of terror’ that might be initiated by a ‘panic-stricken executive’.118 And of course, it was Gandhi who organized a sustained campaign against the Rowlatt Act, while also famously condemning the law of sedition at his own trial.
Three years later, in 1922, C.R. Das observed in his Presidential Address, ‘The personal liberty of every Indian today depends to a great extent on the exercise by persons in authority of wide, arbitrary or discretionary powers. Where such powers are allowed the rule of law is denied.’119 Das used this framework to critique the Bengal Regulation of 1818, as well as the Criminal Law Amendment Act of 1908 and the Prevention of Seditious Meetings Act of 1911. Anticipating Justice Khanna by fifty-five years, Das noted that the concentration of power in the hands of the political executive was objectionable ‘not because it was never exercised for the safety of the nation, but because the existence of the power was inconsistent with the existence … of individual liberty’.120 And making an impeccable argument against the logic of the state of exception, Das concluded by arguing that ‘[only] if you have recourse to law and order to establish and defend the rule of law … [is] your law and order entitled to claim the respect of all law-abiding citizens’.121
These critiques did not end with the lapse of the Rowlatt Act in 1922. The Criminal Tribes Act, with its sweeping jurisdiction of suspicion and tarring of entire communities as ‘presumptively criminal’, was criticized by leading nationalists, most prominently by Jawaharlal Nehru, as not only illegitimate, but contrary to the very basis of civilization.122 More specifically, soon after the lapse of the Rowlatt Act, in an otherwise conservative set of lectures titled ‘The Rights and Duties of the Indian Citizen’, writer and legislator Srinivasa Sastri took specific aim at the 1818 Bengal Regulation and its progeny, noting,‘To arm the executive permanently with the power to take away a citizen, lock him up, and refuse even to bring him up for trial is nearly a direct repeal of the liberty which I have placed at the head of the list—the liberty of the person.’123
Immediately after the Government of India Act, 1935, another legislator, S. Satyamurti, unsuccessfully moved a private member’s bill that specifically critiqued the law of sedition for failing to include a proximity requirement, and suggested an amendment that would limit its operation to the promotion of ‘physical force or violence or public disorder’.124 This pre-Independence civil liberties tradition culminated in Hansa Mehta’s Presidential Address to the All India Women’s Conference in 1945, where she drew a specific comparison between Emergency powers in India and their counterpart in Britain.
While Mehta made the limited argument that the Indian Emergency powers ought to be liberalized to accord with the more rights-protective standard in wartime Britain, in one crucial aspect, she made a far more radical claim: that although the State was empowered to encroach upon liberties in times of emergency or crisis, ‘such occurrences are, however, rare, and the State would have to prove the emergency before it can take any drastic measures’.125 Here was a proto-version of the culture of justification: the triggering of an Emergency is not simply the prerogative or ‘subjective satisfaction’ of the State, but must be justified.
We can therefore see that the attainment of Independence in 1947 was preceded by an almost three-decade-long civil liberties tradition that had three salient features: first, it defined personal liberty in opposition to concentrated State power; second, it critiqued the different aspects of the state of exception, viz., executive supremacy, denial of remedies, the jurisdiction of suspicion, and public-good justifications, from the perspective of the right to personal liberty; and third, perhaps most importantly, its arguments were universalistic i
n cast. They were not couched against the British government as an alien, foreign power, but against the concentration of executive power generally. This is especially significant when we consider the fact that these arguments arose in the wider context of a movement for national self-determination, but as far as personal liberty was concerned, they transcended that immediate context. They would therefore remain applicable even after the government was no longer foreign or alien, but of the people. 126
C. The Constituent Assembly
In his critique of the Supreme Court’s preventive detention jurisprudence, the civil rights lawyer K.G. Kannabiran argued that the Court, guided by a sense of colonial continuity, ignored the impact of the freedom struggle upon constitutional interpretation. Kannabiran suggested that:
Motilal Nehru’s presidential address at Amritsar in the year 1919, the undelivered address of C.R. Das at the Gaya Congress, Satyamurti’s speech in the Central Legislative Assembly in February 1936, or Gandhi’s speech at his sedition trial before Judge Broomfield are excellent sources for working out a system of jurisprudence and a theory of rights even at the commencement of the Constitution.127
Kannabiran’s argument was straightforward: there was an entire tradition of civil rights thought, closely associated with the freedom movement, that the Court could draw upon in adjudicating cases involving executive power and the rights of citizens. However, the argument misses a crucial link: what is it that makes these historical materials salient in interpreting the Constitution? It is important to remember that, while the thinking represented by Motilal Nehru, C.R. Das, Satyamurti, and others was an integral part of the freedom movement, it was by no means the only point of view. C.R. Das spent half his Presidential Address fulminating against the Moderate Wing of the Indian National Congress that had supported the colonial regime’s ‘law and order’ legislation and ordinances. Immediately after criticizing the Bengal Regulation of 1818, Srinivasa Sastri expressed anguish that his colleagues in the legislative council had voted to extend it.128 And after the 1935 Government of India Act, many of the elected provincial Congress governments passed preventive detention and public safety acts that closely resembled their colonial counterparts.
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