The Transformative Constitution
Page 52
156. See Patricia Uberoi, ‘Feminism and the Public-Private Distinction’ in The Public and the Private, supra, 205–29.
157. Slater, ‘Public/Private’, supra, 139.
158. Seyla Benhabib, ‘Models of Public Space: Hannah Arendt, the Liberal Tradition, and Jurgen Habermas’ in Habermas and the Public Sphere 73, 92 (Craig Calhoun ed., Cambridge: MIT Press 1992).
159. For an analysis of how Puttaswamy implicitly commits to prioritizing decisional privacy over spatial and relational privacy, and therefore impacts the issues discussed in this section, see Gautam Bhatia, ‘The Supreme Court’s Right to Privacy Judgment – II: Privacy, the Individual, and the Public/Private Divide’, 28 August 2017, available at https://indconlawphil.wordpress.com/2017/08/28/the-supreme-courts-right-to-privacy-judgment-ii-privacy-the-individual-and-the-publicprivate-divide/.
8: Speech, Association, Personal Liberty, and the State of Exception: Jyoti Chorge v. State of Maharashtra
1. Shreya Singhal v. Union of India (2015) 6 SCC 1.
2. S. 2(o)(ii), UAPA.
3. S. 3, UAPA.
4. S. 10, UAPA.
5. S. 20, UAPA.
6. Jyoti Babasaheb Chorge v. State of Maharashtra (2012) 6 AIR Bom R 706; see also Dhawala Rama Dhengale v. State of Maharashtra, Crl. Bail. Application No. 1536/2012.
7. Sagar Tathyaram Gorkhe v. State of Maharashtra, Crl. Bail Application No. 1657/2014.
8. Giorgio Agamben, State of Exception 2 (Chicago: University of Chicago Press 2005). Agamben writes: ‘… the voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones’.
9. Article 19(1)(a), Constitution of India: ‘All citizens shall have the right to freedom of speech and expression.’
10. Article 19(1)(b) (freedom of assembly) and 19(1)(c) (freedom of association) are structured similarly.
11. The next two paragraphs present, in compressed form, a more detailed argument made in Gautam Bhatia, Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution (New Delhi: Oxford University Press 2015).
12. The fact that executive authorities, including the police, honour this more in the breach is a different matter.
13. Betwa Sharma, ‘One Year After His Arrest, Chandrashekhar Azad is a Prisoner of the Yogi Adityanath Government’, The Wire, 7 June 2018, available at https://www.huffingtonpost.in/2018/06/07/one-year-after-his-arrest-chandrashekhar-azad-is-a-prisoner-of-the-yogi-adityanath-government-without-trial-or-bail_a_23452448/.
14. Upendra Baxi, The Crisis of the Indian Legal System 30 (New Delhi: Vikas Publishing House 1982); see also, Ujjwal Kumar Singh, The State, Democracy, and Anti-Terror Laws in India 68 (New Delhi: Sage Publications 2007).
15. Article 22(3), Constitution of India.
16. Article 22(4), Constitution of India.
17. Article 22(7), Constitution of India.
18. A.K. Gopalan v. State of Madras, 1950 SCR 88.
19. See, for example, the analysis in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. See also Anup Surendranath, ‘Life and Personal Liberty’ in The Oxford Handbook of the Indian Constitution, 756-57 (Sujit Chaudhry et al. eds., New Delhi: Oxford University Press 2016). H.M. Seervai, however, rejects this reading of Gopalan. See infra.
20. R.C. Cooper v. Union of India, 1970 SCR (3) 530.
21. Haradhan Saha v. State of West Bengal (1975) 3 SCC 198.
22. Ibid., ¶31.
23. Most famously, Maneka Gandhi v. Union of India (1978) 1 SCC 248.
24. See A.K. Roy v. Union of India (1982) 1 SCC 271, which rejected a challenge to the National Security Act on the grounds that Haradhan Saha had upheld a law that was largely similar.
25. State of Punjab v. Sukhpal Singh (1990) 1 SCC 35.
26. Ibid., ¶9.
27. The specific preventive detention orders in this case were ultimately quashed on a technicality.
28. State of Punjab v. Sukhpal Singh, supra, ¶9.
29. Ibid., ¶72.
30. Ibid., ¶57.
31. Ibid., ¶61.
32. Dropti Devi v. Union of India (2012) 7 SCC 499.
33. COFEPOSA, 1974.
34. Dropti Devi, supra, ¶69.
35. Ibid., ¶70.
36. See Carl Schmitt, Political Theology (Chicago: University of Chicago Press 2006). It is important to note that in Kashmir, the state of exception was literally made permanent by an amendment to the Constitution that insulated preventive detention from fundamental rights review, and lasted twenty-five years. The situation has scarcely improved under laws such as the Jammu and Kashmir Public Safety Act. The virtual absence of constitutionalism as a constraint on State power and coercion in Jammu and Kashmir would require, of course, a book in its own right. For a summary, see Ghazala Peer, ‘Preventive Detentions in Kashmir: Still a Lawless Law’, Journal of Indian Law and Society Blog, 9 March 2013, available at https://jilsblognujs.wordpress.com/2013/03/09/preventive-detentions-in-kashmir-still-a-lawless-law/.
37. The present language is more restrictive than the original, and is the result of the 44th Amendment.
38. Article 359, Constitution of India; also, a result of the 44th Amendment.
39. See, infra.
40. Agamben, State of Exception, supra, 4.
41. Article 352, as it stood at the time, allowed for the imposition of Emergency on account of ‘internal disturbance’.
42. ADM, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521.
43. See, e.g., H.M. Seervai, Constitutional Law of India, Vol. 2, 2205–40 (4th ed., New Delhi: Universal Law Publishing 1993).
44. Justice K.S. Puttaswamy v. Union of India, supra.
45. With the rider that, after the 44th Amendment, Articles 20 and 21 may not be suspended even during an Emergency.
46. ADM Jabalpur, supra, ¶255 (concurring opinion of Justice Beg).
47. Ibid., ¶129 (concurring opinion of CJI Ray).
48. Ibid., ¶130 (concurring opinion of CJI Ray).
49. Ibid., ¶418 (concurring opinion of Justice Chandrachud). See also, ¶36, where CJI Ray accused critics of painting ‘diabolic distortion and mendacious alignment’.
50. Ibid., ¶226 (concurring opinion of Justice Beg)
51. Ibid., ¶324-A (concurring opinion of Justice Beg).
52. As Ujjwal Kumar Singh points out, the court has been habituated to deciding cases of this kind within an overarching ‘reasons of State’ framework. Singh, The State, Democracy, and Anti-Terror Laws, supra.
53. Liversidge v. Andersen (1941) UKHL 1.
54. ADM Jabalpur, supra, ¶230 (concurring opinion of Justice Beg).
55. ‘Liberty is itself the gift of the law and may by the law be forfeited or abridged.’ Ibid., ¶35 (concurring opinion of CJI Ray).
56. The Ninth Schedule of the Constitution contains laws that are immunized from fundamental rights review.
57. In 2017, the Supreme Court singled ADM Jabalpur as one of the two discordant notes in its history. Justice K.S. Puttaswamy v. Union of India, supra.
58. Kalyani Ramnath, ‘ADM Jabalpur’s Antecedents: Political Emergencies, Civil Liberties, and Arguments from Colonial Continuities in India’ (2016) 31(2) American University International Law Review 209. For a comprehensive survey of the various special laws passed by the Indian Parliaments, see Singh, The State, Democracy, and Anti-Terror Laws in India, supra.
59. Makhan Singh v. State of Punjab (1964) 4 SCR 797.
60. Ibid., ¶47. See also Ghulam Sarwar v. Union of India, AIR 1967 SC 1335.
61. It is also rather unreasonable to expect vocal public opinion, whether enlightened or otherwise, to issue forth from a jail cell.
62. Venkat Iyer, States of Emergency: The Indian Experience (Delhi: Butterworths India 2000).
63. Singh, The State, Democracy, and Anti-Terror Laws in India, supra. As Gunther Frankenberg astutely points out, the normalization of the state of exception is designed to ‘shake off or ease the burden of jus
tification’, which would apply if a formal Emergency was declared. G. Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit 286 (Cheltenham: Edward Elgar Publishing 2018). See also, ibid., pp. 285–89, for a comparative account of the methodologies by which the state of exception is normalized.
64. See, e.g., K.G. Kannabiran, Wages of Impunity: Power, Justice and Human Rights (Hyderabad: Orient Longman 2004). See also, Mrinal Satish and Aparna Chandra, ‘Of Maternal State and Minimalist Judiciary: The Indian Supreme Court’s Approach to Terror-Related Adjudication’ (2009) 21(1) National Law School of India Review 51. Indeed, in Krishna Mochi v. State of Bihar (2002) 6 SCC 81, the Court expressly inverted the innocent-until-proven-guilty principle on the basis of the unique nature of terrorism. See also, Shylashri Shankar, Scaling Justice: The Supreme Court, Social Rights and Civil Liberties in India (New Delhi: Oxford University Press 2009).
65. Kartar Singh v. State of Punjab (1994) 3 SCC 569, ¶22.
66. Ibid., ¶32.
67. As the Italian oral historian, Alessandro Portelli, writes in his study of terror trials in 1970s Italy, the judicial process reduces what is a complex phenomenon (in that case, left-wing terrorism, as defined by the State) with a number of causes and consequences, into a series of discrete, self-contained events. The task, which involves an assessment of both historical and political considerations, is performed without historians or politicians. Portelli points out that ‘the magistrates [are] involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history, oral history specifically, given the nature of most sources used’, Alessandro Portelli, ‘The Oral Shape of the Law’ in The Death of Luigi Trastulli and Other Stories: Form and Meaning in Oral and Public History 241, 246 (Albany: State University of New York Press 1991). Beyond this, a close scrutiny of the court’s method is particularly important, because unlike the work of historians, the judicial narrative acquires force. In many cases, it is literally a matter of life and death; and in all cases, by virtue of the courts’ position as the supreme arbiter of the Constitution, it acquires a normative valence and salience that far outlives the specific details of the individual case. It is for this reason that the long prefatory comments in Kartar Singh and PUCL, which, in the form of seemingly self-evident factual statements, actually smuggle in a set of historical, political, moral, and ethical assessments, need to be critiqued in their turn.
68. Kartar Singh, supra, ¶145.
69. Ibid., ¶253.
70. PUCL v. Union of India, (2004) 9 SCC 580, ¶4.
71. Ibid., ¶9.
72. Ibid., ¶13, quoting the home minister’s speech while piloting the Bill; see also, Devendar Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234, where similar reasons were invoked to uphold the death penalty under TADA.
73. Naga People’s Movement for Human Rights v. Union of India (1998) 2 SCC 109.
74. Under the colonial Code of Criminal Procedure (1898), the concept of separation between the executive and the judiciary was severely diluted. One of the features of the new Code of Criminal Procedure, enacted in 1973, was to follow through on the constitutional mandate for the separation of powers, contained in Article 50. To this end, the powers of the executive magistrates were circumscribed, defined in the Code itself, and broadly limited to executive functions (such as passing prohibitory orders in cases of disturbances to public order). Kartar Singh’s sophistry that, because a central government nominee was exercising judicial functions, she was holding judicial office is particularly grating when placed within this historical context—a core purpose of the 1973 CrPC was exactly to prevent judicial powers from being conferred on executive officials. In his dissenting opinion, Justice Ramaswamy pointed out that this, effectively, ‘polluted the stream at its source’. Kartar Singh, supra, ¶399 (dissenting opinion of Justice Ramaswamy). See also the judgement of the Andhra Pradesh High Court in V. Mohan Ranga Rao v. State of Andhra Pradesh (1985) 2 AP LJ 361 (AP).
75. Kartar Singh, supra, ¶365.
76. Naga People’s Movement for Human Rights, supra, ¶61.
77. Abhinav Sekhri, ‘Reversing the Presumption of Innocence – Part III’, Proof of Guilt, available at https://theproofofguilt.blogspot.in/2015/05/reversing-presumption-of-innocence-part_9.html.
78. See, e.g., S. 43D(5) of the Unlawful Activities Prevention Act; see also Abhinav Sekhri, ‘Reversing the Presumption of Innocence – Part II’, Proof of Guilt, supra.
79. Abhinav Sekhri points out that such provisions were simply borrowed from colonial-era laws, which were enacted at a time when the ‘presumption of innocence’ was not as fundamental to criminal jurisprudence as it is now. Abhinav Sekhri, ‘Reversing the Presumption of Innocence – Part I’, The Proof of Guilt, supra.
80. Kartar Singh, supra, ¶351; this was replicated in PUCL v. Union of India, supra, where the Court upheld an identical provision by referring to how offences under the POTA were more ‘complex’ than ordinary offences. See also Naga People’s Movement for Human Rights, supra.
81. PUCL v. Union of India, supra, ¶42.
82. Ibid., ¶43.
83. Kartar Singh, supra, ¶328; see also Krishna Mochi v. State of Bihar, supra.
84. PUCL v. Union of India, supra, ¶22.
85. Naga People’s Movement for Human Rights, supra, ¶¶43–44.
86. ADM Jabalpur, supra, ¶529 (dissenting opinion of Justice Khanna).
87. Mathew Arnold, writing about Percy Bysshe Shelley.
88. See Portelli, ‘The Oral Shape of the Law’, supra. For an example of a contrary judgement, see Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547, where the Court held that a State-backed private militia, armed to fight the Naxalites, was unconstitutional.
89. Agamben, State of Exception, supra.
90. Dhawala Rama Dhengale v. State of Maharashtra, Crl. Bail. Application No. 1536/2012, ¶12.
91. Jyoti Chorge v. State of Maharashtra, Crl. Bail Application No. 1020/2012, ¶4.
92. Ibid., ¶8.
93. Ibid., ¶18.
94. Ibid., ¶21.
95. This writer has heard the expressions ‘contagion’ and ‘quarantine’ used in court by a judge of the Supreme Court in early 2018 in order to distinguish between the bail provisions of the Prevention of Money Laundering Act from the bail provisions of anti-terror statutes. There is no transcript of the hearing.
96. Arup Bhuyan v. State of Assam (2011) 3 SCC 377.
97. Indra Das v. State of Assam (2011) 3 SCC 380.
98. State of Kerala v. Raneef (2011) 1 SCC 784.
99. Jyoti Chorge, supra, ¶29.
100. Ibid., ¶33.
101. Ibid., ¶27, cf. Arup Bhuyan, supra.
102. As Ujjwal Kumar Singh writes of TADA, ‘Most movements of ethnic self-determination in their various manifestations were subsumed under the generic label “terrorist” and “disruptive”. The explanations of both these labels within the text of TADA reduced these struggles to acts designated as terrorist and disruptive. These descriptions, as the pattern of detentions under TADA would show, depoliticized identity struggles dismembering them into specific acts of violence, demanding extraordinary legal solutions, procedures, and punishments.’ Singh, The State, Democracy, and Anti-Terror Laws, supra, 52.
103. Jyoti Chorge, supra, ¶32.
104. Kartar Singh, supra, ¶406 (dissenting opinion of Justice Ramaswamy).
105. Kartar Singh, supra, ¶450 (dissenting opinion of Justice Sahai).
106. Perhaps unsurprisingly, Justice Sahai prefaced his short opinion with the observation, ‘If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, libert
y and injustice.’ Kartar Singh, supra, ¶442 (dissenting opinion of Justice Sahai).
107. State of Exception, supra, 1.
108. Anil Kalhan et al., ‘Colonial Continuities: Human Rights, Terrorism, and Security Laws in India’ (2006) 20(1) Columbia Journal of Asian Law 93, 126.
109. Ibid.
110. The Bengal State Prisoners Regulation (Regulation III of 1818).
111. Kalhan et al., ‘Colonial Continuities’, supra.
112. Criminal Tribes Act, 1871. See Meena Radhakrishna, Dishonoured by History: Criminal Tribes and British Colonial Policies (New Delhi: Orient BlackSwan 2001); Dilip D’Souza, Branded by Law (New Delhi: Penguin 2001).
113. For a historical account of the criminalization of communities—with the attendant vagueness of ‘membership’—in colonial jurisprudence through the nineteenth century, which was accompanied by collective punishment, see Radhika Singha, A Despotism of Law (New Delhi: Oxford University Press 1998).
114. Cf. Sanjay Nigam, ‘Disciplining and Policing the “Criminals by Birth”, Part 1: The Making of a Colonial Stereotype—The Criminal Tribes and Castes of North India’ (1990) 27(2) The Indian Economic and Social History Review 131, 140.
115. Ibid., 141.
116. The Reception Committee, Report of the 34th Session of the Indian National Congress: Presidential Address, 8, 18 (Amritsar: 1922).