Rejection of Complaint in Part, Cognizance of Offence A Delusion

(By S. Abdul Khader Kunju,  Asst. Public Prosecutor, Cherthala)

THE CONUNDRUM

What are the courses open to a Magistrate, when he receives a complaint, wherein more persons than the one are made as accused and when he finds that the allegation against some of them is sufficient for further proceedings and insufficient as against the others? What happens, if his judicial mind impels him to take a decision to proceed against some selected accused against whom allegations are sufficient and to abstain from doing his action against the others, to whom the allegations are deficient? Should the Magistrate take or presume to have taken cognizance of the offence, or can it be presumed that the procedure envisaged under Chapter XV of the Cr.P.C. (‘Code’, for short) has been invoked when he decides not to proceed against the accused, against whom the allegations are lacking?

THE BACKGROUND

The Single Bench of the High Court of Kerala, in Balasubramanian v. Biju Kochupaul (2016(3) KLT 220) held that once the Magistrate takes cognizance and embarks upon the procedure embodied in Chapter XV of the Code, he is not competent to revert back to the pre-cognizance stage and avail the power under Section 156(3). The self-same judgement
was followed by the same Judge in P.M.Salim v. George M.J. and Ors. (MANU/KE/0336/2017). The legal fraternity, as they are aware of this settled principle of law as it has been settled for long time, felt nothing special about it. But, if we go further reading those judgments wherein the facts of the case are juxtaposed with this principle, there arises the question whether these decisions convey the law relating to taking cognizance of the offence and the law respecting the course open to the Magistrate when a complaint reveals offence against some of the accused and does not reveal offence against the others, correctly.  My humble opinion is in the negative.

THE  FACTS  AND  THE  DECISION  IN  BALASUBRAMANIAN

The proceedings originated when the complainant filed a complaint in the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur by arraigning 15 accused/respondents. The learned Special Judge passed the order in the matter and by concluding that specific allegations were not raised against respondents 2,3,6,7 and 14 in the complaint, and therefore, as far as the said respondents were concerned, any further proceedings were not required. At the same time the Special Judge, ordered a preliminary inquiry into the allegations against the respondents 1,4,5,8 to 13 and 15 in the complaint, meaning that the Judge made an order u/S.156 (3) of the Code. One of the respondents moved the High Court and the Court observed as hereunder:

“When the court below has finally decided the matter relating to some of the respondents and such respondents were absolved from criminal liability, and has decided to proceed against the petitioner and some other respondents, it is as good as invoking the power of inquiry as contemplated under Chapter XV Cr.P.C. Only through an inquiry, the court below could have decided to avoid some of the respondents from further proceedings. Such a dismissal of the complaint relating to some of the respondents could only be one under S.203 Cr.P.C.”

And the learned Judge held that:

“The entire exercise made by the court below in this matter is per se illegal. The court below ought not have absolved some of the respondents from criminal liability and thereafter forwarded the complaint for quick verification or investigation, as the case may be, under S.156(3) Cr.P.C.”

THE LAW

Let’s examine whether S.203 is the only course before the Magistrate to decide not to proceed against the accused against whom the allegations are lacking. For an easy understanding of the matter under discussion I may quote necessary portion from Section 190 of Code, which comes under its Chapter XIV.

“Section 190–(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

 (a) upon receiving a complaint of facts which constitute such offence;

 (b)   ****

 (c)   ****

(2)    ****”

 From the plain reading of S.190 (1) (a) it is clear that the Magistrate may take cognizance of any offence subject to the conditions in that section. The word ‘may’ used herein includes may not. Application of this may occurs when there is sufficient ground for proceeding further, and the scope for may not is applicable when there is no such ground. Hence, if the Magistrate, after reading the complaint (which is explained judicially as applying his mind) finds that it does reveal an offence, for which he is empowered to take cognizance, he decides to go further. This does not mean that he has taken cognizance of that offence. Only the moment he decides to examine the complainant, it is said he has taken cognizance. A magistrate is expected to apply his mind meticulously, before he decides to order an investigation u/S.156(3) of the Code, yet his exercise will not amount to taking cognizance. The Magistrate takes cognizance not when he applies his judicial mind, but when he applies his mind for the purpose of proceeding under Chapter XV of the Code.

In R.R.Chari v. The State of Uttar Pradesh (AIR 1951 SC 207) a Three Judges Bench of the Supreme Court giving approval to a Calcutta High Court decision rendered in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (AIR 1950 Cal.437), quoted as follows :-

“ What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

Similarly, when the Magistrate, after reading the complaint (applying his judicial mind) finds that it does not reveal an offence, he may decide not to go further. He can decide not to take cognizance. The abstention of the Magistrate from taking cognizance will be reflected in the form of rejection of the complaint. This rejection cannot be equated with dismissal of the complaint u/S.203 of the Code, which happens after taking cognizance. This is the slot where the dilemma as to the law relating to taking cognizance steps in. This confusion occurs because of the fact that the Code is not explicit as to the nature of disposal of the complaint when the Magistrate decides not to take cognizance.

ANALYSIS

In Balasubramanian (supra) the learned Judge assumed that the Special Court has taken cognizance of the offence before dismissing the complaint against some of the accused while ordering investigation u/S.156(3) of the Code. This assumption can be manifest in the following observation.

“…it is as good as invoking the power of inquiry as contemplated under Chapter XV Cr.P.C. Only through an inquiry, the court below could have decided to avoid some of the respondents from further proceedings. Such a dismissal of the complaint relating to some of the respondents could only be one under S.203 Cr.P.C.”

The position that the Magistrate has power to reject the complaint at the threshold is not a matter res integra. In S.M.S.Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. (2005 (4) KLT 209(SC) it was held by the Apex Court that a Magistrate has to consider the complaint before issuing process and he has power to reject it at the threshold, suggests that a complaint should make out a case for issue of process.

 In Biju Purushothaman v. The State of Kerala (2008 (3) KLT 85 = ILR 2008(3) Ker.42) it was held by the High Court of Kerala that:

“If after perusing the complaint, the Magistrate is of opinion that the averments therein do not at all spell out any offence, then he should definitely possess the power to throw away the complaint and terminate the matter then and there. This power is not dismissal but rejection.”

And Biju Purushothaman (supra) gives clarity that the dismissal of the complaint u/S.203 can be only after taking cognizance. 

“The said dismissal at the pre-cognizance stage was presumably under the misconception that Section 203 Cr.P.C. clothes a Magistrate to do so. It is true that barring S.204(1) [sic. 204(4)] Cr.P.C., S.203 Cr.P.C appears to be the only enabling provision which empowers a Magistrate to dismiss a complaint. A dismissal of the complaint under S.204(4) Cr.P.C for failure to pay process is not a dismissal on merits. But a closer reading of Section 203 Cr.P.C. will reveal that dismissal of a complaint can be done only at the post - cognizance stage.”

InAbhinandan Jha & Ors. v. Dinesh Mishra (1967 KLT SN 21 (C.No.39) SC = AIR 1968 SC 117) it held that:

“The use of the words ‘may take cognizance of any offence’, in sub-section (1) of S.190 in our opinion imports the exercise of a ‘judicial discretion’, and the Magistrate, who receives the report, under S.173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence.”

The position is thus clear that in order to order investigation u/S.156(3) of the Code cognizance of the offence cannot be taken, and at the same time, in order to reject the complaint against the accused, invocation of powers under Chapter XV is also not necessary. This position is clear even from the judgment (CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd. and Anr. (2005 (4) KLT SN 55 (C.No.72) SC) relied on by the learned Judge, wherein it was observed that:

“We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc.etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry.”   (emphasis supplied)

 When a complaint is received, the Magistrate has at least three options. He can reject the complaint (if the allegations are insufficient), he can order investigation u/S.156(3) of Code (if the allegations would constitute cognizable offence) and he can take cognizance and proceed to examine the complainant u/S.200 of the Code. Out of these three, first two are in the realm of pre-cognizance stage.    

CONCLUSION

When the Magistrate is empowered to reject the complaint if no offence is attributable against the accused, in a complaint where more than one accused are cited and where the facts constituting offence against somebody are available, and as against the others if there are no such facts, he is well within the power to choose to order investigation u/S.156(3) of the Code in respect of the former and to reject complaint relating to the latter, without taking cognizance of the offence. In this regard the order of the learned Special Judge appears to be correct.

In Balasubramanian (supra), from the facts narrated in the judgment, it is clear that the Special Court did not actually conduct any inquiry under Chapter XV of the Code, but proceeded under Chapters XII and XIV, but the High Court assumed that what the Special Judge had done was under Chapter XV of the Code. Moreover, the matter being offences covering Prevention of Corruption Act (PC Act), the observation of the High Court that the court below could not have entered such a dismissal without recording the statements of the complainant and witnesses, if any, also seems to be out of place. Recording statements of the complainant etc., can be done only after taking cognizance, which is barred S.19 (1) of the P.C. Act, except with the previous sanction of the Government.

Hence, I humbly opine that the decision of the Hon’ble High Court of Kerala in Balasubramanian v. Biju Kochupaul (2016(3) KLT 220) does not convey the correct law relating to the Magisterial powers concerning the cognizance of offence and the procedure to be followed by Magistrates when they receive complaints where facts necessary to reveal commission of offences against some of the accused are proper and those are improper in respect of others.

Foot Note:

1. It would be interesting to note that Judge Felix Frankfurter, who penned several landmark judgments and had also rendered advice to Indian Constitution drafters was a native of Vienna, Austria and later a naturalised US citizen. William Howard Taft went on to be Chief Justice of the Supreme Court after serving as US President from 1909 to 1913. Chief Justice Earl Warren was Governor of California and later one of the candidates for a Republican nomination for President. It is said that he stepped down in favour of Eisenhower who went on to become President who then appointed Earl Warren to the Supreme Court respecting a compromise.

2. Richard A. Posner, How Judges Think, Universal Publications 2011 reprint. 

Appointment to the US Supreme Court, A Celebration of Democracy

(By Ajit Joy, Advocate, High Court of Kerala)

49 year old Judge Neil Gorsuch was recently sworn in as an Associate Judge of the US Supreme Court after confirmation by the US Senate on 8th April 2017. High political drama and rivalry in the U.S. Senate was witnessed over this confirmation process which ultimately led to President Trumps’s nominee securing a favourable report from the Senate Judicial Committee and later the full Senate voting in his favour 54-45. Judge Scalia whose seat was being filled had died in office over a year back. So crucial in politics is an appointment to the U.S. Supreme Court that the Republicans in the Senate had stone walled a nomination by President Obama until election of a new President, and now they were ensuring that their nominee succeeded.

The intensity of politics in the appointment of a Judge to the top court of the US would appear rather strange to an outsider. Though the American Constitution does not specify qualifications for Justices such as age, education, profession, native-born citizenship or even a law education¹, the pre-eminent requisite, for appointment to one of the nine posts of Judge of the US Supreme Court seems to be the political affinities of the nominee - whether he or she is a conservative or a liberal. Every President who has nominated a Judge to the Supreme Court has invariably supported a candidate close to his own political colour. In fact Tump’s thoughts and strategy on nomination of judges to the US Supreme Court was a significant plank of his election campaign. For the record however, apart from his political affiliations, Judge Neil Gorsuch is eminently qualified having been educated at Columbia, Harvard and Oxford Universities, followed by experience as a Law Clerk in the US Supreme Court and currently holding a Federal Appellate Circuit Judge position.

It would be easier to understand the sound and fury generated on nominations to the US Supreme Court if one notes that between 1975 and 2005 unanimous judgments were rendered only in 28.4% of the cases by the Supreme Court².  America is highly divided on fundamental issues like abortion, gun control policy, affirmative action, gay rights, immigration and the like around which there is opposing views held by Republican’s and Democrats. This cleavage in opinion is reflected in the Supreme Court too and new appointments are crucially followed to gauge shifts that such appointments would bring to those cardinal issues.

Analysts have placed Gorsuch’s judicial philosophy to be similar or more conservative to that of Antonin Scalia whom he replaces. Interestingly Scalia a colourful hyper conservative was known to have commented thus when questioned about his judgments on homosexuality, “if we cannot have moral feelings against homosexuality can we have it against murder?” With Gorsuch’s appointment, Supreme Court of the US could move to an interesting balance with 4 conservatives in the form of Clarence Thomas, Neil Gorsuch, Samuel A. Alito and Chief Justice John G. Roberts as opposed to the liberals – Stephen G. Breyer, Elena Kagan, Ruth Bader Ginsberg and Sonia Sotomayer with Judge Anthony M. Kennedy (Whose Law Clerk Neil Gorsuch once was) deciding sometimes with the liberals though considered a conservative himself. Pundits point out that with several judges in their late seventies and eighties being on the verge of self retirement or even death, this tenure of President Trump may see other conservative nominations coming up – which, with a Republican majority in the Senate will see an easy sail through in the confirmation process.

Nevertheless, with a security of tenure for life or till such time the judge wants to step down and all other benefits being guaranteed by the Constitution, it is not necessary at all that judges once appointed should tow the line of their political masters. In fact there are several judges who though considered conservative turned liberal after appointment. In any case whatever be the politics behind their appointment of judges, the Supreme Court of the US has stood through for over two centuries as the bulwark in upholding democracy and constitutional rights Unlike India where the judiciary itself has assumed the upper hand in appointment of judges in what can be termed undemocratic, with no public participation, the appointment of US Supreme Court Judges and their confirmation process is a complete contrast providing the flavour of a totally democratic process. Both the Executive and the legislature have a role in the appointment of Judges. Art II Sec. 2 Clause 2 of the US Constitution, also known as the appointment clause states.

“He (President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...”

The appointment process that has been further tempered with centuries of tradition in judicial appointments, involves, nomination by the President, followed by reference to the Senate. In the Senate, first the Senate Judicial Committee deliberates the nomination involving a public hearing after which it sends its recommendation to the full 100 member Senate where the recommendation is put for vote. Once confirmed the Judge is appointed formally by the President. 11 nominees having been rejected by the Senate and with some more being withdrawn by the President realising that an affirmation from the Senate would not take place, the Senate confirmation is one of great seriousness and a prime application of the principle of division of power between the executive and legislature.

The hearing for the confirmation of Judge Gorsuch is a reflection of the kind of grilling that a Judge has to normally go through at the hands of peoples representatives. Apart from his judicial philosophy, conduct and life, every part of which is subject to questioning, the Judge is even sought to be examined on the way he may decide a case in the future or rule on certain policies (though he is not obliged to answer questions on that). Neil Gorsuch, had to go through nearly 20 hours of public grilling by Senators on various aspects of his life, views and legal philosophy.

While without doubt political affiliation of the nominee and the chance of his succeeding at the hands of a divided Upper House seem to play an overwhelming part in the appointment of Judges to the US Supreme Court, one cannot complain that it is not a democratic process. An elected President in whom the people have reposed confidence nominates and the Senate that has an elected representation from every state in the US scrutinises and votes on the nomination. The whole process is transparent with the nation keenly watching, debating and celebrating the confirmation proceedings.

When we contrast the US selection process with the closed, opaque and so to say the incestuous manner in which judges are appointed to our Constitutional Courts, one simply wishes for more of openness transparency and public involvement. Judicial interpretation to Constitutional provisions on appointment of judges to higher courts have sadly been so as to oust not only the prerogative of the executive but their very role. It should be remembered that it is in the elected executive that the people have reposed confidence and from whom results are expected. Fine, if the executive upper hand as the Constitution initially envisaged was undermining the independence of the judiciary, then the Parliament as a compromise and in its collective wisdom had cutting across party lines unanimously proposed an independent body to make higher judicial appointments. But this too has been shot down. With the firming up of the views of the Supreme Court through S.P.Gupta v. Union of India (1981 (Supp) SCC 87) (First Judges Case), Supreme Court Advocates on Record Association v. Union of India ((1993) 4 SCC 441) (Second Judges Case), Re: Special Reference No.1 of 1998 ((1998) 7 SCC 739) (Third Judges Case) and the more recent Supreme Court Advocates on Record Association v. Union of India (2016 (1) KLT 193 (SC)), it appears that for at least the near future, status quo will continue. Nonetheless, the last word has not yet been said on judicial appointments

Kerala Advocates Welfare Fund Amendment Bill 2016 is Unique

(By Parippally R. Raveendran, State Vice President AILU, Kerala Unit,
Former Member, Bar Council of India)

Worlds most strongest and unique Constitution which was drafted by Dr.Ambedkar, Pandit Jawahar Lal Nehru, Dr.Rajendra Prasad, C.Rajagopalachari and the father of our nation Mahatma Gandhi who arose from the zeal of the struggle for independence constituting the great generation of legal fraternity has now become the worlds second largest lawyers community after the United States of America with membership of more than 20 lakhs. Advocacy has now became popular in India as it was once considered as a profession of higher class people alone.

A study which was conducted in Chennai by Dr.N.R.Madhava Menon, a renowned and popular academic pandit as well as jurist, revealed that the average income of 80% of Advocates are just `1500/-. Even when the income earned by an advocate is far below the prestige of his own, 5% of the advocates were in the list of multi millioners. Only 15% of the advocates are getting an eye-catching income.

The legacy of the Kerala Legislature hailing from reforms/public health and social security measures has now put a golden feather in the head of Kerala model by passing the Advocates Welfare Fund Amendment Bill 2016. The political will showed by the LDF Government in amending the basic statute which is a model to all over India has now enhanced the existing welfare amount from `5,00,000/- to `10,00,000/- and that gives so much confidence to advocates who are working as officers of the court and it caused new hope and aspirations even among others practicing in other States. The latest amendment had made onlya nominal increase in the annual contribution of the Advocates Welfare Fund. As per the standing of the bar, from junior advocates to designated senior advocates are remitting an amount ranging from `500/- to `6000/- per annum, corresponding to this contribution they are getting `25,000/- from the welfare fund for every completed year of practice. An approximate amount of `1.75 crores which is got by way of stamp fees in filing vakkalath and an amount to the tune `2 lakhs, being the 20% of the amount got from the newly enrolled advocates enrollment fees will form part of the corpus of the Fund. Welfare stamp fees has now been enhanced to the tune of `50/- in High Court and `25/- in subordinate courts.

The amendment made in Section 76 of the Kerala Court Fees and Suit Valuation Act by the UDF Government through the Finance Bill of 2016 is one of the notable amendments after the passing of Parent Act in 1980. As per the notification issued on 07.04.2016, enabling to charge an additional court fees of 1% had lapsed. But as per the will of the LDF Government, the Hon’ble Chief Minister Sri.Pinarai Vijayan and Hon’ble Finance Minister Dr.Thomas Issac joined together and decided to issue further notification to incorporate 1% additional court fees. As a result of this, an amount of `45 crore per annum will come into the income source of the Advocates Welfare Fund.

This 1% additional court fee is charged from every original suit, appeal, filed in civil courts and revisions. Where in cases fixed court fees had been prescribed, this additional court fee is fixed to an amount of `100 and in Family Courts, court fees will be charged as per this. Additional court fees is levied in accordance to Section 4 A of the Kerala Court Fees and Suit Valuation Act and as per Rule 397(2) of the Kerala Motor Vehicles Rules. The historic amendment that is made in Section 76(3) of the Kerala Court Fees and Suit Valuation Act, 70% of the amount in the Legal Benefit Fund will come to the Advocate’s Welfare Fund and 30% of the amount to the Advocates Clerks Welfare Fund. 10% of the amount that both sides are getting will be reserved to the welfare of the clients as well as for the development of the basic amenities of the courts. The inflow of `45 crores will be directed to the corpus of Kerala Advocates Welfare Fund. With this notable amendment which will in turn strengthen the economic base of the welfare fund.

When there is Judicial Adademy in Bhopal intended for training to the judges and training directorate in States to update their legal knowledge, it is remarkable to note that for updating the standards of legal knowledge of lawyers, Lawyers Academy was formed in Kochi under the leadership of Kerala Bar Council and Senior Advocate K.K.Venugopal and it is getting financial aid through this amendment. There are provisions in this amendment for providing stipend to thousands of Junior Advocates in their initial years of practice. Junior Advocates within 3 years from enrollment and those whose annual income is less than one lakh are eligible to stipend. The amount of stipend is fixed after consultation by Kerala Advocate Welfare Trust Committee and the Government. Around 6000 Junior Advocates will get the benefit of this which is highly overwhelming for them to sustain in the profession on their early days in the profession.

Kerala had become a role model to the other States of India by enhancing the treatment assistance amount from existing `5000/- to `1,00,000/-. Another amendment provided a chance to those advocates who had not yet become a member of the Welfare Fund. Advocates who are having active practice and had not yet joined the Welfare Fund can now join as per Section 15(1)E of the Welfare Fund Act by giving application in the prescribed form and by paying a fine of `2000/- per year by calculating the amount to be payable for a fixed interval with 10 year retrospective effect. The benefit of this welfare fund can only be withdrawn only after the completion of 10 years of practice. The amendment will be an inspiration to those who had not yet joined in the welfare fund which was built under share of their income.

This Welfare Fund Scheme excludes those who are engaged in other jobs and are not actively practicing in courts or is engaged in business. The certification from the concerned Bar Association as well as the Court as to the filing of minimum 5 vakkalaths in a year by the Advocate is essential to continue in the Welfare Fund Scheme and that shows the transparency of the Welfare Fund Scheme.

Judiciary Must Not Support Unbridled Executive Power

(By Thulasi Kaleeswaram Raj, Advocate, High Court of Kerala)

On 27 January 2017, Donald Trump, the President of the United States signed the executive order for “protecting the nation from foreign terrorist entry” primarily on national security grounds. The order imposed restrictions on foreign entry into the US. The Federal Court immediately passed a stay order temporarily freezing the executive order. The Court of Appeals concurred with the Federal Court later.

This instance has led many commentators to reaffirm the conviction that in a constitutional democracy, whenever the Government purports to act against individual freedom, the courts step in to restore it. Further, it has once again provoked the discussion on balancing the obvious conflict between national security and individual rights and how far judicial review must prevail in this conflict.

There are two streams of thought here: one, which argues that the executive should be trusted with making the right decisions in this act of balance. This is mostly grounded on the principle of democratic legitimacy that the Government has been essentially elected by the people and has their mandate. The opposing view however, hesitates to extend this hands-free approach to the executive and proposes that the governmental actions, especially in the guise of national security must be subject to judicial intervention.

Executive bias

There is a predominant reason as to why judicial review of governmental action is desirable. The executive Government is strongly influenced by its inherent political bias. The most important consideration for the executive is its political survival.  In critical times, the Government most often overreact to potential security threats, even where individual liberty is compromised. Michael Ignatieff, makes a significant point in this regard. He notes that “the political costs of under reaction are always going to be higher than the costs of overreaction .... Since no one can know in advance what strategy is best calibrated to deter an attack, the political leader who hits hard—with security roundups and preventive detentions—is making a safer bet, in relation to his own political future, than one who adopts the precautionary strategy of ‘first do no harm.’ ”

A popular executive might not show serious hesitation in torturing a terrorist suspect. The only institution, which will be concerned about the legal impermissibility of torture, is the judiciary. That is a forum where arguments on the legality of torture would come into play.  The court is concerned about constitutional morality, not popular morality. This is because a Government aimed at hollow public approval might consider individual rights to be only secondary. The Government pacifies and patronises. The court, however, preserves liberty.

Two arguments

In this context, the first argument against judicial interference is the ‘specialist’ argument. The claim is that the Government is specially empowered to react to sensitive situations.  In the United Kingdom, for instance, courts have adopted this view that the Government has the better expertise in matters related to national security. 

The Prevention of Terrorist Act, 2005 authorises the UK Government to invoke ‘control orders’ against individuals. Control orders are basically orders imposing severe restrictions on what facilities individuals can use and which places they can access.  Suspected persons may be required to wear electronic tags to enable police monitoring and subjected to strict home curfew up to 16 hours a day.  Such control orders were under challenge in Secretary of State v. A.F. (2009). Lord Scott held, “…the Government has a responsibility for the protection of the lives and well-being of those who live in this country and a duty to promote the enactment of such legislation as it considers necessary for that purpose. It is evident that the Government regards the control order provisions contained in the 2005 Act as being necessary for that purpose. The duty of the courts, however, is rather different. It is not, directly at least, a duty to protect the lives of citizens. It is a duty to apply the law.”

This approach is particularly problematic in as much as it attempts to make a strict demarcation between the ‘political’ and the ‘legal.’ The task of constitutional adjudication by courts in the modern liberal state is very much political. This function is merely performed through the language of the law. The Constitution is a political document that enlists the existing rights of individuals. All that the courts are bound to do is to vigorously protect them. They are, indeed participants of the democratic discourse.

The second argument is based on a ‘one v. many’ approach. It states that in case of national security where the larger public interest is at stake, a compromise in individual rights is acceptable. It is said that is permissible to disfavour an individual if a large number of people benefit from such action. Critical circumstances will necessitate a change in approach to individual rights. A state under emergency threat is a ‘state of exception’, as Girgio Agamben calls it.

However, this argument reduces the human rights concerns to a mere number game. It makes the dangerous concession that human rights can be forfeited and that constitutions can be neglected. A ‘state of exception’ must not be a state without law. The state of law, with its variations is a constant. The change in political circumstances does not warrant overriding superior rights considerations. Aberration from individual rights is not legitimate at any stage. Human rights are universal, pre-existing and non-derogatable.

Indian situation

The domestic environment is not very rights conducive either. A major interference of the Supreme Court in recent times in the realm of personal liberty was Shreya Singhal v. Union of India (2015) in which the Supreme Court struck down S.66A of the Information Technology Act as unconstitutional. But even in Shreya Singhal, the individual was not confronting the State. It was a person vis-à-vis person conflict of sending offensive messages through electronic communication. The characteristic feature of cases involving national security is that the individual and the State are on adversarial margins. In such occasions, the judiciary maintains a manifest silence.

In fact, in Kanhaiya Kumar v. State of NCT of Delhi (2016), the Delhi High Court took the unconventional stand of examining the interlink between freedom of speech and national security in a bail application.  Even so, instead of a legal examination of the issue, the Court went ahead to state, “While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces.” Further, the court required the Mr.Kanhaiya Kumar to undertake that he will not undertake in any “anti-national activity” and moreover, that “he will make all efforts within his power to control anti-national activities in the campus.”

The court has not only laid down conditions of bail, but has also demanded how the individual must lead his life in the campus. Remarks of this nature from a constitutional court might be seriously disturbing. They tend to weaken the constitutionally protected guarantees of right to life and liberty under Article 21 and the right to freedom of speech under Article 19 of the Constitution. They also dilute the key moral principle of self-determination, or in the words of Joseph Raz that “the autonomous person is … author of his own life.”

There is an interesting contradiction in the emerging judicial approach in India. On the one hand, the courts are increasingly sidestepping active adjudication on issues involving individual freedom, be it demonetisation or decriminalisaing homosexuality. On the other hand, they are entering a new realm of intruding in individual lives and reducing critical rights issues to a mere binary debate: national or anti-national.

Unbridled executive freedom might not always be able to pass the test of constitutional scrutiny. It is crucial to note that the understanding of democracy as pure will of the majority has undergone a radical change. The contemporary understanding of democracy is guided by constitutionalism, the idea that the actions of the State can only be in compliance with the prescribed constitutional limitations. Taking cue from the US courts, the Indian judiciary must appreciate that democracy is, after all, meant for its dissidents as well.

(This article originally appeared in The Wire on 18 April 2017).

Triple Talaq - Constitutional and Personal Law Questions

(By V.K. Babu Prakash,Secretary, Kerala Legislative Assembly)

“Personal law so called is law by virtue of the sanction of the sovereign behind it, and is for the very reason, enforceable through Court. Not Manu or Muhammed, but the monarch for the time makes ‘Personal Law’ enforceable”.

                                                   --V.R. Krishna Iyerin Assan Rawther v. Ammu Umma

Shayara Bano, a muslim woman approached the Supreme Court challenging the practice of Triple Talaq, Polygamy and Nikkah Halala raising it as unconstitutional practices under the cloak of Muslim Personal Law. She has also raised a valid point that, can the Secular State be held accountable for violations caused by the operation of religious personal law? The Constitutional Bench headed by the Chief Justice of India is considering the constitutional validity of Triple Talaq as a mode of divorce among muslims along with the legality of the practice of polygamy. The following questions are formulated by the court for detailed hearing:-

1. Whether triple talaq and polygamy are protected under the fundamental right to religion guaranteed under Article 25 of the Constitution?

2. Whether right to religion is subject to important fundamental rights like right to equality under Article 19 and right to life under Article 21?

3. Whether personal law can be termed as a law under Article 13 of the Constitution?

4. Whether triple talaq and poligamy are compatable with India’s obligation under international treaties and conventions to which it is a signatory?

Talaq-i-Bid’ah or triple talaq

Talaq-i-Bid’ah means innovated or sinful form of divorce according to Quran. It is defined as a form of divorce which is pronounced thrice in one sitting when the wife is in the State of purity (tuhr). If the husband says ‘I divorce you, I divorce you, I divorce you’, the Hanafis believe that divorce is effected. Although this kind of divorce is sinful according to Quranic tenet, neverthless, it is valid and divorce will take place. When triple talaq is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes ‘haram’ (totally prohibited) for him. Neither can he take her back or can he go for fresh ‘nikah’ with her. He can go for ‘nikah-halala’ with her only after she marries another person and that person divorces her on account of marital conflict or she becomes a widow. It has to be emphasised that the practice of the Muslim Personal Law does not exist outside the sphere of State regulation at present. Legally speaking, the practice of triple talaq already stood invalidated by the verdict of the Supreme Court in Shamim Ara v. State of U.P. in 2002. The Apex Court held in the verdict that, unilateral talaq by husband is valid only when it is pronounced for a reasonable cause and is preceded by efforts at reconcilliation. Similarly, on Polygamy, various judicial verdicts hold that a Muslim male may be allowed to marry four times only if he is able to maintain all four wives equitably. In Khurshid Ahamed Khan’s case Supreme Court further held that, this practice of polygamy shall be prohibited among male Central Government Employees as the Central Civil Service (Conduct) Rules prohibit polygamy.

The tall question points its finger to the above issues is whether personal laws are truly ‘laws’ that can be examined through the looking glass of constitutional ideas of equality, non-discrimination and personal dignity. Way back in 1951 the Bombay High Court in State of Bombay v. Narasu Appamali held that personal laws could not be invalidated by Courts even if they are found to be oppossed to fundamental rights, as personal laws are not ‘laws’ in force as defined by Article 13 of the Constitution. This judgment was upheld by the Supreme Court in 1980 in Sri Krishna Singh v. Mathura Ahr case. But there are contrary views, by various other High Courts differing with the above stated view. The All India Muslim Personal Law Board which is a party in the Shayara Bano case supports the Bombay High Court’s view, contending that the Supreme Court does not have authority to entertain a constitutional challenge to Muslim Personal Law.

When one looks at the evolutionary process of Hindu and Muslim laws in India, one can easily find that both Hindu and Muhammeden laws were creations of the colonial rule following a complex process of nationalisation, rather than a simple codification of religions commands. The colonial British State cleverly operated through religious law, shedding the ritual significance of that law into the domain of social life while absorbing its governing functions into the State. In the case of Hindu Law, each time a change is introduced, the reformers relied on the State’s law making authority, precisely because, no support for the innovation could be found in the religious scriptures. The Hindu Women’s Right to Property Act 1937 is one of such reformative enactments, that allowed a widow to inherit the deceased husband’s property, which can be looked at in a similar back drop. The actual motive in the case of reforms to Muslim Laws were more political than economic or social. The Muslim Personal Law (Shariat) Application Act, 1937 which provided that the ‘Shariat’ and not Customary Law or Anglo Muslim Law should be applicable to the Muslim Community in India, is really backed by the Muslim elite’s desire to project Indian muslims as a unified religion, community which has a political focus. The 1937 Act made ‘shariat’ to be the law applicable to the Muslim Community, not with respect to every area where a shariat rule existed in the Quran, but only with respect to certian areas of family life specified in the Act like marriage, divorce, inheritance, gift, waqf, women’s property etc. Matters such as inheritance to agricultural property, contracts and debt were left out of the purview of shariat in Muslim Personal Law.

The essential point is that Shariat acquired exclusive jurisdiction over certain matters as Muslim Personal Law because the State declared it to be so, and that the choice of these matters and the final shape of the 1937 Act were determined by socio political rather than religious considerations. Take another example, which is the resolution of Muslim Marriage Act 1939, which provides grounds by which a Muslim wife could seek divorce. This Act modified the rule of divorce for Muslim women (not men) and provided that a woman who had been married before the age of 15 could repudiate the marriage upon attaining puberty, if she did it before turning 18 and if the marriage had not been consummated. Thus, today, when a muslim woman exercises the option at puberty to repudiate her child marriage, the source of her right is not religion, but the State. To put it pithly, historically, Hindu and Muslim Personal Laws have implicated civil authority in different ways and are shaped by secular elements to different degrees. While Muslim Personal Law has a closer relationship to religious scriptures, both Hindu and Muslim Personal Laws in general, emerge out of socio­political considerations like any other law, which rely on the sovereign power of the State to enact a law and enforce it. It is therefore unrealistic to think that the body of laws referred to as Personal Laws derive their validity from religion, rather than the State and its sovereign power.

There is an empty rhetoric from the side of the All India Muslim Personal Law Board resisting for the reformation of the Muslim Personal Law by Shayara Banu, that what Shayara Bano evokes in the case is the liberal national dream of a uniform civil code which cannot be forcefully imposed upon Muslim minorities. Instead of chasing the grand nationalistic vision of one nation, one law, the focus must be on holding whether personal laws are subject to fundamental rights. If this is made clear, just like muslim women, other women in other religions also could challenge the discriminatory provisions in the personal laws applicable to them. After all India is a diaspora of different culture and social set up living together under a nation, State professing and pursuing different religious practices to find one’s God in many ways.

References:

1.  Assan Rawther v. Ammu Umma (1971 KLT 684).

2.  Khursheed Ahamad Khan v. State of U.P. (2015 (1) KLT SN 116 (C.No.138) SC =
     AIR 2015 SC 1662).

3.  Krishna Singh v. Mathura Ahir.(1980 SCR (3) 660).

4.  Kunhi Mohammed v. Ayishakutty (2010 (2) KLT 71).

5.  Shamim Ara v. State of U.P. (2002 (3) KLT 537 (SC) = (2002) 7 SCC 518).

6.  State of Bombay v. Narasu Appamali (AIR 1952 Bom.84).