“Bane hain ahal-e-hawas muddai bhi munsif bhi
Kise vakeel karein? Kisse munsifi chaahen? “
Faiz Ahmed Faiz
Throughout my tenure as a judge of the Supreme Court, there was one principle I consistently followed: to increase the space for civil liberties in India. This is even more relevant today when the space is shrinking, as evident from the recent raids and arrests in many cities of activists, lawyers and writers in connection with the Bhima Koregaon incident.
I have decided therefore to mention some of these judgments here.
Since the time of Magna Carta, it has been an established principle in English law that a person imprisoned must get a fair trial in which he can put up his defence. Preventive detention means arresting and imprisoning a person without trial and without the right to consult a lawyer, produce his witnesses or cross examine the witnesses against him. This is totally repugnant to democratic ideals and an anathema to the rule of law. It reminds of lettres de cachet issued by French kings and aristocrats before the French Revolution. Voltaire and the fictional Dr Manette (Charles Dickens’ Tale of Two Cities) were put in Bastille in this manner. No such law exists, or has existed, in the UK or the US (except during the time of war).
However, strangely, it is permitted by a specific provision included in Part III of the Indian constitution, which gives certain fundamental rights to the people. Does that mean a citizen of India has a fundamental right to be imprisoned without trial? Surely that would be an absurd interpretation.
I often thought of this, and got an opportunity to put forward my view when presiding over a three-judge bench of the Supreme Court in Rekha vs State of Tamil Nadu.
The facts of the case were that the husband of the petitioner had been detained under a preventive detention law of Tamil Nadu (the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, etc Act, 1982) for allegedly selling expired drugs by removing their labels and affixing fresh ones.
Writing for the bench, I observed that Article 22(3)(b), which refers to preventive detention cannot be read in isolation, it must be read along with Article 21, which gives the right to life and liberty to all persons. Article 21 lays down the main rule, and Article 22(3)(b) is only an exception to it. Therefore it must be kept within very narrow limits and cannot override the main rule.
Article 21 is the most important fundamental right guaranteed by the constitution. The right to liberty means that a person cannot be imprisoned without a trial in which he is given full opportunity of defence and that too through a lawyer of his choice. This right was incorporated in the constitution by our forefathers who had been through the bitter years of alien rule and had seen civil liberties trampled upon during the freedom struggle. They believed, like Jefferson, that “elective despotism was not the government we fought for“. Hence they were determined to place the right to liberty on the highest pedestal.
Article 22(1) gives a person detained the right to be defended by a lawyer of his choice, and Article 22(2) states that he must be produced before a magistrate within 24 hours of arrest, but Article 22(3)(b) excludes applicability of Article 22(1) and (2) to cases of preventive detention. Therefore preventive detention must be confined to narrow limits. Article 22(3)(b) is an exception and cannot ordinarily nullify the full force of the main rule in Article 21.
In preventive detention, no offence need be proved by the authorities and the justification for such detention is suspicion. Indeed, preventive detention is often described as a ‘jurisprudence of suspicion’. The detaining authority passes his order on his subjective satisfaction and the detenue is denied the right to consult a lawyer or be defended by him, to produce his witnesses or cross examine those against him. All Article 22(5) gives is a right to be communicated the grounds of arrest and a right to make a representation against it to an advisory board.
It is all very well to say that preventive detention is preventive not punitive, but what difference does that make to a person who is incarcerated for one year without trial?
In Haradhan Saha vs State of West Bengal (1974) a five judge bench of the Supreme Court held that a preventive detention order can be passed even if a criminal prosecution can be done, or is actually being done, on the same charge mentioned in the preventive detention order. But in Rekha’s case we distinguished that ruling, and held that if the situation can be dealt with by the ordinary laws (IPC and/or other penal statutes), a preventive detention order would be illegal. We also held in Rekha’s case that the detenue could be dealt with by the ordinary laws (IPC, Drugs and Cosmetics Act, etc) and hence the detention order was unsustainable.
In Deepak Bajaj vs State of Maharashtra there was a preventive detention order against the petitioner who challenged it at the pre-execution stage. The government counsel contended that unless the petitioner surrenders and is in jail, he cannot challenge a preventive detention order. We disagreed with this contention and I wrote the judgment of the bench.
I said that if a person can show that the detention order is clearly illegal, why should he be compelled to go to jail? If he is sent to jail but later released, his reputation in society may nevertheless be irreparably tarnished. A person’s reputation is a valuable asset for him and is part and parcel of the right to life guaranteed by Article 21 of the constitution. I quoted the 34th shloka from the second chapter of the Gita, in which Krishna said “For a self respecting man, death is preferable to dishonour.”
Mere membership of a banned organisation does not make one a criminal
There are some laws like Terrorist and Disruptive Activities Act (TADA, now lapsed) and Unlawful Activities (Prevention) Act, 1967, under which the government can ban an organisation and thereafter mere membership of such organisations would apparently incriminate a person.
But in Arup Bhuyan vs State of Assam and Sri Indra Das vs State of Assam writing for the Supreme Court bench, I held that Section 3(5) of TADA and Section 10 of UAPA which incriminate mere members of a banned organisation, cannot be read literally and must be read along with Article 21 of the Constitution, and by doing so must be read down. By so construing these provisions, it must be held that mere membership of a banned organisation will not automatically incriminate a person unless he resorts to violence or incites people to imminent violence. The doctrine of ‘guilty by association’ was rejected in Sri Indra Das’s case following our earlier decision in State of Kerala vs Raneef.
In Arup Bhuyan’s case, reliance was placed on the decision of the US Supreme Court in Brandenburg vs Ohio, in which it was held that mere advocacy or teaching the duty, necessity or propriety of violence as a means of accomplishing political or industrial reform, or publishing, circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, is not per se illegal. It will become illegal only if it incites to imminent lawless action.
In Scales vs US a distinction was drawn by the US Supreme Court between active and passive members of an organisation. In Noto vs US, the US Supreme Court held that mere teaching of Communist theory, including moral propriety or even necessity for resort to force or violence is not a crime.
In Whitney vs California, justice Brandeis, the celebrated judge of the US Supreme Court observed:
“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. To justify suppression of free speech there must be a reasonable ground to believe that the danger apprehended is imminent.”
In Joint Anti-Fascist Refugee Committee vs McGrath, justice William Douglas of the US Supreme Court observed, “In days of great tension when feelings run high it is a temptation to borrow from the totalitarian techniques of our opponents, but when we do, we set in motion a subversive influence which destroys us from within.”
Fake encounters by the police are well known and presently, it is believed that they are being widely done in UP by the police at the behest of their political masters. The justification often given for this is that there are some dreaded criminals against whom no one will dare to give evidence, so it is better to just bump them off. The danger in this is that innocent people may also be killed in this process. For instance, if a politician or businessman has a rival, he may bribe a policeman to declare such rival a dreaded criminal and eliminate him.
In Prakash Kadam vs Ramprasad Vishwanath Gupta, we held that fake encounters are nothing but cold blooded murders and policemen committing them must be given death sentence, treating them in the category of ‘rarest of rare cases’. We referred to the verdict of the Nuremburg Tribunal after the Second World War, which rejected the defence plea of ‘orders are orders’. We observed, “Trigger happy policemen who think they can kill people in fake encounters and get away with it should know that the gallows await them.”
Death in police custody
In Mehboob Batcha vs State, we held that in case of custodial death, the policemen responsible must be given death sentence, treating it in the category of ‘rarest of rare’ cases. In this case it was alleged that the deceased had been horribly tortured by policemen in police custody due to which he died and his wife had been gang raped.
Lawyer must be provided in criminal proceedings
In Md Sukur Ali vs State of Assam, we held that no criminal case should be decided without a lawyer to defend the accused and the accused must be provided a lawyer if he cannot afford one.
In this case, we relied on a judgment of the US Supreme Court in Powell vs Alabama in which it was observed:
“The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small, and sometimes no skill in the science of law. If charged with a crime he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent, irrelevant or inadmissible evidence. He lacks both the skill and knowledge to adequately prepare his defence. He needs the helping hand of counsel at every step of the proceeding against him. Without it, though he may be not guilty, he faces the danger of conviction, because he does not know how to establish his innocence.”
Case of Binayak Sen
The bail application of Dr Binayak Sen came before the bench of the Supreme Court over which I was presiding. It took me less than a minute to grant bail. I had studied the papers relating to the case meticulously at home the previous evening and I was prima facie convinced that the evidence was fabricated.
Here was a doctor with an MD from Vellore, one of the premier medical institutes in India. He could have easily gone abroad and made tons of money, but instead he decided to serve tribal communities in Chattisgarh. He should have been honoured. Instead, he was locked up for two years on charges of being linked with Naxals (probably because he opposed Salwa Judum).
Case of Gopal Das vs Union of India
Gopal Das was an Indian who had crossed over to Pakistan in 1984 and was awarded life sentence for espionage by a Pakistani military court. Since then, he was in a Pakistani jail. His petition, praying for his release, filed through his brother came up in 2011 before a bench presided over by me.
Obviously, we had no jurisdiction over Pakistani authorities and so we could give no directions in the matter. However, we issued an appeal to the Pakistan government to release Gopal Das on humanitarian grounds, as he had already served 27 years in jail. We quoted a couplet of the Urdu poet Faiz and Portia’s speech in Skakespeare’s ‘Merchant of Venice’ in our judgment.
We requested the then solicitor general Gopal Subramaniam to forthwith send a copy of the judgment to the Pakistan High Commissioner and we requested the latter to forward it to Islamabad.
Within a few days, I learnt from newspapers that the Pakistan government had decided to honour our appeal and release Gopal Das.
Never in world judicial history has such an appeal been issued and never has it been so honoured.
Doctrine of ‘guilt by association’
In Sri Indra Das vs State of Assam, we rejected the doctrine of ‘guilt by association’ (para 8 of judgment). It seems that the recent action against activists, lawyers and writers in connection with the Bhima Koregaon incident has been taken on the basis of this doctrine. Hence it is flagrantly illegal.
Markandey Katju is a former judge of the Supreme Court.