Lawless laws and the Rule of Law

The high profile Aryan Khan’s case has again ignited the public debate on the state of our criminal justice system; on the legal provisions that make bail difficult, if not impossible, under stringent penal laws; and on how similarly situated undertrial prisoners, who are awaiting a decision on their bail applications, are left bewildered, and bitter, as to how the wheels of justice can move faster in some cases than others.

The media attention has also made the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) common knowledge. The public now knows about the statutory presumption against the accused for mere possession of illicit articles, as well as the provision that where the Public Prosecutor opposes the bail application of the accused, the Court is to be “satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”. And in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the Court is to presume the existence of such mental state. The onus is on the accused to prove beyond reasonable doubt the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Such provisions are not unique to the NDPS Act. I have had the occasion to examine in my book, Unravelling the Kashmir Knot, similar provisions in anti-terror laws like Terrorist and Disruptive Activities (Prevention) Act (TADA) which was succeeded by Prevention of Terrorism Act (POTA). All such provisions effectively deprive the accused of his liberty without giving him, at the time of such deprivation, an effective opportunity to defend himself.

For instance, both TADA and POTA made the mere unauthorized possession of specified arms and ammunition in a notified area a substantive offence pertaining to terrorist activity. It may be true that the accused was not justified in possessing the specified arms and ammunitions in a notified area, but surely, mere unjustified possession did not necessarily mean that a person was a terrorist. And it would only be at the time of trial that the accused would effectively get an opportunity to rebut the statutory presumption by leading evidence to show that the weapon was not meant to be used for a terrorist act. By then the accused would probably have languished in jail as an undertrial for years, if not decades. Nor would bail have been an option for such accused. Where the Public Prosecutor opposes the bail application, TADA mandated, like the NDPS Act, that the Court, in order to grant bail, must be “satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail” – a mandate which effectively ensured that those booked under TADA would continue to languish in jail. POTA was equally strict; it provided that where the Public Prosecutor opposes the bail application, “no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the Court is satisfied that there are grounds for believing that he is not guilty of committing such offence.”

In my view, such provisions are plainly unconstitutional for the reason that the accused simply has no effective opportunity to defend himself at the time when his liberty is being taken away, resulting in his being condemned to incarceration for cruelly long periods of time awaiting trial. These laws, as also other laws like the Unlawful Activities (Prevention) Act (UAPA), which contain provisions that invert the ordinary criminal rule of “Bail, not Jail” and the presumption of “innocence till proved guilty”, can perhaps be best described as being “lawless” and calculated to keep the accused in jail as undertrials. It is unfortunate that the such provisions have not been struck down. While TADA and POTA may stand repealed, UAPA is very much in force. The incarceration as undertrials assumes importance when one considers the functioning of the Indian legal system – after all, law cannot be divorced from reality. It is common knowledge that pending trial, prisoners languish in our overcrowded jails for decades in dehumanising conditions, even under the general law. It is our prisons that make the accused guilty; they detain them on allegations of commission of one crime, and return them, if returned alive, fitted for the perpetration of many.

Ironically, the first ever PIL in India, Hussainara Khatoon’s case (1979) pertained to the pitiable plight of undertrial prisoners in Patna and Muzzafarpur jails, some of whom did not even know why they were there, others were actually victims of a crime, yet others were children. Many were charged with trivial offences which, as the Supreme Court observed, “even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced.” The Supreme Court, while declaring that it was a “crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial”, and expressing its anguish at such “sorry state of affairs” that betrayed “complete lack of concern for human values”, read a right to speedy trial as an essential and integral part of the fundamental right to life and liberty enshrined under Article 21 of the Constitution. The Court declared that it was its own constitutional obligation “as guardian of the fundamental rights of the people, as sentinel on the qui vive” to enforce the fundamental right of the accused to speedy trial by issuing necessary directions to the State which may include positive action. This PIL led to the release of an estimated 40,000 undertrial prisoners on personal or no bond.

I had the good fortune of appearing along with late Kapila Hingorani before the Supreme Court in Hussainara Khatoon’s case when it was eventually disposed off on August 5, 1995 with directions to each High Court to collect statistical information on undertrials in jails within their jurisdiction and to implement the guidelines laid down by the Supreme Court. Interestingly, Justice M.N. Venkatachaliah, former Chief Justice of India, while referring to the legacy of late Kapila Hingorani and of late Nirmal Hingorani in his endorsement to my book, described it as “the great humanism permeating penology from Hussainara Khatoon onwards.” It is indeed regrettable that this “humanism permeating penology” has lost its way. What can be more telling of this than the dismal fact that the undertrial population in our jails was reported in September 2020 to be about 70%, which is substantially more than what was documented by the Law Commission of India in its 78th Report submitted in February 1979 on “Congestion of Under-Trial Prisoners in Jails” – 54.9% as of April 1, 1977.

Included among the reasons for “humanism permeating penology” losing its way is the enforcement of such “lawless laws” by the Indian State on its own people for several decades now. It is no doubt true that terrorism or the trafficking and abuse of narcotic and psychotropic substances are heinous offences, and it is the legitimate concern and responsibility of any state to address such menace in a holistic manner. That does not, however, imply that the laws themselves be skewed in favour of the Indian State merely because it claims good intent. It has often been said that “most of the evil in this world is done by people with good intentions.” The way forward for the Indian State is to improve and strengthen its capacity to perform professionally – right from the time of collection and assimilation of intelligence to registration of cases to investigation to prosecution. That would help the investigating agency in arresting the accused only after collecting adequate and legally admissible evidence which incriminates the accused – instead of the investigating agency using such “lawless laws” to first ensure that the accused remains in jail and adds to the undertrial population while it goes around, at its own pace, to collect evidence in order to figure out what, if any, offence has been committed. As regards the judicial branch of the Indian State, one can only recall the anguished words used by the Supreme Court itself in Hussainara Khatoon’s case. Not only should the Supreme Court take pro-active steps to ensure the implementation of its own excellent guidelines laid down decades ago to address the issue of undertrials, it should also re-examine the patently unconstitutional provisions of the “lawless laws” so as to bring our criminal jurisprudence in line with that of civilised nations subscribing to the Rule of Law.

It appears to have been forgotten that for the citizen to respect and obey the law as also the legal system, both the law and the legal system must accord to the moral sense of the citizen that the treatment meted out to him would be fair, just, reasonable, timely, honest and even-handed. No state anywhere in the world considers itself relieved of its obligations to conform to such sense of morality simply because it is empowered to make law, interpret law, apply law and enforce law. And should any state choose to do so, it does so at its own peril; after all, history tells us that more states are known to have perished from violation of morality rather than of law.

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