23 Nov 2020 8:47 AM GMT
Commenting about the section prepared by the Fundamental Rights Sub-Committee for the Draft Constitution of India, Somnath Lahiri famously said that the provisions on fundamental rights appear to have been drafted from the point of view of a police constable. Considering that the final version of the fundamental rights clauses retained much of this draft (and, frankly, only narrowed...
Commenting about the section prepared by the Fundamental Rights Sub-Committee for the Draft Constitution of India, Somnath Lahiri famously said that the provisions on fundamental rights appear to have been drafted from the point of view of a police constable. Considering that the final version of the fundamental rights clauses retained much of this draft (and, frankly, only narrowed the scope of rights further), Lahiri's criticism squarely holds for Part III of the Constitution as we know it.
It struck me recently that there are two ways to think about his point. The first is, of course, that the fundamental rights clauses are narrowly defined with many restrictions. The second layer of critique becomes visible when we think about how these restrictions are enforced. Who gets to decide when my exercise of free speech crosses the limits of what is permissible and threatens to prejudice maintenance of public order? Or, who gets to decide when a person's expression of her religious beliefs (including proselytising religious beliefs) is permissible or not? Or, perhaps most seriously of all, who gets to question the intent behind my freedom to choose what to say or what religious beliefs to follow? The restrictive clauses in the Fundamental Rights chapter came with a possibility that these restrictions could be imposed merely upon the sweet will of a police constable. This outcome is incomparably worse than a merely restricted view of the contents of rights, as it means that the content of rights is not simply restricted, but arbitrarily so, which transforms our "rights" to little more than "benefits" that we enjoy at the mercy of the state.
The worry that the Fundamental Rights chapter could be interpreted this way was vividly expressed by a bench of the Patna High Court barely three months after the Constitution came into force, in Brajnandan Sharma v. State of Bihar [AIR 1950 Pat 322]. Sharma had been banned from entering the districts of Bhirbhum and Manbhum on the strength of an order passed under Section 2 of the Bihar Maintenance of Public Order Act 1949. Section 2 was assailed as being contrary to Article 19(1)(d) of the new Constitution, and by a split 2-1 verdict, the Court agreed. The key for both Meredith C.J. and Das J. here was interpreting the word "reasonable" in Article 19. In their separate opinions, both held that the reasonableness requirement could not be met by laws allowing curbing of a fundamental right based purely on the subjective satisfaction of an executive official. They sought a more objective yardstick, which the Bihar Act did not have. In the words of Meredith C.J.: "There can be no presumption that an executive official will always act reasonably. There may be a presumption that he will act bona fide; but that is a different thing."
Less than two months later, a Constitution Bench of the Supreme Court dismissed a challenge to a similar provision in the East Punjab Public Safety Act 1949 in N.B. Khare v. State of Delhi [AIR 1950 SC 211] and, while the judgment was a 3-2 split, all five Justices agreed that it was kosher for laws to infringe enjoyment of fundamental rights based on the subjective satisfaction of an executive official about the prospective harm etc. involved. This reasoning was burnished soon after in a different context [Virendra, AIR 1957 SC 896], and the Court suggested that it was necessary for officers to have wide discretionary powers to deal problems and fairness could be supplemented by way of procedural safeguards.
The reverberations of these founding-era choices have continued to be felt in the decades since, and could be felt strongly this past week as first many states publicly proclaimed their intention to pass laws restricting the freedom of religion and render it subject to state sanction, and then the Kerala Government passed an ordinance permitting the restriction of speech where it is humiliating / defamatory etc only to make a u-turn in the face of serious public criticism about the measure. Lahiri's point held on both levels — not only do these laws constrict the scope of the fundamental rights guaranteed under Part III, but they go further to render the very enjoyment of these rights subject to the sweet will of a police constable.
Consider the oxymoronic "Freedom of Religion" laws first — taking the Himachal Pradesh version of this Act as a base that might be soon replicated across the country, where freedom of religion is rendered subject to approval by state actors. The legal scheme works in two ways. First, it allows using criminal law against those who allegedly force / induce / marry another to change their religion. The stiff punishments are coupled with classifying the offences as non-bailable and clothing police with the extraordinary powers to arrest without warrants. And, since the offences punish anyone who aids or abets the "conversion", it ensnares a person changing her religion as well. This criminalisation is coupled with the creation of an oppressive legal regime which requires any person desirous of changing religious beliefs to make declarations to this effect before a District Magistrate, with similar notice requirements also being imposed on priests involved in any ceremonies that might be involved (All this, remember, won't apply if one returns to the parental religious fold). The Magistrate is legally-bound to inquire into the intention behind any such proposed move, and this inquiry can even be through the police. Worryingly, the law states that the burden to prove that any "conversion" of religion is free from fear / inducement / even marriage (whatever that means), lies on the person who chooses to change her religious beliefs along with whoever facilitated this exercise of religious freedom. In one fell swoop, not only does the law manage to place individual autonomy under suspicion and subject to the mercy of arbitrary executive power, but it also exposes the individuals and their loved ones to a trial by fire for a private choice they make.
Then we have the abortive Section 118-A of the Kerala Police Act which was labelled as a faintly disguised attempt to resurrect similar legal provisions [Section 118(d)] that were struck down by the Supreme Court in Shreya Singhal [(2015) 5 SCC 1]. The provision allows instituting criminal proceedings for anyone who engages in speech that is "threatening, abusing, humiliating or defaming a person or a class of persons, knowing it to be false and that causes injury to the mind, reputation or property of such person or class of persons or in any other person in whom they have interest". The dangers of hate speech are very real and combating such conduct is apparently the intention behind the Ordinance, but we must not blind ourselves to the costs involved in going the 118-A route for achieving this result. In making some kinds of speech a crime, the law allows police the jurisdiction to evaluate all kinds of speech acts and in doing so, casts a chilling effect across the spectrum as nobody wants to be perpetually afraid thinking "what if this post is found objectionable and lands me in jail".
The Kerala Government has buckled underpopular pressure and decided not to implement 118-A, and as of now, we don't know what will happen to the proposed "Freedom of Religion" acts in the pipeline. But a closer look at the underlying fault-lines of our legal regime suggests that the problems are in the foundations of the law itself and not in these specific instances. If the choice to go ahead with the police constable's view of fundamental rights is one that was still debatable on January 26, 1950, it is one that our courts certainly decided to go ahead with in the months thereafter. Until the law clearly and unequivocally discards this as a potential path open for governments in matters affecting fundamental rights, it is only natural for them to keep going down this path and arrogate power unto themselves at the expense of citizens.
Abhinav Sekhri is a Delhi based Criminal Lawyer