The contours of the right to receive bail | Guest Post by Rasveen K. Kapoor

(This is a guest post by Rasveen K. Kapoor. Rasveen is a student at Indore Institute of Law).  

Arnab Goswami || Siddique Kapan

“A man of courage never needs weapons, but he may need Bail.” 

– Lewis Mumford, American historian

It is the sacrosanct obligation of all concerned with the justice dispensation system to ensure that the administration of criminal justice remains effective and meaningful. Literally, the expression 'bail' denotes a security for appearance of a prisoner for his release. Bail is a grant of conditional liberty to an accused who assures or on whose behalf assurance is given that he would be present at the trial. It is imperative to note that the very idea of bail emerges from an assumption, of the accusatorial framework, i.e.  innocent till proven guilty.

As recognized by the English jurist, William Blackstone, “it is better that ten guilty persons escape, than that one innocent suffer.”  An incalculable wrong is done to an innocent person who spends even a single day in prison. From the date of recording of an FIR till consummation of the trial process and the case decision, the law contains different arrangements to release an accused on bail. Through multiple decisions, the Supreme Court of India has held that bail is a privilege and is significant in a democratic republic, until he is demonstrated liable through a fair trial process.

A Mathura court on November 13^th’ 2020, dismissed the bail plea of three persons, booked on charges of sedition and terrorism after their arrest in Mathura along with a Kerala journalist namely, Siddique Kappan – who was on his way to Hathras village to meet the family of a Dalit woman who died after being brutally gang raped.

This denial of bail must be examined in context with the speed with which Arnab Goswami received bail, after just a single hearing in the Supreme Court. The speedy hearing and the grant of bail to Arnab Goswami has rekindled the moot question regarding the selective treatment of the high and the mighty - “Whether the privilege to fundamental rights is only a prerogative of the riches”?

When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so.

Personal liberty is recognised significantly in the constitutional framework under Article 21. While considering bail applications of the accused, it is important that the courts balance considerations of personal liberty and the interests of the general public, thereby paving a way for judicial discretion in matters of bail.

 It is the solemn duty of the court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital[1] has stated certain points to be considered before granting bail, namely:

1.  The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3. Prima facie satisfaction of the Court in support of the charge.

The Supreme Court had time and again stated that bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[2] has mentioned some relevant grounds that play a vital role in deciding the bail applications being, the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It has been regarded by the Hon’ble Supreme Court in the case Babu Singh and Ors. V. State of U.P. [3] that, deprivation of personal liberty by refusal of bail applications blurs the great trust exercisable as on the part of the judiciary as an institution, not casually but judicially, with lively concern for the cost to the individual and community. Personal liberty of an accused or convict is fundamental, and shouldn’t be subjected to suffering lawful eclipse in terms of the procedure established by law. 

In all these cases, the common condition attached is that the person released on bail will be brought before the court on demand. Other conditions may be imposed as may be deemed appropriate. It may be stated in passing that in the event of delivering custody to the state by way of refusal of bail to the accused or his surety the court may set out other conditions for the benefit and enjoyment of liberty by the accused.

Legislative prescriptions governing inmates in prison may be said to be serving this end. These regulations have to be in conformity with the themes of such human dignity as are now being expounded by the court as a part of human rights jurisprudence in general and personal liberty in particular.[4]

Passionate pleas for personal liberty are often being made while seeking release of an accused person in pre-trial cases. This approach is expressive of the conscious assertion to protect the individual rights. The pre-emptive rule of “Bail Not Jail” as regarded in Khemlo Sakharam Sawant v. State of Maharashtra[5] , vis-a-vis Article 21 should not be ignored. Though judicial discretion in matters of granting bail is imperative, but selective treatment by judiciary in matters of personal liberty dwindles the very faith of an individual in the credibility of judiciary as an institution.

---

[1] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258.

[2] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444.

[3] Babu Singh and Ors. V. State of U.P., (1978) AIR 527, 1978 SCR (2) 777.

[4]  D.C. Pandey, "Criminal Law", XVI ASIL 452 et. seq. (1980).

[5] Khemlo Sakharam Sawant v. State of Maharashtra 2002 (1) BOM C.R. 689.

5th August 2019, and a year thereafter

 5^th August 2020 shall mark exactly one year since the Modi Government made far-reaching changes to the constitutional structure of Jammu & Kashmir (J & K) and Ladakh – by amending Article 370, abrogating Article 35A, and converting the State into 2 Union Territories.

Before recalling the changes introduced in the Rajya Sabha on 5^th August, let us go back a bit further.

The month that preceded 5^th August 2019

Throughout the month of July, there was speculation in the Kashmir Valley that some major changes were being contemplated by the Central Government. A large number of armed troops were brought in, the annual Amarnath Yatra was cancelled, and tourists were asked to leave. President’s Rule had also been in force for more than 6 months. Meanwhile, Satya Pal Malik, the Governor of J &K, tried to assuage fears by stating that there was no need to worry about any change to Article 370 or 35A.

On 4^th August, speculation and anticipation reached such a stage that all political parties in J & K (except the BJP) decided to hold a meeting at Farooq Abdullah’s residence in Gupkar Road, Srinagar. The political parties jointly issued the Gupkar Declaration, which stated that they would be united in their effort to protect J & K’s identity and autonomy. The Declaration also stated that they would not accept any unilateral changes to Article 370 and 35A, or a bifurcation of the State. On the same evening, the J & K Administration disabled access to broadband, landline and internet communication services.

The morning of 5^th August: The Rajya Sabha meets with a surprise

On the morning of Monday, 5^th August 2019, the fears of all political leaders came true, and the Governor was forced to eat his words. Home Minister Amit Shah proposed a slew of constitutional changes in the Rajya Sabha.

In fact, legislative changes began just before Parliament Assembled, as the Central Government got the President to sign an Executive Order that was issued under Article 370. This executive order effectively amended clause (3) of Article 370. Instead of the Constituent Assembly of J & K, the Legislative Assembly would now have the power to make a ‘recommendation’ to amend or abrogate Article 370.

However, as J & K was under President’s Rule, it did not have a Legislative Assembly after the split of the BJP-PDP alliance. After the Executive Order was issued, Home Minister Amit Shah moved a statutory resolution in Parliament, contending that as the Legislative Assembly was suspended, the power to amend Article 370 shall now vest with Parliament. What was left unanswered was whether Parliament could perform the task of a Legislative Assembly, which is also supreme within its own sphere.

The statutory resolution effectively achieved 3 objectives – (i) it amended Article 370 to the effect that all provisions of the Indian Constitution shall apply to J & K without any exception or modification; (ii) it abrogated Article 35A, which was an enabling provision that permitted conferment of special rights and privileges to the permanent residents of the State of J & K; (iii) it repealed the Jammu & Kashmir Constitution, which had been enacted and adopted in 1956 by an elected Constituent Assembly of J & K.

If this was not enough, Home Minister Amit Shah also moved the Jammu & Kashmir Reorganization Bill, which converted the erstwhile State of J & K to two separate Union Territories of J & K and Ladakh. This was the first time in our constitutional history that a State had been converted to a Union Territory. As President’s Rule had been imposed, the changes were made without complying with the mandate of Article 3 of the Constitution, which requires the Legislative Assembly of a State to ‘express its views’ – when there is a proposal to reorganize or bifurcate a State.

As Rajya Sabha MP Derek O’Brien points out, MP’s were not even given a copy of the statutory resolution and the Reorganization Bill in advance, as this was added to the House’s List of Business in the last minute. The resolution and the Reorganization Bill was passed by the Rajya Sabha on 5^th August itself, despite the fact that MP’s lacked sufficient time to study the proposals in detail. The unilateral manner in which the changes were made does not stop with the Rajya Sabha. The proposed changes were not even discussed with the leaders of mainstream political parties of J & K, be it Mehbooba Mufti or Omar Abdullah.

As the Government was explaining its rationale for these constitutional changes, the J & K Administration already began enforcing the orders it had received. Farooq Abdullah, Omar Abdullah, Mehbooba Mufti and other political leaders such as Sajad Lone were placed under house arrest. But before we move to these preventive detentions, let us briefly discuss the Government’s rationale for the constitutional changes it made.

The Government’s rationale and its discontents

For abrogating Article 370 and 35A, the Government gave primarily 3 reasons. First, Article 370 was being used as a tool to fuel separatism and militancy in the Kashmir Valley, and hence needed to go. In this regard, it was also argued that the de-operationalization of Article 370 shall ‘completely integrate’ J & K with India. But, Article 370 never stalled any such integration. The Constituent Assembly of India had envisaged Article 370 to be a bridge between J & K and the Government of India.

It was drafted to govern the manner in which constitutional provisions and parliamentary laws shall be applicable in J & K. The text and wording of Article 370 did not in any way stall or make J & K’s integration with India partial. Moreover, the J & K Constitution (which was also repealed through the statutory resolution) itself stated that J & K’s integration with India is final and complete.

Under Section 3 of the J & K Constitution, the State of J & K “is and shall be an integral part of the Union of India”. This provision of the J & K Constitution was simultaneously repealed, while the Government went about claiming that de-operationalizing Article 370 had ‘completely integrated’ J & K with India.

Second, they argued that abrogating Article 35A shall ensure greater investment and economic activity in J & K and Ladakh, as outsiders would now be allowed to purchase land in the newly constituted Union Territories. What the Government did not say was that outsiders were prevented from acquiring land due to State land laws such as the J & K Agrarian Reforms Act, 1976, and not because of Article 35A.

Abrogating Article 35A alone would have not allowed outsiders to purchase land, as Article 35A itself did not place any such restriction. For precisely this reason, the Fifth Schedule of the J & K Reorganization Act,2019 amended these State land laws, to permit outsiders to acquire land. These amendments were separate, and were not based on any restriction placed by Article 35A.

Third, it was argued that these would lead to ‘more rights’ for the residents of Jammu & Kashmir, as beneficial legislations such as the Right to Education Act, 2009 (RTE) shall now be applicable. What was left unsaid was that J & K had their own version of many of these beneficial legislations. For instance, it had its own version of the RTE i.e. the J & K School Education Act, 2002 – which had equally beneficial provisions. Along with this, the justification given for converting the State of J & K into two Union Territories was that this would lead to ‘better governance’, and that Statehood can be restored once militancy reduces, and the security situation of the State improves.

But, didn’t the Government also say that ‘abrogating’ Article 370 would in itself be a huge step to reduce militancy? And if these changes were indeed so beneficial, why were political leaders and the people of J & K not consulted with and taken on board?

The level of contradictions does not end here. If the Government was so confident of the benefits associated with its decision, then what was the need to keep political leaders under house arrest? And shut down all communication networks (be it internet or landlines) in advance?

The aftermath

The ‘house arrest’ of political leaders

The answer as to why political leaders were immediately placed under house arrest is quite straightforward. Keeping mainstream political leaders in house arrest, by invoking the J & K Public Safety Act, 1978 ensures that they are unable to speak out against these unilateral constitutional changes.

As Omar Abdullah and Iltija Mufti (Mehbooba Mufti’s daughter) mention in recent interviews (see here and here), many detainees were given the option of signing a bond – which would end their house arrest. But, there was a catch. The bond mentioned that they would be released, but the pre-condition was that they would have to fully agree to not speak about any of the changes brought about from 5^th August 2019. The intention was simple – stay silent about all the changes that were made on 5^th August, and you can be set free! If the changes made were indeed so good, then what was the need to ensure people stay silent about them?

If this was not sufficient, a dossier issued by the Police in February, which extended Omar Abdullah’s preventive detention one final time, had stated that he was being detained because he had the ability to ‘instigate gullible masses against the policies of the Central Government’! Yes, the masses were so gullible that there was no need to take them on board before altering the constitutional structure of a State?

A number of political leaders such as Saifuddin Soz have also been subjected to informal detention, where there would be no formal detention order, but the Police would not let the detainee leave his house. When Saifuddin Soz challenged his detention through a habeas corpus petition in the Supreme Court, the J & K Administration contended that it had not detained Soz, and that there was no detention order issued against him.

Justice Arun Misra took this claim at face value, and dismissed the petition. Shortly thereafter, when NDTV and India Today reached Soz’s house, he demonstrated how the Police officers were not letting him leave his residence, stating that they had ‘orders from above’.

Along with mainstream political leaders, even the people of J & K were effectively subjected to detention. Under the garb of preventing mass protests, the J & K Administration invoked Section 144 of the CrPC to enforce lockdowns and curfews throughout the State. Most schools also had to remain shut post 5^th August. While the rest of India faced lockdowns and curfews only after Covid-19 hit us in March, Jammu & Kashmir has been grappling with it since 5^th August. Due to such an extended lockdown and curfew, the Government’s claim regarding an increase in investment and economic activity also falls flat.

Suspension and curtailment of internet and other communication networks

Another major avenue for civil rights suppression was the suspension of internet services, along with other communication networks such as landlines. This suspension commenced on the evening of 4^th August, and has not been completely relaxed even as of today. The blanket ban on internet services continued from August to January. This is now infamously regarded as the longest communications suspension in our history.

The ban was partially relaxed only after the Supreme Court’s decision in the Anuradha Bhasin case, which held that a blanket ban on internet services was disproportionate, and directed the J & K Administration to periodically review its orders. Subsequently, internet services have been allowed at 2G Speed, and landline networks were restored.

When the Supreme Court was petitioned in May to restore 4G internet services, the J & K Administration opposed this move, and made a mutually contradictory argument. They contended that the speed had to be restricted to 2G as there was an increase in militancy and terrorism, and there was a need to pre-empt the misuse of the internet by militants and terrorists. But, they simultaneously contended that 2G speed was sufficient for students to attend online classes during the Covid-19 pandemic, and for doctors to provide telemedicine services. There is a major contradiction in this argument.

If 2G speed is sufficient to attend online classes on Google Meet and Zoom, then why is it not ‘sufficient’ for misuse by militants and terrorists? The Supreme Court failed to address this contradiction, and refused to intervene even after the petitioners presented evidence of the hardships faced by the people of J & K.

Also, while there is no direct link between access to 4G internet and militancy, militancy cannot be used as a justification for a prolonged denial of 4G internet, which is accessed in all other parts of India. This suppression of civil and socio-economic rights is only exacerbated during a pandemic – where students are forced to attend online classes, employees are forced to work from home, and when a significant number of patients can only access telemedicine facilities.

The unilateral imposition of a new domicile policy in the UT of J & K

In the first week of April, the Home Ministry notified a new domicile reservation policy for the Union Territory of J & K. This was also done without any pre-legislative consultation process. After widespread protests that the policy had severely diluted the domicile requirement, the policy was amended within 72 hours. But, how did it become possible in the first place for the Home Ministry to make the reservation policy for J & K? The answer lies in the repeated extension of President’s Rule, which has now been in place since December 2018.

Under the J & K Reorganization Act, 2019, the newly formed Union Territory of Ladakh is to be administered directly by a Lieutenant Governor appointed by the Central Government. But, on the other hand, akin to the Delhi model, the Union Territory of J & K is envisaged to have a Legislative Assembly, along with a Lieutenant Governor.

If President’s Rule had been removed, and fresh elections were held to the Legislative Assembly, then the Home Ministry’s powers to frame policy prescriptions would have been curtailed. In my view, this was precisely the reason why there was no plan to hold elections in J & K even before the onset of the coronavirus pandemic.

Also, while certain sections of the Ladakh population had welcomed the Centre’s decision to carve it out as a separate Union Territory, it was later on realized that the special rights and privileges conferred to the ‘permanent residents’ of the erstwhile State of J & K were automatically taken away, as Article 35A and the J & K Constitution has been abolished.

For this reason, several socio-religious groups in Ladakh have made demands for domicile reservation – that is similar to the special protections that were granted prior to 5^th August. Ladakh has hence also been solely left to the Home Ministry’s mercy, which now has absolute discretion in all policy matters.

The repeal of the J & K Constitution

Finally, let me conclude with the repeal of the J & K Constitution, which often gets excluded from public debate. The J & K Constitution was framed and adopted in 1956 by an elected Constituent Assembly. The purpose behind drafting a separate Constitution was to preserve and safeguard the identity and autonomy of the people of J & K – in a situation where Pakistan was leaving no stones unturned to usurp J & K away from India.

The separate Constitution did not intend to create any parallel legal system, and itself stated in Section 3 that J & K “is and shall be an integral part of the Union of India”. Moreover, Section 147 of the J & K Constitution clearly stated that even the J & K Legislature shall not have the power to amend some of its provisions, such as Section 3, Section 5 and Section 147. If even the J & K Legislature lacked the power to amend the entire Constitution, then how can Parliament abolish it as a whole?

Even if legal provisions were kept aside, there is another fundamental question that we should ask ourselves. How can Parliament unilaterally abolish a Constitution that was enacted and passed by the J & K Constituent Assembly, which consisted of the elected representatives of the people of the State? How can a Constitution, which the people of J & K adopted for themselves, be abolished without in any way taking them on board?

Shouldn’t there also be implied or inherent limitations on Parliament’s power, when Jammu & Kashmir was under President’s Rule, and the views of an elected Legislature could not be taken on board? This is precisely the constitutional betrayal that took place on 5^th August 2019.

The remedy

One year down the line, the situation is far worse than what it was at the same time last year. This can be remedied (albeit partially) only if suppression of civil and socio-economic rights ends in the near future, after full internet connectivity is restored and all political detainees are released. Urgent steps must also be taken to facilitate the return of Kashmiri Pandits - who continue to live in inhuman conditions at refugee camps in Jammu, almost two decades after their forced exile from the Valley.

The long-term goal must be to restore full statehood, and hold fresh elections. Normalcy cannot be restored until we continue to treat J & K and Ladakh in an abnormal manner, and deprive their residents of rights and freedoms that are often taken for granted, in all other parts of India.  

Revisiting Bank Nationalization and the R.C. Cooper case

(This post takes you through the story behind Indira Gandhi's bank nationalization decision, and the litigation that followed)

19^th July marked exactly 51 years since Indira Gandhi’s bank nationalization ordinance. Indira Gandhi’s decision to nationalize 14 commercial banks was brought about on 19^th July 1969, which was a Saturday. Nationalizing 14 commercial banks through this ordinance brought more than 75% of India’s banking sector under direct State control. All assets, liabilities and paid-up capital of the 14 commercial banks were to vest directly with the Central Government. The ordinance was promulgated on a Saturday even though Parliament was scheduled to reconvene on Monday, 21^st July 1969 – which was less than 48 hours away.

The ordinance was also drafted in utmost secrecy. Only Indira Gandhi’s trusted officers were aware about the plan, and even the Cabinet Ministers were not kept in the loop. As Granville Austin notes in his book - Working a Democratic Constitution, Indira Gandhi’s Cabinet colleagues heard about the ordinance only once they arrived at the Cabinet Meeting, which was called to give rubber-stamp approval to the ordinance.[1] Even copies of the ordinance that had been circulated during the meeting were taken back, so that there were no leaks in advance.

After the Cabinet Meeting, the ordinance was taken to Acting President V.V. Giri for his assent. Interestingly, V.V. Giri, who was then the Acting President after the death of President Zakir Hussain, was going to demit office the next day. This was because he was contesting as a candidate in the upcoming Presidential elections.

Indira Gandhi announced her decision to the public through a radio broadcast in the evening. She stated that this decision was necessary for a larger social purpose, and was done to make banking facilities more accessible in rural areas. This was the first among many measures that Indira Gandhi undertook to facilitate greater State control over different sectors of the economy.

The events of 19^th July 1969 have an eerie resemblance with 8^th November 2016, when Narendra Modi shocked us all by announcing demonetization through a televised address. Akin to the bank nationalization decision, Modi’s Cabinet Ministers were informed about demonetization only in the Cabinet meeting that took place before the announcement. In fact, to prevent any leakage of information, the Cabinet Ministers were also prevented from bringing in their cellphones, and were not allowed to leave the meeting venue until Modi ended his television speech!

Be that as it may, there is one other common factor between demonetization and bank nationalization. Both were undertaken keeping in mind political considerations, along with other economic and social factors. In Indira Gandhi’s case, bank nationalization was a move that would establish her supremacy within the Congress, and prevent challengers like Morarji Desai from taking control of her party or Government. It is for precisely this reason that Morarji Desai was sacked as Finance Minister on 17^th July, which was two days prior to the promulgation of the bank nationalization ordinance.

The bank nationalization ordinance was severely criticized by other smaller political parties like the Swatantra Party and the Jan Sangh. They argued that bringing more than three-fourths of the banking sector under direct State control would cripple its growth in the long-run, and shall also lead to losses, corruption and red-tapism. While this was debated, preparations were already underway for challenging the ordinance before the Supreme Court. On Sunday, 20^th July 1969 (one day after the ordinance was promulgated), the legendary Nani Palkhivala took a flight to Delhi.

As Soli Sorabjee and Arvind Datar write in Nani Palkhivala: The Courtroom Genius, the writ petition to challenge the ordinance was drafted and finalized by Palkhivala a few hours after his arrival.[2] It was filed in the Supreme Court on Monday, 21^st July 1969, which was less than 48 hours after the ordinance had been promulgated. The petitioner before the Supreme Court was Rustom Cavasjee Cooper. 

R.C. Cooper was a Director and shareholder in the Central Bank of India. He was also a shareholder in Bank of Baroda and Bank of India Ltd. All of these 3 banks had been nationalized under the ordinance. The Supreme Court granted an interim order on Tuesday, 22^nd July, and restrained the Government from removing the Chairmen of all the banks which had been nationalized.

As the Supreme Court was seized of this petition, the ordinance was replaced by the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 (‘the Nationalization Act’) - which was passed in Parliament on 8^th August. The Supreme Court subsequently began hearing arguments on the unconstitutionality of the Nationalization Act, and the ordinance which preceded it. While Palkhivala advanced several arguments, let us briefly discuss two of his main arguments. Palkhivala first contended that the compensation that was being paid to erstwhile shareholders of the 14 banks was severely inadequate.

He argued that this was in violation of Article 31, under which the State had an obligation to pay full and adequate compensation while acquiring property. He also contended that the Nationalization Act violated Article 19(1)(f), which had conferred the right to acquire, hold and dispose off property. (Both Article 31 and 19(1)(f) were subsequently repealed through the 44^th Amendment in 1978).

Palkhivala’s other key argument was based on Article 14, where he contended that there was hostile discrimination against these 14 banks - as they were prevented from carrying on banking business after being nationalized. He argued that other banks which had not been nationalized were not subjected to this disqualification, and even foreign banks were allowed to carry on banking business.

After hearing arguments, the Court delivered its verdict on 10^th February 1970, which was less than 7 months after Indira Gandhi’s decision to promulgate an ordinance on a Saturday.[3] The majority opinion was delivered by Justice J.C. Shah. While Justice Shah upheld Parliament’s legislative power to nationalize banks as a whole, he concluded that the Nationalization Act failed to pass constitutional scrutiny.

He accepted Palkhivala’s argument on violation of Article 14, 19(1)(f) and 31. Significantly, the Court also overruled two principles laid down in A.K. Gopalan v. State of Madras (1950). In A.K. Gopalan, the majority led by Chief Justice Kania held that each fundamental right was mutually exclusive, and had to be looked at independently from other fundamental rights.

The majority also held that while determining whether a law violated any fundamental right under Part III of the Constitution, the Court would have to examine the object of the law, and not the effect that the law has on fundamental rights. Justice Fazal Ali did not agree with the majority, and took the view that every fundamental right is not a separate compartment, and that all fundamental rights are mutually interdependent. Justice Fazal Ali’s dissenting view was upheld 20 years later by the majority in R.C. Cooper.

The majority in R.C. Cooper overruled Chief Justice Kania’s view and conclusively held that fundamental rights were mutually interdependent, and not mutually exclusive. In other words, a law that was challenged as violative of 31 could also be violative of Article 19(1)(f), or Article 14, as none of these rights should be looked at as isolated compartments.

The majority also held that while examining whether a law violates fundamental rights, the Court shall have to scrutinize the effect that the law has on fundamental rights, and not the object that the State sought to achieve. Hence, two aspects of the Chief Justice Kania’s decision in A.K. Gopalan were overruled 20 years later, and the fundamental rights chapter was made permanently stronger.

This judgment laid down the foundation stone for Justice Bhagwati’s opinion in Maneka Gandhi v. Union of India,  where it was held that Article 14,19 and 21 formed a golden trinity, and that any law which is challenged under Article 21 should also meet the tests reasonableness under Article 14 and 19. This also paved the way for reading in unenumerated rights into Part III, such as the right to privacy and the right to food. Justice Fazal Ali’s dissent hence became the starting point for a more progressive interpretation of the fundamental rights chapter.

The decision in R.C. Cooper was however not unanimous. Justice A.N. Ray dissented from the majority and upheld the Nationalization Act. Ironically, three years later, Justice A.N. Ray was appointed as the Chief Justice of India by superseding Justices Shelat, Grover and Hegde, who were above him in the order of seniority. This was after Justice Ray held in favor of the Government in the Keshavananda Bharati case, and was the first instance where senior judges were superseded for the post of Chief Justice of India.

Following the decision in R.C. Cooper, the Central Government was forced to pass a fresh bank nationalization legislation in Parliament. This acquisition of the ownership of 14 banks has not been undone until today, despite severe criticism of the corruption and inefficiency that plagues the public sector banking system. Even the Modi Government does not seem to have any plan to undo all of the changes brought about in 1969, despite enjoying a majority in Parliament. Bank nationalization has hence effectively acquired a level of permanence in our economic polity.  

Another significant aspect to note here is the duration within which this judgment was delivered – which was less than seven months after Indira Gandhi decided to take the ordinance route. This can be contrasted with the situation we have in the Supreme Court as of today. The petitions challenging the constitutionality of the Citizenship Amendment Act, which was passed in December 2019, has not even been listed for a hearing. Even the challenge to the Article 370 amendment and the Jammu & Kashmir Reorganization Act, 2019 has met a similar fate, almost one year after they were passed in Parliament on 5^th August 2019.

While R.C. Cooper’s overruling of A.K. Gopalan still forms the pillar of our fundamental rights chapter, the speed and alacrity with which significant constitutional cases must be heard and adjudicated is another takeaway that we should remember. 

[1] Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Pg. 215.  

[2] Soli Sorabjee and Arvind Datar, Nani Palkhivala: The Courtroom Genius, Pg.60.

[3] The then Chief Justice of India, M Hidayatullah, could not be a part of the Bench as he was sworn in as the Acting President of India on 20^th July 1969. This was after V.V Giri demitted office as Acting President - to contest as a candidate in the upcoming Presidential elections.

The forgotten soldiers - Some reflections on the migrant workers' crisis

This post has been co-authored with Rohit Sharma. Rohit is a graduate student from NUJS Kolkata (Batch of 2020). He is a former Editor of the Journal of Indian Law and Society. During his tenure as an Editor, he also successfully headed the JILS Blog. Over the course of the last two months, Rohit has done commendable work in helping stranded migrant workers in the State of Madhya Pradesh. 

Since the advent of the Covid-19 pandemic, countries have tended to adopt a protectionist approach to minimize the health risk that has ensued. However, as we shall discuss below, this protectionism has led to unintended consequences, and has created multiple new issues in addition to the health crisis. 

One such step of protectionism was taken by the Modi Government, which imposed a nationwide lockdown from 25th March onwards, by giving merely a four-hour notice. While the lockdown was initially envisaged for a three-week duration, it was extended on four occasions and continued  till 8th June, after which a roadmap was laid down for reopening different sectors of the economy. 

This approach of protectionism, which culminated in a nationwide lockdown, created a new kind of unanticipated crisis for the migrant workers in the country. As per the 2011 Census,  there were 453.6 Million Indians who were migrants - out of which around 70%  were female. Now, since the lockdown was imposed with only a four-hour notice, the migrant workers could not return to their hometowns – as transportation services were halted by the Central Government.

As transportation services had been halted completely, they were stranded in the cities without any source of employment and income, and were left estranged from their families. In order to provide them partial relief, the Central Government belatedly planned to provide them Shramik Special trains from the first week of May - through which the migrant workers could travel back to their hometowns. The Central Government in this regard claimed that 85% of the fare for the train service shall be covered by them. But this was later retracted, and the obligation on paying for the train services was transferred to the different State Governments.

The ensuing uncertainty resulted in a situation where migrant workers were asked to pay for their own train tickets. This was a travesty of justice as the migrant workers were left stranded and had no access to income solely due to the imposition of the lockdown, and not for any fault on their part. 

While providing transportation services to migrant workers, the Central Government made the Railways a pawn of harassment, instead of taking an active role in facilitating free train services. Under the transportation scheme, it was stated that trains can be supplied only through a joint request of both the origin state and the destination state, which again created multiple coordination issues between different State Governments.

The migrants were also requested to fill online registration forms to avail transportation facilities. Such a step was oblivious to prevailing ground realities, where most migrants cannot manage to afford a smartphone. This forced many migrant workers to walk back to their hometowns on foot, as they had no other alternative at hand.

As per an estimate, the cost of getting 6.5 crore inter-state migrants back to their hometowns would have been approximately Rs 4,200 crore. This amount could have been financed through the PM Cares Fund itself, which was also not effectively utilized by the Central Government to tackle this humanitarian crisis.

The Union Home Ministry also assured to establish more than 20,000 relief camps for over 660,000 migrants. However, despite numerous such promises by the State and Central Governments, many stranded workers were left without food and shelter, after having lost their primary source of income. Since most of the workers didn’t have access to regular food, government officials claimed that a  One Nation, One Ration Policy was being put in place.

However, most of these workers were unaware about the scheme, and the manner in which food was to be procured under it. Additionally, the Pradhan Mantri Garib Kalyan Ann Yojana - which aims to provide 5kg of rice or wheat per month to a family, also faced problems due to non-accessibility of ration cards and closure of fair price shops. Hence, very few workers availed of these food services, and many were left with no source of food.

This apathy of the Government in being dismissive of the group that forms the backbone of the economy has already made some migrant workers decide that they shall not return to the cities in  future for work, and shall prefer staying back in their villages. The migrants were penalized for no fault of theirs, and the Central Government failed to provide them with any kind of income support for the lockdown period - where most enterprises were forced to shut down. Even the Supreme Court failed to hold the Central Government accountable for this – and merely stated that the workers and the employers may ‘negotiate’ the extent of wages to be paid for the lockdown period.

On 20th June, the Prime Minister launched the  “Garib Kalyan Rojgar Abhiyaan” to create jobs for at least 25,000 migrant workers in 116 districts across States such as Bihar, which saw the return of a large segment of migrants. This program intends to develop rural areas that have been affected by reverse migration. Along with this, the Garib Kalyan Ann Yojana, which aimed to provide free food rations, has been extended till November. 

While we await the outcome of these belated measures, there can be no justification for the Central Government’s failure to anticipate the migrant workers’ crisis, and provide them with immediate food and income support.  The images and videos of migrant workers walking thousands of kilometers to reach their hometowns shall continue to haunt us for the years to come.

While we look to flatten our Covid-19 curve, let us remember that the sufferings of the working class is another curve that should be flattened on priority.

Encounter killings and 'speedy' justice - When rule of law takes a backseat

In what turned out to be a predictable end to a week-long saga, Kanpur gangster Vikas Dubey was killed by the UP Police in an ‘encounter’, while he was being ferried back to Kanpur after being arrested in Ujjain, Madhya Pradesh. As per the version of the Police, Vikas Dubey was killed after the car that was ferrying him overturned, following which he snatched the pistol of a Police Officer and tried to escape. On the previous day, Prabhat Mishra - an aide of Vikas Dubey, was also killed in an encounter.  The Police gave the exact same justification even in this case, by stating that the accused snatched a Police Officer’s pistol and fired at them, after which they had no option but to retaliate.

In December last year, 4 persons accused of rape and murder in Hyderabad were bumped off for the very same reason – that they snatched the guns of the officers, who had taken them to the location of the crime to recreate the sequence of events. The common thread in all these three instances is the purported justification given by the Police – that the accused snatched a weapon, fired, and tried to flee – which left the Police with no option but to retaliate.

This repeated narration of the same story has made it difficult to believe, with multiple loopholes existing in between. For instance, in Vikas Dubey’s case, vehicles of media channels that were following the Police cavalcade were stopped a few kilometers before the encounter spot – which raises suspicion as to whether the events were pre-planned.

However, I do not aim to discuss whether such encounters are fake or staged in nature, as many of us very well know the answer. Instead, I would like to draw your attention to the celebration and jubilation that occurs after these encounters, with claims being made that “speedy justice has been duly served”. While such extra-judicial killings are celebrated on the ground that speedy justice has been ensured, our Constitution is put in the backburner.

In our democracy governed by the rule of law, the role of determining punishment and sentencing (be it life imprisonment or death penalty) is a task of the judiciary, and cannot be usurped by any Police force. It is only in a Police State or in a military dictatorship where the Executive takes the law in its own hands, and such actions are antithetical to our democratic foundations.

We forget that in most cases, the Police force undertakes encounters as it is the most convenient option for them – which obviates the need to ensure a fair trial and safely keep the accused in custody. Such short-cuts are undertaken with the connivance of the State Administration, who may feel that bumping off a person accused of a heinous crime is an easy route to avoid the judicial process – which is fraught with delay.

In other words, the deficiencies of our criminal justice system is used as an excuse to justify such extra-judicial killings. But, this is exactly what perpetrates the problem. If the Police force and the Executive can themselves take the law in their own hands and decide as to who ‘deserves to die’ – then will there be any need to address the deficiencies in our criminal justice system?

Let us not forget that it took seven years for Nirbhaya’s parents to get justice, which only accentuated their ordeal. The remedy to this malaise lies in addressing the deficiencies of our criminal justice system, and not in doing away with due process altogether, or celebrating when our Police take short-cuts. As Article 21’s guarantee of procedural and substantive due process tells us, the means adopted are as important as the end result. There cannot be any trade-off between the two under our constitutional framework.

Finally, any justification for such actions also imbibes a sense of impunity in our Police force, which then leads to situations where innocent victims end up paying the price. The recent custodial killing of Jayaraj and Bennix in Tamil Nadu epitomizes this sense of impunity – where Jayaraj and Bennix were thrashed to death as they had ‘disrespected’ Police Officers after keeping their mobile shop open beyond curfew hours.  

Unless we raise questions against such extra-judicial killings, and all other forms of Police atrocities , the rot in our criminal justice system shall continue to run deep.