Friday, February 25, 2011

Prime Minister tries but fails to convince


Prime Minister Manmohan Singh in his structured interaction with television journalists recently justified his inaction on the massive irregularities in the allotment of 2G spectrum on the ground that neither the Union Finance Ministry nor the Telecom Regulatory Authority of India – not even the Telecom Ministry – had objected to the deal. He said, “If the Ministry of Finance and Ministry of Telecom both agree… and also that TRAI is an expert body; if all of them are of the same view, I did not feel I was in a position to insist on auctions.”

Of course, they were of the same view: that there was something wrong in the spectrum allotment and that corrective measures should be taken. The Prime Minister, therefore, should have insisted on auctions.

Interestingly, it was not just these organisations that had objected; even the Union Law Ministry had registered its protest over the manner in which the spectrum was being distributed by Mr Raja.

An overview of the developments that happened right under the Prime Minister’s benevolent gaze shatters the carefully constructed belief by Mr Singh’s spin masters, and now the Prime Minister himself, that he simply went by expert opinion and that he could not be held responsible for the presumptive loss to the public exchequer. Let us begin with the Law Ministry’s letter of November 1, 2007 to the Telecom Ministry – a missive that the Prime Minister very conveniently forgot to mention in his media interaction.

Then Law Minister H R Bhardwaj was perhaps the first senior Cabinet Minister to smell a rat. Apparently upset by the methodology adopted in allotting the spectrum, he wrote to the Telecom Ministry, “In view of the importance of the case (2G spectrum allocation) and various options indicated in the statement of the case, it is necessary that the whole issue is first considered by an Empowered Group of Ministers and, in that process, the legal opinion of A-G (Attorney General) can be obtained.”

The Law Minister was responding to an opinion sought by the Telecom Ministry on going ahead with the allocation of 2G spectrum licence on first-come-first-served basis and on prices fixed in 2001. An enraged Mr Raja wrote back – not to the Law Ministry but directly to the Prime Minister – questioning the idea of an EGoM to decide on spectrum pricing. He said in that letter, “The Ministry of Law and Justice, instead of examining the legal tenability of these alternative procedures, suggested referring the matter to EGoM. Since generally new major policy decisions of a department or inter-departmental issues are referred to the GoM, and needless to say that the present issues relate to procedures, the suggestion of the Law Ministry is totally out of context.”

This was on the morning of November 2, 2007. The same afternoon, the Prime Minister, perhaps alerted by Bhardwaj’s strong stand, wrote back to Mr Raja and cautioned him against taking any measures without informing him. “I would request you to give urgent consideration to the issues being raised with a view to ensuring fairness and transparency and let me know of the position before you take any further action in this regard,” Mr Singh directed his Minister. The Prime Minister also instructed him to adopt “correct pricing of spectrum and revision of entry fee”.

Thus, the Law Ministry registered its objection, Mr Raja dismissed it contemptuously, and the Prime Minister was all along in the loop. He did nothing. Towards the end of November the same year, came another shocker for the then Telecom Minister. The Finance Ministry got into the act, with then Finance Secretary D Subbarao sending a stinker to the Telecom Secretary on the issue. Mr Rao wrote, “It is not clear how the rate of Rs 1600 crore, determined as far back as in 2001, has been applied for a licence given in 2007… In view of the financial implications the Ministry of Finance should have been consulted in the matter before you finalised the deal.”

For good measure, Mr Subbarao added, “Meanwhile, all further action to implement the above licences may please be stopped.” The Finance Secretary was clearly expecting too much. Mr Raja had ignored the Prime Minister’s directive to adopt corrective pricing and revise entry fee; he was not going to be deterred by a Finance Secretary’s direction.

“If the Ministry of Finance and the Ministry of Telecom both agree…” – remember the Prime Minister’s clarification at the media interaction. Clearly the Finance Ministry had not agreed to the deal. Had then the Telecom Ministry agreed? We know that even it had not, if one goes by the assertions of senior Ministry officials. Neither then Telecom Secretary D S Mathur nor then Department of Telecom Member (Finance) Manju Madhvan was on the same page with Mr Raja. One had to leave in disgust while the other was swiftly replaced with then Minister’s yes-man after he retired. With senior officials in the Department of Telecom registering their protest to the deal, the only way to believe the Telecom Ministry was in agreement is to accept that Mr Raja alone was the Ministry.

And finally, was TRAI of the “same view” – as the Prime Minister asserted in his televised interaction? Of course it was not. Then TRAI chairman Nripendra Mishra had actually written to the Telecom Secretary Siddharth Behura – who had replaced Mr Mathur by then – objecting to the policy and the sudden revision of the cut-off date for submission of applications along with the requisite sum. When the government machinery went to town quoting a few statements of his that seemed to endorse the dubious methodology adopted, Mr Mishra went on record clarifying that his statements had been picked out of context. “Cherry picking”, is how he described it.

Thursday, February 17, 2011

Judges should not interpret every law and make them ineffective

(First published in The Pioneer dated February 17, 2011)


Barely days after exonerating a member of the outlawed United Liberation Front of Asom on the strange premise that being a member of a banned outfit did not make one criminal, Justices Markandey Katju and Gyan Sudha Mishra of the Supreme Court of India let off another ULFA member on a similar pretext. This time they offered the explanation that they had “read down” some provisions of the Terrorist and Disruptive Activities (Prevention) Act -- under which the accused had been tried -- because they seemed to violate the Constitution. The option before the Bench, they added, was to strike them down as unconstitutional. In other words, “reading them down” was a means to maintain the constitutional validity of the Act and yet remove the conflict the statute posed with the fundamental rights guaranteed under the Constitution.
On the face of it, the explanation makes eminent sense, and courts have been “reading down” provisions in the past through fresh interpretations. (Moreover, we should be grateful to the Bench that it did not strike down the ‘offending’ sections, a move that would have rendered all our anti-terrorist laws toothless.) But there are established guidelines for reading down statutes, and the mere supposed need to protect the constitutionality cannot be reason alone to conduct that exercise. Let us look at three such guidelines:

Reading down cannot be used to emasculate a statute or create confusion, making its workability difficult.

No reading down of a provision is permitted if that exercise makes it into a provision altogether different from what was intended by the legislature.

Reading down is adopted only when the statute is unworkable or cannot be enforced.

We may now turn to the provisions “read down” by the eminent judges, namely Section 10 of the Unlawful Activities (Prevention) Act, 1967 and Section 3 (5) of TADA Act under which the earlier referred to ULFA member was tried. (Incidentally, the Justices also said that Section 124 (A) of the Indian Penal Code which deals with sedition must be read so that it conforms to the guaranteed fundamental rights. In other words, that too should be “read down, when occasion permits.)

Both Section 3 (5) of TADA and Section 10 of UAPA clearly lay down punishment for even mere membership of an outlawed organisation. There is nothing confusing in the provisions – if anything, they are so elaborately worded that they leave no scope for even the slightest doubt over interpretation. Because they are so carefully worded, there has never been any trouble over their implementation either. But the Bench decided to read them down anyway, creating in the process the very confusion the statutes sought to avoid, making them potentially unworkable. The introduction by the apex court judges of the concept of “passive” and “active” members of banned outfits, for instance, is a demarcation that the Legislature never intended to have – for in its scheme of things, all members of an unlawful organisation deserve some form of punishment. Now, the security and probe agencies will expend their energy in segregating the ‘active’ members from the ‘passive’, and the courts will indulge in hair-splitting exercises in deciding between the two.

Since “reading down” is employed as a tool for interpretation of statutes, we arrive at the question: When is the need to interpret real? Courts have settled the issue, and they have said that interpretation is required only where the statutes are ambiguous and, therefore, admit more than one interpretation. In case after case, our courts have underlined this basic rule. In Mithilesh Singh versus Union of India (2003) the Supreme Court stated that it was a presumption of interpretation of a statute that the Legislature inserted every word and expression for a definite purpose, and while interpreting no word can be rejected as being “inapposite or surplusage”. And, in the landmark Kartar Singh versus State of Punjab (1994) case, the apex court observed that the “object of interpreting a statute is to ascertain the intention of Legislature enacting it”.

The provisions of TADA and UAPA under debate – as indeed some others such as 124 (A) of the IPC and Section 6 of the Armed Forces Special Powers Act – are neither ambiguous nor do they encourage multiple interpretations. The object of the Legislature in making those provisions too is crystal clear. Yet, Justices Katju and Mishra thought it fit to interpret the statutes.

This brings us to the thumb rule for the interpretation of statutes: the doctrine of ‘harmonious construction’, which seeks to harmonise (or tone down) statues that are in apparent conflict with one another. The two-judge apex court Bench can claim that their act of reading down was to harmonise the sections of TADA and UAPA with the rights guaranteed under Articles 19 and 21 of the Constitution by adding clarity to the provisions, but even here the judges seem to have overlooked the basic principle laid down by the apex court itself, when it said, “Where the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound these words in their natural and ordinary sense”.

And not just that, the court went on to add, “…where alternative constructions are equally open… that alternative is to be rejected which will introduce uncertainty, friction of confusion into the working of the system”.

Will not the interpretations by Justices Katju and Mishra and the creation of various kinds of memberships by them of banned outfits, lead to confusion? Will they not affect the policing and prosecuting systems? The answer is obvious.

Finally, while the Bench’s concern for upholding the Constitutional guarantees is praiseworthy, it is not as if anti-terror laws like UAPA (and the lapsed TADA) have been unconstitutional. While the UAPA is a much milder law, even the harsher TADA (and the earlier Prevention of Terrorism Activities Act) was upheld for its constitutionality, despite being forcefully challenged on occasions. In the People’s Union for Civil Liberties versus Union of India case (2004), the court, while upholding provisions of POTA, said, “To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws.. It has become our obligation to pass necessary laws to fight terrorism.”

Similarly, on the validity of TADA, the apex court in Kartar Singh versus State of Punjab had largely upheld the various contentious provisions ranging from the matter of confessional statement before a police officer as admissible evidence in courts under Section 15 of the Act to the establishment of TADA designated courts and the appointment of judges to such courts, to remedies before an aggrieved person who feels his fundamental rights have been tampered with.

Thursday, February 10, 2011

A judgement that is worrisome


(First appeared in The Pioneer on February 9, 2010)

Justices Markandey Katju and Gyan Sudha Mishra have set a curious benchmark for members belonging to proscribed organisations. The learned judges of the Supreme Court of India have ruled that a mere membership of such outfits does not make one a criminal. To attract criminal proceedings, the member must indulge in or incite violence. This is great news for all the back office operators of banned groups, who until now faced action if caught, and bad news for investigating agencies and the central and state governments that are battling with the menace of extremism in various forms and at different levels. What is strange here is not just the verdict but the context in which the Justices pronounced it. Once we understand that, we will be able to better appreciate the needlessness of the ruling.

The case before the two member apex court Bench pertained to an appeal by one Arup Bhuyan who was convicted by a TADA court in March 2007 for being a member of the banned United Liberation Front of Assam. An aggrieved Bhuyan approached the Supreme Court contesting the conviction on the ground that he had confessed to being a member under duress. He claimed innocence saying he had nothing to do with the banned group. It must be remembered here that under Section 15 of the now-lapsed Terrorist and Disruptive Activities (Prevention) Act, 1987, a confession made before the police was admissible evidence in a court, although under other laws such evidence is inadmissible under Section 25 of the Indian Evidence Act, 1872. Also, a member of a banned outfit attracted criminal action under Section 3 (5) of TADA merely for being a member.

Clearly then, the case of the accused rested on the single most important point: that the only concrete piece of evidence against him was the “forced” confessional statement where he implicated himself. The issue before the Justices too was that point alone.

So far so good. The Bench then went ballistic on how confessions before the police cannot be overly relied upon because “the widespread and rampant practice in the police in India is to use third degree methods for extracting confessions”. The Justices helpfully provided an explanation for such conduct: because the police are neither trained nor equipped to scientifically investigate cases they rely upon force to squeeze out confessions from reluctant accused.

They did not stop at that. Calling torture a “terrible thing”, the Bench observed that “when a person is under torture he will confess to almost any crime”. Therefore, it concluded, the courts should be “hesitant before they accept such extra-judicial confessional statements”.

All of this is true, and there is no dispute with the Justices on the points raised, even if one bears in mind that Bhuyan’s confessional statement – in whatever manner it was extracted – was admissible evidence since he was being tried under TADA. In the end, the Bench set aside the conviction and acquitted the accused not just because it held the confessional statement with suspicion, but also because the prosecution (state of Assam) could not provide corroborative evidence of guilt. And that is where the matter should have ended.

It did not. The Justices, now in full flow, decided to get hypothetical and use the power of assumption to pronounce a ruling that can have an implication beyond the context in which it was made. They had let off Bhuyan because his membership of the banned ULFA could not be established. But what if he had been a member, the court wondered, rather unnecessarily. “Even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member”, the Justices stated. The court had cleverly slipped in an aspect that was extraneous – and even irrelevant – to the case at hand: the active and the passive, something which no law of the land distinguishes between.

Going by the pronouncements of the Bench, an active member of a banned organisation is one who directly resorts to violence or incites violence. Every other member is passive and cannot be tried for criminal activity. This nuanced understanding flies in the face of existing provisions of the law. Take, for instance, Section 10 of the Unlawful Activities (Prevention) Act, 1967, that is currently in force and deals with penalty for being a member of an unlawful association. It says, “Whoever is and continues to be a member of an association declared unlawful by a notification issued under Section 3 which has become effective under sub-Section (3) of that Section, or takes part in meetings of any such unlawful association, or contributes to, or receives or solicits any contribution for the purpose of any such unlawful association, or in any way assists the operations of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.”

The provision clearly covers all members of an outfit declared unlawful by the central government through a notification, without categorizing such members as ‘active’ or ‘passive’.

Allowing so-called passive members to get away, the Justices have sought to dismiss the concept of ‘guilt by association’ by citing the example of a 1966 US Supreme Court decision. While we shall not go into the validity of the comparison, it must be emphasized here that provisions of UAPA rely on this doctrine, whether it is Section 10 referred to earlier or Section 7 that prohibits the use of funds of an unlawful association. The latter reads, “ Where an association has been declared unlawful…any person has custody of any monies, securities or credit which are being used or are intended to be used for the purpose of the unlawful association, the central government may… prohibit such person from paying, delivering, transferring or otherwise dealing in any manner” with such financial instruments.

Incidentally, in the matter of Section 7 too, the member does not directly indulge in violence or incite violence. Going by the apex court’s recent ruling, would a member involved in financial transactions of a banned outfit, get away?