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.

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