By Prof Upendra Baxi
The state of Maharashtra has, in addition to many central laws that provide for the preventive detention of suspects, framed multiple laws authorising preventive detention in accordance with Article 22 of the Constitution of India.
Union laws applicable to states include: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA providing for preventive detention when it is necessary to prevent smuggling); National Security Act, 1980 (providing for preventive detention to secure the defense of India, national security and friendly relations with foreign states) and Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (The Act authorises preventive detention of persons who are likely to disrupt the maintenance of supplies of essential commodities to the community).
In addition to the widely used Maharashtra Preventive Detention Act, 1970, the state has the well-meant, but notorious and much misused, MOCOCA (Maharashtra Control of Organized Crime Act, 1999). This is added to a curious law called the Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA Act.) I call it curious because its definition of prohibited activities is not only overgenerous to practices of detention, but it is also difficult to find why offences described there require special laws as if the general law in the Indian Penal Code (and the associated Criminal Procedure Act) is inadequate for the purpose.
Indeed, much has been said about its dangerous definitions, which rest too much on subjective satisfaction of the authorities to detain a person without proof and even without the application of mind. Thus, Justices Valmiki Menezes and Vinay Joshi of the Nagpur Bench of the Bombay High Court held recently that “we have no doubt in our mind that there has been a total noncompliance of the mandate of law … in that the Authority has neither recorded verification of the content and authenticity of the statements directly from the witnesses, nor has it recorded anywhere that it has verified that those witnesses were unwilling to give statements and testify against the Detenu out of fear”.1
It is true that the Court had ruled in Devaki v. Government of Tamil Nadu that the High Court had “committed a grave error in holding that as the period of detention of 12 months was mentioned in the order of detention, … is contrary to Section 3 of the Act”.2 But it was the same Court that was constrained to state in 1995 that “the fallout and the extent and reach of the alleged activities” must not be based on the mere say-so of high police officials; rather, it must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society” so as to adversely “impact upon the even tempo of life of the people”.3 The Nagpur Bench of the Bombay High Court puts an irresistible gloss on that judgment by adding: “Every criminal act alleged against the Detenu would therefore not be such as to prejudice the maintenance of public order, until it is so demonstrated” [at para 16].
The tendency to pass a specialised criminal law declaring certain conduct as a crime in addition to the general law on crime and punishment has become entrenched in Indian law. It is high time to revisit this in the light of new demosprudential (democracy-friendly) developments in Indian constitutional law. Over-criminalisation tendencies have, further, rightly been viewed as counterproductive, and even dangerous, by contemporary criminology.
In a cognate case of preventive detention, Justice Manju Rani Chauhan of the Allahabad High Court recently observed: “It is a staggering irony that deponent of counter affidavit, who is Deputy Superintendent of Police/Circle Officer, Sahawar, District Kasganj, believed himself to be empowered with sanction to author a certificate of propensity of a person without any cogent material.” She added that since “75th Independence Day Celebrations, Government has marked Azadi-ka-Amrit Mahotsav terming it to be ‘Amrit Kaal’ with prospective vision in welfare of citizens of the country”, however, “Police Administration feels more comfortable to remain with colonial structure”.4 If anything, one may add here, neither the security of people and the country, nor police ideals of efficiency is ever served by such colonial and lawless disposition.
What makes the Nagpur Bench decision interesting is the case of judicial indifference to the Constitution. It highlights a facet of lawlessness of the judicial culture by passing strictures against the bail order of 09.03.20 by the Judicial Magistrate First Class, Amravati, on “a rubber stamp with blank spaces, which are filled in by inserting the bond amount and no other details are contained on the rubber stamp”.
The Bench notes “that there is no apparent authorization of the High Court for the use of such rubber stamps to enable a Magistrate to grant bail”. One is tempted to say further that such an authorisation would fail to pass the test of Article 21 of the Constitution—the fundamental rights to life and liberty and due process. Instead, the Bench is content to “deprecate” the practice and to say: “Grant of bail is a matter of discretion to be exercised by the concerned Magistrate, who is expected to apply his mind after considering the material on record and is required to be granted or rejected by a speaking order. A Magistrate’s order on a bail application certainly cannot be rendered on a rubber stamp as we note, has done in the present case.” [Para 18]
Rubber stamp/standard form justice is an important part of judicial strategy of summary trials to minimise long trials. Weaponising adjudicatory time to avoid huge pendency rates is an essential component of judicial administrative toolkit (Lok Adalats, for example). And high disposal rates are often considered virtues for high rankings for judicial officials.
Long back, it was found (in the 1980s) that judges in Bombay disposed of as many as 250 bail applications of “beggars” summarily within half an hour in standard form orders which they signed. To take another example, traffic challans (now digitally reinforced) for offences of speedy driving are a way of summary justice. I do not know whether such measures were “authorized” by the High Courts, but I know that such a judicial recourse falls woefully short of substantive due process standards under Article 21 of the Constitution.
It would be interesting to know whether the learned justices, and leaders of the Bar, would contest all the diversity of practices concerning abbreviated trial procedures adopted by district judiciary. Are they constitutionally indifferent or adapting new ways of summary justice, thus disposing huge arrears? At least two questions we must pose here: What are the forms of summary justice in India? And what are the wrongs and rights of summary justice?
It would also be useful to know whether a full judgment on bail authored, not by human justices, but by artificial intelligence will be acceptable to the Bar and the Bench. The use of artificial intelligence is already advocated in judgments on flight risk in bail matters, which can be more accurately predicted by artificial intelligence programmes than by human agency.
An estimated 5,00,000 Americans are said to be in jail awaiting trial because a judge deemed them a flight risk or a danger to the public. But many of those pretrial detentions are unnecessary and unfair, according to Sharad Goel, (Assistant Professor of Management Science and Engineering and Executive Director of the Stanford Computational Policy Lab), who along with his colleagues, studied 1,00,000 judicial decisions to find that judicial release on bail applications varied. In some case, they were as high as release in more than 90% of defendants on bail, to “only 50 percent”. Goel finds that such disparities “flow from the often haphazard way in which these consequential decisions are made”. Of course, while “the final decision remains with them”, a “statistically robust rubric can help judges identify and release people who really are low risk” and “following recommendations from our risk rubrics, judges could, in some cases, detain half as many accused individuals without endangering the public or increasing the number of defendants who fail to appear at trial”.5
To be sure, the research will be onto cull various ways of devising just or properly constitutional algorithms of past decisions. Would algorithm driven analysis be sufficient, or would it be rejected out of hand by Indian High Courts and the Supreme Court because they were not written by human agencies, but by reliable search engines?
True, “pretrial risk assessment tools as AI-based tools” create the impression that sophisticated robots are taking over courts and pushing judges from their jobs, but that impression is far from reality. But “despite the hype”, robots have a “long way to go before they can replace judges” as “extensive work … needs to be done to ensure that risk assessment tools are both accurate and fair toward all members of society”.6
The larger question is about the ways in which machine learning may assist expeditious and effective administration of justice; it is about the scope of convergence between judicial and digital highways. No longer is it the question of, as the popular ditty goes, “My Way or the Highway”.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1 Criminal Writ Petition No. 738 of 2022 [Asokrao Patil v State of Maharashtra] decided on 8 February 2023, at Para 16.
2 2 SCC 456.
3 Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, Commissioner of Police, (1995) 3SCC237.
4 Criminal Misc Anticipatory Bail, Application U/S 438 CrPC. No. 5397 of 2020; Order Date:-6.2.2023.
5 https://engineering.stanford.edu/magazine/article/can-ai-help-judges-make-bail-system-fairer-and-safer (accessed February 14, 2023).
6 Doaa Abu Elyounes I, “Bail L Or Jail? Judicial Versus Algorithmic Decisionmaking in the Pretrial System”, Columbia A Science & Technology Law Review, 21:2, 376-446(2020).