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).

New Delhi (ILNS): The Supreme Court today issued notice on a plea challenging the Kerala High Court order quashing the detention of two detenus  under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).

A two-judge bench of Justices DY Chandrachud and Indu Malhotra was hearing an appeal by the Union of India challenging the high court order on the pretext that it had exceeded its jurisdiction under Article 226.

The detention of the two accused Adnan Khalid and Faisal PA arose from the seizure of contraband from the body of a customs official, Francis CX, while he was trying to smuggle out about 3 kg of gold hidden in between his legs. The gold was held up by four briefs he was wearing. Three rectangular gold bars wrapped in black insulation tape were recovered. The Customs official, who was found with the contraband on his person, confessed that he received it from Adnan Khalid.

Statements were recorded from both Francis and Adnan Khalid, which revealed a ring operating within the airport which involved similar modus operandi in other cases also.

The high court bench comprising Justices Vinod Chandran and VG Arun, however, had observed that the detaining authority had not applied its mind and merely extracted the opinion of the sponsoring authority. Further, the bench observed that in the instant case the very crucial video footage from which the entire case was generated was not supplied to the detenu.

The corroborating facts, which could have led to a subjective satisfaction of a smuggling ring being in operation, as available from the call details and the travel details were not examined by the detaining authority. The detaining authority merely relied on the opinion of the sponsoring authority. The documents revealing the call details and the travel details were also not supplied to the detenu.

Accordingly the High Court had directed the release of both the detenus.

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The Delhi High Court on Monday directed the lawyers appearing for the parties to file brief video clip of 15 minutes of their arguments within one week for convenience of the court.

The petitioner herein filed a writ petition challenging the preventive detention of the Petitioner, Sat Prakash Soni under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act). The petitioner filed an application seeking the pre-ponement of the date of hearing fixed on 25th June, 2020. The application was allowed by the court and the writ petition was directed to be listed for hearing on 18th June, 2020. 

Acting upon the writ petition, the division bench comprising of Justice J.R. Midha & Justice Brijesh Sethi, made following directions:-

• Both the parties are directed to file brief note of submissions not exceeding three pages along with copies of relevant pages of relevant documents on record and the judgments on which they wish to rely with relevant portions duly highlighted for the convenience of this Court along with video clip of 15 minutes of their arguments within one week from today.
• Both the parties shall file additional two page note to respond to the submissions of the opposite party along with additional video clip of ten minutes to respond to the submissions of the opposite party within one week thereafter.
• The learned counsels shall exchange the written submissions as well as video clip of their arguments.
• Learned counsels shall also submit a hard copy of their submissions to the Court Master within the time stipulated.
• The relevant official record be kept available by the respondents at the time of the hearing.

The High Court has listed the case for further hearing in the next week.

-India Legal Bureau

Above: Delhi High Court said the petitioners’ right to make  representation against their arrest was denied

The Delhi High Court has set free two persons held under COFEPOSA on the ground that the documents detailing their Grounds of Detention (GoD) had not been given to them

~By Kunal Rao

The Delhi High Court recently quashed the detention order of two persons, arrested under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The Court ruled that the Relied Upon Documents (RUD)—which explains the Grounds of detention (GoD)—were not supplied to them by the Detaining Authority(DA), a must under the COFEPOSA Act.

Holding the detention as illegal and unconstitutional, the bench of Justices Vipin Sanghi and PS Teji said that “it is well settled law that RUDs are an integral part and parcel of the GoD. The Court held that the documents pertaining to the case were shown to the detenues well beyond the stipulated time and the petitioners contended that they were merely provided the soft copies of the concerned documents on CDs, without the relevant hardware to read CDs—either a CD player, or a desktop computer, or a laptop. It felt that the petitioners’ right to make effective representations against their detention at the earliest was denied.

The Court’s decision came on the pleas of duo Dharaneesh Raju Shetty and Sahil Mohd Zafar who were detained allegedly for the smuggling of readymade garments and evading duty. They contended that the RUD was in the form of a compact disk with pictures of the WhatsApp chat between the petitioners and one other person.

The counsel for the petitioner contended that in the Smitha Gireesh vs Union of India case, (supra), some of the documents were supplied on CDs. The detenue in this case had asked for a CD player so that he could view or read the documents. However, it was not given to the detenue. The Court had then ruled that it was violative of Article 21 and 22 of the Constitution as it took away the right of the detenue to make an effective representation at the earliest.

The Bench said that “the detention of the petitioners stand vitiated on account of non-supply of either the printed co-pies/hard copies of the documents contained in the CDs of the RUDs in both the cases, or the non-provision of a CD player/laptop/desktop computer to the petitioners, to enable them to read and peruse the documents contained in the CDs to be able to, firstly, know as to what documents the detaining authority has relied upon and, secondly, to be able to deal with the said incriminating material in their representations”.

Appearing for the Centre, its standing counsel Amit Mahajan submitted  that the documents were “shown” on the computer screen to the detenues. The Court while nixing the argument said, “It would be too much to expect the dentenues to be able to remember the contents of the documents that they may have viewed on the computer screen, and to be able to effectively make their representation thereafter. The DA cannot reasonably expect normal human beings to be able to do so. Supply of the RUDs is not an empty formality. Thus, the submission that, at least, one of the detenues, namely, Dharaneesh Raju Shetty has been “shown” the documents on the 14th day of his detention is of no avail”.

“The submissions of Mr Mahajan, counsel for the Centre that the supply of documents on CDs is akin to supply of illegible documents cannot be accepted. It is worse than supplying documents in a completely foreign language without true translations. It is like supplying documents in a locked trunk without the key to unlock the trunk,” the bench said.