Constitutionality
Challenge to the Formation of Anti- Land Grabbing Cells and Courts
Recently,
the Madras High Court quashed the establishment of special anti-land grabbing
police cells and courts to
investigate and try such cases. The Government has, consequently,
appealed to the Supreme Court against this judgment. However, it is to be noted that the constitution of Special
Courts to try particular type of cases was quashed not because it was
bad in law, but since the constitution of Special Cells is quashed,
as a natural corollary, the constitution of Special Courts is also liable to be
quashed, as no purpose would be served by keeping such Special Courts in
existence.
The present post deals with the issue
relating to the Article 14 Constitutional challenge of the Ordinance leading to
the formation of Special Cells and analyse whether the
judgment can sustain in the Supreme Court.
A.
Decision of the Court
The
main objection that the Court had was with respect to the absence of any definition disclosing any principle or guideline, to
guide the Special Cells (constituted
to deal with land grabbing cases) in selecting the class of offence, cases or
class of cases for investigation. The discretion, in the Court’s view, was
entirely left with the Anti Land Grabbing Cells to pick and choose cases
according to their choice. The Court, in other words, found that the term "land grabbing" does not pass the first step of Reasonable Classification Test, i.e., of providing an intelligentia differentia, as it is not properly defined.
It
repelled the contention of the Respondents that there is no unfettered discretion
since certain offences under the IPC, i.e., Section 447 (Criminal Trespass),
Section 420 (Cheating), Section 506 (Criminal Intimidation), Chapter XXVII (offences
against property) and XXVIII (offences relating to documents and property marks)
etc., would clearly be attracted in case
of land grabbing. The Court was partly influenced by the presence of the
definition of the term “land grabbing” in the A.P. Land Grabbing (Prohibition)
Act, 1982, which in the present case was not present.
As
a necessary corollary to this holding, the Madras High Court also held that in
the absence of any specific guideline/norms/yardstick, the possibility of misuse
cannot be ruled out. While recognising that validity of a statute cannot be
tested solely on the ground that it is capable of getting misused, it stated
that since the investigation is done by police personnel in the rank of
Inspectors of Police and therefore, such a presumption cannot be drawn.
B. Anwar
Ali Judgment
The first issue in the present case related to the violation of Equal Protection of laws aspect of
Article 14 where the Court had employed the classic test of reasonable classification as
employed in the case of State of West Bengal v. Anwar Ali Sarkar
that provided for a three-
step checking mechanism to justify any differential treatment to pass the rigours
of Article 14. The test lays down that in order to justify any such treatment, firstly,
it has to be shown that there is a classification done on some intelligent and
reasonable grounds, secondly, such classification should be done with a
view to achieve an object and lastly, the classification should have a
nexus with the object.
The
Madras High Court had extensively quoted independent opinions of the judges in
the case of Anwar Ali case and concluded
that the decision of the Supreme Court in that case was based on the
consideration that there was no yardstick or measure for grouping either of
persons or of cases or of offences by which the cases could be decided which
are outside the purview of the Special Act and the Act has left the matter
entirely to the unregulated discretion of the provincial Government.
In
that case, the State of West Bengal launched criminal prosecution against Mr.
Anwar Ali Sarkar by trying him before the Special Court. The impugned legislation
had stated:
“Section 5 (1): A Special Court shall try such offences or classes of offences or
cases or classes of cases, as the State Government may, by general or
special order in writing, direct.”
There were divergences in the
majority opinions itself. For instance, Das,
J. had found the phrase “cases” to be unconstitutional, since it gave an unfettered
and completely submitted to the whims of the State of Bengal’s power to decide
on individual cases, whether to send such cases for disposal in special courts
or not. He was of the opinion that phrases “class of offences”, “offences” and “class
of cases”, would have certain common parameters, like if offence of theft is
committed more regularly, then, such cases could be dealt by the Special
Courts, as a separate class based on an intelligentia
basis can be found. Whereas, in individual cases, there is no such consideration, since every individual’s
life is important, though there might be considerations like, the person killed
maybe a politician of high ranks or murder maybe committed in such a
gruesome manner so as to shock the conscience of the whole society. But that
does not take away from the ultimate harm
caused.
Others in the majority felt that absence
of any parameter to decide which cases are to be submitted to the Special
Courts, constitutes arbitrary powers to the State and consequently, violating the
equal protection clause. Here, it is important to realise that the State
contended that there is a rational basis or an intelligentia differentia,
i.e.,
which was cases that needed quick disposal. As Das, J. aptly opined:
“In order to be a proper classification so as not to
offend against the Constitution it must be based on some intelligible differentia
which should have a reasonable relation to the object of the Act
as recited in the Preamble...”
In
other words, the object itself cannot be the basis of classification, for absence any
peculiar circumstance, each and every case requires a speedy trail. Therefore, object is separate from the basis of classification.
C.
Analysis
of the Court’s Reasoning
There
seems to be a potent challenge to the judgment of the High Court in the Supreme
Court, since there is a rational basis for classifying the “land grabbing”
cases separately from the other cases by understanding the term as a generic term and by doing so, the objection of the Court regarding the lack of any proper definition would be addressed.
It must be noted that mere absence of a proper definition is not always a basis
to strike down a provision. In cases like, V.C. Shukla v. State (Delhi Administration), where
a challenge was put forward with regard to the constitutional validity of the
Special Courts Act under Articles 14 and 21, an argument was put forward that separate group of high offices for the
purpose of expeditious criminal action to be taken by Superior Courts is
unreasonable and cannot be termed as valid classification and no
rational basis for separately classifying emergency offenders existed. The
Hon'ble Supreme Court of India repelled the said submission and held that
persons holding high public or political offices is self-explanatory and admits
of no difficulty and that mere absence of definition of the expression would
not vitiate the classification made by the Act and since such persons [basis
of classification] are in a position to take major decisions regarding social,
economic, financial aspects of life of the community and other far-reaching
decisions on the home front as also regarding external affairs and if their
actions are tainted by breach of trust, corruption or other extraneous
considerations, they would damage the interests of the country [object of the
law, therefore, is to protect the interests of the country, while nexus is the
position of power held by such people].
In
the present case, as stated earlier, the term “land grabbing” can be seen as a
generic term (class of cases/ offences) encompassing different/ separate
violations of IPC like criminal trespass, Cheating, Criminal Intimidation, offences
against property, offences relating to documents and property marks. Whereas,
the object can be taken as quick investigation of cases of such nature, of
which as many as 1887 complaints have been received (including against members
of political parties) in the last 5 years. Furthermore, the petitioner itself had
admitted that there is an intention to investigate validly purchased lands (as claimed by the petitioner) made by
members of political parties. Even
though it has been stated by the petitioner that the ruling party, under the
guise of being a State, is on a witch- hunt against its oppositions, still it
is the State that has officially viewed the several complaints received on land
grabbing, as cases involving powerful
people abusing power to commit criminal
offences and escape legal sanctions.
This further gives a cause/ object for quick investigation.
It
is left to be seen that what the Supreme Court decides but surely an
interesting reasoning would be on the cards.
