This post is the second part of a two part series on the topic ‘Analysing the Scheme of Open Texture of Legal Language in the Goonda Act, 2021’

ANALYSING THE OVERRIDING OF THE FAIR IMPUTATION REQUIREMENT VIA DWORKINIAN LENS

In this part, we will use Ronald Dworkin to elaborate upon how constitutional rights would function as limitations that must be observed by courts to ensure that the interpretive discourse retains ‘justice-qualities’ in the light of broad and vague provisions of the Goonda Act.

Under the ambit of Section 18 of the Goonda Act, the administrator wields extensive powers to authorise any police officer to enter and search any dwelling house, vessel, vehicle, animal, etc. The authorised person can seize anything that he has a reason to believe ‘has been, is being or about to be’ for various illegal activities. It provides unregulated discretionary powers to the administrating officer to exercise his wisdom in deciding the reasonability of detention. Dworkin argues that the fairness imputation can only be overridden in exceptional circumstances. [1]

Modern scholars such as Prof. Goodhart have advocated for putting inherent limits on discretion to limit the discriminatory exercise of power. According to him, discretion, which is uncontrolled, absolute, and without any guidelines in exercising powers, can quickly degenerate into arbitrariness.  When individuals act according to their ‘sweet will’, there is a high probability of an element of ‘pick and choose’ according to their own conception. [2] As laid down in the landmark ruling of Maneka Gandhi v Union of India, [3] Article 21 under the protection of personal liberty must answer the test of reasonableness. The procedure must be fair, just, and unoppressive to check on the arbitrary exercise of power. It concerned the impounding of the petitioner’s passport by the External Affairs Ministry in the public interest under its broad discretionary powers as the authority had the freedom not to disclose any reason in the public’s interest.

Similarly, the thin gap between the use of discretionary powers and arbitrary exercise of power in the proposed Goonda Act has been done away with as the possibility of bias in the decision making by the officer appointed by the administrator cannot be eliminated. Dworkin’s override argument avows that it may be fair to override fundamental rights when “the cost to society would not be simply incremental, but would be of degree beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity on equality may be involved.” As he argues, “if the nation is at war, a policy of restriction may be justified even though it infringes the right. But the emergency must be genuine. There must be what Oliver Wendell Holmes described as a clear and present danger, and the danger must be one of magnitude.” The situation’s urgency can mean that it is imperative to override the fairness constraint for some greater public good. [4]

However, in the case of Lakshadweep, the low rate of crimes suggests that the impugned regulation proves detrimental to the local people. The immediate requirement of such a law for maintaining public order also gets defeated. According to the National Crime Records Report (2019) data, the island has registered zero cases of major crimes such as murder, rape, kidnapping, and dacoity. The aggregate account of reported violent incidents remained as low as 16 in 2019, including 13 liquor and drug-related cases. Regarding the percentage of crimes registered in the whole country, NCRB statistics show that Lakshadweep only records zero per cent. No cases of homicide, murder, incitement to suicide, treason were recorded in the Lakshadweep islands in 2019. Additionally, only three cases of homicide have been registered in the history of islands, which further raise questions on the immediate requirement of introducing the Goonda Act. So, this clearly shows that the situation in Lakshadweep does not demand to override the fairness constraint by wielding extensive powers to the president appointed administrator.

In our opinion, the state may be relying on the “broken window” thesis to hold that minor incivility by bootlegger, dangerous person, cruel person, drug offender, immoral traffic offender, lending offender, depredator of environment, or sexual offender can be a precursor to more severe harm which in turn can infringe upon morality and public order.[5] However, this kind of criminalisation having remote consequences cannot be the justification for overriding the fairness constraint. Dworkin makes it very clear that rights cannot be trumped merely on account of utilitarian calculus. People can only be asked to obey the law themselves. It is unfair to expect them to ensure that others, with whom they have no normative relationship, obey the law. [6] It would only be necessary to criminalise the activities of those who actually engage in harm doings in the broken window area.

Even the Supreme Court in State of Punjab v Khan Chand, [7] had emphasised that the enactment must prescribe the guidelines for the furtherance of the object of the enactment. The authorities must work within the framework of those guidelines. However, the regulation does not account for such guidelines that let the authorising officer and the administrator, in general, suppress people’s concerns to restrict political dissent by locking up the people protesting the draft regulations, without giving them a chance to present their side of the story. Lacking clear guidance from the constitution, the courts have developed toothless standards such as subjective satisfaction of detaining authority tests for governing the implementation of such detention laws. Still, they have been proved as detrimental to the detained person only. Therefore, Dworkin’s requirement of fair imputation gets defeated with decimating crime rates in the Lakshadweep archipelago, which further requires that such arbitrary application of such gruesome detainment law should be scrapped down in the interests of fairness and justice.

CONCLUSION

The introduction of Lakshadweep Anti-Social Activities Act, notoriously known as the Goonda Act, has brought serious concerns of unregulated discretion at the administrator’s hands accompanied by vague and discriminatory provisions suppressing the political dissent. It is hereby concluded that the Act suffers from vagueness and open texture as recognised by Hart, resulting in penumbral situations and requires more substantive guidance and legislative clarity in achieving foundational objectives. Dworkin’s conception of rights as ‘judicial quality’ requires that hard cases require a principle-oriented approach from a judiciary to interfere as and when necessary to protect the fundamental rights of Lakshadweep locals. The steeping low crime rate in Lakshadweep has overridden Dworkin’s fair imputation requirement, which in turn  provides no reasonable justification for introducing such an unjust law working only at the detriment of Lakshadweep inhabitants.

[1] Ronald Dworkin, Taking Rights Seriously (1977) 200.

[2] Arthur L Goodhart ‘The Rule of Law and Absolute Sovereignty’ (May, 1958) University of Pennsylvania LR 106 (7), 961.

[3] [1978] AIR 597.

[4] Andrew von Hirsch and Andrew Ashworth, ‘Proportionate Sentencing: Exploring the Principles’ (2005) 53-54.

[5] Dennis J Baker, ‘The Moral Limits of Criminalizing Remote Harm’ (2007) 10 (3) New Criminal LR: An International and Interdisciplinary Journal, 375.

[6] Andrew von Hirsch, Extending the Harm Principle: “Remote” Harms and Fair Imputation, in Harm and Culpability (Andrew P Simester & Tony AH Smith eds, 1996) 259.

[7] [1974] AIR 543.

(Prince Chandak & Kshitij Goyal are law undergraduates at National Law School of India University, Bangalore. The author(s) may be contacted via mail at kshitijgoyal@nls.ac.in and/ or princechandak@nls.ac.in)

Cite as: Prince Chandak and Kshitij Goyal, ‘Analysing the Scheme of Open Texture of Legal Language in the Goonda Act, 2021 (Part 2)’ (The RMLNLU Law Review Blog, 16 September 2021) <https://rmlnlulawreview.com/2021/09/16/goonda-act-analysis-2/>    date of access