The Madras High Court, in a judgment delivered on 24 April 2018, ruled that the Enforcement Directorate (ED) was right in seeking senior advocate (and wife of Congress leader P Chidambaram) Nalini Chidambaram’s personal appearance in connection with the Saradha scam at the central investigating agency’s office in Kolkata.
Ms Chidambaram had filed a writ petition in the court challenging the ED summons issued to her on multiple grounds, including, importantly, that the summons were issued in blatant disregard to section 160 of the Code of Criminal Procedure (CrPC), which exempts a woman from being investigated at any place other than her place of residence (Chennai in this case).
The court in its ruling, invoked American jurist Ronald Dworkin’s theory of ‘constructive interpretation’ to conclude that in today’s India, “women are standing at par with men in all walks of life” and, therefore, the sex-based exemption enumerated in the proviso to section 160 cannot be granted in a routine manner and must instead be guided by the facts and circumstances of a given case.
However, the judgment is legally wrong, disingenuous, and compromises essential civil liberties in the pursuit of alleged state interest, that wasn’t compelling enough.
HC Has Misread the Act & CrPc
The Additional Solicitor General (ASG) appearing for the ED contended the exemption stipulated in the proviso to section 160 cannot be applied to economic offences being investigated under a special law, namely, the Prevention of Money Laundering Act (“Act”), which embodies its own mechanisms regarding investigation and arrest. In particular, the ASG noted that a conjoint reading of sections 71 and 65 of the Act coupled with section 5 of the CrPC makes it categorical that the provisions of the CrPC shall apply only to the extent that they are not in conflict, or otherwise inconsistent, with the explicit provisions of the Act relating to investigation and other proceedings.
The court agreed with the ASG thus: “Section 65 [of the Act] categorically enumerates that the provisions of the CrPC shall apply in so far as they are not inconsistent with the provisions of the Act. Therefore, the intention of the legislature is that certain provisions enumerated in the Act to be applied strictly and scrupulously with reference to the offences committed under the Act. In such circumstances, no person can claim any privilege or advantage from and out of the procedures contemplated under the CrPC. Even section 65 [of the Act] speaks about investigation. Therefore, in respect of the investigation, the CrPC need not be applied…”
The court’s reading of the provisions of the Act and the CrPC is severely misplaced.
According to Section 4 of the CrPC, all offences shall be investigated, inquired into, tried, and otherwise dealt with in accordance with the Code – subject only to the condition that a special law applies and regulates such investigation.
In other words, only if there is an inconsistency between the provisions of the Act and the CrPc will that Act apply.
In the context of Section 160, the court constructed a mythical inconsistency where none existed – it said that the Act allows investigating officers to require the personal appearance of persons if felt necessary, whereas the CrPC exempts women from personal appearance. While at first glance this position may seem correct, in reality, there is no conflict or inconsistency between the provisions of the Act and the CrPC so far as the place of investigation of women is concerned.
It is correct that the Act does not stipulate any exemption from personal appearance to women for the purpose of investigation, but it is equally true that the Act does not specifically require personal appearance of women either – it only sets out a general procedure for investigation.
Once the Act is silent with regard to certain procedure like where to investigate a woman, one cannot but take recourse to the CrPC. In such a situation, the concession granted to women in the proviso to section 160 must apply in respect of offences investigated under the Act.
Judicial Lawmaking
In his book Law’s Empire, Dworkin notes that judges, while deciding “hard cases”, must view law as integrity, that is, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice. Unlike what the court would have us believe, Chidambaram’s case is far from being a “hard” case – it is a case involving simple facts and application of unambiguous legal provisions.
The court agreed with Chidambaram that the proviso to section 160 confers a privilege on certain persons, including women, with a view to avoiding personal inconvenience or hardship to such persons.
However, it also said that such a privilege is not absolute and can be awarded only in “genuine” cases. The court describes “genuine” cases to mean cases involving “sick” and “bedridden” women, who are “incapable” of travelling long distances to participate in investigation proceedings. The court read the words “no woman shall be required” as employed in the proviso to section 160 to mean “not required only in certain circumstances and not always.”
First of all, “incapacity” is not a pre-condition to availing the benefit of the exemption – if that was what the legislature intended, it would have categorically stated so in as many words. Next, Dworkin’s theory of constructive interpretation would have come to the ED’s rescue had there been a dire need to – and justification for – insisting upon the personal appearance of Ms Chidambaram. The ED did not place any material on record to show that Ms Chidambaram’s personal appearance was needed or justified due to some exigent reasons, not did it place materials to show that investigation at her residence is impractical or will otherwise stifle the course of investigation.
Compromising Civil Liberties
The court said that Ms Chidambaram, being a senior lawyer with an active and lucrative practice in the Supreme Court and in state High Courts, cannot be said to be incapable of attending or participating for the effective investigation of the case. The court’s views are worth noting: “When the women Flying Officers of the Indian Air-Force are able to perform on par with their male colleagues, then this Court is of an opinion that in no circumstances with reference to the current day developments of our great Nation, women can never be underestimated or blindly considered as vulnerable. May be in certain circumstances in certain areas, women are vulnerable, however, not in all circumstances in all areas.”
Importantly, in the present case, the constitutionality of the proviso to section 160 was not in question and it was not right for the court to read the proviso down without testing its constitutionality.
The court did not judicially review whether or not the proviso bears any connection with remedying the historical and structural subordination of women in India. For instance, the court did not cite any empirical evidence, or any evidence at all, to show that women, or working women for that matter, do not face violence, abuse or harassment at the hands of male investigating officers.
Specifically, the court could have used this case as an opportunity to examine if the proviso to section 160 simply reinforces a sexual stereotype (and therefore unconstitutional under Article 15(1)) or protects women from a historical or existing wrong (and therefore saved by Article 15(3)).
Given that affirmative action is constitutionally permissible, it would be hard to argue that a law which seeks to tackle potential abuse and harassment of female witnesses at the hands of male investigating officers is unconstitutional (especially in view of the minuscule number of women police stations and dearth of women police personnel). But that is a legal and constitutional question of law to engage with.
Courts Have Turned Constitution on Its Head
In any event, the CrPC does not exempt women from being witnesses or from being investigated at all – women, just like men, are equally answerable to investigating officers and must fully cooperate with them, failing which they would be subject to the same fate that men are otherwise subject to. The court was not right in making sweeping statements, sans reasons, that effectively re-write laws and impede upon essential civil liberties.
Articles 14 and 15(1) of the Constitution of India give us an opportunity to move away from gender stereotypes.
It is hard to be bound by the notions that women are not competent to personally appear for investigations and must be investigated within the safe corners of their homes. But it is equally true that the four groups for whom the concession in section 160 is meant for – aged, women, children and disabled – are groups who are indisputably vulnerable in our society. What section 160 does is creates a veil of safety for this group of people.
Indian courts have upheld statutory laws on criminal defamation and criminal contempt over free speech, laws criminalising homosexuality over democratic principles of equality and dignity of life, and laws aimed at tackling black money over right to privacy and liberty. That is the tragedy of our democracy today. Constitutional courts, who were once the torchbearers of our libertarian constitutional conscience, have lately, on several occasions, turned the Constitution on its head and have failed to strike an optimal balance between essential civil liberties and state interest.
(The writer is a lawyer and legal academic. He tweets at @ashish_nujs. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)
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