LAW researchers have always been curious and have studied dispensation of justice during various periods. For eg. Pre Independence, Post Independence, Pre-Emergency, Post Emergency etc. “Justice during CoViD 19 times” should be one such period that the law researchers would be very much interested in.

My eye fell on the interesting developments at the Kerala High Court, which rendered some very ‘interesting orders’.

  1. The first was the order in Jyothish Vs. State of Kerala [P (C) 9115 / 2020] dated 20 March 2020 which was a Petition filed seeking online availability of alcohol for consumption. [Hereinafter referred to as Jyothish]
  2. The second was an interim order in N.Prathapan Vs. State of Kerala [W.P (C) TMP 9115 / 2020] dated 2 April 2020 which was on a Petition that challenged the legality of the Government Order which would have allowed the excise department to give up to 3 litres of alcohol to anyone who could get a ‘doctors prescription. [Hereinafter referred to as Prathapan]
  3. The third was the order in Prakash Vs. State of Kerala [W.P (C) TMP 28 / 2020] dated 6 April 2020 which was on a Petition seeking a temporary pass to get ‘cat food’. [Hereinafter referred to as Cat Food Case]

The administration of justice requires it to follow the Principles of Natural Justice. Justice should not just be done but also seen to be done. A Judge should be free of any bias, preconceived notions and any tinge of emotions. Emotions cloud reasoning, whatever that emotion may be.

 

Dissecting Jyotish

 

In Jyotish, the order itself starts with the following sentence “It is with a deep sense of exasperation and a tinge of disgust that I write this judgment in a writ petition filed by a citizen of this country, who has approached this Court seeking a seemingly innocuous direction”. I wonder why should a Judge have a ‘deep sense of exasperation or a tinge of disgust’. Was it the ‘alcohol’ or the ‘timing’? The Judgment gives us an idea that it may be because of the ‘timing’ and not the subject matter being ‘alcohol’. If it is the timing, who decides what is ‘urgent’. Can standards be set to define ‘urgency’?

Para 2 of the Judgement is a concise statement of facts which states that the Petitioner was aware that it was unsafe to go to crowded ‘outlets’ and that ‘online delivery’ options need to be explored.

Para 3 is the only paragraph that explained the ‘legal’ aspects and that too again speaks of ‘normal circumstances’ and therefore, a reference to the “CoViD 19 times’. All that the Judgment states is that there is no ‘fundamental right to trade’. The Petitioner approached the Court not to ensure ‘Fundamental Right to trade’, but for his Right to consume. The Judgment goes on to state that it is a policy decision of the State and the Court would not interfere with it.

What hits the hardest is the assumption. The Assumption that the ‘Petitioner’ approached the court for ‘cheap publicity’.

As a Student of Law and the occasional role I play to ‘teach’ students, this Judgment has all the ingredients of what a ‘good Judgment ought to avoid’. It gives glimpses of the Judge’s mood, prejudices and assumptions. What is sad about the entire Judgment is that not one sentence or word stated by the Counsel appearing for the State was recorded. What was the stand of the State? Did the Judges take over the matter single handedly? The entire Writ Petition was not seeking a direction to the Government to allow ‘online sales of alcohol’ but it was only seeking a direction to the government to consider the ‘representation’ of the Petitioner.

 

Whether ‘Alcohol’ is ‘Food’ ?

 

Would the order in Jyotish be the same if the Petitioner sought the delivery of ‘food’ through Online delivery? The next question is would alcohol be ‘food’? The Food Safety and Standards Act, 2006 [Hereinafter referred to as ‘FSSA’] defines ‘Food’ to mean “any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances”

The Indian Parliament thought it fit to include ‘alcoholic drink’ in the definition of food. The State of Kerala controls the supply of ‘alcoholic beverages’ in the State and therefore, the Petitioner had nowhere to go but to ‘knock’ on the doors of Justice. The Court ought to have considered the issue a little bit more seriously than it did by dedicating just a para to the ‘legal reasoning’ and rubbing it off saying it would be the same even in ‘normal times’. The issue of ‘online delivery’ was thoroughly argued by Sr.Adv P.Chidambaram before the Karnataka High Court in Hip Bar Pvt. Ltd Vs. State of Karnataka [W.P.No. 6448/2019] and a Single Judge dismissed the Writ Petition with a 30 page order which is now under challenge in a Writ Appeal before the Division Bench.

 

Dissecting Cat Food Case

 

Alcohol and Kerala are like twins, they keep fighting all the time and yet they have learnt to survive in the same house together. When the order in ‘Jyotish’ was talked about in public, the same Bench heard the “desperate purrs of the three felines” and an order was passed to ensure that the ‘felines’ don’t die because of the non-availability of “Meo-Persian biscuits”. This is what set me thinking and I thought it necessary to pen down this article.

In the Cat food Case, the Petitioner wanted ‘special cat food’ when there could have been a hundred other alternatives even if the Petitioner was a ‘vegan’. The allegation was that the police denied the permission ‘without reasons’.

The Court relied Animal Welfare Board of India Vs. Nagaraja [2014 (7) SCC 547] where Article 21 rights were extended to animals and also the fact that ‘animal food and fodder’ was specifically mentioned in the Ministry of Home Affairs order on ‘Essential Items’. To justify the requirement of ‘cat food’, the Bench relied on Art. 51A(g) of the Constitution of India which made it a duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. Ultimately, the Court held that the Petitioner’s need to go out as was justified and this order came to be hailed as a ‘landmark’ Judgment.

There is no doubt, that this order is ‘futuristic’ and opens up the rights of animals  and we are showing a compassionate side of ‘Justice’. But no orders should be assessed in ‘isolation’ for its glory. A Judgment is nothing but a ‘legal / logical reasoning’ and therefore, any glory has to be hunted with a ‘comparison’.

 

“Person looking for Cheap publicity” Vs. “Hapless Citizen”

 

Who was a more genuine Petitioner? The person who wanted to sit home in accordance with the directives of the Government or the person who wanted to go out in violation of those directives? A comparison of cause and effect in both Jyotish and Cat Food Case is necessary. In Jyotish, the Petitioner wanted to ‘stay home safely’ but in the Cat Food Case, the Petitioner wanted to ‘go out’.

If we look in ‘isolation’, the ‘action’ of the police in rejecting ‘permission to get cat biscuits’ looks gross. However, we should look it from the angle of the ‘police’. Imagine the condition of the police and the chaos outside if every pet owner in the state wanted to go out to get the ‘special cat / dog / fish / chicken / duck / pig /cow / buffalo / bird food’.

In Jyotish, the Bench wanted the ‘litigating public’ to have a ‘sensitivity to the interests of their fellow citizens in Society, who like them have a fundamental right to a safe place of work and a healthy environment’. It decried the obsession of the ‘litigating public’ with perceived “rights” that blinds them to the obligatory ‘duty’ that they owe to their fellow citizens. However, when ‘alcohol’ was replaced by ‘Cat food’ no such sensitivity was required.

It looked like the ‘subject matter’ decided the nature of the ‘litigant’, irrespective of how responsible or irresponsible the person was. The person wanting alcohol but following directions was found to be ‘a person looking for cheap publicity’ when compared to a citizen wanting ‘cat food’ but violating directions, who was declared as a ‘hapless citizen’.

 

Citizens and the Protection of Environment

 

To justify the requirement of ‘cat food’, the Bench relied on Art. 51A(g) of the Constitution of India which made it a duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. What the Bench failed to see is that the duty is to protect and improve ‘natural environment’. In Para 2 of the order in the ‘Cat Food case’, it is clearly recorded that the Petitioner was a pure vegetarian and that over the years he has been feeding his cats those biscuits and the cats now cannot do without them. Isn’t that a clear admission of ‘cruelty to animals’? First, we take the animal out of its natural environment, domesticate it, make it dependant on these ‘artificial foods’ and in times like these, we parade ourselves as saviours because we need to feed them ‘biscuits’.

Unfortunately, for us, providing cats with biscuits is saving environment and not when the course of a river is changed, when thousands of gallons of chemical effluents is poured into the rivers and streams, when buildings are built on wetlands. In those cases, the Duties under Art. 51 A(g) is pushed under the carpet of ‘sustainable development’.

As Dr.Vandana Shiva puts it, Nature will take care of itself, you don’t worry about nature or environment, you worry about yourself”. Isn’t it so true in the context of CoViD 19? A virus occurring in nature (assuming it was not a biological weapon that was the creation of the Chinese), not seen to the human eye, locks down the entire world to allow every river / stream / ocean / air to revive itself within weeks shows nature is always superior and needs no protection from the human beings and the institutions they create. The cats too would have learnt to hunt for the mice had the biscuits not been made available by the Petitioner threatening the lives of hundreds of others.

Without Doubts, the Judgment that stresses on Art. 51A(g) is a welcome because we need the same compassion when it comes to getting the mining in Allapad stopped (it has caused sea erosion and the vanishing of 80 sq km of land mass and now threatens an entire district in Kerala to be submerged in the Sea), all those High Rises just around the High Court Building, all those High Rises on the CRZ areas. It was only recently that the Supreme Court had to overturn an order of the Kerala High Court to protect environment. That Judgment, even if correct, was thoroughly criticised because it resulted in the loss of four buildings built illegally. It is heart-warming to be assured that the balance of Justice will now tilt in favour of the environment and this judgment in the ‘cat food case’ is hopefully not a one-time phenomenon to avert a ‘CATastrophe’.

The Court goes on to refer to the guidelines issued by the World Health Organisation of Animal Health (OIE), of which our Country is a member, and quotes the five internationally recognised freedoms for animals viz. (i) freedom from hunger, thirst and malnutrition, (ii) freedom from fear and distress, (iii) freedom from physical and thermal discomfort, (iv) freedom from pain, injury and disease and (v) freedom to express normal patterns of behaviour. I was wondering if the same Court would have found animal rights violated had this CoViD 19 been something like the ‘bird flu’ when we thought it fit to  cull millions of chicken without even establishing if they had the virus or not or in ensuring that the street butchers kill the animals a little more mercifully and not by banging its head with a hammer.

 

Article 21: Right to Life stretching it to ‘Animal Life’

 

In the Cat Food Case, reliance was placed on Animal Welfare Board of India Vs. Nagaraja [2014 (7) SCC 547] where Article 21 rights were extended to animals and also the fact that ‘animal food and fodder’ was specifically mentioned in the Ministry of Home Affairs order on ‘Essential Items’. The Court while deciding Jyotish did not note that the very same order also included ‘food’.

 

Puttaswamy and the Right to Privacy

 

Interestingly there is also a reference to Puttaswamy [2017 (10) SCC 1] case and the Right to Privacy. The order says that the ‘choice to rear pets’ is protected by that Right to Privacy. In that case, wouldn’t the Right to Privacy, extend to the Petitioner in Jyotish? The Right to drink in the privacy of his house? The fear of him jumping out of his house after having drinks is much lesser than the cats jumping out after a hearty meal of Biscuits!!!!

 

Blockchains, Artificial Intelligence and Robots in ‘Administration of Justice’

 

In the age of Artificial Intelligence, block chains and robots, where everyone is in the mad rush to create a robot that can ‘think’ like a human. I must say that it is impossible to create a robot that can ‘think’ like a human. Robots, block chain and Artificial intelligence follow algorithms and they have a certain standard result that follow. Humans can justify anything and everything to suit their needs. So once ‘cat food’ replaced ‘alcohol’, the human mind was ready to go to any extent to justify the need for ‘cat food’.

So if anyone who is in any hurry for these technologies, must first ‘change’ their mindset and must be willing to accept ‘consistency’ as an ingredient in ‘legal reasoning’.

 

Dissecting Prathapan

 

In Prathapan, the same Bench stayed the Government Order of distributing a limited quantity to the ‘needy’. There is no doubt whatsoever that the Government order was so flawed the it sought a doctor’s prescription for alcohol and no doctor would have ever given it in breach of medical ethics and even the Indian Medical Association also sought to intervene in the matter.

What is more relevant was the reason why the government came out with such an absurd government order at that point in time. Apparently, the ‘deprivation of alcohol’ caused more deaths than claimed by the ‘virus’. The Government thought it fit, as a ‘matter of policy’ to address it and mitigate the ‘loss of lives’.

 

‘Alcohol’, ‘Prohibition’ and the Policy of the State

 

When it comes to Alcohol, ‘Prohibition’ was one of the targets that States were expected to achieve. It all flowed from the strong opposition to it from the ‘Father of our Nation”. The Constitution Makers even put it as a Directive Principle of State Policy”. Gujrat was one of those States where Prohibition was first implemented and it is still in force. Many other State implemented it and then partially lifted it.

The Magnitude of Substance Use in India 2019 report by the Ministry of Social Justice and Empowerment and the National Drug Dependence Treatment Centre of the All India Institute of Medical Sciences, New Delhi throws up very interesting facts on alcohol and its dependence. Based on it, Kerala has relatively less ‘dependence’ on alcohol even when atleast 15-30% of State Revenue is from Alcohol Sales. Compare this with States that has a total prohibition which means nil revenue and still have to grapple with ‘alcohol dependency’. Boot legging is one of the most lucrative businesses in India and they thrive in places where there is prohibition.

As a matter of policy, the Court correctly stated that it would not interfere with State policy when it adjudicated Jyotish. If it was all about the policy of the Government which the Court would not have interfered with, a stay was given in a matter of few minutes in Prathapan.

It is not the ‘stay’ that I am worried about. But it is the manner in which it was given. The reason for the Government Order to come out was clear, it was the ‘loss of lives’. The Court earlier stated that it would not interfere with a policy, now that the policy was in place, even if it interfered with it, the Court ought to have even addressed the underlying concern and that concern was about loss of lives. Every life is important and Article 21 extends to every life and did not exempt the ‘lives of alcoholics’ from its applicability. The Judges ought to have deliberated a bit more on the ‘loss of lives by an act of the State’ and this meant not directing the ‘supply of alcohol’ or upholding the operation of the Government Order but directing the State to give atleast ‘medical assistance to the alcoholics’ so as to overcome / manage their addiction in these tough and trying times. It was a bit shocking that the life of an ‘alcoholic’ was not even considered a ‘life’ worth protecting. In the Cat Food Case, the Court pulled out the Constitution, Nagaraja, Puttaswamy, Article 51A(g), Prevention of Cruelty to Animals, the WHO guidelines etc and when it came to saving the life of an ‘alcoholic’, the Constitution never seemed to make its appearance leave alone the judgments and reports of International Organisations. The purrs of three cats was more vociferous than the silent death of 10 alcoholics.

 

URGENCY, Whose view?

 

The cost of Rs.50,000 imposed in Jyotish is without doubts unfair and purely arises out of a bias. A bias towards ‘alcohol’. The cost was imposed on the grounds that the matter was not ‘urgent’ and the Petitioner could have waited for 15 odd days. I believe that the Petitioner had the foresight to understand that it was not a mere 15 days but it could be weeks and months together. The Government order that was ‘challenged’ in Prathapan justifies Jyotish. The Petitioner’s relief were totally in line with the ‘government directions’  and he even understood that the ‘sale of alcohol’ is a matter of policy and therefore he didn’t even seek any other direction other than the direction to the government to consider his representation.

The CoViD 19 times is slowly giving the people the idea that ‘Justice is dispensable’. For a person who might have an MACT case pending, to get a few thousand rupees may be urgent because that is his only source of money and for an advocate, a judge or registry, they might look upon it just as a few thousand rupees. ‘Urgency’ is always relative to the person who says it is urgent. The Court needs to look at it from that person’s view. Perhaps the 10 odd lives we lost to the unavailability of alcohol could have been saved.

The reason why this needed to be written and analysed is to bring out the hidden ‘prejudices or bias’ that would never be seen if any of the judgment is analysed in isolation.

 

Subject Matter Bias when Universal

 

When it comes to ‘Alcohol’, even principles of Natural Justice cannot save it. The Basic Pillars of Principles of Natural Justice lies in two maxims:

  1. Nemo judex in causa sua – “No man should be a judge in his own cause” more famously known as the “Rule against Bias”.
  2. Audi alteram partem – “Hear the other side”. It is about giving an opportunity of fair hearing to both sides before passing any order.

The Oath of a Judge takes care of the Rule against Bias. The oath states that the Judge will “Perform the duties of office without fear or favour, affection or ill will”.

Bias is the biggest threat to “Justice”. A Bias could be Pecuniary, Personal, or Subject Matter bias. Whenever, the issue of Bias is brought out or whenever the Judge becomes aware of it, the Judge may decide to ‘avoid’ the matter.

Unfortunately, there is one ‘subject matter bias’ that all Judges succumb to and I call it the “Bias against Alcohol”. The Problem with this Bias is that you cannot even flag “bias” and ‘find’ another ‘Judge’ because this Bias is Universal to the Indian Judiciary. Chief Justice of the Karnataka High Court also passed very similar order (but allowed withdrawal with a Rs.10,000 donation) and this is one Judge I have appeared before on several occasions and I can vouch for his fairness, but ‘alcohol’ is the weak link that ensures ‘alcohol’ / alcoholics may never see ‘justice’ in the Indian Judicial system.

I always wondered why we need to study ‘sociology’ in the five year course. What has it to do with Justice? Now, let me explain this: in the unlikely scenario of either Jyotish or the Cat Food Case going to the Supreme Court, it has a 99.99% chance of getting ‘dismissed’ even if it deserves a relook and that is because the ‘social norm’ will always ensure that however flawed the alcohol judgment is, the ‘social norm’ will always support it and so is the case with ‘cat food’ because however flawed the reasoning is, it is finally an attempt to save the lives of little animals that can’t talk.

All that I can say is that while we need to be compassionate to the desperate purrs of the three felines, we also need to agree and admit that the life mentioned in Art.21 of the Constitution extends to even an Alcoholic and it should not be taken away without the due process of law.

 

Yeshwanth Shenoy is a Mumbai-based advocate. The views expressed are personal.

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