Monthly Archives: November 2013

Indra Sarma v VKV Sarma: The Supreme Court on Live-in Relationships and Gay Marriage

In its decision in Indra Sarma v VKV Sarmahanded down a couple of days ago, the Supreme Court – correctly – holds that the term “relationship in the nature of marriage” in the Domestic Violence Act covers live-in relationships. This judgment is also extremely interesting, however, because of its possible impact on the legal status of homosexual relationships.

In this case, the Court was faced with a complaint of domestic violence, and had to determine whether a woman in a live-in relationship could claim under the Act. In order to do so, she would have to show that her relationship was covered under one of the enumerated grounds under the definitional Section 2(f) – which the Court read as exhaustive. The only possible ground was “relationship in the nature of marriage.”

S. 2(f), stated in full, reads:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family… 

The Section specifically uses the term “two persons”; the Court nonetheless chose to observe that the clause refers to “… a relationship between two persons (of the opposite sex). (Paragraph 33), on the ground that S. 2(a) – which defines an “aggrieved person”, i.e. a person entitled to claim the remedies under the Domestic Violence Act as “a woman”. Consequently, the Court observes that:

“… hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act.” (Paragraph 38)

With respect, the first part of this sentence is not logically prior to the second. It is not the case that the DV Act does not “recognize” same-sex relationships; it is only the case that the Act is aimed at combatting a specific social problem – violence against women in the domestic sphere, particularly at the hands of men – and so, it restricts its scope of operation, that is, the scope of its remedies to women who are in a domestic relationship with men. That is why S. 2(a) defines the aggrieved person as a woman, and S. 2(q) defines the respondent as “a male”. But if the aggrieved person can only be a woman, and the respondent can only be a man, then the legislature could very easily have defined “domestic relationship” as a relationship between “a man and a woman“. The fact that it chose not to do so, and used the gender-neutral term “two persons“, implies that the term “relationship in the nature of marriage” itself might well have a scope of operation that goes beyond the DV Act. Or, in other words, the Court is right to hold that offenses in the nature of domestic violence between same-sex couples are not covered by the DV Act – but the legal reason for that is to be found in the definitions of “aggrieved person” and “respondent”, and not in the definition of “domestic relationship” and “relationship in the nature of marriage“.

Furthermore, the Court expressly holds that marriage is a “civil right” (Paragraph 23), as opposed to a religious sacrament, and charged with social (as opposed to religious) significance. This means that the problem of according religious rights primacy over Part III fundamental rights per State of Bombay v Narasu Appa Mali is not at issue; consequently, if certain civil rights are being accorded to some, but being denied to others on bases that the Constitution rejects, then there is a case to be made for unconstitutional discrimination. Now recall that in Naz Foundation, the High Court held that the word “sex” in Article 15 extends to “sexual orientation” – and thus, discrimination on the basis of sexual orientation amounts to an Article 15 violation. Until now, it could have been argued – and has been argued in jurisdictions like the United States – that by excluding homosexual couples from the ambit of marriage, one is not discriminating against them – a homosexual union is simply the historical meaning – indeed, the common law meaning – of what it is to be married. Whatever the validity of this argument, in this case, the Court holds that the term “relationship in the nature of marriage” is one that has the “inherent or essential characteristics of a marriage” (paragraph 35), which it later defines as having a number of possible components such as a shared household, pooling of financial arrangements, a sexual relationship, public socialization, intention and conduct, and so on. Notice that none of these requirements (except the one of children) are inherently related to the traditional definition of marriage being between a man and a woman.

Thus, the basic point is this: by excluding homosexual couples from the ambit of the term “relationship in the nature of marriage“, and denying to them the various benefits that flow therefrom and are accorded to homosexual couples of exactly the same sort, there is a clear case of discrimination on the basis of sexual orientation. And insofar as the various (civil) rights and benefits flowing out of a “marriage” are denied to homosexual couples, there is a case of discrimination on the basis of sexual orientation. The technical labels here are not important – what is important is that whether you want to call it a marriage or a relationship in the nature of marriage, if the same bundle of rights and obligations that are extended to heterosexual couples are denied to homosexual couples (and this is not an Article 14 case, where the government can claim intelligible differentia and rational nexus, perhaps to “protect the institution of marriage”), then there is an Article 15 violation.

Same-sex unions are recognized in some form or the other in many countries now, including – lest there be claims of Eurocentrism – Argentina, Brazil and South Africa. In any event, following Naz, it is the next debate that ought to be had in India over how, precisely, our Constitution is to fulfill its promise of extending equal concern and respect to all its citizens.

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Free Speech Restrictions under the IT Act: PUCL’s Constitutional Challenge to Section 66A and the Intermediary Rules

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

– Justice Jackson, West Virginia Board of Education v Barnette

“The State cannot prevent open discussion and open expression, however hateful to its policies… the guarantees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people’s legislative and executive agents.”

– Justice Shetty, S. Rangarajan P. Jagjivan Ram

 

Last week, the Peoples’ Union for Civil Liberties’ PIL challenging the constitutionality of S. 66A, IT Act was admitted by the Supreme Court. PUCL’s petition, available here, is well worth a read. S. 66A of the IT Act – and the associated rules – raise grave constitutional questions about the scope of free expression in India. The provision states:

 

“Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.”

 

Further, the Intermediary Rules, 2011, which deal with due diligence obligations of intermediaries, prohibit them from publishing information that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionabledisparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”

PUCL’s petition is wide-ranging. It lists a range of abusive practices that have been carried out under the aegis of the Act and the rules, including, for instance, the arrest of two young women in Maharashtra for posting – and liking – a message on Facebook, various intermediary take-down requests, and so on. The petition also focuses on the vagueness of the terms involved, the non-definition of the offenses, various procedural irregularities that are scattered throughout the legal landscape, including those found in the 2009 blocking rules. In this post, however, I would like to consider a threshold issue: does our Constitution allow for censoring “offensive“, “menacing“, “obstructive“, “annoying“, “objectionable” or “disparaging” speech?

There are good reasons to believe that it does not. The Constitution is crystal clear on the permissible grounds for restricting free speech – they are to be found in Article 19(2). The only relevant 19(2) grounds available here are “public order, decency or morality“. Previously, on this blog, we have had occasion to consider in great detail the meanings of these words. A brief summary will do here.

 

Public order“: this phrase was inserted into the Constitution via the First Amendment, because after the judgment in Romesh Thappar narrowly construing the older wording (“undermine the security of the State“), the legislature felt that “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” This demonstrates that “public order” is a term of art, limited in its scope to issues such as violent crime. Romesh Thappar, indeed, defined it as the “state of tranquillity which prevails among the members of a political society”. Subsequently, Ramji Lal Modi added an intent requirement (missing from S. 66A), and S. Rangarajan P. Jagjivan Ram laid down the test for 19(2) restrictions, requiring a proximity between the speech and the public order violation to be akin to “a spark in a powder keg.

Decency“: In Bal Thackeraythe Court specifically dealt with the meaning of the word “decency”. In that case, the Court upheld an electoral restriction on religion-based campaigning, holding that: “The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” The Court’s reference to India’s secular polity suggests, at the very least, that the decency requirement is itself linked to basic constitutional principles.

“Morality”: The Court’s morality jurisprudence, over six decades, is unfortunately extremely difficult to break down into a coherent line of argument. “Morality” could refer to one of three things – individual morality, public morality or constitutional morality (that is, again, principles of the Constitution like secularism, representative democracy and so on). In cases where the Court has referred to the first or second notions, it seems to have adopted a variant of the obscenity test. In one of its most recent judgments on the point, however, the Court also observed that “notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”

 

We can therefore see that the 19(2) restrictions are all defined terms of art that have an identifiable scope of operation and principles of liability and causation. S. 66A of the IT Act and the Intermediary Rules fail constitutional muster on both those counts. “Menacing”, “harassing” or causing “ill-will” (whatever these terms might mean!) clearly do not rise to a public order offense, and the legislature makes no effort – in any case – to limit their incidence to the proverbial “spark in the powder keg” situation. Similarly, being “offensive”, “objectionable” or “disparaging” does not amount to being obscene or – even on the broadest possible interpretations of the Court’s “morality” judgments – violating public morals. It is crucial to note that whereas – as the above cases show – the Court has always attempted to lay down an objective test to determine the scope of Article 19(2), words like “offensive” and “objectionable” are inherently and chronically subjective. You can at least purport to be discerning public standards of decency or morality through some kind of objective test – but you simply cannot decide, on any basis that isn’t entirely subjective, what is “offensive”.

The best that can be said for these terms is that they are over-broad. And for obvious reasons – including the chilling effect that we discussed in our last post, and argued by PUCL in its petition – the Court has given especially short shrift to over-broad legislation in the domain of free speech. In Kameshwar Prasad, a ban on all demonstrations involving government servants was struck down as being violative of Article 19(1)(a), because it encompassed all demonstrations, “however innocent and however incapable of causing a breach of public tranquillity and [did] not confine itself to those forms of demonstrations which might lead to that result.” And in K.A. Abbas, the Court held that where “the persons applying it [the law] are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution.”

As clearly as S. 66A of the IT Act and the Intermediary Rules violate the text of the Constitution, there is a much broader concern here (as the numerous instances of abuse that PUCL lists demonstrate). History shows us that the kind of speech the government is likely to find offensive or disparaging or objectionable is precisely the kind of speech that challenges the existing order. Galileo’s insistence that the earth moved around the sun; Martin Luther’s creation of protestantism by nailing the ninety-five theses to the door of the church in Wittenberg; Eugene V Debs’ protest against the World War I draft; Gandhi’s trial for sedition – every single one of these cases demonstrate that when you give government the power to determine what speech is “offensive” and what isn’t, what the public ought to hear and what the public ought to be sheltered from, and so on, abuse in the service of power is inevitable, and what end up being suppressed are ideas of fundamental and urgent importance.

The freedom of speech would be of little or no value if all that was permitted was what was “convenient”. The freedom of speech would have little or no value if people could not try and change the established order precisely by causing “annoyance” (as Galileo did, and changed all of science – for the better), by “disparaging” the existing order of things (as Martin Luther did, and changed all of religion). As the great American Justice Douglas put it so eloquently sixty-four years ago:

“The principal function of free speech under our system of government is to invite dispute; it may indeed best serve its high purpose when it induces condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

The whole purpose of representative democracy is – precisely – the idea that the truth does not come to us pre-defined and pre-packaged, and we must adhere to it – but rather, that we create our own truths by engaging in free and open public debate, a debate that might often be heated, sharp – and yes, offensive. As Judge Easterbrook wrote in American Booksellers v Hudnut:

“The power to limit speech on the ground that truth has not yet prevailed and is not likely to prevail implies the power to declare truth. At some point the government must be able to say (as Indianapolis has said): “We know what the truth is, yet a free exchange of speech has not driven out falsity, so that we must now prohibit falsity.” If the government may declare the truth, why wait for the failure of speech? Under the First Amendment, however, there is no such thing as a false idea, so the government may not restrict speech on the ground that in a free exchange truth is not yet dominant.”

And as our Court echoed three years ago, in Khushbooin a democracy, people can choose to either defend or question the existing social mores… an expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.”

S. 66A of the IT Act and the Intermediary Rules, in their present form, violate the text of the Constitution. They violate sixty-three years of judicial precedent interpreting the text of the Constitution. And most importantly, they violate our Constitutional commitment to representative democracy. Unsurprisingly, they have been abused beyond all measure or recourse. They ought to be struck down.

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Oral arguments in ACLU v Clapper – II: How Surveillance affects Free Speech and the Freedom of Association

(As an addendum to the previous post, this piece explains exactly how much information can be gleaned from metadata surveillance.)

Recall that we are discussing the American Union for Civil Liberties’ challenge to the NSA’s bulk surveillance program, something that is directly relevant to India, in light of our own central monitoring system (CMS), that goes much further. In the last post, we discussed the implications of bulk surveillance upon privacy. But in addition to making the privacy argument, ACLU also argued that bulk surveillance violates the freedom of association, implicit in the American First Amendment, and upheld by a long line of cases. In India, of course, that right is expressly guaranteed by the Constitution.

In order to understand ACLU’s freedom of association argument, we must first look to the 1958 American Supreme Court decision of NAACP Alabama. Recall that the deep South in the 1950s practiced large-scale and widespread de facto discrimination against coloured people. The National Association for the Advancement of Coloured People (NAACP) had opened an office in the southern state of Alabama, and had “given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race.” Arguing that this was causing “irreparable injury to the property and civil rights” of the citizens of Alabama, the state imposed various requirements upon the NAACP, one of which was a requirement to disclose its membership lists. NAACP refused. The state filed a restraining order. NAACP challenged. The Court’s opinion, upholding the claims of the NAACP on behalf of its members, deserves to be quoted in full:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said… “a requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In constitutional law, NAACP’s argument is invoking a doctrine known as the “chilling effect“. Basically, the idea is that if certain pre-existing burdens – legal or otherwise – are attached to exercising certain rights in certain broadly-specified ways, then people, out of caution, fear or prudence – will simply refrain from effectively exercising those rights altogether. The classic example is – unsurprisingly – that of free speech. This (somewhat real) hypothetical ought to drive home the point: suppose there is a law that bans “offensive” speech. The government might be motivated by the lawful and legitimate interest in protecting historically ostracized communities from continuous, vituperative hate speech. Nonetheless, the word “offensive” is so inherently subjective and open to manipulation, that it will lead people – fearing prosecution – to self-censor and to stop engaging even in perfectly legal speech not contemplated by the statute.

The situation is not always as clear-cut as the one outlined above, and often needs an investigation of various social factors, combined with a fair-sized helping of judicial common sense. For instance, in Shelton v Tucker, an Arkansas law required all publicly-employed teachers to disclose the organizations which they had been part of over the previous five years. The state argued that the schools needed the information to make judgments on the competence of teachers before hiring or extending their contracts – certainly, a legitimate objective. There was nothing on the record to suggest that the information would be missed. Nonetheless, the Court held:

“Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain… the statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes. The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless. Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.”

Investigating whether or not there was a compelling state interest, the Court applied the familiar strict scrutiny test, and held:

“The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness… in a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

And in Local 1814 v The Waterfront Commission, the question was whether there could be compelled disclosure of all of a labour union’s members who had authorized payroll deductions for contributions to a political action committee, for the purposes of investigating coercion. The Court of Appeals held:

“We believe that compelled disclosure of the Fund’s contributors under the circumstances of this case would give rise to a chilling effect similar to the one recognized by the Supreme Court in Shelton v. Tucker, supra. The Waterfront Commission has undeniably broad powers of control over waterfront labor. It has the responsibility of supervising the hiring and assignment of all longshoremen. The Commission has the power to cause longshoremen to lose their jobs by removing or suspending them from the longshoremen’s register… Refusal to answer questions or produce evidence in a Commission investigation may be grounds for revocation or suspension from the register… we agree with the District Court that there is a substantial danger that longshoremen will perceive a connection between contributing to the Fund and being called before the all-powerful Commission. Some chilling effect on some contributors would be inevitable.”

Each of these three cases were cited and relied on by ACLU before the District Court. The argument is now self-evident: bulk surveillance of telephony metadata, as we discussed in the previous post, over time reveals patterns of data that, in turn, reveal associational information about people. The government did not deny this – in fact, it could not deny it, considering that its entire case was based on just how effectively bulk surveillance did reveal associational patterns! The question then, was two-pronged: whether there was a chilling effect, and whether a compelling state interest justified the consequent violation of the First Amendment’s freedom of association.

The judge asked ACLU what evidence there was to demonstrate a chill (and indeed, the government, in its response, would contend that there was no evidence demonstrating that anybody had been chilled). ACLU argued that none of the cited cases had relied upon evidence demonstrating a chill – in fact, bringing forth such evidence would essentially involve proving a negative. You would have to effectively prove that someone who would have otherwise spoken to you didn’t speak to you because of the chilling effect – and how could you ever do that? This was why the Supreme Court and the Court of Appeals had adopted the common sense approach – and surely, if the entire society was subjected to surveillance, that would certainly involve the unpopular, dissident (yet perfectly legal) groups that are the inevitable victims of any chilling effect. That is to say, if I know that all my associational patterns are known to the government, I might well consciously or subconsciously refrain from associating with unpopular  or dissident groups.

The government also argued that the First Amendment wasn’t implicated in this case, because it wasn’t directed at ACLU. The purpose was’t to penalize expressive activity. The judge nonetheless enquired whether a good faith investigation could – nonetheless – impair the freedom of association (the state responded that it couldn’t, in this case); and in its reply, ACLU argued that even an indirect burden on an expressive activity, or an associational activity, requires exacting scrutiny. As Alexander Abdo, counsel for ACLU, ended by observing:

Imagine that the government comes to your house each night and compels you to hand in all your call records for that day. Is that not a clear violation of the Fourth and First Amendments?”

By corollary, of course, this entire argument applies with equal force to free expression (19(1)(a)). There are, therefore, two questions that we must consider: to what extent do Articles 19(1)(a) and 19(1)(c) embody the doctrine of the chilling effect; and what standard of scrutiny is applicable under 19(2) and 19(4). There is a substantial amount of case law on how to interpret the “reasonable restrictions in the interests of… the sovereignty and integrity of India…” limitations, and most of it points towards a general proportionality test. Once again, though, it is at least arguable that the sheer scale and extent of bulk surveillance calls for more exacting scrutiny; and in any event, even under the proportionality test, the government would need to produce at least substantial evidence to show that it cannot achieve its objectives through less intrusive surveillance.

To sum up, then: bulk surveillance implicates three crucial constitutional rights: privacy (21), expression (19(1)(a)) and association (19(1)(c)). The oral arguments in ACLU Clapper reveal the numerous complexities involved, and point the way forward towards the debate that must be had in India: what conception of privacy does our Constitution commit us to? Does bulk surveillance serve a compelling state interest? Could the same objectives be achieved by a narrower tailoring? Does bulk surveillance cause a chilling effect upon expression and association? And if it does, when and how – if ever – can it be justified?

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Surveillance, privacy, association and the Constitution – I: Oral arguments in ACLU v Clapper

Earlier this year, ex-NSA contractor and whistleblower Edward Snowden revealed the industrial-level surveillance of private communications undertaken by the American government. One feature of the American surveillance program is what is known as “telephony metadata collection“.  Under this, all the details of phone conversations minus the actual content of the call – that is, the two numbers involved, the time and duration of the calls etc – are intercepted and stored in a vast database maintained by the National Security Agency. Later in the year, The Hindu revealed that the Indian government’s Central Monitoring System was doing something very similar (the technical details of how the two programs differ is not relevant at the moment, because CMS surveillance is at least as intrusive as NSA surveillance – and in actual fact, is more so). For details, refer to the CIS website here, and articles here and here.)

NSA surveillance was challenged on statutory and constitutional grounds by the American Civil Liberties Union, and the oral arguments took place today morning at the Southern District Court of New York. In what follows, I summarize today morning’s proceedings, because ACLU’s two core constitutional arguments – violations of the rights to privacy and free association – are fundamental constitutional rights in India as well (Article 21 and 19(1)(c)). Examining the constitutional debate in the United States, therefore, can help us understand precisely what is at stake – constitutionally – as far as the CMS goes.

(Caveat: I reconstruct the following from my hurriedly-taken courtroom notes. For a full account of ACLU’s written submissions, please refer to their website here).

As mentioned above, ACLU rested its claims on statutory and constitutional grounds. The statutory argument involved a detailed analysis of Section 215 of the Patriot Act, the likes of which do not exist (thankfully!) in India. The relevant statutory provisions in India are the S. 5 of the Telegraph Act, and S. 69 of the Information Technology Act (along with the 2009 Rules). So while ACLU’s statutory arguments are of limited relevance, it is important to underscore the following: S. 215 of the Patriot Act requires a relevance requirement before data can be collected. Similarly, the IT Act requires the government to be convinced that it is “necessary or expedient” in the interests of the security or integrity of the state etc. – a standard that permits at least a degree of judicial review. One of the arguments made by ACLU was, given that constitutional rights were implicated, the Patriot Act (and other associated legislation) should be construed a manner that preserved – and did not putatively violate – the rights of privacy and free association. That argument, of course, applies to India as well.

Another important takeaway from the statutory arguments was ACLU’s argument that a statutory authorization of individual, targeted surveillance operations did not amount to the massive dragnet operation that the NSA was carrying out. Both because of the sheer scope and because of its potentially limitless extension, mass telephony metadata surveillance could not simply be equated to an individual targeted operation, given that it raised a whole host of issues not ordinarily implicated in standard cases of surveillance. This is critically important, because the 2003 case of PUCL v. Union of India is taken to establish that S. 5, Telegraph Act permits surveillance in general. PUCL, however, did involve individual targeting, and therefore, ACLU’s arguments suggest the first important legal issue for us to consider: does the PUCL opinion legitimate CMS surveillance as well? If the answer is yes, then the potential consequences could be devastating – especially because, amongst the procedural safeguards mandated by the judges in that case, one is conspicuous by its absence: judicial authorization of surveillance. Even the United States, that has, over the past few months, come under sustained criticism for blatant privacy violations, has something called a FISA Court that is – admittedly, in ex parte proceedings – required to authorize surveillance before it can be carried out. The idea that government can carry out surveillance of citizens’ private data on a nationwide scale with a single-step legitimation process that involves no more than administrative review will have radical consequences for a number of important constitutional principles, not least the separation of powers.

However, as the ACLU’s constitutional arguments show, there is a strong case to be made out for the proposition that bulk surveillance does differ, not only in degree but in kind – from individual surveillance, and that therefore, PUCL does not hold the field. Let us therefore, now, turn to the Constitutional case.

ACLU’s first argument rested upon the Fourth Amendment to the American Constitution, that – inter alia – prohibits an unreasonable search. Two questions arise in an American fourth amendment enquiry:  first, has there been a search? And secondly, is the search reasonable? It is around the first question that the American Supreme Court has developed its privacy law jurisprudence. In Katz vs United States, it held that there exist “spheres of privacy” belonging to each individual, which government may not penetrate. What constitutes a protected sphere of privacy depends upon whether or not citizen have a reasonable expectation of privacy. So – as the US Supreme Court has held, for example, I do not have a reasonable expectation of privacy as I walk down a public road, but I do have a reasonable expectation of privacy within my own home. What constitutes “reasonable expectation” seems – largely – to be culturally determined.

Two questions arose with respect to the issue of “search” (i.e., scope of privacy). The first crucial point – that the judge made, and which the government argued – was that on one theory of privacy, the breach occurs not at the moment that the data is collected, but at the moment at which it is subsequently queried to reveal patterns of association. This would mean that the surveillance as such violates no privacy right. ACLU, on the other hand, argued that the very nature of the right to privacy was that it closed off certain spheres from governmental intrusion – and consequently, privacy was violated at the moment of penetration, independent of what was done with the data afterwards. The basic question, according to ACLU, was whether people had a reasonable expectation of privacy with respect to their phone records and the various associational inferences that could be drawn from them. The answer, it was argued, was an unequivocal yes, because of the very nature of metadata surveillance: sociologically – and this is a vitally important point –  it has been shown that a detailed enough metadata trawl can reveal as much information about someone as a straightforward content trawl. As ACLU’s lawyer argued, the government can know when you last called your doctor, your lawyer, your stock-broker, your pastor, your ex-girlfriend, and so on. Over time, a pattern of associational relations would build that would reveal huge amounts of information about your personal life – and surely that was a violation of a reasonable expectation of privacy.

The government also argued, by relying on precedent, that it had already been held by the Supreme Court that there was no reasonable expectation of privacy in phone records. ACLU distinguished the case by arguing that previously, the Court had only considered a specific, temporary targeting – whereas this was bulk targeting, and potentially limitless. This takes us back to our earlier point about the distinction between individual targeting and bulk targeting, which assumes specific importance in light of PUCL.

The second fourth Amendment question was whether, if there was a search (privacy intrusion), it was reasonable. The government argued that there was a compelling state interest at hand, that of counter-terrorism. Counter-terrorism was necessarily prospective in nature. It was designed to detect, disrupt and prevent future terrorist attacks. Consequently, what the intelligence agencies needed to detect was patterns over time and over different (phone) carriers. Such information or connections could not be known at the outset, which is why ACLU’s proposal – of only carrying out surveillance of individuals with known links to terrorist organizations – could not work (although many of these arguments were made in the statutory context, they are equally relevant for understanding the government’s definition of compelling interest). In responding to a question from the judge as to whether bulk surveillance was uniquely suited to achieve governmental objective, the government argued that no other mechanism was as timely or effective. Given all this, it was clear that by placing limits on what part of the data could be queried post-search, it was clearly a narrowly-tailored intrusion, and hence reasonable.

ACLU, on the other hand, argued that the government had produced no evidence to show that bulk surveillance was actually necessary to achieve the objectives of counter-terrorism. ACLU produced evidence to the effect that in most circumstances, a three-hop trail was enough. This is what a three-hop trail is: suppose you have a suspected terrorist, X. You place his phone under metadata surveillance. You then do the same with all the persons he contacts, then all the persons they contact, and then repeat the process once more (three steps). In any event, on the government’s own argument, the only occasions on which surveillance had actually led to a substantive outcome had been simple cases of one-hop.

Readers should now be in a position to recognize that our own fledgling privacy jurisprudence, evolved out of three cases, Kharak Singh v State of UPGobind v State of MP and R. Rajgopal v State of TN, and placed under the all-ecompassing rubric of Article 21, is utterly inadequate to deal with the complex issues raised by bulk metadata surveillance, or other forms of bulk surveillance. There are two questions of particular urgency: first, what is the philosophy of underlying our Article 21 right to privacy? If it’s something like the Katz standard, protecting zones or spheres of privacy from any intrusion, then the mere collection of records could constitute an infringement; pre-Katz law, on the other hand, which seemed to focus more on common law trespass, might not reach the same outcome. Gobind and Kharak Singh tell us nothing, being good, old-fashioned house-surveillance cases. In light of the sheer scope of CMS and government surveillance, this is a debate that must be had now. And secondly, once an infringement of privacy has been demonstrated, what burden of justification is placed upon the government? In today’s hearings, both sides seemed to argue upon a strict scrutiny standard: namely, that the government had to show a compelling state interest, as well  show that no less intrusive measure could serve that compelling state interest than the measure it had chosen (bulk surveillance). The question of whether or not strict scrutiny applies in India is a minefield that we cannot venture into now; but the basic question remains – given the amount of intrusion that the current surveillance system puts into place, what standard is government to be held to (I’m not here referring to the statutory burden under the IT Act, but the constitutional burden of justifying an infringement of privacy). Can the government simply claim deference from the Courts as long as it can demonstrate some reasonable relationship with its objectives of counter-terrorism, and others? Or must the government affirmatively demonstrate that bulk surveillance is the only way that it can achieve its objectives? In today’s district court, the US government spent great amounts of time and effort doing that. Let us see what the outcome is.

In the next post, we shall analyze the freedom of association claim made by ACLU, also litigated in today’s hearings.

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Basic Structure – VIII: Conclusion (of sorts)

Over the last few of posts, we have examined the basic structure doctrine as enunciated and developed by the Indian Supreme Court. There are two broad questions before us: first, from an external point of view, it is principally justified for the judiciary to impose substantive limitations upon the power of the Parliament to amend a written Constitution? The external question is further divided into two further questions: is there anything in the Constitution that supports this doctrine? And what – if it exists – is the philosophical justification for it? And secondly, from an internal point of view, is the manner in which these limitations have been imposed by the Court consistent and coherent with the principled justifications? In the process, we have discussed the two basic types of objections that have been raised against the doctrine and which, indeed, are standard objections against any Constitutional doctrine: first, that what the doctrine seeks to accomplish is morally illegitimate, as it violates the principle of our understandings of democracy; and secondly, as the doctrine itself lacks a firm Constitutional basis, it is constitutionally illegitimate.

These questions are important because, at the very least, it is undeniable that the basic structure doctrine confers wide-ranging powers upon the Court. And at the end of the day, such powers need to be justified on grounds firmer than the technical meaning of the word “amend”. They need to be justified upon the same grounds that justify our Constitution itself – popular sovereignty, republicanism, representative democracy, and so on.

We began by considering a non-majoritarian understanding of both democracy and individual rights, one that understands democracy itself as predicated upon the guarantee of basic rights as essential checks upon the powers of majoritarian institutions such as the Parliament. This naturally raised the question: who should determine and enforce these limitations? The logical answer is a non-majoritarian institution which, in our culture, is the Court.

We then considered a second justification that, unlike the substantive-rights argument, focuses on process. It holds that the framing of the Constitution was the culmination of a heightened, lengthy and sustained process of public engagement (through the freedom struggle) which, because of the depth of involvement of the people, is a “higher form of lawmaking” than the ordinary legislative and amendment processes – and that therefore, the values entrenched by that process can be preserved from change until another similar process comes along. In this context, we located Indira Gandhi’s actions in the 70s as a failed constitutional moment – one that attempted to make changes as far-reaching as the framing, but failed to have this vision accepted by the People.

Subsequently, we examined the textual, historical and structural bases given to the doctrine by the Supreme Court, and inquired whether the doctrine that emerged as a result of this was consistent with the principled justifications argued for earlier. It was found that but for the glaring example of federalism, both approaches yielded largely the same results. We focused on the manner the doctrine has been developed, i.e. the highly abstract formulation of basic features, and the Court’s refusal to provide a complete list of the same. We found that there were good reasons for holding that this practical operation of the basic structure is fully consistent with the principles that justify the doctrine in the first place, as it leaves the widest possible room for the legislature to operate, and also averts the nightmare of  inflexible rigidity.

And lastly, we considered a third approach to justification, one that seeks to avoid the pitfalls of both the substantive approach (an intuitive laundry-list of rights that just seem important) and the procedural approach (no ultimate constraints on the majority). We argued that if our system of government, a representative democracy, is to be truly effective, there must exist a structure of meaningful dialogue and deliberation, through which individual preferences are formed, modified, modulated and transformed, and ultimately expressed in public decisions. Meaningful dialogue itself presupposes a broad right of free speech, a rough parity between the participants (equality), an umpiring of the process itself (judicial review), participation (republican democracy) – that is, many of the basic features. The basic structure doctrine, then – which we saw is even implicated by the common law – provides a structural framework of constraint upon the democratic process, that makes it meaningful and worthwhile to engage in the process in the first place.

In summation, therefore, there exist arguments – perhaps not dispositive, but good arguments nonetheless – that the basic structure doctrine is  justified on the following three broad levels: first, its existence, as a matter of political and moral principle; secondly, its enforcement, in terms of the institutional authority (the judiciary) responsible for its enunciation and development; and thirdly, its application, that is, the manner in which the judiciary has applied it.

Therefore, we can – tentatively – conclude by submitting that the basic structure doctrine should not necessarily be viewed as a vague and imponderable chimera used by a tyrannical judiciary to arrogate supreme State power to itself, and as a weapon to destroy the foundations of democracy. It need not even necessarily be viewed as a necessary evil, a counter-majoritirian check to correct the worst excesses of democracy, but a regrettable restriction nonetheless. In the last analysis, the basic structure is – plausibly – an essential aspect of democracy itself, a set of constraints that makes democracy work.

Does that mean that everything is perfect? Of course not, because the workings of the basic structure are left to judges who are, after all, fallible human beings. So far, the judiciary has shown both restraint and wisdom in its handing of the basic structure doctrine, but of course, there is no guarantee that it will always be so. Yet if our judges occasionally go wrong, as they are bound to, if at times their decisions stultify the scope of Parliamentary action more than is necessary or called for, it is only the inevitable cost we must bear for vesting ultimate State power in fallible human beings. The basic structure doctrine seeks to achieve a fine balance between majoritarianism, democracy, separation of powers, and basic individual rights. By the very virtue of its complexity, its implementation can never be perfect; but then, as Aristotle understood so long ago, nothing ever can.

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Basic Structure – VII: Deliberative Democracy and the Common Law

It might be objected that deliberative democracy is a notion wholly alien to law and legal thinking generally, which have tended to rely on more traditional ideas of popular sovereignty, that we have discussed before. It is arguable, however, that deliberative democracy actually underpins the structure of common law thinking, the legal system that, for better or for worse, is our legal system today.

There are two aspects of common law that I wish to highlight, that are specifically relevant to ideas of deliberative democracy. The first is that common law has never – traditionally – been considered to be promulgated by a lawgiver, or created by a conscious, legislative act; rather, common law, in the deepest sense, is regarded as being customary – its growth is gradual, lateral and from below, as contrasted with statutes, that are created in one single moment of enactment, vertically and from above. The common law judge’s task has been believed to be not a task of creation but of merely finding the law that already exists, that is, the community’s law, that has grown up through several different acts by the people over a period of time (see, e.g., Sabine, A History of Political Theory; Maitland, A History of Common Law Before the Time of Edward I). In this way, common law is about self-government through collective action.

The manner in which this action takes place leads us to the second aspect of the common law. The best description is provided by David Strauss, in his book, The Living Constitution, which we here extract in full:

The foundation of the common law is humility about the power of individual human reason. It is a bad idea to try to resolve a problem on your own, without referring to the collective wisdom of other people who have tried to solve the same problem. That is why it makes sense to follow precedent, especially if the precedents are clear and have been established for a long time. “We are afraid to put men to live and trade each on his stock of reason,” Burke said, “because we suspect that this stock in each man is small, and that individuals would do better to avail themselves of the general bank and capital of nations.” The accumulated precedents are the “general bank and capital.” It is an act of intellectual hubris to think that you know better than the accumulated wisdom…”

These two ideas – the Aristotelian notion that wisdom lies in a collective pooling of talents and ideas (developed, in modern form, by Waldron) – and the Burkean idea of incremental evolution over sudden change – are both relevant to our conception of deliberative democracy. The ideal of collective wisdom overriding individual insight – if it is to make any meaningful sense – presupposes extensive and open participation in the formation of that collective wisdom. At the time Burke was writing, of course, a significant section of society was excluded from such deliberation (women, serfs, “vagabonds” etc.) because of various exclusionary notions of human worth (that were themselves determined by a dominant subset of society) – for instance, the idea that only property-owners had a relevant stake in political affairs, and therefore, were entitled to vote (see, e.g., Kyssar, The History of the Right to Vote in America); or the idea that women were “virtually represented” by their husbands or fathers, and therefore needed no place in public discourse. While these notions are now thoroughly repudiated (we hope!), the basic idea of the common law remains, but now with a difference – collective folk wisdom now means incorporating the viewpoints of the entire polity. And it is also easy to see how an extensive process of deliberation favours incremental changes over sweeping transformations.

This is, of course, a sketchy and highly simplified account, and does not make any pretense of proving the case. The objective, however, is to simply raise the possibility that when we need not think of constitutional law – and, by extension, the basic structure – as unelected judges standing as bulwarks (or, depending upon your point of view, as barriers) against the majoritarian process. The binary is unhelpful, leads nowhere and ensures that more often than not, participants in the debate talk past each other. On the contrary, there is another way of thinking about law and democracy, one that re-imagines democracy as a value-laden set of processes to arrive at justifiable outcomes – and that this conception is at least arguably already contained – albeit in a latent form – within the broader set of ideas that structure our vision of the common law.

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Basic Structure – VI: Introducing Deliberative Democracy

The basic structure doctrine permits unelected judges to impose near-permanent checks upon parliament’s power to amend the Constitution. Recall that we have proposed two philosophical defences that render this doctrine compatible with democracy as we understand it. The first – and let us call this the substantive defense – posits an expanded idea of democracy, one that guarantees equal concern and respect to all members of a polity, and that therefore accords legitimacy to majoritarian decision-making procedures only insofar as these procedures respect certain basic individual rights without which equal concern and respect cannot genuinely be said to exist. The second – and let us call this the procedural defense – distinguishes between different levels of lawmaking, and accord degrees of legitimacy to these levels depending upon the scope, depth and duration of popular public engagement (e.g., very simply, a constitutional amendment is a higher form of lawmaking than normal legislation). This theory then argues that lawmaking at higher levels can only be changed or amended by another process that occurs at that level – i.e., through at least the same degree of public participation. The procedural theory concludes by arguing that the basic principles of the Constitution, coming as they did upon a long, sustained and highly popular independence movement, are entrenched from change until a similar movement comes along again.

I will suggest that while both these defenses capture certain valuable insights about what it is that we find attractive about the basic structure (at least those of us who support it), they are also fundamentally inadequate qua defenses, because each ignores or excludes the insights of the other. I will then propose an argument that will attempt to incorporate the better parts of each.

The substantive approach captures the idea that there is nothing inherently valuable about a majoritarian decision-making process. As Berlin observed long ago, it doesn’t really matter to me if my house is confiscated by a majority or by a despot. No, the reason why we value majoritarian procedures must be because they often give us the right answer. But in that case, the rightness of the answer must be independent of the process used to arrive at it – that is, the value of the process is instrumental, not substantive. And then, logically, what we need to do is to figure out what the right answer or answers are, and allow the majoritarian process free play only within the bounds of the answers. The substantive view of democracy locates the rights answers in certain core, individual rights, and ensures their protection against the popular process.

The problem, however, with the substantive vision of democracy is that it gives us very little to go by in the way of what individual rights ought to be protected. Indeed, it seem to come down, in the end, to simply intuition: we intuit that free speech, freedom of conscience, equality and so on – are vitally important rights that must be protected. But history teaches us that other men and women in times past have held very different views, and so, quite certainly,  will other men and women in times to come (the manner in which the right to property went from being a fundamental right to a mere statutory right is a stark example of how the place of rights in our constitutional culture can radically transform itself within a couple of generations). Leaving these rights to be determined by a few judges, themselves often drawn from the elite and therefore inclined to share in its prejudices and blind spots, seems to be especially intolerable.

On the other hands, the procedural defense confirms another of our deeply-held convictions: that there is a value to the popular decision-making process, that there is some fundamental difference between an elected legislature guaranteeing the freedom of speech, and a despot making the same guarantee. That value is not hard to find: it is the value of self-government, the idea that I am bound by a law even though I disagree with it, because it is, in some sense, my law. But if that is the case, then the procedural defense needs to explain how the process serves that value, and why a process that regularly and repeatedly leads to deeply unjust results (especially as far as dissidents and minorities are concerned), deserves some kind of inherent legitimacy. The higher-lawmaking ideal, that simply deepens and extends the process, will not solve our problem, because our problem isn’t one of degree, but of structure: we do think that outcomes matter, no matter who reaches them and how they are reached.

In other words, process matters and outcomes matter. This, then, is our challenge: we must avoid the twin perils of imposing-intuited-rights-from-on-high and unconstrained majoritarianism (and that includes supermajoritarianism), and the only way to do this is to provide a value-laden account of the majoritarian process that could well modify or change it in important ways, but must keep its essence intact. I suggest that one way of meeting the challenge is by invoking the idea of deliberative/dialogic democracy.

Deliberative democracy has a rich intellectual tradition; the ideas of the great German philosopher, Jurgen Habermas, provide its fount, and lately, it has been developed in many interesting directions by theorists such as Seyla Benhabib, James Fishkin, Joshua Cohen, and so on. It is not, obviously, my intention here to provide a full-scale analysis of the divergent traditions of deliberative democracy. I can only provide a highly impressionistic account, moulded as I understand it to apply to the basic structure doctrine, that may or may not be consistent with any one school of thought. Interested readers may follow up by browsing the works of these scholars, all of whom repay close study.

As the name suggests, deliberative democracy finds the value of the democratic process in the idea of deliberation – that is, a structured arena (call this the “public sphere”) in which people come together, communicate, deliberate or discuss matters important to them, and come to decisions. The key insight that deliberative democracy seeks to capture is that we do not come into this world as atomized individuals with a set of pre-set preferences and identified interests, but rather, these preferences and interests are shaped and formed through our communications with each other. And at the end of an open and fair deliberative process, in which participants have been placed on an equal footing, and been provided equal opportunities to contribute to both individual and group preferences-formation, the collective decision that is reached is, in a sense, by virtue of the fairness of the process that led to it, our decision. In this way, deliberative democracy aims to conform to the ultimate ideal of self-government, and justify to us why laws arrived at through a certain procedure enjoy an inherent – at least prima facie – legitimacy.

Intuitively, this makes sense. But what this also means is that the deliberative procedure must be subjected to certain constraints if it is to fulfill its own goals. To take the simplest example: a deliberative procedure in which half the people are not allowed to speak is self-contradictory: any preferences or interests formed as a result of this process, and any decisions arrived at, are illegitimate because not only did one half of the population have no opportunity to communicate their points of view to others, but the process, as a whole, is incomplete, and any preference or interest-formation is partial at best. And thus we see how we derive a strong right of free expression from the logic of deliberative democracy.

Now what other constraints are placed upon the deliberative process is a matter for debate – for instance, it could be argued that religious neutrality is essential, because religions with their claim to revealed truth are fundamentally anti-deliberative. But the details of the theory may be fleshed out later. What I want to suggest here is the following: the basic structure doctrine is legitimate because it forms the essential structural framework within which the democratic process attains inherent value. A quick look at some of the basic features reveals that they are, for the most part – at least plausibly – connected with this goal: democracy, republicanism, free speech, secularism (see above) equality (a deliberative process, naturally, cannot be legitimate if some of its participants are treated as less worthy than others, and therefore, their contributions given less weight), and judicial review (umpiring the process). I admit that federalism has no place in this scheme, and insofar as the Court has upheld federalism to be part of the basic structure, that is a mistake.

How does deliberative democracy solve the problems with the two approaches we discussed above? First, the values that it protects are not some set of individual rights arrived at through introspection and intuition, but part of the logic of representative democracy itself, the system of government by which we all claim to live. But at the same time, it does explicitly identify values, and seeks to protect them. In this way, deliberative democracy captures the importance of both process and outcome by constraining and structuring the process in such a way that the outcomes can be traced back to certain important values, and thus enjoy presumptive legitimacy.

To the objection that the value I place upon deliberation is itself simply intuited, I plead guilty – there is no Archimedean point outside the circle, but I can only re-emphasize that the project we are engaged in is to locate the value that we think exists in our accepted system of government, that is, representative democracy based on the idea of majoritarian (or super-majoritarian) decision making processes. Deliberative democracy helps us to do that.

Lastly, what are the prescriptive implications of this theory? Simply this: that the Courts should keep in mind, when adjudicating upon a basic structure claim, that their role is to act as umpires of the continuing legitimacy of the democratic process, to enforce the structural conditions within which democracy is meaningful, and has value. The determination of these structural conditions themselves is a task for the individual judge, although some of the ideas listed here – and in the literature – can serve as good signposts. Beyond that, we can do no more than to trust to the good sense and intellectual humility of our judiciary, and at least as far as the basic structure doctrine goes, based on the evidence I highlighted in the previous posts, I would suggest that our trust has not yet been betrayed.

 

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