Monthly Archives: June 2017

Book Review: A Question of Design — Chintan Chandrachud’s “Balanced Constitutionalism”

In 1996, a three-judge bench of the Supreme Court was called upon to decide the constitutionality of certain provisions of the Chota Nagpur Tenancy Act of 1908, which effectively excluded women from inheritance in certain areas in Bihar. In Madhu Kishwar vs State of Bihar, a majority of the Court observed that “nonuniformities would not in all events violate Article 14“, and that it was refraining from striking down (this very obviously discriminatory Act) “as this would bring about a chaos in the existing state of law.” Instead, the Court issued “directions” the State of Bihar to “comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.”

Madhu Kishwar vs State of Bihar is an almost incomprehensible judgment to those who think of judicial review as being about protecting fundamental rights and invalidating legislation that violates those rights. The Court upholds a statute with reasoning that would ensure a failing grade in Constitutional Law 101:

“… an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal… however much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the Court’s entering the thicket, it is for better that the court kept out of it. It is not far to imagine that there would follow a bee-line for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models.” 

What has any of this got to do with the Constitution, you might ask. In a new book called Balanced Constitutionalism, Chintan Chandrachud argues that judgments of this kind are a feature, rather than a bug, of constitutional systems ostensibly committed to judicial supremacy (that is, Constitutions that grant the judiciary the last word on the meaning and scope of constitutional rights). It is unrealistic to think – or to hope – that judges will not decide cases with a view to the potential practical consequences (even though their protestations are generally to the contrary, and Madhu Kishwar is a bit of an outlier in that “social chaos” is made an express ground for upholding an Act that otherwise appears to violate the Constitution). And when judges are faced with a stark choice between upholding a law or striking it down, they will hesitate from choosing the latter option when it would lead to great disorder in the legal system. In such situations, Chandrachud argues that judges will “mask” their rights-reasoning (that is, their genuine understanding of whether or not the impugned statute violates rights) in order to achieve a sustainable outcome. The system of judicial review-judicial supremacy, therefore, constrains judges from giving effect to their genuine understanding of what the Constitution requires, and crimps judicial reasoning in important constitutional cases.

Introduction

What is the alternative, you might ask. Surely not Parliamentary supremacy, where rights are reduced to “playthings of the majority“? No: the comparison Chandrachud draws is not with pure Parliamentary models, but with the “hybrid” or “balanced” model, the best example of which is the United Kingdom. In the UK, the Human Rights Act effectively codifies the European Convention of Human Rights into domestic law, and allows the Courts to issue a “declaration of incompatibility” in situations where it is absolutely impossible to reconcile domestic legislation with a Convention right (the structure and mechanics of the Human Rights Act are explained by Chandrachud in the opening chapter). A “declaration of incompatibility” is not tantamount to striking down a law: in fact, it has no legal force at all. In theory, the UK Parliament can entirely ignore a declaration of incompatibility, and presumably, the only potential cost will be the (debatable) political cost of having clearly defied a court’s finding that domestic law violates a binding international convention. However, as Chandrachud points out, practice invariably departs from text. Balanced Constitutionalism, then, is a comparison between the UK and Indian constitutional models as they work in practice. As the first comparative analysis of this kind (between two Parliamentary systems, one of which follows the old judicial review model, and the other the new hybrid model), it marks an important point of departure, and will hopefully provide fertile ground for the continuation of what is an important and long-overdue conversation.

Chandrachud’s comparison between the UK and the Indian models proceeds along two metrics: which model, he asks, allows Parliament more freedom to articulate its “genuine understanding” of rights? And which model allows Courts more freedom to do the same? The model that “wins” on these metrics is the more “balanced one” (the underlying assumption, of course, is that the separation of powers in a parliamentary-constitutional democracy works at its best when both organs – the parliament-executive and the judiciary – are able to articulate their understandings of constitutional rights most freely.

What Parliaments Do 

Chapter One of Balanced Constitutionalism lays out this basic normative argument. Chapter Two discusses the range of political options available to the Indian and UK Parliaments in cases where Parliament wants to respond to the exercise of judicial review. In India, responses include constitutional amendments (after Kesavananda Bharati, constrained by the basic structure), placing laws in the Ninth Schedule to the Constitution, which makes them immune from a fundamental rights challenge (after I.R. Coelho, also constrained by the basic structure, although Chandrachud draws an important distinction between Ninth Schedule basic structure review and fundamental rights amendments basic structure review), passing Ordinances, and of course, filing review and curative petitions in the Supreme Court itself. To Indian readers, this is a familiar story, and Chandrachud’s account is comprehensive. As far as the UK is concerned, Chandrachud argues that, contrary to first impressions, “the space for political responses to declarations of incompatibility is much narrower than that which is assumed” (p. 64). This is not only because of a political climate in which judicial opinion is given great weight and respect, but also because judges themselves are strategic actors par excellence when deciding whether to issue declarations of incompatibility. Chandrachud shows how such declarations are often issued when there are already existing proposals to amend the impugned law, and are sometimes accompanied by “soft suggestions” to Parliament about what route the amendment might take to address the incompatibility. The result is that “responses to declarations of incompatibility have been made either through remedial orders or primary legislation in almost every instance” (p. 83), and State action after a declaration of incompatibility has focused on “how to act“, rather than on “whether to act at all.” This situation is heightened by the existence of the European Court of Human Rights at Strasbourg, which also has the power to find the UK in breach of its obligations under the ECHR. The possibility of a declaration of incompatibility being followed up with the initiation of proceedings before the ECHR provides further incentives to the State to act in response to such declarations.

This suggests, therefore, a convergence between the two models. In India, where judicial supremacy (ostensibly) holds sway, Parliament has developed a range of responses to ensure that it is not merely a passive actor when it comes to interpretation and application of rights. In the UK, where Parliament seemingly has unbounded discretion to respond or not to respond to the Courts’ interpretation of rights, actual practice reveals that the discretion is curtailed due to a range of institutional factors. In Chapter Three, Chandrachud focuses the question further by asking which model of judicial review “engenders a more balanced allocation of powers” (p. 97). After teasing out some of the different ways in which the two Parliaments have actually responded, Chandrachud focuses on what he calls the “Time Factor“: how long does it take for Parliament to respond to, or revise, judicial understanding of rights? Through graphs, Chandrachud demonstrates that – counterintuitively – “the Indian Parliament’s response time is slightly quicker than the Westminster Parliament’s response time.” This undermines the suggestion that the hybrid UK model is “better” than the Indian judicial review model because it allows greater ease of response to Parliament. Chandrachud concludes that on the Parliamentary metric (see above) neither jurisdiction “wins” over the other.

What Courts Do 

In Chapter Four, Chandrachud turns to the Courts. His argument – which I highlighted at the beginning of this review – is that the Indian Supreme Court operates in the “shadow” of its power to strike down law. Perhaps paradoxically, it is the existence of this power – and the inevitability of its usage consequent to the finding of a rights violation – that prompts the Court to “mask” its true understanding of fundamental rights in a manner that does not happen in the UK. To make this point, Chandrachud compares three sets of cases. First, in Namit Sharma vs Union of India, while responding to a constitutional challenge to various provisions of the Right to Information Act on grounds of Article 14, the Court backtracked on its own previous findings of presumptive unconstitutionality – followed by some creative “reading in” of principles into the text of the statute to save it – and ended up upholding most of the Act even while expressing unease about its compatibility with Article 14. In R v Thompson, on the other hand, the UK Supreme Court issued a declaration of incompatibility with respect to a provision of the Sexual Offenders Act that put offenders on notification requirements for life, without possibility of review. Chandrachud argues that the Right to Information Act and the Sexual Offenders Act were similar insofar as they were both of recent vintage, qualified as “social reform laws”, were deemed to be “landmark” laws by Parliament, and – perhaps most importantly – set up complex statutory regimes to deal with a social problem. What this meant was that invalidating a provision of either of the Acts would have a ripple effect upon the system as a whole. Here, the Indian Supreme Court was unwilling to cause legislative disturbance on such a scale, while the UK Supreme Court had no similar compunctions, because a declaration of invalidity would not invalidate the statute.

Chandrachud makes a similar argument when comparing Koushal vs Naz and Bellinger vs Bellinger. He attributes the recriminalisation of homosexuality by the Indian Supreme Court in Koushal to its fear that, by striking down Section 377 of the IPC, there would be a legislative vacuum as far as child sexual offences were concerned; on the other hand, in a case involving the right of a transsexual person to a post-operative marriage with a person (now) of the opposite sex, the UK Supreme Court had no difficulty in holding that the relevant provisions of the Matrimonial Causes Act, which only contemplated marriage between parties respectively “male” and “female”, were incompatible with the Human Rights Act. Chandrachud argues that what united these cases was the consequence that there would be a “series of effects across the legal system” in case the provisions were invalidated. Here again, the impossibility of “invalidation” allowed the UK Supreme Court to interpret rights with full freedom, while the Indian Supreme Court “masked” its reading of rights.

And lastly, Chandrachud compares Kartar Singh vs State of Punjab with the Belmarsh Prison Case. In the former, the Indian Supreme Court upheld an anti-terror statute that allowed for a wide departure from the rights guaranteed to accused persons under the CrPC and the Evidence Act, despite voicing unease with the legislative measures in question. At the same time, Belmarsh was also an anti-terror case, where the UK SC found that certain detention provisions of the Anti-Terrorism, Crime and Security Act, passed in the aftermath of 9/11, were incompatible with the Human Rights Act. Here, the argument is obvious: the possibility of a vacuum in anti-terror laws was a prospect that the Indian Supreme Court could not stomach.

Through these cases, Chandrachud makes the point that the Indian Supreme Court is constrained in its rights-reasoning in a manner that the UK SC is not, because of the consequences that accompany a finding that a particular statute violates constitutional rights. He goes on to argue that the Indian Supreme Court is constrained from fashioning new and effective “remedies” that go beyond the binary of striking down/upholding because of the text of the Constitution (which does not envisage such innovations) as well as institutional constraints (Parliamentary inaction despite judicial advice to amend or modify a statute).

This is an important point, and I would like to briefly extend it: in fact – as Chandrachud notices – the Supreme Court has tried to fashion new remedies, often relying upon Article 142 of the Constitution. These include the now-legendary “continuing mandamus”, and of course, the ubiquitous “guidelines”. In fact, Kartar Singh – and other similar cases – buttress Chandrachud’s argument in an even stronger fashion than is expressly acknowledged in the book: the very fact that the Supreme Court is compelled to pass “guidelines” is evidence of that fact that it has found a constitutional infirmity (whether it admits it or not), and is trying to cure that infirmity by substituting itself for the legislature (or the Executive, as the case may be), instead of having to perform its constitutional function of striking down the law. And of course, there is a very good reason why this simply does not work: the Court is venturing into fields (legislation or administration) that it is fundamentally unsuited to be in. That, however, is an ongoing debate: the point here is that the ubiquity of guidelines is further evidence of the Court’s “masking” its rights reasoning: (legislative) guidelines instead of (judicial) invalidation has come to define the Court’s constitutional responses.

In his last chapter, Chandrachud looks at “collateral institutions” (the JCHR in the UK and the European Court of Human Rights, and the National Human Rights Commission in India), and finds – unsurprisingly – that the robustness of the former is matched by the toothlessness of the latter. He concludes, therefore, by arguing that the UK model is a more “balanced” model of constitutionalism than the Indian, on the singular metric of the extent to which Courts can freely articulate their genuine understanding of constitutional rights.

Thinking Through Issues of Design 

Balanced Constitutionalism is an important book in that it goes beyond an analysis of constitutional doctrine, and places adjudication – and constitutionalism – in its political context. Ever since Ronald Dworkin’s Taking Rights Seriously, there have been complaints that constitutional theory is too focused on appellate Courts, and ignores the role of the other organs of State. Chandrachud avoids that trap: his book is about the relationship between Parliament and the Courts, and gives equal weightage to Parliamentary debate, statutory amendments, and legislative responses and non-responses, as it does to judgments.

This helps us to understand that court judgments ought not to be read in a vacuum, but as part of an existing political ecosystem that conditions and structures the way judges act. Balanced Constitutionalism demonstrates that when we do this, the results may be surprising and counter-intuitive: systems that are formally very distinct can converge at unexpected places, and diverge at still more unexpected places. We think that the UK Parliament is supreme, and the text of the Human Rights Act suggests that, but in practice, we find that it is about as constrained as the Indian Parliament in its response to adverse judgments. And, on the other hand, we may think that a system of judicial supremacy vests great power in courts; but it turns out that the very existence of this power creates a reluctance to use it, and constructs constraints that, in some ways, are even more cloying than in systems where the power doesn’t even exist. Balanced Constitution, therefore, pushes us to think more deeply about crucial issues of constitutional design, how constitutional design is embedded in the political structures of a society, and how that – ultimately – impacts outcomes.

Points of Disagreement

In conclusion, I would like to point to two arguments where I disagree with Chandrachud.

(a) Koushal vs Naz

I believe that Namit Sharma and Kartar Singh illustrate Chandrachud’s point about the Court “masking” its rights-reasoning well. However, Koushal vs Naz does not. Chandrachud suggests that the Supreme Court upheld Section 377 because of its fear of a legislative vacuum that would allow child sexual abuse to go unpunished. This is, indeed, mentioned at one point in the judgment but, in my view, was pure eyewash by the Supreme Court. This is not only because the 2013 amendments to the IPC covered the issue (which Chandrachud points out), but also because the case was never about whether S. 377 should be struck down. The High Court had only “read down” the Section to exclude consenting same-sex intercourse between adults in private; for the rest – including child sexual abuse – 377 continued to exist. Consequently, the core of Chandrachud’s argument – that rights-reasoning is masked because of the consequences of striking down – doesn’t work for Koushal, because the case was never about striking down at all.

Secondly, it is difficult to read Koushal as a case where the Supreme Court believed a statute was unconstitutional, but didn’t strike it down because it was afraid of the consequences. Everything in the judgment suggests the exact opposite: the Court refused to return any finding on Article 21 (the right to privacy) and Article 15(1) (the right against discrimination on grounds of sex), and spent exactly two paragraphs in a 98-page judgment dealing with Article 14. In its Article 14 analysis, it held that S. 377 punished acts and not persons, and therefore there was no issue of inequality. The poverty of this line of reasoning has been discussed extensively by now, and I don’t want to go into it here; the basic point is that the Court very clearly believed that S. 377 did not violate fundamental rights, and this is more than clear by a re-reading of its notorious labels: “the so-called rights” of the minuscule minorities.” Chandrachud does hint towards the end of his discussion that the Court was guided by ideological considerations; however, I think that on a dispassionate reading of Koushal vs Naz, there is no other way to describe it other than an utterly bigoted judgment, where contempt for rights is clear and evident, rather than Chandrachud’s reading of an uneasy Court trying to reconcile its sense that the statute was unconstitutional with the consequences of striking it down. This is not to say that the argument is incorrect; indeed, Madhu Kishwar vs State of Bihar (in my view) is an excellent example of a case in which the Court expresses its unease in clear terms, but upholds a law because of the possibility of “social chaos”.

(b) Response Time

Chandrachud argues that the time taken by Parliaments to respond to adverse judicial decisions is an important indicator in determining how free they are to articulate their understanding of rights. However, I believe that his actual discussion comparing India and UK leaves out a few important variables: for instance, response time is affected by the quality of deliberation, and there is no doubt that, at present, because of various structural and institutional features, the quality of legislative deliberation is much better in the UK than it is in India (Chandrachud himself mentions plenary bottlenecks at various points). Furthermore, response time is surely affected by the anti-defection laws, which spares the ruling party the necessity of having to convince its own back-benchers to vote for a (possibly controversial) law. Consequently, it seems to me that simply comparing response times without taking into account these other factors does not do enough for the argument that Chandrachud is trying to make.

Conclusion

In sum, therefore, Balanced Constitutionalism presents an detailed comparative analysis of the systems of judicial review in the UK and in India. The obvious commonalities between the two Parliamentary democracies make this comparison a topical and important one. Going forward, Balanced Constitutionalism will undoubtedly be a point of departure for discussions about constitutional design, and the relationship between design and how Parliaments and Courts interact over issues of rights adjudication.

Balanced Constitutionalism is available to purchase here.

(Disclaimer: The writer of Balanced Constitutionalism is a friend of the author).

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Filed under Balanced Constitutionalism, Book Reviews, Judicial Review

The Aadhaar/PAN Judgment: Decoding the “Partial Stay”

In an article published today on Scroll.in, Apar Gupta makes an important point about the Supreme Court’s Aadhaar/PAN judgment: even as it upheld the constitutional validity of S. 139AA of the Income Tax Act against challenges based on Articles 14 (equal protection) and 19(1)(g) (freedom of trade), the Court nevertheless noted that 139AA would yet have to pass a “more stringent test” under Article 21 (right to life and personal liberty) of the Constitution. He makes the further point that the judgment “also reinforces the spirit of [the Court’s] earlier orders limiting the Aadhaar scheme by giving a limited stay on Section 139AA(2).

What is crucial to note is that the Court’s “limited stay” is itself based on the view that S. 139AA – and more broadly, Aadhaar – potentially violates Article 21 of the Constitution. The Court notes, in paragraph 125:

“At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary. Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules. We are adopting this course of action for more than one reason. We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act. A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution.”

There has been a fair amount of debate about what this paragraph actually means for taxpayers who do not yet have an Aadhaar number; for the moment, the debate appears to have been settled by a CBDT circular stating that all persons paying their taxes after July 1 must link Aadhaar and PAN. In my view, however, the importance of paragraph 125 lies not so much in the limited relief that it grants taxpayers in this specific litigation, but what it means for the larger Aadhaar challenges presently pending before various benches of the Supreme Court. What has not yet been noticed – or discussed – is that paragraph 125 will have a significant ripple affect on numerous other cases, starting with the hearing scheduled for June 27, where the question of making Aadhaar mandatory for seventeen social welfare schemes is due to be heard. In this essay, I will attempt to explain how.

When does the Court grant a “Stay”? 

A “stay”, as the word suggests, refers to a situation where a Court temporarily restrains one (or both) parties to a legal proceeding from taking certain actions until the case is heard and decided in full (a “stay” also refers to a situation where a higher Court halts the operation of the order of a lower Court, but we are not concerned with that here). Before granting or refusing a stay (or an “injunction”, as the case may be), a Court is supposed to carefully consider the pros and cons of the case before it. The traditional test for a stay is three-pronged: the Court must be convinced that the party asking for a stay has a “prima facie” good case; that the refusal to grant a stay will cause “irreparable harm“; and that the “balance of convenience” between the parties weighs in favour of a stay.

However, when the Court is faced with a request to stay a statutory provision (as opposed to private conduct or executive action), the test is much more rigorous. This is because laws, which emanate from the parliamentary-democratic-deliberative process, have a deep, presumptive legitimacy; and furthermore, their wide reach means that a stay will have broad and far-reaching consequences. For instance, in Bhavesh Parish vs Union of India, the Supreme Court held:

“When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well- settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set – aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself.”

Consequently, when considering a constitutional challenge to a law (which is what the Court was doing in Aadhaar/PAN), a “stay” can be granted only if the provision is “manifestly unjust or glaringly unconstitutional“. The Court cannot grant a stay simply because, on balance, it would be the right or just thing to do.

The “Stay” in the Aadhaar/PAN Case

It is important to note that in the Aadhaar/PAN case, the Court could have granted the partial stay that it did, only if it was convinced that the proviso to S. 139AA(2) (cancellation of PAN if not linked with Aadhaar for paying taxes) was “manifestly unjust” or “glaringly unconstitutional”. Indeed, Mr Arvind Datar, senior counsel for the Petitioners, made the specific argument that the proviso was unconstitutional because it amounted to a disproportionate interference with the Petitioners’ fundamental right to trade and commerce under Article 19(1)(g): to deprive a person of a PAN card was effectively to shut them out of the formal economy, leading to effective “civil death”.

As I have argued in my previous post, ultimately, the Court failed to return a specific finding on the Article 19(1)(g) issue. However, as paragraph 125 demonstrates, the Court did agree with Mr Datar that the consequences of the proviso were “very severe“, and specifically cited the various transactions for which a PAN Card is compulsory as the reason why it was granting a stay, while the overall Article 21 challenge to Aadhaar remained pending before the larger bench.

Since there are no observations on “glaring unconstitutionality” – in fact, the Court categorically refused to express an opinion on the pending Article 21 challenge – it would be fair to assume, therefore, that the Court considered the draconian step of cancelling PAN Cards to be “manifestly unjust”.

The Consequences

We may now note that in the other pending Aadhaar-related challenges, the “consequences” of not having an Aadhaar Number are at least as severe as the consequences of PAN cancellation, if not more so. One of the Executive notifications under S. 7 of the Aadhaar Act, for instance, makes midday meals at schools conditional upon the production of an Aadhaar Number. No PAN Card means civil death; but midday meals can be about life and death – or at the very least, about basic health, itself a right under Article 21. The same goes for a number of other Executive notifications, where Aadhaar is linked to social welfare schemes, all of which provide crucial life support to the most vulnerable and marginalised individuals in our society.

In the Aadhaar/PAN case, the Supreme Court had occasion to carefully consider a legislation that made Aadhaar compulsory for filing IT returns, at the cost of cancelation of PAN cards. Applying its judicial mind, the Court found that the pending Article 21 challenge was credible enough, and the consequences of PAN cancellation severe enough, for the rigorous standards for granting a stay on legislation (“manifest injustice”) to be met.

Admittedly, a stay has no precedential value, and does not bind any future bench. However, once a two-judge bench of the Supreme Court has applied its mind to the merits of the case, should a different, coordinate bench of the same Court re-open the issue, consider it afresh, and refuse to grant a stay, even when the consequences in that case are even more severe than canceled PANs?

I submit that judicial discipline precludes future coordinate benches from doing so. The Aadhaar/PAN case has established two very important provisions: first, that notwithstanding the pending Constitution Bench challenge, specific piecemeal challenges to Aadhaar can be heard and decided by two-judge benches on issues outside the remit of the Constitution Bench, and that those benches can grant appropriate relief; and secondly, visiting severe consequences upon people for not possessing an Aadhaar is “manifestly unjust” – unjust enough for the Court to grant a stay.

Consequently, when a different bench of the Court hears the petitions on June 27, regarding compulsory Aadhaar for social welfare schemes, it should grant a stay without any further need for argument (note that the challenge in that case is to Government notifications, which occupy a level of sanctity lower than legislation). And this should be the course of action adopted by the Court in all future proceedings where the Petitioners can show that the consequences of not having an Aadhaar, for X or Y government notification or law, are at least as severe as the consequences of getting your PAN canceled.

Conclusion

I understand that, technically, this is not a legal argument for stay. However, it needs to be noted that in its Aadhaar/PAN judgment, the Court repeatedly invokes judicial discipline in deciding not to consider a whole range of issues that might overlap with the issues before the pending Constitution Bench. It is respectfully submitted that judicial discipline demands that judicial discipline be applied consistently. It is as much an issue of discipline not to reopen a question on which a coordinate bench has applied its mind and come to a conclusion, as it is not to interfere with the (possible) workings of a (potential) Constitution Bench. For that reason, in all future challenges before the Court, until the Constitution Bench decides the overall challenge, two-judge benches should grant stays and ensure – in the words of the original Supreme Court order that began all of this – that nobody is made to “suffer” for not possessing an Aadhaar.

 

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Filed under Article 21 and the Right to Life, Bodily Integrity, Judicial Process, Stays and Injunctions

The Aadhaar/PAN Judgment

In a judgment delivered today, the Supreme Court upheld the constitutional validity of S. 139AA of the Income Tax Act, which makes quoting one’s Aadhaar number mandatory while filing income tax returns. The Court also stayed S. 139AA(2), which provided for the cancellation of PAN cards for failure to comply. In view of the multiple Aadhaar cases pending before the Supreme Court, it is important to clarify what precisely the Court decided, what it didn’t decide, and what it left open (a summary of the arguments can be read here (Part I), here (Part II), and here (Part III)).

What the Court didn’t decide

Recall that on August 11, 2015, a three judge bench of the Supreme Court had referred the constitutional challenge to Aadhaar (then an executive scheme) to a larger bench, on the basis that the constitutional status of the right to privacy was uncertain, and needed to be authoritatively decided. That larger bench has not yet been constituted. Consequently, at the beginning of the Aadhaar/PAN arguments, the Court wanted to “tag” this case to the pending challenge before the (still-to-be-constituted) larger bench. The Petitioners then informed the Court that they would make their arguments without relying on the right to privacy. The Court agreed to this.

During the course of arguments, Mr Shyam Divan advanced arguments based on the right to bodily integrity, dignity, and informational self-determination, under Article 21 of the Constitution. In its judgment, however, the Court held that all these arguments were facets of the right to privacy, and could not be decided here. Consequently – and the Court was very clear about this – no argument under Article 21 would be decided by it, whether it was framed as an argument from dignity, or from informational self-determination. This means that the constitutional validity of Aadhaar on the ground of Article 21 has not been decided one way or another by the Court (the Court has not even expressed an opinion), and all arguments on that count remain open.

That said, it needs to be pointed out that the Court’s lumping of all Article 21 arguments into an omnibus “right to privacy” is far from satisfactory. For example, in paragraph 71 of its judgment, the Court cites an American Supreme Court judgment (invoked by the Respondents) to hold that the right to informational self-determination is an aspect of the right to privacy, and so need not be considered by it. The Court does not cite – or engage with – the material placed on record by the Petitioners which specifically demonstrated that the right to informational self-determination was different from the right to privacy, in terms of its origins (in German constitutionalism) and development. As I shall show subsequently, this is a problem that afflicts much of the Court’s opinion.

What the Court did Decide: Process

Two arguments were made before the Court on the nature of the law itself. The first was that the law could not have been passed in the teeth of Supreme Court orders specifying that Aadhaar could not be made mandatory, without taking away the basis of those orders (which S. 139AA didn’t do – see Part I for details). To this, the Court said that those earlier orders had been passed when Aadhaar was still only an executive scheme, and it was open to the legislature to pass a law making Aadhaar compulsory. The Court’s decision here would imply that in future challenges to other laws making Aadhaar mandatory, its prior orders would not be an impediment; however, insofar as Aadhaar is sought to be made mandatory for something through an executive order without a law, those earlier orders would continue to hold the field (paragraph 94).

It was also argued that the process of enrolling and obtaining an Aadhaar number, as set out under the Aadhaar Act, was a voluntary process. S. 139AA of the Income Tax Act, however, made quoting an Aadhaar number for filing IT returns mandatory, and thus indirectly forced taxpayers to enrol for an Aadhaar number, even though the Aadhaar Act explicitly stated that Aadhaar was an entitlement, and not an obligation. To this, the Court stated that the Income Tax Act and the Aadhaar Act operated in different fields, and that the Aadhaar Act was not the “mother Act.” (paragraph 92) I do not propose to deal with this reasoning in detail, since the argument has been set out at some length in Part I (link above), and readers can make up their own minds whether the Court’s answer was satisfactory.

What the Court did Decide: Article 14

It was argued by the Petitioners that S. 139AA contravened Article 14 in two ways: first, by drawing a distinction between individuals and non-individuals, and requiring the former to acquire an Aadhaar number. If – as the State claimed – its goal was to eliminate duplicate PANs and black money, then why were individuals only being singled out through the means of compulsory Aadhaar? The Court responded by stating that it was the State’s prerogative to deal with problems such as duplicate PANs and black money in an incremental or piecemeal fashion, and to make a start with targeting individuals.

It was also argued, however, that the introduction of Aadhaar would not actually solve the problem of duplicate PANs, because there was evidence to show the existence of multiple Aadhaar numbers themselves, as well as the well-documented ability to fake both biometric details and iris scans. Consequently, there was no “rational nexus” under Article 14.

It is at this stage that the judgment becomes highly problematic, because the Court appears to simply repeat the assertions of the State, without adverting to or engaging with the objections raised by the Petitioners. For example:

Respondents have argued that Aadhaar will ensure that there is no duplication of identity as bio-metric will not allow that and, therefore, it may check the growth of shell companies as well.” (paragraph 99)

“By making use of the technology, a method is sought to be devised, in the form of Aadhaar, whereby identity of a person is ascertained in a flawless manner without giving any leeway to any individual to resort to dubious practices of showing multiple identities or fictitious identities. That is why it is given the nomenclature ‘unique identity’. (paragraph 118)

“However, for various reasons including corruption, actual benefit does not reach those who are supposed to receive such benefits. One of the main reasons is failure to identify these persons for lack of means by which identity could be established of such genuine needy class. Resultantly, lots of ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. A former Prime Minister of this country has gone to record to say that out of one rupee spent by the Government for welfare of the downtrodden, only 15 paisa thereof actually reaches those persons for whom it is meant. It cannot be doubted that with UID/Aadhaar much of the malaise in this field can be taken care of.” (para 118)

“To the same effect is the recommendation of the Committee headed by Chairman, CBDT on measures to tackle black money in India and abroad which also discusses the problem of money-laundering being done to evade taxes under the garb of shell companies by the persons who hold multiple bogus PAN numbers under different names or variations of their names. That can be possible if one uniform proof of identity, namely, UID is adopted. It may go a long way to check and minimise the said malaise.” (paragraph 118(ii))

“Thirdly, Aadhaar or UID, which has come to be known as most advanced and sophisticated infrastructure, may facilitate law enforcement agencies to take care of problem of terrorism to some extent and may also be helpful in checking the crime and also help investigating agencies in cracking the crimes. No doubt, going by aforesaid, and may be some other similarly valid considerations, it is the intention of the Government to give phillip (sic) to Aadhaar movement and encourage the people of this country to enroll themselves under the Aadhaar scheme.” (paragraph 119)

“As of today, that is the only method available i.e. by seeding of existing PAN with Aadhaar. It is perceived as the best method, and the only robust method of de-duplication of PAN database. It is claimed by the respondents that the instance of duplicate Aadhaar is almost non-existent. It is also claimed that seeding of PAN with Aadhaar may contribute to widening of the tax case as well, by checking the tax evasions and bringing in to tax hold those persons who are liable to pay tax but deliberately avoid doing so.” (para 119)

In each of these paragraphs, the Court effectively echoes the State’s claim, assumes it to be true, and does not engage with the detailed objections raised by the Petitioners (see Parts I and III). All the talking points are here: how biometric identification is the “best method”, how unique identity is actually “unique”, how terrorism will be tackled through Aadhaar, how “ghosts” will be removed, and so on (note that every one of these points were opposed in court). It is telling that, at various points, the Court even uses language such as “it is claimed” and “Respondents have claimed that”, but doesn’t even trouble to subject those claims to any kind of independent scrutiny.

India has an adverserial legal system. An adverserial system presumes the existence of opposing parties, who marshall their respective facts and evidence into legal arguments, and place it before the Court, which acts as a neutral umpire, adjudicating the rival claims. When there are competing claims, especially competing factual claims, the Court decides by applying legal techniques such as burdens and standards of proof, or taking the assistance of amici curiae who are domain experts. What the Court is not supposed to do is to act like a rubber stamp, simply accepting the State’s assertions as true without engaging with the counter-arguments, or subjecting them to independent scrutiny. However, “rubber stamp” is the only way to describe the Court’s recitation of one side’s arguments, and sidelining (to the point of ignoring) the other.

What the Court did not decide: the strange case of the vanishing Article 19(1)(g)

The Court records Mr Datar’s argument that the invalidation of PAN cards affects an individual’s right to do business, and violates Article 19(1)(g) of the Constitution. The Court also records – and agrees – with his argument that for an infringement of Article 19(1)(g) to be justified under Article 19(6), the test of proportionality is to be applied. However, after recording this, and after waxing eloquent about the wonders of biometric identification, the Court returns no finding on the issue of proportionality. The discussion on Article 19(1)(g) begins at paragraph 106, and ends at paragraph 124, where the Court notes:

“Therefore, it cannot be denied that there has to be some provision stating the consequences for not complying with the requirements of Section 139AA of the Act, more particularly when these requirements are found as not violative of Articles 14 and 19 (of course, eschewing the discussion on Article 21 herein for the reasons already given). If Aadhar number is not given, the aforesaid exercise may not be possible.”

However, there is absolutely no analysis on whether making Aadhaar compulsory, on pain of cancellation of PAN cards, is proportionate in relation to the stated goal of deduplicaton. This is a crucial omission, because the proportionality test is a detailed and complex four-part test, which requires the State to show that its proposed act infringes upon a right only to the minimal extent necessary to achieve the goal, as well as an overall balancing exercise. It is here that a number of arguments would have become extremely salient, including statistics on the percentage of duplicate PANs (0.4%) which the Court dismisses at an earlier part of the judgment, the existence of multiple Aadhaars (which the Court never engages with), and so on – all of this would have been extremely important in determining whether S. 139AA was a proportionate interference with the right under Article 19(1)(g). (Notably, the only response of the Attorney-General of India to the 19(1)(g) argument was “who cares about Article 19(1)(g) these days?)

The omission is all the more glaring because the proportionality test was introduced by the author of this judgment – Justice Sikri himself – in his judgment in the NEET case. It is truly extraordinary that a judge who introduces a doctrine in one judgment, writing for a Constitution Bench, simply refuses to apply it a few months later when sitting as part of a two-judge bench!

What is even more problematic is the absence of a finding on proportionality. This is reminiscent of the Supreme Court’s judgment in Koushal vs Naz, where the Court’s chosen method of dealing with inconvenient arguments is to set out the submissions, set out the position of law, and then just move on to something else: if you close your eyes and chant “na na na”, long enough, maybe it will go away. A correct application of the four-part proportionality test would have required rigorous scrutiny of the State’s claims on behalf of Aadhaar – but if there is one thing that defines this judgment, it is a complete and utter unwillingness to hold the State to account.

Relief

There is a significant amount of confusion with respect to the relief that the Court does grant – a “partial stay” of S. 139AA(2) (cancellation of PAN) until the main Aadhaar case is decided. The Court states:

“Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.”

One reading of this passage is that it remains mandatory to provide an Aadhaar number while filing IT returns (after July 1), but if one doesn’t already have an Aadhaar Card, then one’s PAN will not be canceled for failure to comply; however, one’s tax returns shall be invalid, and therefore subject to other penal provisions for not paying tax. On another interpretation, however, S. 139AA(2) provides the punishment for failure to comply with S. 139AA (refusal to provide Aadhaar number for IT returns). The staying of S. 139AA(2) (for those who have no Aadhaar number yet) necessarily implies that there is no penal consequence to follow from violating S. 139AA itself. Over the course of the day, I have heard both views being defended by competent lawyers, implying that at the very least, there is some amount of confusion here.

Conclusion

In its judgment today, the Supreme Court leaves the most crucial issues (Article 21) undecided, and footballs them to the unicorn Constitution Bench that is still to sit after a year and nine months after referral. The Court’s analysis of Article 14 is sketchy, defined by its uncritical reliance upon the State’s claims about Aadhaar (claims that were disputed in Court, and are disputed on a daily basis in the public sphere), and its analysis of Article 19(1)(g) is non-existent.

In a matter where the stakes are this high, this is just not good enough.

(Disclosure: The author assisted the Petitioners in the present case)

 

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Filed under Article 14, Article 21 and the Right to Life, Bodily Integrity, Equality, Freedom of Trade

Guest Post: Decoding the WhatsApp/Privacy Case

(In this Guest Post, Praharsh Johorey examines some of the key issues in the pending WhatsApp/Privacy case before the Constitution Bench of the Supreme Court)

Once the Supreme Court re-convenes after its vacation, it will begin hearing arguments on an appeal concerning privacy issues stemming from the use of ‘WhatsApp’, a popular instant messaging application. The petition against WhatsApp originally filed before the Delhi High Court challenged as unconstitutional a change made to WhatsApp’s Privacy Policy in August 2016, which allowed it to send all collected data to its parent company, Facebook. It was claimed that this breached the ‘Right to Privacy’ of all citizens under Article 21, and restricted their freedom of speech under Article 19(1)(a). Recognising the legitimacy of these claims, the Delhi High Court issued the following directions to the owners of WhatsApp on the 23rd of September, 2016:

  1. i) If the users opt for completely deleting “WhatsApp” account before 25.09.2016, the information/data/details of such users should be deleted completely from “WhatsApp” servers and the same shall not be shared with the “Facebook” or any one of its group companies.
  2. ii) So far as the users who opt to remain in “WhatsApp” are concerned, the existing information/data/details of such users upto 25.09.2016 shall not be shared with “Facebook” or any one of its group companies.  

The Petitioners filed an appeal before the Supreme Court against these directions, claiming that they only do ‘partial justice’, and create an unreasonable distinction between WhatsApp users solely on the basis of when they began using its services. This petition invariably raises questions of the ‘Right to Privacy’, rights of digital users and freedom of speech online under Article 21 – and its position under the Indian constitution. However, there exists voluminous literature on the implied existence of such a right, such as here, here and here; and the question of reading this right under the Constitution is also sub-judice before a Constitutional Bench of the Supreme Court in K.S. Puttaswamy (Retired) and Anr. v. Union of India & Ors.

Instead, this essay concerns itself with the following questions:

  • Does the Supreme Court have the jurisdiction to intervene in a contract entered into between two private companies; i.e. WhatsApp and its subscribers?
  • Assuming such jurisdiction exists, whether the Supreme Court should intervene in contracts between private parties – and does the relationship between telecommunication companies and private consumers requires such intervention.

I will examine each question separately.

Special Leave Petitions and Jurisdictional overreach

The Petitioners have approached the Supreme Court under Article 136, which allows it the power to grant a ‘special leave to appeal’:

  1. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

In the present case, the Supreme Court has constituted a Constitution Bench (Five Judges) to hear the appeal against the order of the Delhi High Court – having granted a special leave to appeal under Article 136. The original petition was filed as a Public Interest Litigation before the Delhi High Court under Article 226. The Respondents, WhatsApp and Facebook contended that the High Court did not have appropriate jurisdiction to hear the petition because neither company is a public body discharging public functions, and therefore not amenable to constitutional scrutiny. The observations of the High Court indicate an agreement with this contention:

  1. In fact, the users of “WhatsApp” and the Respondent No.2 (Whatsapp itself) are parties to a private contract and the users of “WhatsApp” having voluntarily opted to avail the services of the said Application, are bound by the terms of service offered by the Respondent No.2…. it appears to us that it is not open to the users now to contend that “WhatsApp” shall be compelled to continue the same terms of service.
  2. Even the ‘Right to Privacy cannot be a valid ground to grant the reliefs as prayed for since the legal position regarding the existence of the fundamental right to privacy is yet to be authoritatively decided.’
  3. Since the terms of service of “WhatsApp” are not traceable to any statute or statutory provisions, it appears to us that the issue sought to be espoused in the present petition is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

However, the unambiguous conclusion arrived at by the Court concerning its jurisdiction under Article 226 was swiftly ignored, with the Court proceeding without explanation to issue directions binding upon Whatsapp. As a result of this demonstrably unclear stance, the question of jurisdiction has now been raised before the Supreme Court – questioning the very ability of the Court to intervene in private acts of private parties.

Whatsapp and Direct Horizontality

In his essay on ‘Horizontality under the Constitution’, which can be found here, Gautam Bhatia notes that constitutional rights are deemed to regulate the relationship between individuals and the state, i.e. ‘vertically’. However, with the gradual expansion in the role of the private sector in our daily lives coupled with the simultaneous withdrawal of the State from several sectors, there has emerged a need to subject private relationships to constitutional scrutiny; i.e. impose ‘horizontality’. With respect to Whatsapp, the situation involves regulating a private act (the contract to join Whatsapp) which private citizens consent to – which is different from the Court holding the State responsible for moulding conduct of private parties in accordance with the Constitution as in Vishaka v. State of Rajasthan, or altering laws to which private parties are subject such as in R. Rajagopal v. State of Tamil Nadu. Thus, the Court could impose what is known as ‘direct horizontality’ – where the private act of a private party is challenged on grounds of the Constitution.

A similar question was posed to the Supreme Court in relation to the functioning of the Board of Cricket Control in India (“BCCI”) – and whether the legality of its activities could be judged on the cornerstone of the Constitution. In both cases relating to the BCCI, Zee Telefilms Ltd. & Anr vs Union Of India & Ors and BCCI v. Cricket Association of Bihar, extensive discussion took place as to whether the BCCI could be considered as a ‘State’ under Article 12. However, no question has been raised as to Whatsapp’s status as a private entity. Therefore, the Court’s observations in respect of the constitutional obligations of the BCCI as a non-state entity are crucial. In paragraph 30 of the Zee Telefilms case, Hegde J. notes:

‘But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.’

Subsequently, in the BCCI judgement, Thakur J. observes:

Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.

A joint-reading of these two observations leads to the irresistible conclusion that only those private bodies that discharge ‘public functions’ are amenable to claims under Article 226, and not under Article 32. Thus, the Court’s interpretation contemplates a situation where the claim must change depending on the forum one is before; which surely was not contemplated by the drafters. Thus, the only permissible reconciliation of this position is that private parties performing public functions can be made subject to general public law standards (good faith, non-arbitrariness) which may overlap with Part III – particularly Article 14, 19 and 21; but does not imply Judicial review in respect of all provisions of Part III. At minimum, a litigant aggrieved with a Private party cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226 to enforce the aforementioned administrative law standards.

Instant Messaging and the ‘Public Function’ Test

However, prior to examining which provisions of Part III the Privacy Policy may fall foul of, we must first examine whether Whatsapp can even be considered as fulfilling the ‘Public Function’ test. In Sukhdev and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. the Court was required to determine whether the Oil and Natural Gas Commission, Indian Finance Corporation and the Life Insurance Corporation, all of which are statutory organisations, were entitled to claim protection under Part III. The Court held that they were, stating:

Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.

As referenced earlier, there is no argument that WhatsApp is an instrumentality of the State under Article 12 – as it is neither part of the State apparatus, nor is it considered an instrumentality or agent of the State itself. Therefore, the question to be resolved is whether providing a platform for communication can be considered to be a ‘public function’ – making it amenable to 226 jurisdiction. Two facets of this question are important: first, the nature of communication services as a public good, and second, whether WhatsApp is necessarily required to exercise ‘control’ over this service to be regarded as discharging a public function.

It is undeniable that telecommunication plays a crucial role in 21st century society. A denial of all telecommunication services to society for a single day would impact global communication, impair business and disrupt the Economy – not to mention the significant mayhem it may cause in the process. Consequently, it is more than arguable to suggest that the organisations providing telecommunication services are collectively performing a ‘public function’. The Supreme Court noted that in the context of the BCCI, it was three factors – complete control over cricket, significant financial investments and state support – that lead to the determination of it discharging a public function. However, note must be made here of the unique nature of cricket in India, in that it represents a ‘primary cultural good’ (Parthasarathy); and that BCCI’s complete control over the sport in India represented its power to control access to this basic human good.

To apply this test of ‘control of basic goods’, one must understand the nature of instant messaging in India, and whether it can be said that WhatsApp exerts a comparable amount of control over this service. A majority of Indian internet users (63% of the people surveyed, MEF Survey 2016) currently rely upon WhatsApp as their primary communication device – nearly 200 million consumers. However, having significant market share is not a sufficient indicator of whether WhatsApp exercises ‘control’ over the utility in India. Unlike the BCCI, WhatsApp cannot be said to have any legitimate role to play in the governance, regulation or administration of this sector, and does not (yet) have a recognised monopoly over the utility. If WhatsApp were recognised as being the sole provider of all instant communication services to Indians, it could have been contended that its control over a public utility renders it amenable to 226 jurisdiction. However, holding so in the present context would set a dangerous precedent of all popular services being considered as effectively discharging a public function; not necessarily limited to the nature of service in question.

Re-writing Private Contracts

Even accepting that the Supreme Court has the jurisdiction to adjudicate the Whatsapp petition, one must consider the propriety of the Judiciary intervening in private contracts. It is undisputed that the millions of customers that accepted WhatsApp’s new privacy policy did so voluntarily, having accepted the terms and conditions clearly established. Resultantly, if the Supreme Court were to issue directions to WhatsApp changing the terms of such policy, it is intervening in a voluntary agreement entered into between two private parties.

However, such a situation is not unprecedented. The Supreme Court has made a number of determinations that change the very basis of private contracts – doing so particularly frequently in the context of labour contracts. In the year 2016, it mandated in State of Punjab v. Jagjit Singh that employers must ensure ‘equal pay for equal work’, holding:

It was held, that the Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It was pointed out, that a casual labourer who had agreed to work on such low wages, had done so, because he had no other choice.

Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.

The justification for intervening in a private contract therefore stems from two factors – first, the coerced consent of the labourers who have ‘no other choice’ and second, from the ‘domineering position’ of the employers who have the power to ‘enslave’ these workers. As a result, the Court intervened to protect the otherwise defenceless labourers from the exploitative practices of the employers. A similar line of argumentation has been placed before the Supreme Court by the WhatsApp petitioners – in that WhatsApp enjoys a dominant position in the instant messaging space, and its consumers are therefore have no option but to be subject to its exploitative data practices. The Supreme Court also echoed this sentiment in one of the hearings, warning WhatsApp against ‘consumer entrapment’.

However, this line of argumentation misses the key facet of consumer choice – something evidently absent in the minimum-wage labour market. Consumers are constantly advertised a number of different services that provide nearly perfect competition to WhatsApp, and are allowed free migration across these platforms. Moreover, there is no legal reason why consumers who use a platform like WhatsApp should not be allowed to waive their right to keep their data secret in exchange for using an evidently useful service. Any consumer who is dissatisfied or uncomfortable with the terms of use of such an application is legally allowed to exit its operation – making the case for judicial intervention in such a contract untenable.

Conclusion

It is not my position that we should not have a right to privacy, or that WhatsApp’s Privacy Policy is desirable. However, to entertain and adjudicate such a petition on its merits would require the Supreme Court to significantly extend its jurisdiction – and begin upon an already slippery slope of subjecting private parties to constitutional provisions. Instead, it is my position that the legislature should enact a comprehensive Data protection framework that would forbid companies from transferring data of its consumers without their express authority – and then allow the Judiciary to adjudicate disputes on such basis. By broadly invoking Article 21 and Article 19 for all privacy disputes, we risk allowing several private companies from getting away with privacy violations that are actionable in most other jurisdictions.

Who said creating a ‘Digital India’ would be easy?

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Filed under Article 226 Remedies, Communications Technologies, Judicial Review, Jurisdiction, Public goods