The Constitutional Challenge to the Transgender Act

On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identificationinstead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.

Guest Post: Social Media, Public Forums and the Freedom of Speech – II

[This is a guest post by Praharsh Johorey.]


About eighteen months ago, I had written an essay on this blog asserting a constitutional right to free speech on social media, with a focus on Twitter. In that essay, I had contended that the freedom of speech under Article 19(1)(a) could be asserted against social media companies, and premised this on two distinct grounds:

  • Twitter is imbued with the constitutional character of the State because by giving the public a platform for speech it performs what is a ‘public function’, and therefore, is constitutionally liable for overbroad censorship; but that in any event:
  • Article 19(1) and (2) of the Indian Constitution do not textually require that freedom of speech can be claimed by citizens exclusively against the State, who can also assert such freedoms against private parties (like Twitter) who unconstitutionally limit such speech.

Therefore, I concluded that:

Individuals on social media forums should therefore have the right to claim a freedom of speech online – allowing them to invoke constitutional protections in situations of overbroad censorship, undue denial of access to speech and the arbitrary private restrictions on conduct online, without adequate recourse to redress mechanisms.”

Much has transpired in the last eighteen months – Mr. Sanjay Hegde (a Senior Advocate in the Supreme Court of India) has filed a Writ Petition against Twitter before the Delhi High Court against the ‘illegal suspension’ of his Twitter account. More examples of Twitter’s growing censorial prowess have raised concerns about the impartiality of the Twitter platform in India, with people on both ends of the political spectrum claiming overbroad censorship on the platform – either in the form of the reduction of one’s Twitter followers (which limits one’s outreach online), or the disappearance of a user’s ‘likes’ and ‘retweets’ (which is an overt censorship of one’s ‘speech’ online).

Twitter’s conduct therefore continues to raise serious questions about what, if any, constitutional and/or legal recourse is available to someone aggrieved with their (in)ability to (I) access the Twitter platform (such as Mr. Hegde); and (II) communicate freely while on the platform (such as Mr. Kashyap). Because these questions are now pending determination before a Constitutional Court in India, it is as good a time as any to re-examine the constitutional questions involved, which can be framed as follows:

  • Is Twitter, a private company, amenable to constitutional scrutiny?
  • Is access to a public platform a facet of my freedom of speech?
  • Once on a platform – can constitutional rights to free speech override private rules and regulations that govern speech on this platform?

Answering (i) will require a re-examination of my previously stated position (as reproduced above), and strikes at the heart of the maintainability of Mr. Hegde’s petition before the Delhi High Court. Accordingly, it is appropriate to address the question of maintainability in this essay – leaving open questions on the merit of Mr. Hegde’s petition to later posts.

It is not Mr. Hegde’s case that Article 19 is capable of being directly asserted against private individuals like Twitter. This is because the Supreme Court in P.D. Shamdasani v. Central Bank of India Ltd. declared that the rights under Article 19 cannot be asserted against private parties because ‘the language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest.’ Therefore, to establish maintainability of a writ petition against a non-state party, Mr. Hegde has had to contend that Twitter is something analogous to the State. His legal basis for this (as stated in his petition here) is two-fold:

“… a Petition under Article 226 is maintainable against a private party which discharges a Public Function … by providing a means for dissemination of and access to information, social media agencies discharge a public function.”

Speaking generally, there is little doubt about proposition (b). It is unlikely to be Twitter’s case before the Delhi High Court that the services it provides do not correspond to a colloquial understanding of a ‘public function’, i.e. a function for the general public serving the public good – in this case being providing a means for the ‘dissemination of and access to information’. But this standard for imparting constitutional character, and consequently establishing maintainability, seems at first glance loose at best, and dangerously vague at worst. One could think of hundreds of Indian organisations (either supplementing or even entirely replacing the State in their respective fields) providing ostensibly ‘public’ functions: Airtel, in providing millions of Indians with the ability to telecommunicate and access the internet; Indigo Airlines, in providing access to affordable commercial flight; or even Ola Cabs, in filling significant gaps in the daily commute of millions across India. Would Mr. Hegde’s arguments equally apply to someone claiming a constitutional right to remain on Airtel’s network, despite breaching their terms of service?

In this view, it becomes necessary to examine proposition (a), i.e. the contours within which Indian constitutional courts have applied the ‘public function’ test, and assess Twitter’s amenability to this test.

Early last year, the Supreme Court in Ramakrishna Mission and Anr. v. Kago Kunya and Ors. was seized of an appeal from a judgement of the Gauhati High Court, which had declared that the ‘Ramakrishna Mission Hospital’ (a hospital in Itanagar) while not the ‘State’ within the meaning of Article 12, performed a ‘public duty’ and was consequently amenable to writ jurisdiction under Article 226.

The NGO which operated the hospital strongly resisted the broad interpretation sought to be given to the term ‘public function’, while the State of Arunachal Pradesh – which supported the judgment of the Gauhati High Court – submitted that it was only because of the unique status of the hospital as (i) a monopoly in Itanagar; (ii) a beneficiary of grants/subsidies from the State Government; (iii) a provider of the public function of healthcare, that rendered it subject to Article 226. Therefore, it was neither party’s case before the Supreme Court that any organisation providing a ‘public’ function could be subject to Article 226. The specific attributes of the hospital itself, as a beneficiary of State largesse, were therefore a crucial factor in this determination.

Here, the Court, in ascertaining the scope of the term ‘public function’ substantially relied upon G Bassi Reddy v. International Crops Research Institute, which held:

“28. A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty…ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities.” (emphasis supplied)

Relying upon this precedent, the Court found as follows:

“Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.” (emphasis supplied)

Therefore, in establishing that an organisation is discharging a ‘public function’, the following factors establish the threshold that needs be proven:

  • whether the function/service provided is closely related to that which is provided by the State in its sovereign capacity;
  • whether the nature and extent of governmental control over the management or day to day functioning of the organisation is sufficient to render it a State authority;

It is therefore apposite to discuss only (i) in the context of Twitter, as proposition (ii) is ex facie inapplicable to private social media companies.

Mr. Hegde does not argue (i) directly – instead, he contends that “Twitter serves as a medium for citizens…to communicate their grievances and concerns with elected officials and government representatives. It serves as a source of news and information – as the “marketplace of ideas”…it therefore performs a public function and is amenable to the jurisdiction of this Court under Article 226.” This, I contend, does not meet the threshold under (i). Admittedly, Twitter is used by the Government, Government Officials and politicians of all stripes to make policy pronouncements, disburse information about government programs, campaign for elections and even engage directly with citizenry. However, this is distinct from the principle required to be proven in (i) – which is whether the primary service provided by Twitter, i.e. providing a platform for digital micro-blogging, is closely related to a sovereign function of the Indian Government.

In Balmer Laurie & Co. Ltd. v. Partha Sarathi Sen Roy, the Supreme Court differentiated between ‘governmental functions’ and ‘sovereign functions’ of the Government as follows:

“Every governmental function need not be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities may well be among the State’s essential functions, which contribute towards its welfare activities aimed at the benefit of its subjects, and such activities can also be undertaken by private persons, corporates and companies. Thus, considering the wide ramifications, sovereign functions should be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon, etc. Therefore, mere dealing in a subject by the State, or the monopoly of the State in a particular field, would not render an enterprise sovereign in nature.” (emphasis supplied)

The threshold for an organisation’s services to be analogised to a ‘sovereign’ ‘inalienable’ function is high. Twitter is certainly a social good, a modern ‘public square’, where people communicate, disseminate ideas and share information.

However, it is difficult to reasonably contend that the provision of a social media platform by a private organisation is ‘closely related’ to examples of these sovereign ‘primarily inalienable’ functions (as elucidated by the Court), i.e. legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security or grant of pardon. Allowing people another medium or forum in which to communicate and/or disseminate information is not tantamount to performing a function that is, or has ever been considered to be, a function that is exclusively within the domain or competence of the Government. It has always been free for citizenry to collect and participate in private platforms that permit communication and/or the spread of information (digital or otherwise) – whether in the form of social clubs, radio shows, telecommunication, instant text message groups or now, on social media. The Government, while certainly an enabler (in that it does not prohibit such forums from proliferating in the private sphere) and even an active participant in such platforms, is not obligated to provide and/or maintain these platforms for its citizens in the discharge of its sovereign functions, as enumerated above. Consequently, the conclusion that social media companies are not discharging a ‘sovereign’ ‘inalienable’ public function is inescapable.

It might be asked: how then did the Board for Cricket Control in India (BCCI) – which regulates the sport of cricket in India – find itself subjected to the jurisdiction of Article 226 in the Supreme Court’s decision in BCCI v. Cricket Association of Bihar and Ors. by application of the same ‘public function’ test? Surely it is not the government’s prerogative (and certainly not its sovereign function) to administer sports for its citizens either?

The Supreme Court in BCCI does not grapple with this standard. Instead, the Court lays emphasis on the nature of control exercised by the BCCI over the administration of cricket in India, assuming – without alluding to the standard discharging a ‘sovereign’ ‘inalienable’ function – that the administration of cricket is ex facie a ‘public function’. The only reasoning the Court gives for allowing the administration of cricket to be given such importance (in and of itself) is that it is a sport in which participants are ‘applauded by the entire nation, including at times by the highest dignitaries’.

What BCCI does is to reduce the standard of a ‘public function’ from being one of discharge of a ‘sovereign’ ‘inalienable’ function to a function that is seemingly of significant importance to the public. Arguably, social media, as a category of organisations, and all private sports regulators, would fit within this looser standard.

However, the reasoning in BCCI that simultaneously heightens this diluted threshold is the Court’s emphasis on BCCI’s monopoly over this function, noting – at the outset – that “the respondent-Board has complete sway over the game of cricket in this country.” The Court elaborates:

“All these activities (i.e. of the BCCI) are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board’s monopoly in the field of cricket…The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act.”

The Court lays significant emphasis on the BCCI’s exclusive right to control and regulate the game – to the exclusion of all others – with the overt support of the Government of India. This, the Court makes clear, is the fundamental reason why the BCCI is amenable to writ jurisdiction:

“The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. 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 non-government 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…BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.(emphasis supplied)

Therefore, it is insufficient to rely on BCCI to contend that discharging a function that is of importance to the public would be tantamount to discharging a ‘public function’. After BCCI, it falls on those seeking to impart constitutional character to private individuals/organisations to prove that such organisations not only discharge a function of significant public importance, but also discharge this function exclusively, with the government’s tacit (non-interference with its functioning) or overt (conferment of state subsidies, grants, permissions etc.) support.

As alluded to earlier in this essay, it can be no-one’s case that Twitter, and other social media companies, do not provide a service that is of importance to the public. Social media companies have hundreds of millions of active users per day, and have given rise to important social movements and allow seamless conversation with like-minded individuals across borders. However, does Twitter discharge this function exclusively?

The answer, quite simply, is that it does not. The core service, that of providing a digital platform for communication online, is not the exclusive reserve of Twitter. While Twitter does have features that set it apart from other similar social media companies (particularly on the ease with which one can ‘follow’ topics/people of interest), its primary ‘function’ of providing and maintaining a digital platform is also undertaken by various other private organisations, not least Facebook – which after the acquisition of Whatsapp and Instagram operates atleast three known platforms of similar fundamental utility. Mr. Hegde’s concedes this:

Social media agencies enable individuals to participate in a free flow of information and ideas with others across the world. Twitter users can create communities to share information, ideas, personal messages etc. Unlike any other medium of communication (such as radio, television and printed publications), which are based on one-way transmission of information, platforms such as Twitter, facilitate participatory information sharing and collaboration. Users are not passive recipients, but active publishers of information.” (emphasis supplied)

 

By accepting that Twitter is only one of several social media companies that ‘enables individuals to participate in a free flow of information’, it is clear Twitter is not alone in discharging its primary functions of operating a social media platform. While social media companies as a class operate to the exclusion of the government in this space (in that the Government does not provide/operate a social media platform itself), none of the companies individually claim a monopoly of this field in India. In fact, most users of these platforms use and participate in several platforms simultaneously, with your author having been an active user of Facebook, Instagram and Twitter at a given point in time. Therefore, it is clear that one’s inability to access Twitter (having fallen foul of its rules and regulations, for e.g.) does not hinder one’s ability to access either the internet or social media platforms generally, with seamless migration between different platforms being a key facet of the modern internet age. On this ground also, Twitter’s lack of monopoly renders it well short of the standards laid out in BCCI.

Conclusion

At the end, I find myself in the somewhat unfortunate position of having used 3000 words to argue against myself. My contention in my earlier essay, i.e. that Twitter performs a ‘public function’ rendering it susceptible to writ jurisdiction, is incorrect, as Twitter neither performs an ‘inalienable’ ‘sovereign’ function, nor does it exclusively perform a function of public importance as a monopoly in its field.

Regardless, Mr. Hegde’s arguments on the maintainability of his petition are likely to cause waves in constitutional law circles irrespective of the outcome. It is well worth following.

NDPS and the Rise of Punitive Constitutionalism

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Among the many colonial holdovers that continue to persist in our post-colonial legal framework, there is one that stands out as particularly egregious. In a series of “special criminal laws”, there is a provision that – in effect – prohibits a judge from granting bail to an accused unless that judge has “reasonable grounds to believe” that the accused is not guilty. This provision is found, for example, in the Unlawful Activities Prevention Act, in the Narcotic Drugs and Psychotropic Substances Act, and – until it was struck down by the Supreme Court – in the Prevention of Money Laundering Act.

This provision is repugnant to all notions of personal liberty, and it should be easy to see why: it effectively makes the grant of bail next to impossible. An adverserial legal system is premised on the assumption that in a case of competing narratives (i.e., every legal case), the “truth” can be known only when both sides have had a chance to contest each other’s version. The law of evidence – with its focus on cross-examination – is geared towards achieving this: through a detailed set of rules, it affords to both prosecution and defence an opportunity to test each others’ cases, bring out contradictions and conflicts, test the credibility of witnesses, and so on.

An application for bail is not, in principle, about truth or falsehood. In very simple terms, the basic logic of bail is that because the criminal justice system is premised upon the idea of “innocent until proven guilty”, it is presumptively wrong to keep a person in jail until the outcome of their trial – i.e., until a definitive finding has been returned on their guilt or innocence. This is why – traditionally – the considerations that are supposed to weigh with a Court in deciding to grant bail are the potential harms that might accrue from letting an accused out pending trial (he might, for example, flee the jurisdiction, or – if he is a powerful person – intimidate witnesses), measured against the core value of personal liberty (admittedly, this has been watered down substantially over the years, with the “nature of the offence” often playing a dispositive role in courts’ decisions whether or not to grant bail).

Consequently, prohibiting a judge from granting bail unless she is reasonably convinced that the accused did not commit the crime, takes a sledgehammer to the criminal justice process. It requires a judge to take a call on guilt or innocence at the beginning of, or in the middle of, the trial process, without all the information that she needs to do that. In practice, it invariably benefits the prosecution: first, in its very terms – it requires the judge to reach a finding that there is a reasonable likelihood that the accused did not commit the crime, as opposed to a finding that he did. Proving a negative is always substantially more difficult than its opposite. And secondly, it is slanted towards the prosecution because at the time of bail applications, the judge – in the normal course of things – effectively has before her only the Prosecution’s version (the FIR and the chargesheet). The defence may controvert it, but without the opportunity to attack the Prosecution’s case in the course of trial, at the best of times, it will simply be a clash of two rival versions. In such circumstances, a judge can hardly come to a finding against the Prosecution, unless the Prosecution’s own case is so riddled with inconsistencies, that it collapses under its own weight (it has been known to happen).

While such provisions might potentially be defensible in a legal system where trials are completed quickly, in the Indian justice system, where trials take years, they simply cannot be defended. They enable incarceration for years on end (recent UAPA cases have involved people being jailed for over a decade before being found innocent), without any judicial finding of guilt.

What do the Courts do in such a situation? One solution, of course, is to hold that such provisions are unconstitutional (which Nariman J. did, in a judgment on the PMLA). If Courts cannot – or are not willing – to do that, then the other option is to interpret the law narrowly, and in favour of the accused. The logic of this is simple: the more draconian the law, the more it impacts personal liberty, the more cautious a Court must be in interpreting it. A good example of this is the Bombay High Court’s bail judgments in the Kabir Kala Manch cases: Justice Thipsay interpreted the substantive provisions of the UAPA narrowly, in order to hold that on its own materials the Prosecution had failed to make out even a prima facie case for guilt. Consequently, he granted bail even within the constraints of the section.

On a different note, in a series of detailed and brilliant judgments, Justice Rajbir Sehrawat of the Punjab & Haryana High Court – after noting many of the basic arguments highlighted above – held that in certain statutes condition in question would not be “mandatory” for a Court to follow, while in an NDPS case, held the arresting officer to strict compliance of the procedural requirements under the statute – and granted bail as they were not followed.*

The judgments of Thipsay and Sehrawat JJ from the High Courts of Bombay and Punjab & Haryana show that even under draconian statutes, Courts have interpretive wiggle room to ensure that the individual rights are not entirely effaced by the logic of “reasons of State.” It is in that context that the judgment of the Supreme Court in State of Kerala v Rajesh, delivered yesterday, is disconcerting and disappointing. Handed down by a bench of Ajay Rastogi and Indu Malhotra JJ., this judgment swings the pendulum the other way, holding that in NDPS cases, there cannot be a “liberal” approach to bail (it is unclear what is meant by the word “liberal” here). Moreover, the judgment then holds, in paragraph 21:

The expression “reasonable grounds” means something more than prima facie grounds.  It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.  The   reasonable   belief   contemplated   in   the   provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

 

In other words, the Court holds that before the Defence has even had a chance to fully controvert the evidence against the accused, there must be a finding of “substantial probably cause” that the accused is innocence. In other words, this finding must – to all effects and purposes – be made on primarily on the basis of materials adduced by the Prosecution. But how is this ever going to happen? If the Prosecution, for example, has listed three witnesses who saw me commit a crime, until the time I can cross-examine them to bring out the inconsistencies in their testimonies – something that happens at an advanced stage in the trial – how can I ever establish “a substantial probable cause” to believe that I am innocent? If the judgment is followed in letter, therefore, it effectively means that granting bail is almost impossible wherever there exists such a section – or at least, requires substantial ingenuity from High Court judges hearing such cases.

I call this form of reasoning “punitive Constitutionalism”, and it has been on the rise at the Supreme Court of late. Punitive constitutionalism operates on the assumption that the Constitution is not a charter of freedom or emancipation, but a document meant to discipline a recalcitrant or troublesome society. “Punitive constitutionalism” makes rights contingent on what the Court considers “good behaviour” (witness the Chief Justice refusing to hear cases until “violent protests” stop), invents new ways to whittle down rights against the State (witness what was done with habeas corpus in Kashmir), views every accused as a potential criminal rather than innocent until proven guilty, and sees procedural safeguards as impediments to an efficient criminal justice system rather than as essential safeguards of liberty. It is, ultimately, a school of thought that is closely allied with the idea of “executive Courts” – i.e., a Court that sees itself as part of a joint project with the Executive (however defined), rather than the institution that stands between the citizen and the Executive.

It remains to be seen whether this drift will continue in the near future.


(Thanks to Gautam Khazanchi for bringing these judgments to my attention.)

The Kashmir Internet Ban: “Restoration”, White-Listing, and Proportionality

On January 10th – as we discussed on this blog – the Supreme Court handed down its judgment on the internet shut-down in Kashmir (it bears repeating that this is the longest continuing internet shut-down in any democratic country). The Supreme Court’s judgment had two parts: a statement of the law and an application of the law to the facts of the case. On the first issue, the Supreme Court held that accessing information through the internet was a fundamental right, and the principle of proportionality applied to adjudicating the constitutional validity of internet shut-downs (which, inter alia, requires the government to adopt the ‘least restrictive’ method when it comes to restricting rights). On the second issue, the Court directed the “Review Committee” (a government body), constituted under the Telecom Suspension Rules of 2017, to review the situation on a weekly basis.

In response to the judgment of the Court, the Jammu & Kashmir government has passed three orders purporting to partially relax the internet shut-down. In this post, I will argue that a reading of the government’s orders reveals that (a) they are in breach of the legal principles laid down in the Supreme Court’s judgment, and deserve to be challenged; and (b) these orders reveal that the State’s own case before the Supreme Court was based on flawed premises – something that has important consequences for challenges to internet shut-downs, going forward.

At the outset, it is important to note that this is a critique of the government’s orders on their own terms; the larger points – that a five-month long internet shut-down is inherently disproportionate, must be lifted at the earliest, and that the Supreme Court’s judgment unfortunately did not grant relief to the Kashmiris – remains.

The Orders

On 14th January – four days after the Supreme Court’s judgment – the J&K government passed an order stating that cross-border terrorist elements were using the internet to communicate and spread propaganda, which could cause large-scale violence. The government directed, inter alia, for provisions of broadband services to institutions providing essential services, 2G mobile connectivity in certain districts, and the installation of internet firewalls and a set of “white-listed websites” that could be accessed by internet users. Access to social media was specifically prohibited. Subsequently, on 18th January,  second order was passed – this time in exercise of review powers under the Telecom Suspension Rules. This order stated that there was had been no adverse impact after the partial restoration, but reiterated that the internet could be used for incitement, “rumour mongering”, and by anti-national elements. It directed restoration of Voice and SMS facilities on pre-paid SIMS, and extended 2G internet to a few more districts. In addition, it provided a specific list of 153 “white-listed” websites, from Blue Dart to Zomato to Amazon Prime – which could be accessed.

In accordance with the Supreme Court’s judgment, this had to be reviewed on a weekly basis. This, consequently, led to the third order, passed yesterday, which reiterated the twin points of “no adverse impact” and “apprehension of misuse.” This order basically expanded the set of white-listed websites to 301 (adding news websites such as Scroll and The Wire), continued the prohibition on social media, and clarified that “white-listing” was a continuous process.

White-Listing and Proportionality 

The three orders make it clear that the government – in conjunction with Internet Service Providers – has the technological capacity to allow selective access to the Internet (contrary to what the Government’s lawyers argued in court; see this analysis by the Internet Freedom Foundation). Independent of the overall constitutional arguments (indicated above), a very simple conclusion follows from this: that internet shut-downs are inherently disproportionate, because a less restrictive alternative exists at all times. If the government’s entire justification for internet shut-downs is that the internet is being used for “rumour mongering” and “incitement to violence”, it is clear that blocking access to all of the internet – a large swathe of which cannot possibly be used in that fashion – fails the ‘least restrictive alternative’ prong of the proportionality standard. In future, therefore, internet shut-downs should be immediately struck down by Courts without any ado: the government itself has given us evidence that they are disproportionate.

This is not, however, a defence of white-listing: in fact, the consequences of the government’s orders go further, as they demonstrate that there exist alternatives that are less restrictive even than white-listing. The government can – it is clear – block access to specific websites (the repeated references to social media show that this is so). This would be a method of ‘black-listing’ – where access to the internet is allowed except for specified websites.

The conceptual difference between white-listing and black-listing can be summed up in very simple terms. In white-listing, the default is no access to the internet, except what the government allows. In black-listing, the default is access to the internet, except what the government prohibits. The first is a case of ‘everything is prohibited, unless specifically allowed.’ The second is a case of ‘everything is allowed, unless specifically prohibited.’

This is where the Supreme Court’s other finding – that accessing information through the internet is a fundamental right – becomes crucial. Because if a constitutional democracy means anything, it means that the default situation is – and must be – the existence of a fundamental right, and it is the limitations that must be the exceptions. White-listing reverses that fundamental proposition – in the words of K.G. Kannabiran, it makes the restrictions “fundamental”, instead of the right. Black-listing, on the other hand, not only preserves the fundamental character of the right, but also – by providing a clear category of what is forbidden (instead of an amorphous “everything”), allows citizens to challenge that before a court (another fundamental aspect of the rule of law).

This also makes intuitive sense. For example, if an individual wants to read science fiction on Strange Horizons, why should there be a need to special permission from the government, in the absence of which, the website cannot be accessed? On the other hand, if the government has credible information that Strange Horizons is inciting people to violence, then it can block access to the website – and, if necessary, will be required to justify it in Court. White-listing, on the other hand, is impossible to effectively challenge, because it brings us right back into the domain of generic statements about the “internet” being used to incite violence and spread propaganda – the kinds of arguments that the government made in the Internet Shut-Down case.

White-listing, therefore, is no effective “restoration”, as it continues to leave the fundamental right to communicate over the internet entirely at the Government’s discretion: exactly the Emergency-style argument that the Government’s lawyers tried to push before the Supreme Court, and were roundly rebuffed.

Conclusion 

As indicated at the beginning of the post, this is not an argument that justifies white-listing (or even blacklisting). The continuing ban on social media on vague and specious grounds of “rumour mongering” remains disproportionate (as pointed out many times, there is actually no evidence showing internet shut-downs combat “rumour-mongering”, and indeed, evidence points the other way). The constitutional case against internet restrictions remains, and will continue to be made – before courts, and elsewhere.

What this post shows, however, is that the J&K’s actions after the Supreme Court’s judgment are effectively subverting the Court’s findings, and also demonstrate severe internal inconsistencies between what the government claims and what it actually does. The Supreme Court made it clear that access to information through the internet was a fundamental right, and restrictions would have to meet the test of proportionality. White-listing reverses that principle, and effectively makes restricting internet access a fundamental right of the government, with the burden upon the people to establish why they should be allowed to access selected parts of the internet. This reversal of the citizen-State relationship is unconstitutional, and will hopefully be recognised as such.


(Disclaimer: The author was one of the lawyers representing the Petitioners in the internet shut-down challenge.)

 

The Sexual Harassment Complaint: Five Questions

On this blog, we have covered in some detail the multiple institutional failures at the Supreme Court during its handling of sexual harassment allegations against the-then Chief Justice of India, in April and May 2019. Yesterday, it was reported that the woman who had complained against the then-Chief Justice was reinstated in service to the Supreme Court. Given, however, that the complainant’s allegation was that she had been dismissed from service because she had refused advances from the then-Chief Justice, this “reinstatement” raises a host of deeply troubling questions about what passes for justice and accountability at the Supreme Court.

Question One: As the Supreme Court has provided no reasons for reinstatement, there is – at least formally – a presumption that the original dismissal was unlawful. If the original dismissal was unlawful, it immediately puts paid to the “disgruntled employee” theory that was bandied around in open Court last year, as a form of character assassination. Who will now (a) take responsibility for the unlawful dismissal, and (b) for the “disgruntled employee” narrative that happened under the watch of Supreme Court judges?

Question 2: The informal “ad-hoc” Committee of three Supreme Court judges who examined the allegations and issued a “clean chit” to the Chief Justice, did so on the basis of their belief that the complaint had no merits. It follows from that fact that the three Supreme Court judges believed that the complainant had lied about being sexually harassed (there is no other way to spin this). Lying about sexual harassment allegations against the Chief Justice of India is a very serious matter. These days, the Supreme Court and government lawyers like to constantly throw around allegations of people “maligning” the institution by writing articles; well, if there is one thing that does “malign” the institution, it is (presumably) trying to trap the Chief Justice in a false sexual harassment case. But if that is true, then what is the Supreme Court doing reinstating the complainant? In particular, keep in mind that the head of the ad-hoc Committee was Bobde J., who is now the Chief Justice – and who, therefore, would presumably have signed off on this reinstatement. How can the present Chief Justice simultaneously hold the views that a complainant levelled false allegations against the then-Chief Justice, but also that the complainant should be reinstated into service?

After the initial article reporting the reinstatement was written, the Hindustan Times carried a report stating that the reinstatement happened after the complainant “agreed not to pursue the matter.” This report raises a second set of disturbing questions.

Question 3: It is normally understood that there is a right of appeal from a first-instance decision (although, as the Supreme Court set up an “informal ad-hoc Committee” to deal with this issue, it is unclear what rules it would have followed for an appeal). Reinstatement at the cost of giving up that right is tantamount to blackmail. Was the Supreme Court involved in any way in brokering this deal, and therefore complicit in blackmail?

Question 4: The Hindustan Times reports that the complainant’s assurance was given at the insistence of a “top government functionary.” Why is a “top government functionary” involved in these proceedings? Given that the Executive is the largest litigant before the Supreme Court – and even as we speak, defending a large number of constitutional challenges on far-reaching issues – does that not raise deeply disturbing questions about the separation of powers and what channels of communication (if any) exist between government and Court?

Question 5: This “top government functionary” is reported to have said that “everything would be sorted out and they should not tarnish the image of the country by focussing attention on the case.” Does the Supreme Court agree with this deeply patriarchal logic of sweeping troublesome sexual harassment complaints under the carpet because what matters is not the rights of survivors and the question of truth, but that allegations “tarnish the image of the country” – and that therefore, the imperative that of silence and burial, instead of justice?

The troublesome conduct exhibited by the Supreme Court from the time the allegations first surfaced in April 2019 right until now, raises a set of larger questions as well. The first, of course, is that sexual harassment is an extremely serious issue, whose scale and magnitude has become clear to everyone in the light of the #MeToo movement (if it wasn’t before). The highest Court in the country needs to do a lot better when it comes to an issue like this.

Secondly, as I have written before, justice is not a divisible concept. There cannot be one standard in dealing with sexual harassment complaints and another standard in dealing with constitutional challenges. You cannot separate the Court’s institutional response to sexual harassment allegations from its role as the final arbiter of law and justice in the country. You cannot acknowledge institutional failure in one domain while pretending that it is “business as usual” in another. The two will inevitably bleed into each other, and some serious questions need to be asked about what manner of justice can be expected from an institution that has, since April 2019, and up until today, responded with opacity, secrecy, ‘ad-hoc’ processes, and – finally – an outcome that is so riddled with internal inconsistencies – that it raises more questions than it answers.

What is the way forward? With respect to the immediate issue, it is abundantly clear: the Court must clarify that the original dismissal was wrongful, and fix accountability for that decision. The complainant must also be assured that if she does indeed decide to “pursue the matter”, no punitive action will be taken against her, and best practices under the POSH Act will be followed in deciding the complaint. And of course, looking ahead, it is an urgent necessity that the Court establish clear institutional procedures to address complaints of sexual harassment.

Until that time, the injustice of April 2019 – and the shadow that it has cast over the Court – will endure.

The Citizenship (Amendment) Act Challenge: Three Ideas

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I attempt to move beyond these basic arguments which have – by now – run their course in the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement with these reasons will require us to rethink some of our long-held assumptions about Indian constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather, implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests (as I have argued before); secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles. 

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the “classification test” for determining violations of the guarantee of equal treatment under Article 14. The “classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there must exist (a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar, for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various attempts to break out of the shackles of the classification framework. For example, it evolved the “arbitrariness” standard – which is, only now, being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State “purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the Supreme Court advanced a richer and more substantive vision of equality, that was also in line with global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage, about identifying the axes of diadvantage, and then working to remedy them. 

To recognise and identify disadvantage, however, the law requires proxies. It is here that the observations of Indu Malhotra J., for example – as highlighted in a previous post – become important. As a shorthand for identifying disadvantage, constitutional courts all over the world have asked whether legislation picks out people on the bases of “personal characteristics” that they (a) have no control over, (b) are powerless to change, or can only change at great personal cost. Take, for example, the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously – change their race in any meaningful way. Laws that pick out people on the bases of race for differential treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage, through affirmative action programmes, for example). 

It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into India – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into India. But the CAA takes the category of migrants living in India and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. 

Citizenship Laws and Standards of Review 

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who will be granted citizenship, and how. This argument has been repeated so often over the years, and so frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory examination will reveal, however, that this mountain is made of straw. 

Let’s go back to the basics. What was the original justification of judicial review in a democratic society? What justified an unelected Court striking down laws passed by democratically-elected legislatures? The answer, of course, was that the primary role of the Court was that of a counter-majoritarian institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities.” Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance. The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny. 

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category. As they cannot vote, they are formally excluded from participation in the political process. More than any other vulnerable or marginalised group in the country, they have no say in the laws and policies that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest. 

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter. 

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional. 

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity. 

Conclusion 

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about the idea of equality, the link between equality and democracy, and what the Constitution really asks of us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the Supreme Court an opportunity to further develop – and evolve – that jurisprudence.


[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]

A Strange “Notice”

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


In 2005, the then-Government of India commissioned a High-Level Committee too look into the “social, economic, and educational” conditions of Indian Muslims. The Sachar Committee found that the Muslim community was severely deprived upon a wide range of parametres, and recommended a set of affirmative measures that the government could undertake to ameliorate the situation.

In this context, the filing of a petition before the Indian Supreme Court challenging the National Commission for Minorities Act of 1992, and assorted government welfare schemes under that Act, would be best understood as a misguided PIL crusade at best, and a barely-concealed dog-whistle at worst. In particular, the setting out of “legal grounds” in the petition such as “providing special benefit to minority community may allure (sic) a number of persons to embrace another religion and there may be demographic changes” should have – one might have thought – served as an instant red flag to the Court. But the decision of a bench of Nariman and Bhat JJ to issue notice on the petition raises uncomfortable questions about what passes for “legal reasoning” before the Supreme Court these days.

To “issue notice” on a petition means – in its simplest terms – that the Court believes that the government has a case to answer. Bracketing for the purposes of this post the specific challenges to concrete government schemes, what exactly did the two learned judges believe that the government needed to answer for in simply setting up of a Minorities Commission? The NMC Act stipulates that the functions of the Commission shall include “evaluat[ing] the progress of the development of minorities under the Union and States“, “caus[ing] studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal“, “conduct[ing] studies, research and analysis on the issues relating to socio-economic and educational development of minorities“, and so on. Even at the threshold level, where exactly is the constitutional violation in any of this?

Or, to put it more specifically, what constitutional violations does the petition claim? A perusal of the Petition’s “legal grounds” makes it clear that there are broadly two main challenges. The first is a straightforward equality claim, that attacks the law on the basis that it gives certain benefits to minority communities that are not given to the majority community (the petition is quite clear that this is a case of the Hindu community being discriminated against, and predominantly with a view to benefiting Muslims). In doing so, however, the petition seems to be unaware of the basics of Indian equality law, which – at least since the 1970s – has been clear that the constitutional vision under Articles 14 through 16 is that of “substantive equality.” In other words, if Parliament finds that there exist individuals or groups that suffer from substantive disadvantage, Parliament can decide to ameliorate their situation. Such measures would not violate the equality guarantee. Notably, reservations – which need to pass the substantive requirements of Articles 15(4) or 16(4) of the Constitution – are only one of the methods that Parliament can choose to achieve substantive equality. The petition makes the elementary mistake of assuming that the only route open to Parliament is reservations (which, of course, are predicated on identifying social and economic backwardness through a specific procedure). But non-quota ameliorative measures are a standard feature of the Indian legal landscape – literally all social welfare laws and schemes proceed upon that premise.

What, then, is the legal basis for singling out the Minorities Act – and the Commission – as being particularly problematic? The petition makes two claims. First, it states that the Act – and the schemes – do not use economic condition as the basis to identify welfare beneficiaries. That argument – it should immediately be obvious – is bogus. Discrimination occurs along a host of parameters, and takes many different forms. In particular, when the locus of discrimination is group identity, and its form is political or cultural, economic deprivation has very little to do with either the disadvantage suffered, or the prescribed remedy. Secondly, the petition states that it is impermissible to legislate special benefits for religion, as the Constitution specifically bars that. That, however, is akin to saying that there can be no legislation for the benefit of the transgender community, as the Constitution bars discrimination on grounds of “sex.” The point is not the form of the legislation, but simply this: if discrimination occurs around certain axes, or loci (such as gender, or caste, or religion), then the remedy – if it is to be even remotely effective – needs to be framed around those very axes. Substantive equality makes it clear that that is not only permissible, but obligatory in order to achieve the true goal of equal treatment.

To counter this, therefore, the petition would have had to affirmatively show that minorities in India are not disadvantaged – a showing that would be rather difficult given the detailed facts reported by the Sachar Committee. Notably, however, the petition did not even attempt to do that – it only made the naked claim that the very act of setting up a Minorities Commission to look into – and ameliorate – the situation of minorities was unconstitutional. As the above points demonstrate, however, that is not an argument at all.

The second major claim – that occurs repeatedly in the petition – is this: that such schemes will be “detrimental for the Sovereignty and Integrity of India and give rise to separatists and may create a situation for another division of the nation.”

What on earth is going on here? Do Justices Nariman and Bhat believe that the government has to come and justify how scholarship and skill-development schemes for minority children are not, actually, going to “give rise to separatists” and cause a second Partition? Is this what the Supreme Court has reduced itself to – to not only quoting WhatsApp forwards at the beginning of judgments, but actively trafficking in WhatsApp arguments?

It is, of course, a different matter to say that certain specific schemes – such as financial assistance to waqfs – may violate Article 27 of the Constitution, and other provisions. However, the Supreme Court is perfectly capable of issuing a limited notice on challenges that do actually make out a constitutional case at a threshold level. What the Court has done, on the other hand, is (a) by issuing notice on the challenge to the Act as a whole, revealed a warped understanding of equality and discrimination, (b) ignores the fact that petition fails to make out a case even on its own terms, a basic requirement for issuing notice, and (c) winked at some of the lowest forms of minority-baiting and dog-whistling that poisons our public discourse today.

The Curious Continuing Afterlife of the Sabarimala “Review”

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Previously on this blog, I had noted how the “review” order in the Sabarimala judgment flouted all known principles governing the Supreme Court’s review jurisdiction. In the wake of that order, things have moved fast. Two women approached the Supreme Court, pointing out that as there was no stay on the original Sabarimala judgment, their right to access the temple continued to stand, and that the state of Kerala was bound to implement the original judgment. During that hearing, as I noted, the Court refused to pass any orders, only making a series of remarks that appeared to have little to do with the actual issues in the case. Subsequently, however, the Chief Justice established a nine-judge bench to hear the issue, which sat for the first time yesterday.

We will get to the proceedings of the nine-judge bench in a moment, but to begin with, I want to note that the leap from the five-judge bench that wrote the Sabarimala review order straight to a nine-judge bench, is an odd one. In the review order of the five-judge bench, it was observed that there might be a possible conflict between the seven-judge bench decision in Shirur Mutt and the five-judge bench decision in Durgah Committee, on the question of the role of the Court in determining the “essential practices” of a religion. Notice, however, that the Sabarimala bench did not deliver any finding on the issue (as indeed it couldn’t, as the question was not before it). Consequently, if a five-judge bench had noted a possible discrepancy between previous seven-judge and five-judge benches, then the correct course of action would have been for the Chief Justice to convene a seven-judge bench, that would have (a) heard arguments on the issue of whether there was indeed a conflict, (b) if it found there was, heard arguments on whether Shirur Mutt was correct (and that therefore, by extension, Durgah Committee had incorrectly gone against a binding judgment), or (c) if it doubted the correctness of Shirur Mutt, to then refer the question to a nine-judge bench to decide. Instead of this judicial consideration of the issues, what we got was an administrative decision of the Chief Justice to constitute a bench of nine judges off the bat, which could now directly overrule Shirur Mutt if it so decided.

This is not pedantic hair-splitting. On the contrary, it is deeply important, because respect for precedent is at the bedrock of our judicial system, and of the rule of law. Ordinarily, prior judgments of the Supreme Court are binding, and meant to be followed: this is what provides the system the stability and continuity that differentiates the rule of law from the rule of judges. Now if a later bench of the Court wants to go against binding precedent, a series of ground-rules exist to ensure that this can only happen after careful consideration and reflection, and in judicial proceedings where both sides can put their case. These ground rules stipulate, for example, that if a smaller bench feels that the binding decision of a previous, larger bench is incorrect, it “refers” the case to a larger bench to consider; and in general, this referral takes place incrementally (for example, from two judges to three, three to five etc. – although there have, of course, been exceptions). The reason for this – to reiterate – is that respect for precedent requires, logically, that settled law be disturbed only when there are weighty reasons for doing so.

However, let us now come to the proceedings of the nine-judge bench itself. When the case was first listed on the Supreme Court’s website, there was a note below it that specified that the nine-judge bench would only be considering the reference questions that the Sabarimala review order had listed, and would not be entertaining arguments on the merits of the Sabarimala petitions themselves. This, as things went, was entirely appropriate: as I pointed out in my original piece, the Review Order had not even doubted the correctness of the Sabarimala judgment, let alone refer it to a larger bench; it had, rather, referred certain “questions” that it felt might be relevant for certain other cases (involving female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques). Thus, whatever the irregularities of the Review order, a limited consideration of those referred questions was the only issue that was actually before the larger bench.

When the matter was heard yesterday, however, events took a decidedly different turn. During the course of arguments, the Chief Justice indicated that the bench intended to hear not just the referral questions, but all the cases that the referral order believed might be impacted by those questions: female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. The hearing closed with the bench directing counsel for all parties to meet and – if necessary – reframe and fine-tune the questions for decision.

While this in itself is unexceptionable (the original questions, as anyone can see, were much too broad and academic), the devil – as always – is in the details. In this case, it lies in the last line of the nine-judge bench’s order, which states:

List these matters along with Writ Petition (C) No.472 of 2019, SLP(C) No.18889/2012 and Writ Petition (C) No.286 of 2017, on 03.02.2020.

 

What are these petitions? These are the three petitions involving – as indicated above – female genital mutilation, entry of Parsi women to fire temples, and entry of women to mosques. In other words, therefore, it appears that – despite originally stating (rightly) that it would only hear the reference questions, the Court now appears to have placed the pending petitions before itself. But this is absolutely unprecedented – these cases were pending before their respective (smaller) benches, and there is no order of reference asking them to be placed before this nine-judge bench.

However, there is something more concerning here. If the nine-judge bench is no longer restricting itself to the reference questions – but intends to hear these petitions as well – then it at least potentially follows that the Sabarimala petitions – out of which the review order arose – will also now be the subject matter of the hearing. This would be truly extraordinary: a final judgment of the Court (five judges) would be effectively re-heard by a nine-judge bench, against all existing norms and conventions. Recall that no judgment has yet doubted the correctness of the original Sabarimala decision, or made a reference to have it reconsidered. In other words, this “second round” with a larger bench is taking place purely by virtue of the Chief Justice exercising his administrative fiat.

It should be obvious by now that this is no longer about whether the original judgment in Sabarimala was right or wrong. People can – and do – have different views about that, and it would be entirely open to later benches to reconsider it, following proper procedures. But what is at stake here is something deeper: it is whether precedent continues to have any meaning at the Supreme Court, or whether what we are witnessing is a gradual metamorphosis of the Supreme Court of India into the Supreme Chief Justice of India (a point I have written about before). Because what has happened here is that a number crucial issues that required judicial consideration in a proper way (whether there is a conflict between Shirur Mutt and Durgah, requiring resolution; whether the referred questions actually affect the pending cases; and whether Sabarimala ought to be reconsidered) have been implicitly decided through the constitution of a nine-judge bench, by administrative fiat.

Admittedly, a lot of these problems arise out of the bizarre character of the original Sabarimala “review” order, which I have discussed before. However, in subsequent proceedings, these problems appear only to have been compounded. On the next date of hearing, therefore, it remains to be seen whether the Court will, in the end, confine itself to answering the reference questions posed in Sabarimala (which, it may be recalled, it need not even do so) – or to take upon itself a broader role that will severely compromise the already-damaged idea of precedent at the Supreme Court.

The Devil’s in the (future) Detail: The Supreme Court’s Internet shut-down Judgment

Previously on this blog, we have discussed in some detail the litigation challenging the five-month-long internet shut-down in the Kashmir Valley. Today, a three-judge bench of the Supreme Court handed down its judgment in the challenge. While there was no effective relief in the judgment – the Court did not order a restoration of internet services in the valley, as it did not return a finding on the issue (see below) – it nonetheless reiterated certain important constitutional principles. While it is unfortunate, therefore, that the longest internet shut-down in a democratic country continues (at least for the foreseeable future), in this post, I will set out what the judgment actually did do, and how it provides a platform for future challenges to internet shut-downs as well as to the imposition of Section 144 of the Code of Criminal Procedure.

What the State Lost 

To understand the judgment, it is important to understand two bizarre claims advanced by the State at various points of the hearing. The State (i) refused to produce the orders that it had passed under Section 144 CrPC and the 2017 Telecom Suspension Rules, and which were the legal bases of the fundamental rights restrictions in the Valley; (ii) cited terrorism in Kashmir to argue that it was exempted from following the proportionality standard while restricting fundamental rights, and that, in the interests of national security, the Court ought not to intervene.

In essence, therefore, what the State – and its lawyers – were asking for was a complete carte blanche with respect to the operations in Kashmir. If the orders restricting fundamental rights did not need to be produced, there was no effective way to challenge them; and if the Court could not intervene because “terrorism”, then there was no effective forum where to challenge them. In other words, the State – and its lawyers – asked the Court to effectively hold that Kashmir was in a state of permanent Emergency, where fundamental rights stood suspended and at the mercy of the State, even though there had been no declaration of an Emergency at any point. The dangers of such an argument are obvious; as I’ve argued before, what the State wanted was a permanent normalisation of the Emergency regime, where the invocation of “national security” would grant an automatic judicial immunity from justifying the constitutionality of fundamental rights restrictions.

On both counts, however, the State’s arguments were comprehensively rejected. On the first issue, the Court made it clear that the orders providing legal cover to the imposition of Section 144 CrPC and the internet shut-down had to be made public, so that citizens could know – and, if they chose – challenge the bases on which their fundamental rights were being restricted. If the State wanted to withhold any part of such orders because of national security concerns, it would have to justify that, on a case to case basis.

On the second count, the Supreme Court reiterated that, at all times, restrictions upon fundamental rights had to be consistent with the proportionality standard. In particular, as part of the proportionality standard, the State had to select the least intrusive measure to achieve its legitimate goals. As the Court noted in paragraph 70:

However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.

And as it went on to note in paragraph 71:

The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.

 

Applying this standard to the specificity of internet shut-downs, the Court made four further observations. First, that the right to use the internet as a medium for free speech and expression and for trade and commerce, was protected under Article 19(1)(a) of the Constitution; secondly, that Article 19(2) allowed for the restriction of “abrasive statement(s) with imminent threat … if the same impinges upon the sovereignty and integrity of India…”; thirdly, that a perpetual internet shut-down would fail the test of proportionality; and fourthly, that the State’s argument that it couldn’t selectively block websites because of a lack of technology could not be accepted, as “[if] a contention is accepted, then the Government would have.”

Taking these four observations together, it is evident that the ongoing internet shut-down in Kashmir completely fails constitutional standards, as the government did not even attempt to justify it on grounds of proportionality, or that it was only targeting statements carrying an “imminent threat.” The Court went on to note that all of this required that when orders were being passed under the Telecom Suspension Rules to shut dow the internet, those orders would have to explicitly reflect how – in the specific case – the State action was proportionate.

While the reiteration of the proportionality standard in the context of internet shut-downs was a reinforcement of existing law, the Court also applied the same standard to Section 144 orders – which marks an incremental advance in the law. Up until now, the judgments governing the imposition of S. 144 were the old decisions of Babulal Parate and Madhu Limaye, whose language remained vague enough to be taken advantage of by unscrupulous State actors. Today the Supreme Court made it clear, however, that Section 144 orders would also have to abide by the proportionality standard (paragraph 126, and that that would have to be reflected in the text of the orders themselves. The Court also observed that in the normal course of things, S. 144 orders would have to be limited to particular areas or issues – thus casting severe doubt on the constitutionality of wide-ranging long-running 144 orders such as the one recently imposed in all of Bangalore, or the continuing order in Ahmedabad.

What the Petitioners Didn’t Win

Despite these findings, however, the Supreme Court did not rule on the validity of the internet shut-down or the imposition of S. 144 throughout the Valley. Its reason for that was somewhat curious: it held that because all of the internet shut-down orders had not been placed before it, it could not (yet) engage in judicial review. This is curious, because the onus of producing these orders undoubtedly lay on the State – indeed, the Court expressly directed it to do so in the operative part of its judgment. Furthermore, once the Court had held that the right to access information through the internet was protected by Article 19(1)(a), and that restrictions had to be proportionate, surely then the default situation was that the right would have to prevail over the restriction; in other words, until the government actually published the relevant orders with all the reasons (as required by the judgment), the internet ought to have been restored.

Instead, the Court directed that the Review Committee under the Telecom Suspension Rules would have to review the shut-down orders on a weekly basis, and that all the orders so far would have to be reviewed. Presumably, then, once this is done – and once the orders are published – a fresh challenge could be mounted on the basis of the principles laid out in this judgment (which, as I have indicated above, strongly suggest that the Kashmir shut-down is – and had always been – illegal).

Consequently, to the extent that the basis of the Court’s decision to not review the internet shut-down orders was that the State had not produced the orders in question (for five months), the consequence should have been that until the State – and its lawyers – decided to follow the law and the Constitution once again, fundamental rights could not continue to be restricted. That, however, seems like it will be a battle for another day. In the meantime, it is important to recall that in the wake of the CAA/NPR/NRC protests, the indiscriminate use of Section 144 and of internet shut-downs has been back in vogue, and there are now pending challenges in several High Courts. Today’s judgment sets out the principles on the bases of which these can be adjudicated: and the principles are that these orders restricting fundamental rights are subject to strong judicial review, that the State – and its lawyers – cannot get away by singing paeans to national security, that each order must be published, made public, and explicitly set out why the measure is proportionate, and that lastly, the Court shall – and must – examine whether least restrictive measures have been used, keeping in mind the importance of the internet to fundamental rights. These are sound procedural – and substantive bases – to move forward.


[Disclaimer: the author was one of the lawyers representing the petitioners.]

 

Guest Post: The Personal Data Protection Bill, 2019: A Constitutional Critique

[This is a guest post by Rahul Nair.]


Introduction

Since 1991, India has seen a rise in digital technology with a concomitant increase in the modalities of surveillance, which includes genetic, biometric, financial, and physical monitoring. Amidst this ever-growing surveillance society that is ably complemented by the exercise of deliberate data penetration of social media, the concept of privacy has gained traction once again, with the need for a robust mechanism to protect it.

A committee of experts headed by Retd. Justice Srikrishna was constituted by the government to develop a consolidated framework for Indian data privacy law. The Committee submitted its report of expert recommendations to the government in 2018, including a draft bill. The 2018 Bill was hardly perfect. Commentators have argued that it granted excessive surveillance and mandated disclosure powers to the State, contrary to international guidelines. The Personal Data Protection Bill, 2019, however, dilutes even the most essential components of the Srikrishna Committee’s Recommendations and significantly regresses privacy rights in India.

Merely two years after the Supreme Court ruled that privacy is a fundamental right, the Personal Data Protection Bill, 2019 was tabled in the Lok Sabha. The tabled Bill purportedly seeks to provide for the protection of the privacy of individuals by, inter alia, establishing a Data Protection Authority of India. Though the Bill appears to formulate a legal framework in the spirit of privacy jurisprudence, a closer look reveals something entirely different.

Wreaking havocs through subtle changes

Section 35 of the Bill, for instance, empowers the Government to grant a carte blanche authorization to any of its agencies to gather personal data, thereby overriding privacy protections and categorically undermining the two main components required to limit an aspiring surveillance state: accountability and transparency. Privacy protections, the Bill states, can be overridden

(i)             in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order; or

(ii)           for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order

The Srikrishna Committee’s Draft Bill, on the other hand, permitted surveillance only if “authorised pursuant to a law” and “in accordance with the procedure established by such law” if “necessary for, and proportionate to, such interests being achieved.” This was in line with the judgment in K.S. Puttaswamy v Union of India, which emphasised that infringements upon privacy must meet the global constitutional standards of proportionality. The 2019 Bill eliminates these procedural restraints and does away with parliamentary or judicial oversight. Moreover, while the draft Bill provided such an exemption to the Government only in the interests of the security of the State, the current Bill further enhances the scope and boundaries of the broad scheme of power the Government enjoys.

The Government’s sweeping power invokes grave privacy concerns, disregards the procedural and content based mandate of Article 21 of the Constitution, and strikes at the very root of the interpretive advance made in the Privacy judgement.

Grabbing the ‘not so’ Anonymised Data

As if this were not unconstitutional enough, the Bill allows the Central Government to collect anonymized “personal” or “non-personal data” from data fiduciaries. Neither term is distinguished nor defined in the bill. This provision is especially alarming in the wake of recent studies, which suggest that no anonymized personal data is protected from re-identification, thus raising a grave concern about confidentiality, privacy, and the ethical use of data. It is hardly a stretch to assume that this Bill, for all practical purposes, might seriously jeopardise the privacy of those set of individuals who espouse political sentiments that the Government may find unfavourable and thereby giving rise to a retributive form of policy making.

Weakening the Watchman

With regard to the Data Protection Authority of India (DPAI), the contrast between the two Bills could not be more pronounced. While the 2018 Bill explicitly stated that the salaries and allowances of the chairperson and members of the DPAI would not be varied to their disadvantage, the current bill gives no such guarantees, hence leaving the matter of financial security, that facilitates independence of such institutions at the discretion of the Central Government. One might recall that a similar change was undertaken in the RTI (Amendment) Act, 2019 as well. Such an act is bound to make the members of the authority subservient to the demands of the government, however bad it may be, instead of protecting the democratic rights of the citizens for which they are employed in the first place.

Another change which is a cause of worry is the substitution of the judicial members in the selection committee, which is responsible for the appointment of the chairperson and the members of the DPAI, as was envisioned in the draft Bill, with the Cabinet Secretary, Law Secretary, and Electronics and Information and Technology Secretary, thereby making it impervious to judicial and expert influence. While the US Supreme Court maintains that judicial authorization is required before the operation of certain kinds of domestic surveillance, the current Bill mentions no such prerequisite. The Bill further fails to grapple effectively against executive overreach and does not stand the scrutiny of the proportionality jurisprudence, i.e., the principle which seeks to safeguard citizens from excessive Government measures.

Conclusion

It wouldn’t be an overstatement to say that this Bill in general and some of its provisions in specific take us down a dangerous road towards the legal legitimising of electronic surveillance. The Bill has a very detrimental effect on data privacy, and instead of mitigating privacy concerns rather exacerbates it, and has veered off from the course that was initially conceptualised. Thus, it is necessary to introduce legal safeguards against such unbridled powers of the executive which is impeding the effective operation of data privacy and corroding the democratic values and the rule of law in the process.

While the government has on various occasions indicated that data protection is a priority, the Bill is a manifest and overwhelming rejection of the idea that there are private digital spaces immune from state intrusion. Instead, the Bill is replete with arbitrary measures that empower the State in direct opposition to the citizen, and in violation of the Right to Privacy Judgment. The present Bill does not enshrine data privacy as a legal right. Instead, it relegates it to a footnote, amenable to every conceivable exception. A right no longer deserves the name if it is a matter of executive convenience.