Call for Papers: Special Issue of the Indian Journal of Law and Technology (on Net Neutrality)

The Indian Journal of Law & Technology of the National Law School of India University (NLSIU), Bangalore, in association with the Centre for Internet and Society, Bangalore is now inviting submissions for its special issue on Net neutrality. Given the contemporary relevance of the theme, this special issue seeks to explore the significance of Net neutrality. We do not intend to restrict ourselves to only legal perspectives, and we are also open to submissions addressing the issue of Net neutrality from the lenses of other disciplines.

About the Journal:

The Indian Journal of Law and Technology (IJLT) is a student-edited, peer-reviewed, completely open access law journal published annually by the National Law School of India University, Bangalore. The IJLT is the first and only law journal in India devoted exclusively to the study of the interface between law and technology.

The journal, as per its mandate, carries scholarship in the areas of intellectual property rights, internet governance, information communication technologies, access to medicines, privacy rights, digital freedoms, openness, telecommunications policy, media law and innovation etc. along with focusing on perspectives on contemporary issues affecting society around the world at the intersection of law, technology, industry and policy.

The previous issues of the IJLT have featured scholarly writings by renowned authors such as William Patry, Justice Michael Kirby, Yochai Benkler, Donald S. Chisum, Justice S. Muralidhar, Benjamin Edelman, Gavin Sutter, Raymond T. Nimmer, John Frow, Christoph Antons, Lawrence Liang and Shamnad Basheer. The Journal is also now indexed on research databases such as WestLaw, HeinOnline, the Legal Information Institute of India and Manupatra.

Scope of the Special Issue:

All submissions falling within the broad ambit of Net neutrality are welcomed. Some of the sub-themes may include:

1. Effect of Net neutrality on Innovation and Competition
2. Privacy Concerns Surrounding Net neutrality
3. Comparison with Legal Framework in International Jurisdictions
4. Legal Framework in India and the Way Forward

This list is merely illustrative and we will also accept submissions on other disciplinary aspects concerning Net neutrality.

Word Limit and Footnoting Style:

1. Submissions may be made in any of the following categories:

• Articles (5000-8000 words)
• Short Articles (3000-5000 words)
• Essays (2000-3000 words)

The above limits are exclusive of footnotes. Substantive footnoting is allowed.

2. The body of the paper shall be in Times New Roman, font size 12, 1.5 line spacing. Footnotes should be in Times New Roman, size 10 single line spacing.
3. Kindly follow Bluebook (19^th edition) style of citation.

Format of Submission:

Please send in your submissions in MS/Open Word (*.doc OR *.docx OR *.odt) to ijltedit@gmail.com along with the following information:

• Full Name of the Author
• Institution
• Position
• Contact Details of the Author

The submissions must also contain an abstract not exceeding 200 words.

Deadline: All submissions must be made on or before 11:59 p.m., September 3^rd, 2015. Please send original, unpublished papers to bothijlt.edit@gmail.com and ijltedit@nls.ac.in

Please feel free to browse our website (www.ijlt.in).

Write to us at ijlt.edit@gmail.com for more information. We look forward to receiving your submissions.

Contact:

Aradhya Sethia: +919986098649

Anumeha Karnatak: +918147592310

Regards,

The Editorial Board,

Indian Journal of Law and Technology, 2015-16.

Net Neutrality and Public Highways

(My thanks to Malavika Prasad for bringing this case to my attention)

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With the recent release of the Telecom Regulatory Authority of India’s [“TRAI”] “Consultation Paper” on the regulatory framework for over-the-top [“OTT”] services, net neutrality is up for sustained debate in India. Previously, I had written about how net neutrality, in the context of the internet, should be understood as a core free speech issue, and it might be helpful to consider the controllers of the “gateways” to the internet (or, in other words, the owners of the infrastructure of speech on the internet) as having public obligations of non-discriminatory access (even though they might be private parties). The idea of public obligations inhering upon private parties because of their control of public infrastructure, or their performing of a public function, has been upheld by the American Supreme Court in Marsh vs Alabama and by the Indian Supreme Court in the concurring judgment of Mohan J. in Unnikrishnan.

In the net neutrality debate this time, another bit of imagery has been doing the rounds: that of a public highway. It is permissible to charge a toll for the use of a highway, the rate of which might be proportional to how much one uses – so goes the analogy – but it is impermissible to charge differential toll rates based upon the make of the car you drive, or depending upon whether you’re going to work, or to vacation.

This is a particularly interesting analogy, because, as it turns out, the Indian Supreme Court has ruled upon precisely this point: that of non-discriminatory access to public highways. Saghir Ahmed vs State of UP, decided in 1954 by a five-judge bench, involved a constitutional challenge to the UP Road Transport Act, which allowed the State government to take exclusive control of running and operating road transport services within the state, if it believed such a step to be necessary in the public interest. Or, in other words, it allowed the State government to create a transport monopoly by executive fiat – which it actually did, for a part of the road network.

In deciding upon the validity of the State government notification, as well as the constitutionality of the Act, the Court noted:

“According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public . In the large majority of cases this dedication is presumed from long and uninterrupted user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner was.“

In response to the Attorney-General’s argument that the rights of commercial passage over a highway were determined by the Motor Vehicles Act, the Court observed:

“But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State.”

A few things ought to be noted:

(1) Although Saghir Ahmed was a case about State action, and consequently, implicated the petitioners’ Article 19(1)(g) and 14 rights, the Court’s logic here is based upon the nature of the utility (public highway) rather than the nature of the owner. In the first excerpted paragraph, the Court makes it clear that the question of ownership is immaterial, since whatever property rights the owner has, he is deemed to have intended to give up his right to the extent that passage requires.

(2) The power of the State to control and regulate the public utility must be for the purposes of ensuring safety, peace, health and morals.

(3) The nature of the use of the public utility (i.e., in this case, whether commercial or for pleasure) does not affect the scope of the right of use in any way.

(4) The right stems from long and uninterrupted prior use, presumably stretching back to the beginning of road networks, and consequently, being somehow part of the very nature, or essential characteristic, of a “road”.

Note the striking similarities with the net neutrality debate, with respect to each of the elements. There is, of course, a danger with pushing any analogy too far, but the vocabulary of the TRAI Consultation Paper itself conjures up an image of the internet “highway”. In paragraph 2, it states:

“The term over-the-top (OTT) refers to applications and services which are accessible over the internet and ride on operators’ networks offering internet access services e.g. social networks, search engines, amateur video aggregation sites etc.”

And, in para 3:

“Carriage is separated from content in internet networks, enabling OTT content and application service providers to deal directly with end users.”

A full elaboration, of course, would need significant unpacking. What, precisely, is the public highway here? Is it the spectrum? And is the argument then that a spectrum auction by the original owner (i.e., the government) does not carry with it complete rights of ownership, but rather, attendant obligations that act as limits upon those rights. One of those obligations being to provide non-discriminatory access to a public utility, whose public character remains unchanged despite the ownership being in private hands. Of course, such an argument would also need to establish the analogy between roads and the internet, both in terms of their public character (perhaps not so difficult), and the establishment of a right of non-discriminatory access through a long period of uninterrupted usage (perhaps harder in the case of the internet).

 

Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy

(This post first appeared on the CIS blog, here)

In the modern State, effective exercise of free speech rights is increasingly dependent upon an infrastructure that includes newspapers, television and the internet. Access to a significant part of this infrastructure is determined by money. Consequently, if what we value about free speech is the ability to communicate one’s message to a non-trivial audience, financial resources influence both who can speak and, consequently, what is spoken. The nature of the public discourse – what information and what ideas circulate in the public sphere – is contingent upon a distribution of resources that is arguably unjust and certainly unequal.

There are two opposing theories about how we should understand the right to free speech in this context. Call the first one of these the libertarian conception of free speech. The libertarian conception takes as given the existing distribution of income and resources, and consequently, the unequal speaking power that that engenders. It prohibits any intervention designed to remedy the situation. The most famous summary of this vision was provided by the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo: “the concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.” This theory is part of the broader libertarian worldview, which would restrict government’s role in a polity to enforcing property and criminal law, and views any government-imposed restriction on what people can do within the existing structure of these laws as presumptively wrong.

 

We can tentatively label the second theory as the social-democratic theory of free speech. This theory focuses not so much on the individual speaker’s right not to be restricted in using their resources to speak as much as they want, but upon the collective interest in maintaining a public discourse that is open, inclusive and home to a multiplicity of diverse and antagonistic ideas and viewpoints. Often, in order to achieve this goal, governments regulate access to the infrastructure of speech so as to ensure that participation is not entirely skewed by inequality in resources. When this is done, it is often justified in the name of democracy: a functioning democracy, it is argued, requires a thriving public sphere that is not closed off to some or most persons.

Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In Red Lion v. FCC, while upholding the “fairness doctrine”, which required broadcasting stations to cover “both sides” of a political issue, and provide a right of reply in case of personal attacks, the Supreme Court noted:

“[Free speech requires] preserv[ing] an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”

What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In Sakal Papers v. Union of India, for example, it struck down certain newspaper regulations that the government was defending on grounds of opening up the market and allowing smaller players to compete, holding that Article 19(1)(a) – in language similar to what Buckley v. Valeo would hold, more than fifteen years later – did not permit the government to infringe the free speech rights of some in order to allow others to speak. The Court continued with this approach in its next major newspaper regulation case,Bennett Coleman v. Union of India, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “it is no use having a right to express your idea, unless you have got a medium for expressing it”, Justice Mathew went on to hold:

“What is, therefore, required is an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.”

 

In Justice Mathew’s view, therefore, freedom of speech is not only the speaker’s right (the libertarian view), but a complex balancing act between the listeners’ right to be exposed to a wide range of material, as well as the collective, societal right to have an open and inclusive public discourse, which can only be achieved by preventing the monopolization of the instruments, infrastructure and access-points of speech.

Over the years, the Court has moved away from the majority opinions in Sakal Papers and Bennett Coleman, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in Union of India v. The Motion Picture Association, the Court upheld various provisions of the Cinematograph Act that imposed certain forms of compelled speech on moviemakers while exhibiting their movies, on the ground that “to earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it.”

LIC v. Manubhai D. Shah is even more on point. In that case, the Court upheld a right of reply in an in-house magazine, “because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” This goes even further than Justice Mathew’s dissent in Bennett Coleman, and the opinion of the Court in Motion Picture Association, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a requirementof Article 19(1)(a).

We can now bring the threads of the separate arguments in the three posts together. In the first post, we found that public law and constitutional obligations can be imposed upon private parties when they discharge public functions. In the second post, it was argued that the internet has replaced the park, the street and the public square as the quintessential forum for the circulation of speech. ISPs, in their role as gatekeepers, now play the role that government once did in controlling and keeping open these avenues of expression. Consequently, they can be subjected to public law free speech obligations. And lastly, we discussed how the constitutional conception of free speech in India, that the Court has gradually evolved over many years, is a social-democratic one, that requires the keeping open of a free and inclusive public sphere. And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere. A combination of these arguments provides us with an arguable case for imposing obligations of net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded within the constitutional guarantee of the freedom of speech and expression.

Net Neutrality, Free Speech and the Indian Constitution – II: Private parties, public obligations

(This post first appeared on the CIS website, here)

To sum up the previous post: under Article 12 of the Constitution, fundamental rights can be enforced only against the State, or State-like entities that are under the functional, financial and administrative control of the State. In the context of net neutrality, it is clear that privately-owned ISPs do not meet the exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has held private entities, which do not fall within the contours of Article 12, to an effectively similar standard of obligations under Part III as State organizations in certain cases. Most prominent among these is the case of education: private educational institutions have been required to adhere to standards of equal treatment which are identical in content to Article 14, even though their source lies elsewhere. If, therefore, we are to impose obligations of net neutrality upon private ISPs, a similar argument must be found.

I will suggest that the best hope is by invoking the free speech guarantee of Article 19(1)(a). To understand how an obligation of free speech might operate in this case, let us turn to the case of Marsh v. Alabama, an American Supreme Court case from 1946.

Marsh v. Alabama involved a “company town”. The “town” of Chickasaw was owned by a private company, the Gulf Shipbuilding Corporation. In its structure it resembled a regular township: it had building, streets, a sewage system, and a “business block”, where stores and business places had been rented out to merchants and other service providers. The residents of the “town” used the business block as their shopping center, to get to which they used the company-owned pavement and street. Highway traffic regularly came in through the town, and its facilities were used by wayfarers. As the Court noted:

“In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Marsh, who was a Jehovah’s Witness, arrived in Chickasaw with the intention of distributing religious literature on the streets. She was asked to leave the sidewalk, and on declining, she was arrested by the police, and charged under an anti-trespassing statute. She argued that if the statute was applied to her, it would violate her free speech and freedom of religion rights under the American First Amendment. The lower Courts rejected her argument, holding that since the street was owned by a private corporation, she had no constitutional free speech rights, and the situation was analogous to being invited into a person’s  private house. The Supreme Court, however, reversed the lower Courts, and found for Marsh.

Four (connected) strands of reasoning run through the Supreme Court’s (brief) opinion. First, it found that streets, sidewalks and public places have historically been critically important sites for dissemination and reception of news, information and opinions, whether it is through distribution of literature, street-corner oratory, or whatever else. Secondly, it found that private ownership did not carry with it a right to exclusive dominion. Rather, “the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” Thirdly, it noted that a large number of Americans throughout the United States lived in company towns, and acted just as other American citizens did, in their duties as residents of a community. It would therefore be perverse to deny them rights enjoyed by those who lived in State-municipality run towns. And fourthly, on balance, it held that the private rights of property-owners was subordinate to the right of the people to “enjoy freedom of press and religion.”

No one factor, then, but a combination of factors underlie the Court’s decision to impose constitutional obligations upon a private party. It mattered that, historically, there have been a number of spaces traditionally dedicated to public speech: parks, squares and streets – whose public character remained unchanged despite the nature of ownership. It mattered that individuals had no feasible exit option – that is, no other place they could go to in order to exercise their free speech rights. And it mattered that free speech occupied a significant enough place in the Constitutional scheme so as to override the exclusionary rights that normally tend to go with private property.

The case of the privately-owned street in the privately-owned town presents a striking analogy when we start thinking seriously about net neutrality. First of all, in the digital age, the traditional sites of public discourse – parks, town squares, streets – have been replaced by their digital equivalents. The lonely orator standing on the soap-box in the street corner now tweets his opinions and instagrams his photographs. The street-pamphleteer of yesteryear now updates his Facebook status to reflect his political opinions. Specialty and general-interest blogs constitute a multiplicity of town-squares where a speaker makes his point, and his hearers gather in the comments section to discuss and debate the issue. While these examples may seem frivolous at first blush, the basic point is a serious one: the role of opinion formation and transmission that once served by open, publicly accessible physical infrastructure, held – in a manner of speaking – in public trust by the government, is now served in the digital world, under the control of private gatekeepers. To that extent, it is a public function, undertaken in public interest, as the Court held in Marsh v. Alabama.

The absence of an exit option is equally important. The internet has become not only a space of exchanging information, but it has become a primary – non-replaceable source – of the same. Like the citizens of Chickasaw lacked a feasible alternative space to exercise their public free speech rights (and we operate on the assumption that it would be unreasonably expensive and disruptive for them to move to a different town), there is now no feasible alternative space to the internet, as it exists today, where the main online spaces are owned by private parties, and access to those spaces is determined by gatekeepers – which are the ISPs.

The analogy is not perfect, of course, but there is a case to be made that in acting as the gatekeepers of the internet, privately-owned ISPs are in a position quite similar to the corporate owners of they public streets Company Town.

In the last post, we saw how it is possible – constitutionally – to impose public obligations upon private parties, although the Court has never made its jurisprudential foundation clear. Here, then, is a thought: public obligations ought to be imposed when the private entity is providing a public function and/or when the private entity is in effectively exclusive control of a public good. There is an argument that ISPs satisfy both conditions. Of course, we need to examine in detail how precisely the rights of free expression are implicated in the ISP context. That is the subject for the next post.

Net Neutrality, Free Speech and the Indian Constitution – I

(This piece first appeared on the CIS website, here)

Net neutrality is rapidly becoming one of the most important issues facing internet governance and internet freedom today, and it is quite likely that it will soon raise issues of law and legal policy in India. In this post (and the next), I will discuss net neutrality, free speech and the Indian Constitution.

I will not here go into the debates surrounding the multiple meanings of the concept of “net neutrality” but take, for the purposes of this post, the following definition:

“The idea that all Internet traffic should be treated equally is known as network neutrality. In other words, no matter who uploads or downloads data, or what kind of data is involved, networks should treat all of those packets in the same manner.”

In other words, put simply, net neutrality requires the extant gatekeepers of the internet – such as, for instance, broadband companies – to accord a form of equal and non-discriminatory treatment to all those who want to access the internet. Examples of possible discrimination – as the quote above illustrates – include, for instance, blocking content or providing differential internet speed (perhaps on the basis of a tiered system of payment for access).

Net neutrality has its proponents and opponents, and I do not have space here to address that dispute. This post – and the next – are premised on the assumption that net neutrality is both an important and a desirable goal (this brief article in the Times of India provides a decent, basic primer on the stakes involved).

An example of net neutrality in practice is the American Federal Communications Commission’s Open Internet Order of 2010, which was the subject of litigation in the recently concluded Verizon v. FCC. The Open Internet order imposed obligations of transparency, no blocking, and no unreasonable discrimination, upon internet service providers. The second and third requirements were vacated by a United States Court of Appeals. The rationale for the Court’s decision was that ISPs could not be equated, in law, to “common carriers”. A common carrier is an entity that offers to transport persons and/or goods in exchange for a fee (for example, shipping companies, or bus companies). A common carrier is licensed to be one, and often, one of the conditions for license is an obligation not to discriminate. That is, the common carrier cannot refuse to carry an individual who is willing and able to pay the requisite fees, in the absence of a compelling reason (for example, if the individual wishes the carrier to transport contraband). Proponents of net neutrality have long called for treating ISPs as common carriers, a proposition – as observed above – was rejected by the Court.

With this background, let us turn to India. In India, internet service providers are both state-owned (BSNL and MTNL), and privately-owned (Airtel, Spectranet, Reliance, Sify etc). Unlike many other countries, however, India has no network-neutrality laws. As this informative article observes:

“The Telecom Regulatory Authority of India (TRAI), in its guidelines for issuing licences for providing Unified Access Service, promotes the principle of non-discrimination but does not enforce it… the Information Technology Act does not provide regulatory provisions relating to Internet access, and does not expressly prohibit an ISP from controlling the Internet to suit their business interests.”

In the absence of either legislation or regulation, there are two options. One, of course, is to invoke the rule of common carriers as a common law rule in court, should an ISP violate the principles of net neutrality. In this post (and the next), however, I would like to analyze net neutrality within a constitutional framework – in particular, within the framework of the constitutional guarantee of freedom of speech and expression.

In order to do so, two questions become important, and I shall address them in turn. First, given that most of the ISPs are privately owned, how does the Constitution even come into the picture? Our fundamental rights are enforceable vertically, that is, between individuals and the State, and not horizontally – that is, between two individuals, or two private parties. Where the Constitution intends to depart from this principle (for instance, Article 15(2)), it specifically and expressly states so. As far as Article 19 and the fundamental freedoms are concerned, however, it is clear that they do not admit of horizontal application.

Yet what, precisely, are we to understand by the term “State”? Consider Article 12: 

“In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The key question is what, precisely, falls within the meaning of “other authorities”. The paradigmatic example – and this is something Ambedkar had in mind, as is evidenced by the Constituent Assembly Debates – is the statutory corporation – i.e., a company established under a statute. There are, however, more difficult cases, for instance, public-private partnerships of varying types. For the last fifty years, the Supreme Court has struggled with the issue of defining “other authorities” for the purposes of Part III of the Constitution, with the pendulum swinging wildly at times. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a 2002 judgment by a Constitution bench, the Court settled upon the following definition:

“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”

Very obviously, this dooms the ISP argument. There is no way to argue that ISPs are under the pervasive financial, functional and administrative domination or control of the State. If we step back for a moment, though, the Pradeep Kumar Biswas test seems to be radically under-inclusive. Consider the following hypothetical: tomorrow, the government decides to privatize the nation’s water supply to private company X. Company X is the sole distributor of water in the country. On gaining control, it decides to cut off the water supply to all households populated by members of a certain religion. There seems something deeply wrong in the argument that there is no remedy under discrimination law against the conduct of the company.

The argument could take two forms. One could argue that there is a certain minimum baseline of State functions (ensuring reasonable access to public utilities, overall maintenance of communications, defence and so on). The baseline may vary depending on your personal political philosophy (education? Health? Infrastructure?), but within the baseline, as established, if a private entity performs a State function, it is assimilated to the State. One could also argue, however, that even if Part III isn’tdirectly applicable, certain functions are of a public nature, and attract public law obligations that are identical in content to fundamental rights obligations under Part III, although their source is not Part III.

To unpack this idea, consider Justice Mohan’s concurring opinion in Unnikrishnan v. State of Andhra Pradesh, a case that involved the constitutionality of high capitation fees charged by private educational institutions. One of the arguments raised against the educational institutions turned upon the applicability of Article 14’s guarantee of equality. The bench avoided the issue of whether Article 14 directly applied to private educational institutions by framing the issue as a question of the constitutionality of the legislation that regulated capitation fees. Justice Mohan, however, observed:

“What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly. In such a case, it will be subject to Article 14.”

In light of Pradeep Kumar Biswas, it is obviously difficult to hold the direct application of the Constitution to private entities. We can take Justice Mohan, however, to be making a slightly different point: performing what are quintessentially public duties attract certain obligations that circumscribe the otherwise free action of private entities. The nature of the obligation itself depends upon the nature of the public act. Education, it would seem, is an activity that is characterized by open and non-discriminatory access. Consequently, even private educational institutions are required to abide by the norms of fairness articulated by Article 14, even though they may not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the constitutional text. Again, the content of the obligation is the same, but its source (the constitutional text, as opposed to norms of public law) is different.

We have therefore established that in certain cases, it is possible to subject private entities performing public functions to constitutional norms without bringing them under Article 12’s definition of the State, and without the need for an enacted statute, or a set of regulations. In the next post, we shall explore in greater detail what this means, and how it might be relevant to ISPs and net neutrality.

Guest Post: An Executive Court and a Judicial Committee: The Supreme Court’s Decisions on the Internet Restrictions in Kashmir

[This is a guest post by Chintan Chandrachud, on the Supreme Court’s decision in the 4G Internet case. Mihir’s analysis of the judgment on this blog can be found here.]

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On 11 May, the Supreme Court issued its decision in a case challenging the restriction on mobile internet speed in Jammu and Kashmir. The Court neither decided whether the restriction was unconstitutional nor issued a remedy. Instead, it referred the matter to a three member special committee. The Supreme Court’s decision on 11 May was a sequel to its decision of 10 January 2020. At 149 pages collectively, the Court’s decisions are relatively brief by its standards. However, they are far more revealing about the role of the Court than many other decisions of greater length and complexity.

On 4 August 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of Jammu and Kashmir, in anticipation of the constitutional changes that would follow. (As is well known, these “virtual” restrictions – frequently described as the “communications lockdown” – were also accompanied by restrictions on physical movement, with several political leaders being placed under house arrest.) The communications lockdown was imposed under the Temporary Suspension of Telecom Services Rules (“Suspension Rules”), which enable the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The Suspension Rules included a mechanism for solitary review (rather than periodic review) of suspension orders. A committee of three bureaucrats would meet once, within five days of the relevant suspension order, to determine if it was appropriate.

In its decision of 10 January, the Court addressed the question of whether the suspension orders that had been passed since 4 August 2019 – which were the pieces of the puzzle constituting the communications lockdown – were unconstitutional. In arriving at its decision, the Court prescribed a series of important principles. Even though the Suspension Rules did not specifically require their publication, the Court held that suspension orders should be published going forward. It replaced the solitary review mechanism with a periodic review mechanism – in which the review committee would be required to meet every seven days to assess the appropriateness of suspension orders. The Court also concluded that blanket suspension orders (either in terms of the duration of time for which they applied or in terms of their geographic application) would not be constitutionally permissible. However, the Supreme Court failed to decide the most important issue – whether the suspension orders were constitutionally invalid and should be set aside. This was nothing short of an abdication of responsibility. It is no coincidence that the right that guarantees direct access to the Supreme Court when fundamental rights are violated refers to “remedies for enforcement of rights”. The Court may have recognised the rights at stake, but failed to enforce them and award a remedy.

Following the Court’s decision, a review committee of three state-level bureaucrats met periodically to consider fresh suspension orders that gradually narrowed the scope of the lockdown. Fixed-line internet connectivity was restored (first for essential services and hospitals, later for software companies, and ultimately more widely). Access to social media websites was gradually reinstated. However, elements of the thirteen suspension orders passed between the Supreme Court’s decisions of January and May seemed vulnerable to constitutional scrutiny. For example, between 14 January and 4 March, the suspension orders imposed a “white-listing” regime, under which only specifically white-listed websites could be accessed through the internet. This resulted in some arbitrary inclusions and exclusions, and an abandonment of the basic principles of net neutrality. In addition, mobile internet has continued to remain restricted to 2G speeds, well below the 4G speeds that would otherwise be available.

The restriction on speed of mobile internet was addressed in the Supreme Court’s judgment of 11 May. It is easy to typecast this as a narrow restriction (slow internet versus fast internet). Examined more closely, however, this is a question of access rather than speed. Imagine using applications designed for 2020 on a mobile internet connection that is in healthy competition with dial-up internet of the 1990s. The constitutional challenge was framed with a focus on the impact of the restriction. It was argued that the restriction hindered doctors and the general public from accessing information on COVID-19, and students from accessing educational material and literature when classes in physical classrooms were not taking place. The government argued that the restriction was in the interests of national security, and was directed towards reducing misuse of the internet by terrorists and militants.

In what was virtually an action replay of its decision in January, the Supreme Court refused to determine the constitutional validity of the restriction. Even if the decision of 10 January were to be justified on the basis that the Court established a new periodic review mechanism which would consider the appropriateness of suspension orders going forward, that rationale was now no longer available. The restriction that was challenged was a product of the new review mechanism, and the Court was tasked with determining if it was unconstitutional. Instead of doing so, the Court set up yet another review committee – this time consisting of a combination of national and state level bureaucrats – to “examine the contentions” of the parties and determine whether the restriction is appropriate. To be sure, the Court did not ask the committee to report back to it with its analysis. The petitions have been disposed of, and it is the committee that will be deciding the propriety of the restriction. To state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to the executive.

Equally disconcerting as the Supreme Court’s delegation of authority, however, is its assumption of responsibility. The Court opens its judgments of 10 January and 11 May with the surprising observation that it is the Court’s role to strike a “balance” between “liberty and security”. It is easy to understand why any Court would veer towards security over liberty when the question is framed in this way. However, this framing is at odds with the Court’s role as an independent decision-maker. Neither proportionality nor reasonableness review requires the Court to be saddled with the responsibility of “striking a balance” between liberty and security. That is plainly the job of a democratically elected government. The Court’s role is simply to determine, applying the principles articulated in its 10 January decision, whether the balance that has already been struck by the government is constitutionally permissible.

If the Supreme Court is once again called upon to determine the constitutionality of the restrictions on communication, it should not only take back the adjudicative mantle, but also hand over the executive one.

Content Neutrality and Free Speech as a Social Good

While discussing the Court’s newspaper regulation cases in the previous few posts, we noticed that in Sakal Papers and in Bennett Coleman, the Court accepts the unregulated marketplace as an a priori background condition within which the right to freedom of speech operates, and not something that may itself be subject to change or modification in the interests of free speech. In a separate line of cases, however, this view has been emphatically rejected. Unsurprisingly, these cases have to do with the second and third conceptions of free speech latent in Justice Mathew’s dissenting opinion in Bennett Coleman, that we discussed in the last post: free speech as a social good, promoting a rich, substantive conception of democracy; and free speech as the right of the hearers/listeners (the community) to have access to a wide range of ideas and opinions. It is easy to see why this is at odds with the unregulated-marketplace viewpoint: an unregulated marketplace possesses no safeguards against monopoly (indeed, if you were a Marxist, you would argue that any unregulated marketplace necessarily tends towards a monopoly), and a monopoly over ideas is something both the substantive-democracy justification as well as the community-right justification simply cannot abide. The goal of both these justifications is an end-state in which there is a certain variety of ideas accessible in the public domain; and the market is an instrument (as opposed to being an end in itself) that is used to achieve that end-state, with whatever influence or interference necessary to bring the end-state about.

Union of India v. The Motion Picture Association (1999) is a classic case on point. In that case, various provisions of the Cinematograph Act permitted the Government to “issue directions to… [cinema] licensees that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films have to be exhibited by the licensee along with the other films which the licensee is exhibiting.” In other words, this was a case of content-specific compulsory speech. The Court rejected the 19(1)(a) challenge in the following words, which deserve to be quoted in full:

“…. the best way by which ideas can reach this large body of uneducated people is through the entertainment channel which is watched by all – literate and illiterate alike. To earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it. None of these statutory provisions require the exhibitor to show a propaganda film or a film conveying views which he objects to. In fact, the exhibitors have not raised any objection to the contents of the films which they are required to show. They, however, contend that one of the important requirements for upholding such compulsory speech in the United States is that such speech should be content-neutral. While in the present case, the contents of the compulsory films are specified in the legislation concerned. In the context of Article 19(1) what we have to examine is whether the categories of films so required to be carried promote dissemination of information and education or whether they are meant to be propaganda or false or biased information. The statute quite clearly specifies the kinds of films which promote dissemination of knowledge and information.” (Paragraph 18)

Two things stand out in this paragraph. First, the Court disclaims the language of community rights, using instead the vocabulary of free speech as a social good: the goal is “informed debate… on public issues”. That is why the public ought to have access to ideas, information and knowledge – not because they have a right to it. Is the distinction important? Yes it is, for precisely the same reason that, in our very first post on Sakal Papers, we highlighted with respect to the instrumental/intrinsic justifications for free speech: on this reasoning, the Court ends up creating hierarchies of free speech, singling out for special treatment those instances that promote the said “informed debate… on public issues.” This, as we have seen before, in practice, amounts to nothing more than a line in the sand, and it is extremely difficult to apply it in a principled and consistent fashion.

Secondly – and more interestingly – the Court rejects the cardinal principle of American free speech jurisprudence: content-neutrality. Indeed, the Court could not possibly accept it, because to advocate a diversity of views is by definition to endorse a certain kind of content-regulation. What the Court does subscribe to – as is eveident from the last part of the quoted paragraph – is a softer principle that – for want of a better word – we can tentatively label “ideological neutrality”. Now, there are two objections to this holding of the Court’s. First, it is an open question whether “ideological neutrality” is even a coherent idea. The last eighty years of continental philosophy cast serious doubt upon that proposition. We know from Gramsci, for instance (to take just one example) that what we treat as “common sense”, something given and “natural”, is actually shot through with ideology and presuppositions that aren’t actually natural or necessary. Unlike the concept of content-neutrality, therefore, the Court’s hybrid principle might not have a strong philosophical foundation. And secondly, even if ideological neutrality does exist, why must it be enforced if we subscribe to a marketplace with access to a true range of diverse ideas? Suppose tomorrow all newspapers and television channels take an editorial decision to support the FDI-in-Retail-Policy, effectively excluding the contrary viewpoint from the public sphere. If the government now takes active measures to introduce the other side – admittedly, derivative and emblematic of a certain political ideology – into the so-called market, then is it inconsistent with the idea of democracy that the Court expounded upon? Whatever the independent principled justification and pragmatic wisdom of such a move, I suggest that it is entirely in keeping with the vision of democracy as playing host to a truly diverse range of viewpoints that the Court itself endorses.

LIC v. Manubhai D. Shah (1993), which was actually decided a few years earlier, puts the issue in clearer perspective. In that case, the Respondent published a study-paper pointing out various lapses in LIC’s insurance policy; an LIC official published a counter in The Hindu, and the Respondent published a rejoinder to the counter in the same newspaper. The LIC official’s counter was also published in LIC’s in-house magazine, but the Respondent’s request that his rejoinder be published there was rejected. It was this decision that he challenged. The Court upheld the challenging, observin that:

“Such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” (paragraph 12)

It is of course, not very clear how it is my right that you should have a balanced picture of anything. It is safe to surmise on a reading of the case as a whole, however, that the Court was referring – in the vein of the Motion Picture Case – to a community goal of providing a balanced account of any contentious issue to the public. Yet what is of importance here is to note, again, how ideological neutrality is an extremely difficult concept to pin down. Here, the Court’s argument is that the rejoinder must be published to reach an overall balance of opinion. But if that is the case, then what differentiates our earlier hypothetical of promoting ideologically-loaded content which has otherwise been excluded – for whatever reason – from the public sphere?

In any event, for obvious reasons, the Supreme Court’s decisions in Manubhai D. Shah and in Motion Pictures Association are in tension with its decisions in Sakal Papers and in Bennett Coleman, because the idea of free speech as a social good and as a community right must necessarily conflict with an individual-rights view. The jurisprudence of the Supreme Court on this point is conflicted; we must therefore look beyond it to see which set of principles corresponds to the philosophy of our Constitution as a whole.

Sedition as Anti-Democratic Speech: The Paradox of Liberal Neutrality?

Let us briefly sum up the conclusions of our last post on sedition:

In Kedar Nath Singh, Section 124A was challenged as being violative of Art. 19(1)(a). Naturally, the Court could not have found that the test for sedition was broader than what Article 19(2) permitted. Nonetheless, there were three ways in which the Court could have effectively hamstrung any Article 19(2) barriers, and allowed the executive a free rein in the application of the sedition law:

(a) The Court could have held that seditious speech does not come within the protection of Article 19(1)(a) at all (as it did for commercial speech in Hamdard Dawakhana and – as we shall see subsequently – it has done in a case involving the flying of the Indian flag).

(b) The Court could have created a legal fiction by holding that inciting disaffection, or feelings of enmity, or of disloyalty (as per S. 124A) is deemed to proximately disrupt public order

(c) The Court could have weakened the public order test itself, holding that feelings of disaffection could conceivably affect public order by promoting disobedience towards the government, and that that is enough, considering the wide import of the phrase “in the interests of public order” (an argument used too many times to count, on behalf of the State).

As we have seen, the Court came dangerously close to both (b) and (c), but ultimately affirmed the existing interpretation of Article 19(2), and by implication, affirmed the strong protection of free speech. The law on sedition, therefore, is clear and unambiguous. Legally, there is no doubt that instances such as those of Aseem Trivedi, the 8000 sedition cases filed against the protesters at Koodankulam, Arundhati Roy’s arrest, and countless others are blatant abuses of law. It is submitted that a legislation that serves no discernible purpose (as argued in the previous post), and is regularly used as a tool for political persecution, has no business being on the statute books. It must go.

Let us now, however, examine another issue that arose out of the Kedar Nath Singh case, but one that has received comparatively little attention. In Paragraph 36, the Court stated:

“Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

This is framed somewhat curiously. Presumably, my inciting disaffection against the ruling UPA Government does not amount to sedition, because the UPA only consists of people “for the time being engaged in carrying on the administration.” Who – or what – then, do I have to incite disaffection against in order to qualify as seditious? Is it the government as an abstraction, as a concept? Perhaps my target must be the institution of government, as governance is practiced in India – in other words, (liberal?) democracy – that is, liberal democracy embodied by the elements of our Constitution’s basic structure.

We may now describe the alleged paradox at the heart of liberal political theory. As we have discussed in many of the previous posts, political liberalism’s central tenet is neutrality – neutrality between competing conceptions of the good, between opposite ideas of what Rawls calls “comprehensive theories” – that is theories about what is good, true and beautiful, and how one ought to live one’s life. Now, if that was true, then political liberalism itself is merely one comprehensive theory, and cannot take either epistemic or moral priority over the others. And that, in turn, would imply that if I use liberal institutions to assume political power, and then systematically dismantle those very institutions, then liberalism itself gives no argument to stop me – for that would amount to privileging one conception of the good (liberalism itself) over others (say, fascism).

States that claim to be politically liberal have struggled with this issue for years. In the United States, Justice Holmes’ “clear and present danger” test, enunciated in Schenck v. United States, was notoriously used by the Supreme Court during the McCarthy era, to suppress communist-leaning entities (see, in particular, Dennis v. United States), before being narrowed to an “incitement to imminent lawless action” test by Justice Douglas in Brandenburg v. Ohio. It is interesting to note that Dennis, in particular, involved the advocacy of a philosophy that is explicitly hostile to political liberalism, but because of American free speech philosophy’s commitment to content neutrality, the ground of the decision, ultimately, was something akin to preserving public order.

Now compare this with a decision of the European Court of Human Rights (Refah Partisi v. Turkey) and the Israeli Supreme Court (Neiman v. Election Committee), and Article 21.2 of the German Basic Law. Refah Partisi was a Turkish political party that claimed, as part of its manifesto, its commitment to the abolition of secularism, the imposition of sharia law and the creation of a theocracy in Turkey. The Turkish Constitutional Court dissolved the party. The case went up in appeal to the ECHR, which held that if a political party wishes to change the legal and constitutional structure of the State, “the change proposed must itself be compatible with fundamental democratic principles.” Sharia law, it held, was not so compatible, and it also held that political parties could be forestalled from such action by their dissolution before they came to power, as long as the need was perceived to be urgent. In Neiman, the Israeli Supreme Court, apparently influenced by John Rawls’ insistence on the need to “tolerate the intolerant”, set a higher bar of “negating the existence of the State of Israel as one of its goals” as sufficient grounds for dissolving a political party. How a political party, using political mechanisms to assume political power can simultaneously negate the very existence of the State that it seeks to govern is, however, somewhat unclear. And lastly, consider Article 21.2 of the German Basic Law, stating that parties who “seek to undermine or abolish the free democratic basic order” are unconstitutional.

Are the ECHR and Israeli decisions, and German Constitutional provision, then, philosophically justified? Laurence Tribe is clear that they are not, arguing that:

“It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions – just as it must permit evolution from communitarianism to individualism.”

Rawls and Popper, on the other hand, argue strongly that in order for a liberal society to survive, it must set limits on what it is willing to tolerate. But this leads precisely to the paradox that we outlined above – and the mere statement that liberalism will be destroyed by untrammeled toleration of the intolerant, while emotively powerful, for the reasons described above, remains philosophically unsatisfactory.

Joseph Raz does indeed take a stab at a philosophical justification. Eschewing neutrality as the defining feature of liberalism, he focuses instead on autonomy – that is, the range of worthwhile choices open to an individual to make towards the shaping of his life. For Raz, coercion (read, banning of free speech) amounts to a loss of autonomy, since it restricts a person’s range of choices; hence, it can only be justified on the grounds of a corresponding autonomy gain. A Razian would thus argue that if a thriving democracy provides maximal autonomy for all its citizens, than the autonomy loss in restricting speech for the purpose of preserving the democratic order is justified. Of course, one may have philosophical disagreements with Raz’s conception of autonomy, with his distinct flavour of autonomy-utilitarianism, but that is a debate for another day.

These issues have not yet – to my knowledge – been tested on the touchstone of the Indian Constitution. Perhaps, one day, for instance, if a party with the agenda of turning India into a ‘Hindu Rashtra‘ comes to power, they will become particularly pertinent. For now, these arguments form an important piece of the puzzle in determining whether the Indian Constitution is committed to political liberalism – and whether it should be.

The Supreme Court’s Marriage Equality Judgment – IV: Between Gendered and Neutral Approaches – Untying the Bench’s Self-Made Knots [Guest Post]

[This is a guest post by Mihir Rajamane and Deeksha Viswanathan.]

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When the Supreme Court denied queer people the right to access the institution of marriage or its benefits in Supriyo v Union of India, it phrased the question as one of gender-neutral interpretation. In paragraphs 101-2 of the majority judgement, Bhat J says, ‘Gender neutral interpretation, much like many seemingly progressive aspirations, may not really be equitable at times and can result in women being exposed to unintended vulnerability’. This framing suggests a ‘conflict’ between a queer demand for gender neutrality and a feminist demand for gender protection. But does this actually reflect what feminists and queer people demand? We argue that it does not, challenging the ‘queer vs. feminist’ frame, and instead centring a ‘queer-feminist’ frame.

The Hearings

For an hour on Day 6 of the Arguments, Solicitor General Tushar Mehta illustrated precisely this ‘conflict’. For example, grounds for divorce are different for men and women, and provisions for domestic violence and sexual violence under the Domestic Violence Act and Indian Penal Code are also gendered. SG Mehta asked, and Bhat J echoes him, if the demand for marriage equality means that ‘man’ and ‘woman’ be replaced with ‘person’, then will these other laws lose their value and become unworkable? 

Pitching this as a conflict, however, is a rhetorical device which is incongruous with what queer people have actually asked of the Court. After hearing the concerns of the bench, counsel for the petitioners – particularly Senior Advocate Abhishek Manu Singhvi – clarified in distinct terms that they do not demand blanket gender-neutral interpretations: a balance can be struck between the need for gender neutrality and gendered laws. Here, we provide the theoretical framework for arriving at that balance, drawing on well-established constitutional concepts. Ultimately, we argue that the ‘conflict’ relied on to deny queer people marriage equality could have easily been resolved.

Equitable Gendered Measures for Gendered Social Realities

At the outset, we should remember that this ‘conflict’ is not new. When the 172^nd Law Commission Report recommended gender neutral sexual violence laws, feminist scholar Flavia Agnes raised an important intervention: there is little sociological concern in India of women perpetrating sexual violence against men. A gender-neutral rape law would risk obscuring the fact that rape is a crime that takes place in the context of a phallocentric, heteronormative and gender-oppressive society. Gender-neutrality could only lead to the State’s increased regulation of sex against the interest of women. Rather, Agnes recommended that the preferable path would be to enact separate sexual violence laws where specific social realities require them.

For example, rape under section 375 of the Indian Penal Code applies to a man who has non-consensual intercourse with a woman. The POCSO Act punishes rape by men and sexual assault by anyone against minor children regardless of gender. Section 377, on the other hand, applies in case of non-consensual intercourse between two men – though the language remains problematic. This allows for specific laws with specific rationale to target specific harms in our sociological ‘reality’ – as Agnes calls it.

This idea of ‘reality’ is an analysis of gendered relations in our society. Our social norms allow for, or even encourage, men to engage in violence against women, restrict women’s financial freedom and social autonomy. This means that when a law is being made, we cannot pretend that men and women are equal. Our Constitution, as interpreted by the courts, explicitly recognises this inequality. Substantive equality under the Constitution requires us to acknowledge existing inequalities and recognise that the law can correct them through positive action. Sometimes termed positive discrimination or affirmative action, this has been held by various constitution benches to be a core facet of the Equality Code as well as one of the Constitution’s basic values. Prominently, Article 15(3) makes it clear that ‘special provisions’ can be made for women: this provision has allowed, for example, the introduction of special welfare schemes for women. Now, the Constitution also provides for reservations for women in the national and state legislatures and local governments. This allows for the gendered lack of representation to be fixed by the law providing gender-specific measures for equality.

This is also supplemented by the development of jurisprudence on indirect discrimination, explicitly upheld in Nitisha v Union of India. There, the army applied the same cut-off for marks for both men and women to decide who would receive permanent commission. However, because women were not allowed to receive permanent commission until 2020, their performance evaluations were not as comprehensive and so they received lower marks. Further, the physical examination was based on average standards set for men. The Court held that the historic and structural discrimination faced by women meant that even though the cut-off was ‘equal’ in theory, it was discriminatory in effect. It is clear, therefore, and we do not dispute, that gendered laws are often necessary to ensure true equality in the context of social ‘reality’ (as Agnes would call it).

The Risk of Gendered Legal Measures Reinforcing Harmful Stereotypes

The above idea of ‘special provisions’, however, can often be invoked to harm the interests of women and gender minorities. Since we live in a deeply gendered society, where gender norms can be an ‘excuse’ to differentiate, the law can often use those same excuses to claim that ‘special’ differentiation is justified. This point was realised by the Court in a well-known series of cases. In Nergesh Meerza, a national airline policy required forced retirement for women cabin crew at age 35, their first pregnancy, or if they married within the first 4 years of obtaining employment. The Supreme Court struck down the pregnancy clause but upheld the other two. They reasoned that there are ‘special’ considerations for women such as the likelihood that they need to raise a family, which justify forced retirement following marriage, or at an earlier age than men.

This judgement came under fierce criticism from feminists, as it drew on the critique of ‘separate spheres’ of domesticity for women and public life for men. These were stereotypes that reinforced the gender hierarchy and were not the ‘natural’ way for us to live. The Court began to adopt this critique through a more critical approach under the ‘anti-stereotyping principle’. In Anuj Garg, the Court held that the prohibition on women working at liquor establishments was based on a stereotype that prevented women from accessing employment.  Similarly, in the Bar Dancers I case, the Court stressed that the distinctions made therein to prohibit bar dancers in non-elite establishments were ‘myths’ that amounted to stereotypes.

This anti-stereotyping principle was then explicitly expressed and expanded by Chandrachud J (as he then was) in Navtej Johar, connecting it to sexual orientation and gender identity. It has since been applied in a range of cases, including the prominent example of allowing women to attain permanent commission in the army and navy in Babita Puniya and Annie Nagaraja. A particularly instructive example is Joseph Shine which criminalised the act of sexual intercourse between a man and a wife of another man. Ostensibly to ‘protect’ women and the institution of marriage, the provision assumed women do not have equal sexual autonomy with men. These cases show us that gendered provisions do not always undo harmful the effect of harmful stereotypes but can, and often do, perpetuate them. Gendered provisions, therefore, need to be critically evaluated for what it is trying to achieve and what its impact will be.

Critical Gender Awareness: A Queer-Feminist Framing

Neither gender neutrality nor gendered provisions provide the solution to gender hierarchies. Instead, we advocate an approach of ‘critical gender awareness’. It requires us to understand what role gender is playing at a social level and in the justification of any law: is it a reason for the law based on stereotype? Is it to correct past injustice? Will it permit for greater autonomy for women? This encompasses an approach that doesn’t privilege either neutrality or ‘protection’, but the actual effect on the freedoms of women and gender minorities.

Let us return to the Marriage Equality verdict. The demand for gender neutrality made by the petitioners, as Singhvi clarified, was not absolute. In fact, part of the reason for focusing only on the Special Marriage Act was so that petitioners would only have to argue gender neutrality on a single issue: for the provisions to access marriage. Chandrachud CJI noted 3 areas in which the State regulates marriage: accessing marriage, the relationship between the married couple and the consequences of a breakdown. Gender, because of the persistent power of the ‘separate spheres’ phenomenon plays an important role within a marital relationship and in cases of breakdown. However, gender plays no part in who should access a marriage. This is with the exception of the different minimum age of consent for marriage, arguably also constitutionally suspect. In fact, gendering access would play into exactly the stereotypes that limit the autonomy of women and gender minorities.

Nonetheless, this leads to the question of how the gender-specific provisions governing marital relationships and cases of breakdown will be implemented. While that raises a separate issue of workability that we do not claim to resolve, the lis was to access marriage. In our opinion, the Court can rule on that without having to resolve the consequential matters immediately. It did so by recognising the ‘institution’ of a ‘third gender’ (though the term is critiqued and contested) in NALSA, and it has frequently found rights in cases like Unnikrishnan which then had to be given substance and implemented by other State organs.

The rhetoric of conflict is especially troubling in the context of the history of the queer movement which has always usually appended itself to feminist, as queer-feminist. Queer liberation as an intellectual and political movement has always gone hand in hand with the radical rethinking of society which feminists undertook. This is not in the least because queer issues are feminist issues, in the sense that the logic of patriarchy is a fundamentally cis-heteronormative one: that is, as mentioned above, in cases like NALSA, Navtej Johar, Annie Nagaraja and even in Chandrachud CJI’s opinion in Supriyo, the Court made this connection when interpreting ‘sex’ to include ‘sexual orientation’ and ‘gender identity’. This is because any discrimination against queer people is discrimination on the basis of their sex: because there are freedom-limiting stereotypes that assume a certain sex assigned at birth maps on to a certain gender identity, gender express or gender orientation. In this sense, ‘queer-feminist’ is a natural phrasing because the analytical framework remains consistent.

‘Critical gender awareness’, with a particular attention to the fluidity and plurality of gender and sexuality, is precisely what the queer demand is. This is best exemplified in India by the demand for reservations for transgender people, which was recognised in NALSA. This is a queer(–feminist) demand, not for gender neutrality, but for a special gendered provision that recognisesthe extant oppression of transgender people and to enact positive laws on the basis of that distinction. This can also be seen in the queer demand for sexual assault against non-binary transgender persons and transgender men to be proportionately punished. Currently, it is only covered by a two-year sentence under the Trans Act. Similarly, there is a queer demand that the new criminal code does not repeal s 377 completely but to replace it with a provision that uses better language to criminalise non-consensual male homosexual assault.

This means that the answer to the consequences of recognising queer marriages is not easy. It cannot be. Queer marriages will, because of the radically different nature of the gendered relationship there, be very different. Thus, the contours of regulation would also require us to adopt a lens of critical gender awareness. However, it is vital that we do not frame that complex conversation as a ‘conflict’ between queer and feminist demands, such a ‘conflict’ undoes not only the advances of the queer-feminist movement, but the jurisprudence of the Court itself.

The Supreme Court’s Maharashtra Political Crisis Judgment – III: On Constitutional Romanticism and the Role of the Speaker [Guest Post]

[This is a guest post by Chiranth Mukunda, and continues the blog series on the Supreme Court’s Maharashtra Political Crisis judgment. Parts One and Two may be read here.]

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On May 11, a five-judge bench of the Supreme Court delivered a unanimous decision with nine conclusions in the Maharashtra political crisis case (Shubhash Desai vs Principle Secretary). The complex sequence of events that unfolded involved the roles of constitutional functionaries, including the Governor, the Deputy Speaker (and then the Speaker), the ECI and most importantly, the Court. The political sequence cannot be comprehended without considering the associated decisions by these constitutional functionaries, intermingling with each other and forming a web. As pointed out previously, the interim court order extending the time given to the rebel MLAs for replying to the first batch of disqualification petitions, on natural justice grounds, significantly altered the power equations. The intervening period saw an appointment of a Speaker to the vacant post, the Governor’s call for a floor test, and a change in government.

Now the Supreme Court has held that the decision of the disqualification petitions by the Speaker will only have prospective operation without having an effect on the validity of the proceedings in the intervening period (“Conclusion C”). As the Court recognized, the speaker’s role under the scheme of the Tenth Schedule becomes more significant when there is a factional dispute. It necessitates the speaker to prima facie decide the ‘real’ political party for the purposes of the Tenth Schedule in a situation where different factions emerge. The consequences of this will be discussed later in the essay. The mismatch between the position of the speaker, who continues to be a political figure, and the role entrusted to them, is bound to increase litigation, with consequent time lag, and result in ineffective or infructuous remedies (as in this case).

The continuing contradiction between the role of the speaker under the Tenth Schedule, which envisages the speaker as an impartial adjudicatory authority, and the actual workings of the office, was too visible for the court to have ignored in this case. The judgment glosses over these arguments without addressing the core concern about the partisan actions of the speaker. Constitutional romanticism regarding the supposed neutrality of the speaker continues to have its day. In this piece, by analysing the present judgment, I therefore highlight some inconsistencies that emerge under the current regime of the anti-defection law, which places the speaker at its centre.

The Interim Measure

The Tenth Schedule makes the Speaker the adjudicatory authority for disqualification petitions. The decision of the speaker is subject to judicial review, as held in Kihoto Hollohan.

Now, considering the possibility of misuse of the Court’s decision in Nabam Rebia, which had held that the Speaker was barred from adjudicating disqualification petitions if a motion for their own removal was pending, and which was referred to a larger 7-judge bench in this case, the Supreme Court here adopted an interim measure to serve the constitutional purpose of the Tenth Schedule. The Court held that the Speaker’s jurisdiction under the Tenth Schedule extends to deciding and ruling upon applications questioning said jurisdiction. Upon an application questioning the jurisdiction of the Speaker (a pending notice of removal under article 179(c) can be an example), the Speaker can either adjourn the proceedings under the Tenth Schedule if the application is bona fide, or proceed with the disqualification petitions with relevant reasons. This decision of the speaker is subject to judicial review.

This interim measure is meant to avoid a ‘constitutional hiatus’ in the operation of the Tenth Schedule. The constitutional ideal would be for the Speaker to act in a fair and impartial manner while considering application which questions their jurisdiction. In reality, this constitutional ideal is unrealisable because the Speaker continues to maintain their political affiliation. In most scenarios, the Speaker will be part of one of the political ‘factions’ that emerge or will have a stake in one of the factions of any other party with whom the possibility of government formation holds, as can be seen even in the Maharashtra political crisis. For example, the newly elected Speaker (whose position itself was a matter of challenge) appointed a new whip from the breakaway legislative party, with whom his party formed the government (an appointment that the court in its analysis held to be illegal). It is important to note that subjecting the decision of the speaker to judicial oversight is only part of the solution. As seen in this case, time holds crucial value in politics: a significant delay in judicial resolution would have altered the balance of power on the ground.

On Bypassing the Authority of the Speaker

One of the questions that arose was whether the court could decide on disqualification under the Tenth schedule, absent a decision by the speaker. The petitioners urged the court to decide on the matter of disqualification directly, because, they argued, the newly appointed Speaker was proven to be incapable of acting in a fair and impartial manner. The Court rejected this argument by citing a passage from Kihoto Hollohan which held that the office of Speaker embodies propriety and impartiality and that it is inappropriate to express distrust in the office of Speaker in a parliamentary democracy. It was held that since the Speaker was elected by MLAs (including the MLAs against whom disqualification petitions are pending), following the proper procedure laid down in the rules, the Speaker was the appropriate authority to decide the disqualification petitions. Petitioners contended that alternatively, it should be the Deputy Speaker, who was acting in the role of Speaker whose seat was vacant at the time when the alleged act constituting disqualification was made, to decide on the petitions. The Court rejected this on the ground that a Deputy Speaker acts only when the post of Speaker is vacant, and the post of Speaker was occupied as of July 3, 2022. Hence, in this anomalous situation, the incumbent Speaker is now going to decide on the disqualification petitions where the grounds for disqualification include going against the party whip issued to not elect him in the speaker’s election to fill the aforementioned vacancy. Thus, the vacant Speaker’s office at the relevant time effectively smoothed the process for the Shinde Faction, because the deputy speaker’s role was easily neutralised by electing a speaker from the party (BJP) with whom they formed the government, as opposed to the 14-day notice period that is required to remove a Speaker.

At this point, there are two aspects that merit consideration.

Rule of Law

The Speaker is undoubtedly a member of the political party that forms the government and is an active political figure, which the tenth schedule is incognizant of. There is ample evidence of the Speaker acting in a partisan manner by favouring the government and the ruling party. For the Speaker to continue to hold office, the support of a majority of MLAs is needed, which is usually provided by the MLAs of a ruling party or coalition parties forming the government. In this case, the Speaker was elected by the new coalition consisting of MLAs of the Shinde faction of Shiv Sena and the BJP, which then formed the government. Now, since the decision on the disqualification petition is entrusted to the Speaker, the Speaker’s decision will have a bearing on continuation of his own coalition government (since the Speaker continues to be a party member and a political figure). Impartial exercise of adjudicatory powers might lead to fall of the government of his own party/faction if the MLAs are disqualified. As a result, adjudication by the speaker has the potential to violate the principle of natural justice ‘nemo judex in sua causa ‘or that no one is a judge in his own cause. The court evaded this issue by maintaining the Kihoto line that great traditions of high office of Speaker are not to distrusted with and “…the robes of the Speaker do change and elevate the man inside”.

But it is no answer to say that the Speaker will indeed act impartially; the form of the Speaker’s office – who need not give up his party affiliation upon entering the office – permits reasonable apprehension of bias, which is enough to vitiate the proceedings. However, essentially, the Supreme Court has adopted a view that romanticizes the role of speaker by removing any link between the Speaker and the political party. This is far from the constitutional reality. Therefore, the present regime of anti-defection laws has the potential to violate the rule against bias, which is an essential ingredient of rule of law. The partisan role played by the Speaker was implied when the court held that the appointment of new whip and leader of the legislative party was illegal. But the Court refused to accord it the significance it deserved and deal with the consequences of its finding; rather, it continued to romanticize the high office.

On the Validity of Proceedings in the Interregnum

The second aspect is the continuation of the Speaker in the office. If the Speaker’s decision on disqualification relates back to the date when the act constituting the disqualification (i.e., the date of defying the party whip or act of voluntarily giving up the membership of the party) was made, the proceedings in the interregnum, which included the election of the Speaker himself, would be cast in doubt. Hence, it is probable that Speaker would decide against the disqualification petitions, being a judge in his own cause, and consequently failing to act in an impartial and fair manner. This line of argument was rejected by the Court by holding that the decision of speaker on disqualification and its consequences will not have a retrospective effect but only a prospective effect from the date of the decision (Para 92). The court did not find any authority on the question of whether the proceedings in the house in the intervening period, between the disqualification-inducing act and the decision by the Speaker, would be subject to the final decision on disqualification. The court considered it afresh and held it in negative. It held that MLAs are entitled to participate in the proceedings until they are disqualified, which is the date when the speaker makes the decision.

In its reasoning, the court held that situation under article 189(2) (which stipulates that the validity of any proceedings of the legislature shall not be questioned on the ground that it was discovered subsequently that a legislator who was not entitled to vote or sit, took part in the proceedings) never arose, because the decision of the speaker on disqualification is only prospective. The court interpreted Rajendra Singh Rana to mean that the relevant reference point of time for the Speaker’s decision on disqualification is the time of the prohibitory act under tenth schedule. It means that even though the Speaker makes the decision with reference to a back date, the consequences of the decision will take effect only from the date of the decision by the Speaker, i.e., the member may have incurred disqualification under the Tenth Schedule prior, but the seat becomes vacant only after the decision on disqualification by the speaker. This effectively means that the Tenth Schedule operates from the date the Speaker wishes for it to operate, because the rigours of disqualification are incurred only from the date the Speaker makes the decision, and the proceedings in the intervening period are protected. This is compounded by the fact that there is no time limit for the speaker to make a decision (without a judicial order). The only requirement is that the decision be made in ‘reasonable time’.

Speakers’ Role under the Tenth Schedule when there is an Effective ‘Split’

The Court held that the Speaker who is the adjudicatory authority under the Tenth Schedule, may be called to decide who is the ‘real’ political party or the ‘original political party’ for the purpose of disqualification under paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule. Since the defence of split is no longer available after the ninety-first constitutional amendment, one of the factions/groups is bound to lose out if they are considered by the speaker not to be the political party at the time the act constituting defection was made. When two or more factions issue whips, the court held that the speaker has to prima facie decide, for the purpose of para 2(1)(a) and 2(1)(b), which whip represents the political party (not the legislative party); but this has no bearing on the decision by the ECI under paragraph 15 of the  Elections Symbols (Reservation and Allotment) Order. Similarly, the Court held that the decision of ECI on which group or faction is the ‘real’ political party under paragraph 15 of the Symbols Order will have no bearing on the decision of the speaker, who has to decide which group or faction is the political party for the purpose of making a decision on the question of disqualification, with reference to the date on which the member voluntarily gives up his membership or defies the whip. This means that in the present case, the decision of the ECI recognizing the Shinde Faction as the real Shiv Sena will have no bearing on the decision of the speaker, who has to make a decision considering the facts on the day the act incurring disqualification was committed (see Part II of this series for a detailed critique).

The decision of the ECI under paragraph 15 of the Symbols order will only be prospective in operation. The court also held that the proceedings under paragraph 15 of symbols order cannot wait until the final adjudication under the Tenth Schedule. This is because, the ‘test of legislative majority’ is not the only test but merely one of the factors to be considered while making the decision. When legislative strength is in doubt (example, when disqualification petition is pending), other factors should be given greater weight.

Importantly, the court here is envisaging similar roles for the Speaker and the ECI in deciding who is ‘real’ Shiv Sena, albeit for different purposes, by banking on the impartial role that the Speaker ought to play. The factors which the Speaker has to consider overlap with the factors which the ECI considers while resolving factional disputes. In both cases, the Court discouraged using the ‘test of legislative majority’ and suggested looking for the structure of leadership outside the legislature (para 168), and other factors in cases where legislative strength is a matter of dispute, as in this case, because of pending disqualification petitions. In this scenario, it is entirely possible for the Speaker and ECI to reach different conclusions on which faction or group is the ‘real’ political party for the purpose of disqualification and granting symbols, respectively. Here again, the role, position and capacity of the Speaker to perform the task is doubtful. Since the Speaker could well be a member of a political faction, his functioning will be biased towards a particular faction. In absence of objective criteria like the strength in the legislature, subjective political considerations are bound to play a decisive role. This might result in the Speaker being the kingmaker, with his faction being saved from the proceedings of disqualification. It might be said that the decision of the Speaker is subject to judicial review, but once again, with the time factor making the crucial difference, it is unclear how effective this will be (as the present case itself amply demonstrates); furthermore, the repeated need for judicial involvement, thereby increasing the role of the judiciary in settling disputes of political nature, will not bode well for a constitutional democracy and judicial independence.

The original sin lies in the Tenth Schedule, which envisaged a quasi-judicial adjudicatory role for the speaker, who nonetheless continues to be a member of a political party either de facto or de jure. Recognising the pattern of partisan actions by the Speaker, the court in Keisham Meghachandra Singh vs Hon’ Speaker Manipur, made observations regarding the need for an independent adjudicatory mechanism outside the house in the form of a tribunal. The speaker being an authority within the house, and his tenure being dependent on the majority will, the court reasoned, create a potential for bias. Similarly, in Shrimanth Baladaheb Patil vs Hon Speaker, the court recognized the growing trend of speakers acting against their constitutional role of being neutral. Hence, this case once again underscores the need for a revaluation of the Speaker’s role under Tenth schedule.

Conclusion

With factional disputes reaching the courts and repeated instances of constitutional functionaries disregarding their constitutional role which leads to judicial intervention, the Court is becoming an arena for waging political battles. This ‘judicialization of politics’ by increasing the role of the court might lead to the court being accused of political bias. Outsourcing political decisions and the constitutionally entrusted roles of other functionaries to the courts is a growing trend. This has happened with explicit or implicit acceptance of political actors in the hope of favourable judicial decisions or simply to avoid making a decision to escape accountability. With politically consequential decisions increasingly emanating from the bench, the judiciary becomes the target for control, with threat to its independence. In political disputes like these, balancing the opposing political interests in the backdrop of judiciary’s institutional interest, judges are made to engage in a political balancing act.

One high constitutional office that has been repeatedly accused of partisan bias is the office of the Speaker. Disregarding constitutional conventions by the Speaker has been a regular feature both in the parliament and the state legislatures. This political crisis is a feature of it; paradoxically, however, the judgement reinforces that very existing framework of the Speaker at the centre of the Tenth Schedule, which is the cause of the problems that brought this dispute to Court.