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Judicial Evasion and the Referral in Delhi vs Union of India

The conflict between the government of Delhi and the central government has been one of the more enduring political stories of the last few years. The conflict stems out of Delhi’s unique status as more-than-a-union-territory-but-not-quite-a-state, defined by Article 239AA of the Constitution. The political controversy, in brief, turns upon a dispute between the elected Delhi government, and the central government, on the location of governing power, and the status of the Lieutenant-Governor (a central government appointee). To put it simplistically, the Delhi government argues that, subject to the specific exceptions carved out in Article 239AA, the L-G’s role is (akin to that of the President) that of a rubber stamp, bound by the “aid and advice” of the Council of Ministers. The central government argues otherwise, advocating a much broader role for the L-G.

After substantial political controversy, with the Delhi government alleging that the L-G was deliberately stymying its functioning at the behest of the central government for political gain, the matter reached the Delhi High Court. The High Court handed down an elaborate judgment siding with the central government. Naturally, the Delhi government appealed.

Proceedings in the Supreme Court

The Supreme Court’s orders can be found by searching for “SLP (Civil) No. 26200/2016”, on the “Daily Orders” page. The first date of hearing was 5th September, 2016, where the matter was posted to an appropriate bench. On 9th September, before a bench of Justices Sikri and Ramana, notice was issued, and the parties were asked to complete the formalities. The case was listed for 15th November. On 15th November, it was adjourned by two weeks. On 28th November, it was adjourned for another week. On 5th December, it was listed for 12th December. On 14th December, the Court directed that a reply be filed to one of the I.A.s, and that the case be listed in the third week of January. It was mentioned before the Chief Justice on 18th January, who directed that it be listed on 31st January before the appropriate bench. On 31st January, it came to Justices Sikri and Agarwal, who began hearing it. It was heard in part, and listed for 2nd February. The Court then heard it on the 2nd of February, on the 8th of February, on the 9th of February, on the 14th of February, and on the 15th of February. On the 15th of February, the Court decided that in view of Article 145(3) of the Constitution, this case raised issues of considerable constitutional importance, and needed to be heard by a bench of five judges. The case was referred accordingly.

The Prospect of Judicial Evasion

From the 5th of September to the 15th of February is more than five months, and it is perhaps unfortunate that it took the Court that long to decide that the case raised substantial questions of constitutional importance. More than that, however, what is important is this: the term of an elected government is five years. The present case has been in the Supreme Court for almost ten percent of that time. The Delhi government’s argument is that the L-G is deliberately not allowing it to function as it should, and to fulfil its electoral promises. Whatever the merits of that argument, it is the definition of a political crisis, and – to an extent – a constitutional crisis. In this context, it’s also important to note that the status quo – that is, the High Court’s judgment – favours the central government. In other words, the more the Supreme Court delays setting up the Constitution Bench, the closer this case gets to becoming infructuous (the next Delhi election is in 2020), and the more an unbalanced status quo – that has serious political ramifications – continues.

It is something akin to what would have happened if the UK Supreme Court had simply sat on the Brexit case, instead of hearing it in December and handing down a judgment in January. Whether it wants to or not, the Court is neck-deep into a political conflict, and as the Constitutional arbiter, its task is to decide that conflict in accordance with the Constitution.

Five months, admittedly, is not too great a delay in the Indian legal system (although, in the context of five-year election terms, it is already a great deal of time lost). However, the closer we get to 2020, the closer this case will get to yet another instance of judicial evasion; like Aadhaar and demonetisation, like Bihar’s alcohol ban, like the denial of a tax exemption to a film on homosexuality, and like the constitutionality of the Central Bureau of Investigation, it will be another case which raises crucial constitutional issues, but is effectively decided without a reasoned judgment by the Supreme Court (all these cases, it needs to be reiterated yet again, involve basic fundamental rights; the Delhi case is as important, because it involves the question of governing power).

So, one can only hope that the Constitution Bench to hear this case will be constituted as soon as possible.

 

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ICLP: Call for Writing Internships

This April onwards, the Indian Constitutional Law and Philosophy blog will experiment with (paid) writing internships. A writing intern will, over the course of one month, work with the blog editor, and author four (4) blog posts (two on themes suggested by the intern, and two on themes suggested by the editor).

Applications are welcomed from law students in their fourth year or above (including graduates). If you’re interested in applying, please email the following to gautambhatia1988 at gmail dot com:

  1. brief statement of interest, detailing your previous experience with legal writing.
  2. A writing sample of not more than 1500 words (footnotes are not necessary, but will be included in the word count) that sets out a novel constitutional argument.
  3. An academic CV.

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Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)

Additionally:

“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.

 

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ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ — Roundup

Over the last ten days, the Indian Constitutional Law and Philosophy Blog has hosted a book discussion of Anuj Bhuwania’s new work on PIL, titled Courting the People: Public Interest Litigation in Post-Emergency India. The discussion has featured Aparna Chandra, Suhrith Parthasarathy, myself, and Anuj. Here is a round-up of the essays:

  1. A Radical Revision: An opening summary of the book, which aims to distil its core claim in the form of seven theses about PIL (the redundancy of the petitioner, the power of the amicus, no hearing of stakeholders, departure from the rules of evidence, unanticipated consequences of poly-centric disputes, incorrect conceptual framing of issues, and outcome-based reasoning).
  2. Swords, Shields, and Where Do We Go From Here?In my analysis of the book, I argue that PIL adjudication has bled into civil rights jurisprudence, to the detriment both of core civil liberties, as well as the development of a meaningful equality jurisprudence. I also argue that PIL has now become a sword that is being used to cut down civil rights, whether on the whetstone of the Directive Principles, or broader ideas of public good. Nonetheless, I’m not sure whether Bhuwania has successfully demonstrated that certain aspects of PIL – such as loosened locus requirements – cannot be separated and welded into a form of jurisprudence that is both progressive, and maintains constitutional fidelity.
  3. Substance and Process: In her critique, Aparna Chandra argues that the judicial populism which Bhuwania locates at the core of PIL, exists across the board in the Supreme Court’s jurisprudence. Additionally, she points out that PIL was not simply a revolution in terms of judicial procedure, but equally a revolution in terms of substantive law – in particular, the vast expansion of Article 21 of the Constitution. Finally, she raises two methodological concerns: on the question of how and why PIL achieves the outcomes that they do, and on the applicability of John Hart Ely’s representation-reinforcement theory of judicial review, which Bhuwania endorses as a possible alternative to PIL jurisdiction.
  4. The Case for the Defence: In his essay, Suhrith Parthasarathy makes the important argument that, at least as far as the loosening of locus requirements goes, PIL has a strong textual foundation in the wording of Articles 32 and 226. Furthermore, in cases such as PUDR and Bandhua Mukti Morcha, where the State was engaged in blatant violations of rights, it is difficult to see what course of action was open to the Court apart from intervening; and indeed, a case like PUDR demonstrates that judicial intervention, through PILs, need not necessarily abandon fidelity to the Constitution. Parthasarathy nonetheless cautions us that these cases, while being founded on correct principles, nonetheless also exhibited disturbing signs with respect to the manner in which the judges framed the key questions at stake.
  5. The Author Responds: In the concluding essay, Bhuwania responds to our arguments. He points out that not only has the logic of PIL adjudication migrated to civil rights cases (e.g., the issuing of “guidelines”), but also, the Court rarely ends up adjudicating on the non-implementation of the guidelines that it itself has issued. Responding to Chandra’s critique, Bhuwania distinguishes between three modes of teleological (i.e., goal-based) arguments in the judicial discourse, and points out that what is unique about PIL teleology is not merely that the Court uses purposive arguments to creatively interpret the law, but invokes purpose to transform the judicial process itself. He argues, further, that the expansion of Article 21 cannot be separated from the rise of PIL, and that the two should be understood together. And lastly, responding to Parthasarathy’s textual argument about locus, Bhuwania concludes by distinguishing between “representative standing” and “citizen standing”, and argues that the loosening of locus should be limited only to the first class of cases.

It remains for me to thank all Aparna, Suhrith, and Anuj for taking out the time and making this book discussion a reality. This is an exciting time in Indian constitutional law, with new works of scholarship being published on a frequent basis. We hope to host more such discussions in the coming weeks and months.

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ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – IV: Suhrith Parthasarathy on the Case for the Defence

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency Indiawith an essay by Suhrith Parthasarathy, a Chennai-based lawyer and writer).

As both Gautam Bhatia and Aparna Chandra have recounted here, Anuj Bhuwania’s book, “Courting the People: Public Interest Litigation in Post Emergency India,” is an important and unique piece of work, in that it questions not merely the judiciary’s abuse of the PIL power, but also the very conferment of the PIL jurisdiction on the high courts and the Supreme Court of India. Bhuwania’s argument is hugely compelling, and is difficult to counter, particularly on the back of constantly mounting evidence which shows us how the PIL is often a tool that is malleable to the individual predilections of judges, and the campaigns they seek to further.

However, I have two primary concerns with this thesis, which I shall explicate presently: the first is that, textually, both Articles 32 and 226, which respectively guarantee the rights to approach the Supreme Court and the high courts for enforcement of fundamental rights, do not support a blanket prohibition against actions in public interest. The second is the Supreme Court’s own historical record, which contains numerous instances when the court has had little choice but to interfere under Article 32, faced, as it has been, with what were often appalling infractions of basic civil and socio-economic rights. However, it must also be pointed out that even in these cases which demanded interference, especially in the late 1970s and early 1980s, the cause of PILs would have been better served had the court, in exercising the power, not only restrained the rhetorical flourish of its judgments, but also managed to maintain, in the process, a greater, basic fidelity to the procedures of an adversarial process.

PILs: The Textual Defence

Let’s consider, at first, the wordings of Articles 32 and 226. Article 32(1) states: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Article 226(1) states, “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

What’s notable is that neither of these articles places any limitations on the category of persons entitled to approach the court. In the case of Article 32, it simply requires the petitioner to show that a fundamental right guaranteed under Part III has been violated—this violation can quite conceivably be of a right possessed by a person distinct from the petitioner. Similarly, Article 226 also does not specify that only persons whose rights have been affected can approach the high courts. What’s more, Article 32 goes a step further in granting leeway to petitioners to approach the Supreme Court by way of “appropriate proceedings.” Were we to read these provisions literally it becomes rather difficult to justify strict rules of locus standi. In fact, were the Supreme Court, for example, to reject a petition purely on the ground that the petitioner has no personal interest in the case, when a fundamental right has been shown to be violated, it might well be a dismissal contrary to the bare text and meaning of Article 32.

Therefore, in many ways, the loosening of principles of standing that occurred over the course of the late 1970s and 1980s, is in consonance with a proper, textual reading of Articles 32 and 226. Further, a look into Constituent Assembly’s debates on these articles also does not show us that the drafters intended to place restrictions on locus standi in a manner that required petitioners to be personally affected. Now, this is not to suggest that the court is incapable of framing rules that regulate the principles of standing. The words “appropriate proceeding” in Article 32, for instance, gives the court the latitude to regulate principles of locus standi in a manner consistent with the broader requirements of justice. That the court has failed to do so in a systematic and coherent manner, however, has been a failing that has had serious repercussions.

As Bhuwania argues, this lack of rigour in the Supreme Court’s PIL jurisprudence, which is only made worse by the court’s almost declamatory language, is evident almost right from the inception of PILs. For example, take one of the earliest instances of the Supreme Court’s exercise of what it itself appeared to describe as a public interest action: the 1976 judgment in Mumbai Kamgar Sabha, Bombay vs M/S Abdulbhai Faizullabhai. Here, the court was concerned with an appeal against an award made by an Industrial Tribunal where a demand for bonus by employees working for various small hardware businesses in Navi Mumbai was rejected. One of the defences that the Respondent took in the Supreme Court was that the employees had been represented by a Trade Union, and, this body lacked the standing to bring the appeal on behalf of the workers. “No right of the Union qua Union was involved,” the Respondent contended, “and the real disputants were the workers.”

To this, Krishna Iyer, J., who was part of the two-judge bench hearing the appeals, responded thus: “But a bare reading of the petition, the description of parties, the grounds urged and grievances aired, leaves us in no doubt that the battle is between the workers and employers and the Union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array.” As a matter of technicality, he conceded that the Union could not be a party, but, this, he said, was merely an infelicity in the drafting, for it was clear that it was the workmen who were the real parties to the dispute. This ordinarily ought to have been enough for the court to overcome any objections on the maintainability of the appeal—the workers, as Krishna Iyer, J., had pointed out were, in fact, before the court, but were merely represented by a Union.

Unfortunately, however, the court did not stop here. And this is where the problems begin. “Test litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural, shortcomings,” Krishna Iyer, J., wrote. “Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latté dinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.”

Now, the court was unconcerned here with Article 226, and any observations made on the procedural requirements of standing to approach a high court were simply irrelevant to the facts of the case. What’s more, the court was actually concerned with whether the workers individually had a right to seek bonus; that they may have been collectively represented by a Union did not negate the fact that their individual rights had nonetheless to be determined. In framing the issue, though, as one which involved an airing of collective grievance, as opposed to one that involved an assertion of individual rights, Krishna Iyer, J. ended up upholding an argument quite different to the one made by the Trade Union.

PILs: On the Necessity of Judicial Intervention

There are similar misgivings with almost all of the early cases that are often described as heralding a movement towards public interest litigation. It’s quite conceivable that each of those cases may well have been amenable to the Supreme Court’s jurisdiction without otherwise compromising on the basic principles of standing. For instance,Gautam Bhatia in his review of Bhuwania’s book points to the 1982 judgment of the Supreme Court in PUDR vs Union of India, as an exemplar of what PIL can mean, when applied correctly.

Here, the court was faced with a report that pointed out a flagrant violation of several labour laws in relation to workmen employed in the construction work of various projects connected with the Asian Games. Article 32, as P.N. Bhagwati, J. pointed out in his judgment, only required that the petitioner show a violation of a fundamental right. What’s more, as I have argued above, the provision doesn’t, in and of itself, prohibit a person from approaching the court in the interest of fundamental rights of any other individual or any other distressed groups of people. In this case, the petitioner’s report quite clearly, in the court’s opinion, presented evidence of what constituted a form of forced labour in violation of Article 23. Now, it was up to the Union of India to disprove that the labourers employed for the projects connected with the Asian Games weren’t being employed in a manner that violated Article 23. The Union, though, didn’t quite dispute the basic findings in the petitioner’s report. Instead, it argued by placing emphasis, as the judgment states, on the word ‘similar’, used in Article 23, contending that it is not every form of forced labour which is prohibited by the provision but only such form of forced labour as is similar to ‘begar’ and since ‘begar’ means labour or service which a person is forced to give with-out receiving any remuneration for it. Article 23, in its argument, was limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words ‘other similar forms of forced labour.’ Given the arguments adduced the court’s task was to simply answer a legal question: whether Article 23 prohibited all forms of forced labour or merely those forms that were similar to “begar.” This, the court did effectively.

But, once again, much of the court’s good work was undone by its oratorical excesses. Bhuwania takes us to one such statement, where the court was quick to stress on a need to loosen procedural standings on a whole, and, more significantly, on a need to invent new strategies to provide access to large groups of people:

“We wish to point out with all the emphasis at our command that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief,” wrote PN Bhagwati, J. “Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed.”

Thus, once again, the court was framing the debate in terms of collective rights. This, in my submission, was where the court went wrong. This was a case much like Mumbai Kamgar Sabha, a case where individual rights of workers were being contravened. PUDR, as Bhatia has argued, largely represents a case where PIL was put to good use. But the court could have achieved its ends through a narrower holding. It simply had to read Article 32 in a manner close to its text, to find that PUDR did, in fact, possess the locus standi to approach the court for a violation of the fundamental rights of the workers. This required no specific loosening of the standard.

Appropriate Proceedings”

We may now look at one more example, a 1984 case, which Bhuwania refers to in detail: Bandhua Mukti Morcha v. Union of India. This was a case initiated by an organisation dedicated to ending bonded labour. As Bhuwania points out, the judgment rendered by PN Bhagwati, J., in the case is riddled with his “standard trope of Indian difference.” That “in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights…would become a mere rope of sand so far as the large masses of the people in this country are concerned.”

But while Bhagwati, J., may have been wrong on this count, as is pointed out in a concurring judgment in the same case by Pathak, J., he did also seek to defend the court’s intervention based on a textual reading of Article 32. The provision, he pointed out, confers the right to move the Supreme Court for the enforcement of any fundamental right, but it neither restricts movement of the court to any category of persons, nor does it place a restriction on the manner of the proceedings: “It is clear on the plain language of Clause (1) of Article 32 that whenever there is a violation of a fundamental right, anyone can move the Supreme Court for enforcement of such fundamental right,” wrote Bhagwati, J. “…again Clause (1) of Article 32 says that the Supreme Court can be moved for enforcement of a fundamental right by any ‘appropriate’ proceeding.’ There is no limitation in regard to the kind of proceeding envisaged in Clause (1) of Article 32 except that the proceeding must be ‘appropriate’ and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right.”

As a matter of pure textual interpretation of Article 32, as I sought to show earlier, it is difficult to argue against Bhagwati, J.’s view. Had he dismissed the petitioner’s approach purely on the ground that he or she doesn’t have the standing to maintain an action for the violation of a fundamental right, the dismissal would have run directly counter to Article 32’s wording. This is not to say that the court cannot place its own international restrictions on when to interfere. But any strict rule of standing would simply be impermissible as a matter of constitutional law.

Here, what Pathak, J. said in his concurring opinion in Bandhua Mukti Morcha is particularly instructive. He expressly recognised that Article 32 does not specifically indicate who can move the court when a fundamental right is violation and, therefore, in the absence of a confining provision, it was “plain that a petitioner may be anyone in whom the law recognises a standing to maintain an action of such nature.” But as to what constitutes an “appropriate proceeding,” Pathak, J. was more circumspect. While he recognised that it was indeed time for the law to enlarge the doctrine of standing to permit actions by persons in public interest on behalf of groups otherwise incapable of representing themselves, public interest litigation, he held, did not necessarily call for a system that altogether loosens the fundamental requirements of a properly adversarial process. It similarly also did not a call for a system where the relief provided by the court is beyond what it might provide in a regular writ proceeding.

A public interest litigation, Pathak, J. held, did permit a greater degree of flexibility in comparison to a traditional private law litigation, but any such procedure adopted by the court must nonetheless confirm to basic judicial tenets characteristic of a proper proceeding. What he meant by this was that although a defined pattern of procedure might be hard to lay down, the court must still follow the procedure laid down by any statute that prescribes the procedure for the proceeding concerned. Where the court devises any supplementary procedure, “there can be no deviation from the principles of natural justice and other well accepted procedural norms characteristic of a judicial proceeding,” he wrote. “They constitute an entire code of general principles of procedure, tried and proven and followed by the sanctity of common and consistent acceptance during long years of the historical development of the law. The general principles of law, to which reference is made here, command the confidence, not merely of the Judge and the lawyer and the parties to the litigation, but supply that basic credibility to the judicial proceeding which strengthens public faith in the Rule of Law. They are rules rooted in reason and fairplay, and their governance guarantees a just disposition of the case. The court should be wary of suggestions favouring novel procedures in cases, where accepted procedural rules will suffice.”

Bhuwania is entirely correct in pointing out that it was ultimately Bhagwati, J’s judgment that carried the day, and Pathak, J.’s opinion remains just that, an opinion. But this doesn’t take away from the fact that Pathak, J. may have been correct as a matter of law on how a PIL has to be treated: that a petition cannot be dismissed purely on the ground that a petitioner lacks standing, and that where a violation of a fundamental right is shown, the court has little choice but to intervene. But this intervention must partake a proper procedure, and, any relief that is ultimately awarded must also be tailored into a proper judicial relief.

Conclusion: A Partial Defence

There are many genuine, legitimate areas in which a PIL serves as the only recourse available to check unconstitutional executive or legislative actions. But it is tragically disappointing that the court ultimately chose to follow the pattern shaped by Bhagwati, J. Bhuwania shows in substantial detail (as Bhatia illustrated in his first post) that PILs have led to a series of pitfalls, and have proved hugely damaging to the quality of justice delivery in the country. But this, in my submission, isn’t as much a problem with PILs per se as it is with the larger lack of accountability that the judiciary enjoys. Here, I agree with Chandra, who argues that the “judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board.” The misuse of the PIL has only been accentuated by the unaccountability of the judiciary; the general lack of integrity in decision making, of maintain a fidelity to constitutional values and principles, is a problem as much in the Supreme Court’s appellate jurisdiction as it is in its exercise of PIL power.

Any solution, therefore, has to go deeper. Regrettably, attempts made to alter the system of appointing judges have thus far failed. In the place of proper democratic constraints on the judiciary, what we have instead are anti-constitutional checks on judicial power: post-retirement postings, for example. Unless these larger issues are met effectively, it’s difficult to imagine a proper reform of the PIL process. To understand why we need this reform, though, there is no better place to begin than by reading Bhuwania’s book.

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ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – III: Aparna Chandra on Substance and Process

(We continue our discussion of Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, that began with an introductory post last week, and then a critique. In this essay, Professor Aparna Chandra explores some of the themes of the book)

Anuj Bhuwania’s “Courting the People” is a book that needed to be written and one that should be widely read and debated. Bhuwania pulls no punches and offers a stringent critique of the dominant hagiographic narratives around PILs and its dramatis personae. He takes issue with the canonical view that PIL was a force for the good in its inaugural moment but has since been hijacked by those who are not in tune with its original philosophy; thus leading to problematic outcomes. Instead, Bhuwania argues that the PIL jurisdiction is problematic per se, both in its ideological orientation as well as its processual elements.

On Bhuwania’s account, in its early years, the Court had positioned itself as a checks and balances institution, oriented towards holding the state accountable for overstepping constitutional bounds. However, beginning in the late 1970s, the Court responded to sustained attacks on its legitimacy from populist political discourses by acquiescing in the demand for a “committed judiciary” that works alongside an interventionist government to advance the goals of the Constitution. The Court re-conceptualized its role as one that was not only a partner, but a leader of the social revolution envisaged in the Constitution. PILs emerged as part of this ideological move by the judiciary. To the extent that the state’s actions were advancing constitutional goals (predominantly those in Part IV of the Constitution), the Court would support the state. Where the state fell short, either through inaction, indifference, or otherwise, the Court would step in to push the state in the right direction.

The ideological shift in the Court’s role conception was accompanied by procedural moves that facilitated this new role. This procedural shift views procedures as unnecessary hurdles and mere technicalities that should be set aside in favour of substantively just outcomes in tune with the goals of the Constitution. Often captured by the phrase “procedure is the handmaiden of justice” the idea here is that procedures are useful only to the extent that they help the Court in achieving just outcomes – otherwise procedures can and should be done away with.

Bhuwania takes issue with both these shifts. He argues that the ideological grounding and procedural laxity of PILs have allowed judges to run amok and encode their biases and preferences, not only into norms, but into the lived and material realities of vast sections of the population. The problem of PILs is not the case of a few bad apples, but a more systemic issue with the kinds of politics and material outcomes it makes possible. He takes us through examples drawn from PILs relating to urban governance in Delhi to demonstrate how the PIL process vests such large and unchecked powers in courts.

Bhuwania provides a compelling critique of the PIL jurisdiction, and one that I agree with. In fact, as I argue below, I believe that Bhuwania does not go far enough in his critique. I also raise certain concerns with Bhuwania’s methodology, as a prompt to think about how best to understand the PIL jurisdiction and the appropriate conception of the judicial role.

Populism Across the Board

Bhuwania makes the point early on his book that “the delegitimization of legal procedure that companied the rise of PIL in India…has actually made it easier for courts to justify and overlook departures from the basic principles of criminal procedure that mark [draconian statutes that impact civil liberties].” Gautam Bhatia’s review of the book makes a similar point. While I agree with the substance of their concerns that the Court has weakened civil liberties protections in the name of larger goals such as national security (and have written on this before here, here, and here), I would argue that this has less to do with PILs per se, and more to do with the judicial role and method instituted in the late 1970s. The judicial populism that Bhuwania describes in his book translates into distinct conception of the judicial role, and a mode of judicial reasoning that is apparent not just in PIL cases but across the board. We can take away the PIL jurisdiction without disturbing this new logic. In that sense, I take issue with the causality that Bhuwania appears to be claiming between PILs and its impact on other areas of law. Judicial populism and distrust of formalism can be seen in teleological interpretative techniques; in the subordination of fundamental rights to directive principles (and increasingly to fundamental duties); in the invocation of public interest and national interest as grounds to justify state action or deny rights (including in fields as far removed from PIL as bail law); in the rise and expansion of the SLP jurisdiction (which in the words of the Court provides “untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges.”); and in the expansion of the Article 142 power to do ‘complete justice” from a power aimed at “ironing out the creases” at the margins to address minor procedural issues, to a “plenipotentiary power” that can be used to set aside and supplant existing laws, or even create completely new jurisdictions.

The problem is not PIL per se, but a particular conception of judicial role and particular modes of judicial reasoning that the Court resorted to in its response to the political discourses of the 1970s. PIL is as much a symptom as of this new judicial discourse as the shifts in other areas of decision making. As Bhuwania himself finds, this new role and reasoning is tethered to outcomes – outcomes that advance the goals of the state and the larger interest of the national project, and views the role of the judiciary as part and parcel of advancing these goals. Consequentialist modes of reasoning and teleological justifications have become the hallmark of judicial method across the board. As such, the shift in discourse that created PILs has also introduced expanded judicial power, a disdain for procedure, and a subordination of individual rights to broader social goals universally. The challenge then is not PIL (or only PIL), but the role conception of the judiciary and the means and methods it employs. Bhuwania’s critique needs to be applied far beyond the realm of PILs.

The Substantive Transformations of PIL

Bhuwania claims that “PIL is primarily a revolution in judicial procedure” (p.12). I disagree. The ubiquitous presence of PILs was made possible by an expanded reading of rights. The Court had to ground its jurisdiction in Article 32, which allows it to entertain original petitions from citizens only for violations of fundamental rights. Therefore, an expanded reading of the scope of rights was integral to expanding the scope of PILs. This was achieved primarily through the expansion of the scope of Article 21, through reading in directive principles and international law norms into the provision. The interpretative techniques used to expand rights (but at the same time dilute limitations thereon) were grounded in the same teleological reasoning that is at the heart of PILs. So, while on the one hand Directive Principles gave content to the “right to life” under Article 21, they were also used to expand the understanding of “reasonable” law that could limit such a right under the “procedure established by law” clause of Article 21. Similarly, while Article 19 could be given an expanded definition, laws framed to advance DPSPs were viewed as “reasonable restrictions” on such rights. Both types of interpretations – of the scope of the right, and the extent of its limitation – were achieved through the same interpretative technique. This interpretative technique has expanded the power of the judiciary (by extending the kinds of claims that they can entertain), but at the same time expanded the power of the state to side-step fundamental rights. Ironically then, the expansion of rights has made rights less meaningful for the citizenry. This too, is part of the PIL story, and is likely to get lost in focusing only on the procedural aspects of PILs.

Process, Public Power, and Accountability

Bhuwania argues against Bhagwati’s consequentialist view of PILs. He opposes the idea that PILs can be evaluated only on the basis of whether one agrees with their outcomes. This, he finds, is a recipe for disaster – such a reading is what makes “bad” PILs possible in the first place. To make his argument, Bhuwania makes a strong case for the importance of process.

It is easy to misread Bhuwania as setting up a binary between process and substance, principally because he does not explain the value of process except as demonstrated through his case studies where the failures of process led to bad outcomes. I don’t read him as setting up such a binary but I do think it is important to explicate the substantive values underlying procedural norms. As Bhuwania shows through case studies, these values – of fairness, representation, participation, non-arbitrariness, etc – ought to be discarded at our own peril. Where Bhuwania does not venture, however, is the institutional value of process and the importance of norms and procedures as accountability mechanisms. Courts are public institutions, enjoying and dispensing public power, and therefore should be accountable to the public for the decisions they make. The major constraint on judges and a source of their accountability is the requirement for public reasoning in conformity with publicly available norms and procedures. Thus, process has value beyond its impact on outcomes. Without such institutional controls, we rely on blind faith in judges rather than holding them accountable to publicly accessible standards.

Two Methodological Concerns

Bhuwania’s case studies deal with PILs relating to urban governance in Delhi. He does not explain why these cases exemplify problems with PILs across the board. Further, and more importantly, Bhuwania’s case studies –the Delhi Vehicular Pollution case, the Delhi Industrial Pollution case (in its many iterations), and Delhi Slum Demolition cases – are all instances of bad process and bad outcomes. They instantiate Bhuwania’s points about the ways in which procedural safeguards are given a go-by in PILs and the impact that this has on the lives of those affected. Missing in this narrative are the counter-factuals that would explain why these cases were able to achieve what they did. Take for example Vishaka – by most accounts a good PIL in terms of its outcome. Why is it that the Vehicular Pollution case was able to wreck havoc on public transport in the city but Vishaka, despite its widespread celebration, had little impact on the daily lives of women? Why is it that the courts were able to get the state to take swift action in Bhuwania’s case studies (expect in parts of the Industrial Pollution case), but failed drastically in the implementation of the Vishaka guidelines so much so that the Supreme Court was itself in violation of the guidelines for 16 years?

Another example is the ongoing AADHAR litigation where the government is flouting the Court’s orders with impunity. What accounts for the devastating and immediate impact of some orders, and not of others? Is there a story to be told here about actors outside the judicial realm that make PIL possible? I believe there is a need to develop non-institutional accounts of PILs – of the ways and means through which the pronouncements of courts are enacted upon the lives of people, and the modalities through which they are resisted. In such a telling, PILs are not only about judges or amici, and change happens not only because judges decree it, or wield extensive contempt powers. The impact of PILs often stems from reasons beyond the judicial realm such as political will, consonance with dominant ideologies, etc. In Bhuwania’s own examples, he narrates the importance of particular political dispensations and executives who were in tune with the court’s own approach to urban governance – and the impact this had on the implementation of court orders. In this sense, it is not only the process of PILs that makes specific kinds of politics possible. PILs are as much about the out of court personnel and indeed the ideological realm in which the order is received. Counter-factuals like Vishaka, etc would have enabled such deeper interrogation of the operation of PILs.

Finally, if we agree with the problems posed by PILs, what is the alternative? Bhuwania argues for a judicial role conception grounded in John Hart Ely’s influential theory of representation-reinforcement – the idea that the proper scope of judicial review is to facilitate the working of the democratic process. Judicial intervention in decisions of the elected branches of government should be limited to those instances where the democratic channels are ineffective, and the mode of intervention should be such as to ensure that these channels are open to democratic practices. Those who are likely to be perpetual losers in majoritarian processes – like discrete and insular minorities – should receive greater attention and “heightened judicial solicitude” to ensure that their rights are protected within the democratic sphere.

Bhuwania unfortunately does not explain why Ely’s formulation of the judicial role is suitable for the Indian judiciary. It is important to recall that Ely’s work is part of a series of interventions that were responding to Alexander Bickel’s concerns about the “counter-majoritarian” difficulty in judicial review in the American context. Ely theory was formulated as a response to this legitimacy concern regarding judicial review. The entire model – the legitimacy concern as well as responses to it – are grounded in a very Anglo Saxon conception of the relationship between state and citizen and judiciary and other branches of government. As Bhuwania himself outlines in his initial chapters, India (and indeed many post-colonial constitutional orders) have adopted a different, more interventionist conception of the state. Why is this restrained model of judicial intervention appropriate for judiciaries in such states?

Bhuwania makes the point that just as we should not buy into the Anglo-Saxon model of judicial review simply because it provides a readymade template, we should not also celebrate departures from the model only because it is a departure. While this is true, and it is not my argument that the Indian experience is “incomparable” or that we cannot learn from Anglo-Saxon jurisdictions, there are other models that are more suited as comparators for India. The growing literature on global south constitutionalism which seeks to locate the role of courts in the particular political and material realities of third world countries might be more a relevant interlocutor on the issue of the appropriate role of the judiciary. After all, context does matter, even if it isn’t everything.

(Aparna Chandra is an Assistant Professor of Law and Research Director, Centre for Constitutional Law, Policy and Governance, National Law University Delhi. She teaches constitutional law, constitutional theory and human rights)

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Online Speech and Intermediary Liability: The Delhi High Court’s MySpace Judgment

On the 23rd of December, a division bench of the Delhi High Court handed down its judgment in MySpace vs Super Cassettes. In the process, the Court laid down some important legal principles regarding intermediary liability in the case of copyright claims, the scope of safe harbour provisions, and injunctions. The judgment, therefore, has significant ramifications for online speech, and ought to be studied closely. It is also worth reading because it is one of the first Indian judgments (to my knowledge) that focuses upon the special characteristics of the Internet from the point of view of expanding online speech, and not contracting it. As I shall argue, on the core question before it – that is, balancing online speech with the statutory mandate of protecting copyright – the Court successfully negotiated a minefield of legal and technical issues, and – apart from one finding – managed to tread a fine line between the competing interests.

Background

In 2008, Super Cassettes filed a suit against MySpace. It argued that a lot of the songs and other audio-visual content that MySpace hosted on its website violated its copyright. It further argued that MySpace profited from this through advertisements that were inserted into the videos. Furthermore, MySpace’s existing systems of protecting copyright – i.e., a terms of service agreement with its users directing them not to violate copyright, a notice-and-takedown system where MySpace would take down copyright infringing material on being notified by the holder, and a Rights Management Tool, whereby copyright holders could sign up, create digital fingerprints of its content, and then submit it to MySpace, who would then block mirror content – could not absolve it of liability under Indian law. Super Cassettes argued that MySpace had violated provisions of the Copyright Act. It sought a permanent injunction, and damages.

MySpace argued, on the other hand, that it was an intermediary, and had no role to play in making, modifying, or uploading content upon its website. The advertisements that were shown just before a video played were through an automated process, depending upon matches between keywords. Consequently, MySpace was not modifying any content in its own right, and was protected under the safe harbour provisions of the Information Technology Act. Furthermore, a general injunction to remove copyright-infringing material was impossible to comply with, because not only were there more than 100,000 works on the website which MySpace would have to sift through, but it would also have to monitor every future work that was uploaded on its website.

On hearings for interim orders, the single judge of the High Court found that MySpace was prima facie in breach of the Copyright Act by providing a “space” where infringing material was published, and with “knowledge” that such material was being published (the two requirements under Section 51(a)(ii) of the Copyright Act). The single judge further held that MySpace’s role went beyond that of an intermediary; and in any event, under the proviso to Section 81 of the Information Technology Act, the provisions of that Act (including the safe harbour provisions) were clearly subservient to copyright law. MySpace’s safeguards – such as the Rights Management Tools – were not relevant to a finding of liability for copyright infringement, and could only come into play as factors for mitigating damages. Consequently, the single judge granted a qua timet injunction (i.e., an injunction against future acts), prohibiting MySpace from allowing uploads of any material that breached Super Cassette’s copyright, and to delete from its website the songs and other content about which Super Cassettes provided it with the relevant details.

MySpace appealed.

Issues before the Division Bench

At the outset, it is important to note that the division bench of the High Court was concerned only with the issue of the injunction order – that is, the order of injunction – and not with the overall suit between the parties. Consequently, Justice S. Ravindra Bhat, writing the judgment of the Court, framed the following three legal issues for adjudication:

 “First whether MySpace could be said to have knowledge of infringement as to attract Section 51(a)(ii) and consequent liability; Second, does proviso to Section 81 override the “safe harbor” granted to intermediaries under Section 79 of the IT Act third, possibility of harmonious reading of Sections 79 and 81 of the IT Act and Section 51 of the Copyright Act.” (paragraph 31)

Knowledge of Infringement

Section 51(a)(ii) of the Copyright Act states that copyright shall be infringed when a person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”

The Division Bench agreed with the single judge that MySpace’s website was a (virtual) “place”, from which MySpace earned profit (paragraph 34). The key question was whether, in the absence of specific notice, MySpace could be said to be “aware” or have “reasonable grounds to believe” that copyright infringement was taking place on its website. The single judge had held that the very presence of safeguard provisions and tools (such as notice-and-take-down) in MySpace’s user agreements signalled a “general awareness” that copyright was being infringed on its website, and this was enough for liability to be attracted under S. 51(a)(ii). The Division Bench disagreed. In paragraph 35, Justice Bhat held:

“Simply put, that test [of general awareness] overlooks that unlike “real” space, in a virtual world, where millions of videos are uploaded daily, it is impossible under available technology standards to identify the streaming content, which actually infringes. Knowledge has a definite connotation, i.e a consciousness or awareness and not mere possibility or suspicion of something likely. The nature of the Internet media is such that the interpretation of knowledge cannot be the same as that used for a physical premise.”

He then went on to develop this argument in the succeeding paragraphs, noting that in the specific context of the Internet, where a system could store “millions” of videos, the concept of “constructive”, or assumed knowledge, from the offline world, could not simply be transplanted here. Rather:

“The requirement is to give specific information to the content host or the website(MySpace) that infringement occurs with respect to the specific work. A general or vague description of the works would be insufficient as this then leaves room for MySpace to rely guesswork as to what content has to be removed. Therefore, the onus is upon the plaintiff to give detailed description of its specific works, which are infringed to enable the web host to identify them.” (paragraph 36)

Super Cassettes argued, however, that it had notified to MySpace a list of more than 100,000 songs in which it had copyright. The Division Bench held that this was insufficient, especially because when MySpace had done a preliminary scan of these 100,000 songs, it had found that many of them had been uploaded by distributors or performers who might well have been covered under copyright exceptions (such as, perhaps, fair use). Consequently, the Division Bench held:

“It is only when a specific work is mentioned can it be said that MySpace possesses knowledge of a work being infringed on its website. Providing long lists of all works, tasking MySpace with identifying and removing infringing content is not enough. It is only when MySpace has specific or actual knowledge or when it has reasonable belief, based on information supplied by SCIL and if despite such knowledge or reasonable belief it fails to act can it be held liable for infringement…  in other words, an indiscriminate and blind acceptance of SCIL‟s entire list to run a general filter and “take down” all content would result in grave damage and result in likely multifarious disputes: with up-loaders, many of whom are original creators in their own right and might have used a miniscule quantum of the copyrighted content in… their larger original creation; with distributors, who might hold genuine licenses and with others who create versions, remixes or original titles which may have little content; still there may be other content uploaders whose material only superficially resembles with the titles owned by SCIL, because of the lyrics or titles but is otherwise genuine creation with its independent copyright.” (paragraph 38)

In the present case, therefore, the Court held that MySpace had no prima facie knowledge of infringement (paragraph 39).

The Interplay Between the Copyright Act and Intermediary Liability under the IT Act

This brought the Court to issues 2 and 3 (see above). MySpace had sought sanctuary under Section 79 of the Information Technology Act. Section 79 provides a safe harbour to intermediaries from being held liable for unlawful content on their servers. This safe harbour is lost if the intermediary receives “actual knowledge” that it is hosting unlawful content. And recall that in Shreya Singhal vs Union of India, the Supreme Court had held that “actual knowledge” under Section 79 was limited to either a court order, or a government directive.

As we can see, there is an overlap between Section 51 of the Copyright Act and Section 79 of the IT Act. Section 51(a)(ii) makes an entity liable for secondary infringement if it is “aware” or has “reasonable grounds for believing” that infringement is happening on its “place”. Section 79, which otherwise protects intermediaries, nonetheless revokes this protection if the intermediary has “actual knowledge” that its platform is being used for law-breaking (which includes copyright violation). Now, the key question is this: if the general standard of protection afforded to intermediaries under the IT Act (actual knowledge) – as interpreted in Shreya Singhal – is greater than the general protection in cases of secondary infringement under the Copyright Act (non-awareness), then which of the two laws will apply to the specific case of an intermediary whose website is being used for potential copyright infringement? Or, to put the question another way: if the intermediary does not have “actual knowledge” (as per Shreya Singhal) under S. 79 – that is, if it has not been notified by a court order or by the government that copyright infringement is taking place – can it nonetheless be held liable under Section 51 if it has the “awareness” of copyright infringement (as held by the Division Bench in Issue 1) taking place?

It is here that I part ways with the Division Bench. Super Cassettes argued that the IT Act was not applicable at all to cases of copyright infringement, since the proviso to Section 81 of that Act stated that “nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act.” The Division Bench – in my view, correctly – rejected this argument. It pointed to the language of Section 79 itself, which itself had an overriding clause: “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3)…” – which, according to the Division Bench, meant “that the only restriction to be placed in the application of Section 79(1) is contained within the section: Section 79 (2) and Section 79 (3).” Consequently:

“In this Court‟s opinion, Section 79 grants a measured privilege to an intermediary. However, that would not mean that the rights guaranteed under the Copyright Act are in any manner curtailed. All Section 79 does is regulates the liability in respect of intermediaries while the Copyright Act grants and controls rights of a copyright owner. Under the circumstances, it is difficult to conceive how one would pose a barrier in the applicability of the other. The true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections. Section 79 is neither an enforcement provision nor does it list out any penal consequences for non-compliance. It sets up a scheme where intermediaries have to follow certain minimum standards to avoid liability; it provides for an affirmative defence and not a blanket immunity from liability.” (paragraph 47)

In the succeeding paragraphs, the Court stressed on the fact that “Parliament by amending the IT Act intended to create a separate provision and regime for intermediaries…”, and that “given the supplementary nature of the provisions- one where infringement is defined and traditional copyrights are guaranteed and the other where digital economy and newer technologies have been kept in mind, the only logical and harmonious manner to interpret the law would be to read them together.” So far, so good. However, in paragraph 50, the Court then held:

“Section 79(3) of the IT Act specifies that when a person has actual knowledge or upon notification by the appropriate government or its authority fails to expeditiously remove or disable access to an unlawful content then the immunity granted under Section 79(1) is revoked. The knowledge contemplated under this section is actual knowledge. In Shreya Singhal (supra), Section 79(3) with Rule 3(4) of the Rules were read down to mean receipt of actual knowledge from a court order or on being notified by the appropriate government. However, this was in respect of restrictions under Article 19(2) of the Constitution of India. The Supreme Court was conscious of the fact that if millions of requests for take down are made, it would become difficult for intermediaries (such as Google) to identify legitimate requests. In the case of copyright laws it is sufficient that MySpace receives specific knowledge of the infringing works in the format provided for in its website from the content owner without the necessity of a court order.”

However, instead of reading Section 51 of the Copyright Act and Section 79 of the IT Act harmoniously, this effectively subordinates the latter to the former. In the first part of its judgment, the Court undertaken an independent analysis of Section 51, and arrived at a “knowledge” standard for intermediaries. This standard – of specific notice – was considerably less protective than Section 79 IT Act’s requirement of “actual knowledge” through a court order or the government. In paragraph 50, the Court simply adopted the specific notice standard “in the case of copyright laws.” In other words, intermediaries who were otherwise protected under Section 79 of the IT Act would lose their safe harbour if they were given specific notice of copyright infringement by the copyright owner, even in the absence of a court order or a government directive.

The Court justified this by pointing to the “red flag” requirements under the American DMCA, which is another form of notice-and-take-down. That, however, cannot be an answer to why the actual notice standard laid down in Shreya Singhal would be diluted to specific notice in case of copyright claims. And the broader problem is this: even under the Division Bench’s heightened requirement of “specific notice”, the primary onus of deciding upon the validity of a copyright claim, and deciding whether or not to take down content (thus restricting online speech) rests upon a private party – MySpace. The problems with this approach have been well-documented: facing the threat of losing their safe harbour and being sued for damages, private parties will err on the side of taking down content. MySpace, in all likelihood, will have neither the resources to parse Super Cassette’s notice to see whether the infringing content is saved by fair use, or by de minimis use, or any other exception to copyright infringement – and nor will it be willing to take the risk of affirmatively rejecting a notice, and then facing the possibility of extended litigation. It was precisely because of this that the Supreme Court in Shreya Singhal restricted “actual knowledge” to a court order or a government notification. In my view, the Division Bench unjustifiably dilutes that standard for copyright claims.

Furthermore, the matter is somewhat complicated by the operative part of the judgment. In paragraph 68(b), in its record of its findings, the Court notes:

“Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions under Section 79 of the IT Act have to be fulfilled.”

However, this seems to run counter to what came before: under this, Shreya Singhal’s actual knowledge standard under Section 79 would apply over and above Section 51’s actual knowledge standard that the Division Bench laid down while discussing Issue 1.

Here is one possible reconciliation: since MySpace was already following a notice-and-take-down rule, the Division Bench’s discussion on specific notice should be limited to finding that what MySpace was doing was consistent with law. The Division Bench did not say that a specific notice would be sufficient to erase safe harbour as a general proposition of law. Rather, in paragraph 68(b), it made clear that the general proposition of law was that intermediaries would continue to be protected even in cases of copyright infringement, unless Shreya Singhal’s standard of actual knowledge was satisfied.

This would be a far more speech-protective reading of the judgment. However, it is a difficult one to sustain, in light of the clear observations of the Court, which we discussed above. This is one issue, then, on which the judgment’s import is – in my view – slightly unclear.

Qua Timet Injunctions

Lastly – and very importantly – the Division Bench agreed with MySpace’s contention that the qua timet injunction was virtually impossible to enforce. Justice Bhat made the crucial observation that:

“A further balancing act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech; an unspecified or incomplete list may do that. In an order of relief such as that passed by the learned Single Judge, MySpace would be in contempt of court for not complying with an order, which is otherwise impossible or at best onerous and cumbersome of performance. In order to avoid contempt action, an intermediary would remove all such content, which even remotely resembles that of the content owner. Such kind of unwarranted private censorship would go beyond the ethos of established free speech regimes.”

(Of course, as I argued above, it is precisely this privatised censorship which is a problem with the specific notice standard that the Court did endorse).

The Court also noted that if MySpace was forced to remove content in accordance with the vague terms of the qua timet injunction, it might even end up being in breach of its contract with its users, in cases where lawful content ended up being taken down. Consequently, the Court finished by holding:

“Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor. Therefore, SCIL cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the appellant shall remove within 36 hours of receiving such notice.” (paragraph 66)

This is very important, in particular, because it bucks the trend of the High Courts granting qua timet injunctions (accompanied by John Doe orders) almost as a matter of course.

Conclusion

MySpace vs Super Cassettes is a landmark judgment that contributes in no small measure to an evolving international jurisprudence on online free speech and intermediary liability. The High Court pays close attention to the characteristics of the internet, and is very solicitous to how its holdings will affect the flow of information on the internet. Unlike other judgments, where the fluid and flexible nature of the internet has been used to justify greater regulation, the Delhi High Court, in MySpace, is concerned to ensure that this fluidity and flexibility is not stifled by legal concepts developed for the offline world. While its exact finding on the interplay between the Copyright Act and the IT Act is a little unclear, the judgment breaks new ground in its analysis of actual knowledge (for intermediaries) under the Copyright Act, its refusal of a qua timet injunction, and its finding that the Copyright Act will not exclude the safe harbour provisions of the IT Act. It is a judgment that should be studied and discussed closely.

 

 

 

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