The Costs of Censorship: The Cable Network Rules and the Banning of AsiaNet and MediaOne

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The Information & Broadcasting Ministry’s order banning the Malayalam channels Asianet and MediaOne has yet again demonstrated the weak foundations of the legal regime dealing with television content regulation. The legal authority for the ban flows from the Programme Code, passed under the Cable Network (Regulation Act). In a series of posts, Apar Gupta has extensively discussed the constitutional problems with this legislative scheme. I will summarise them briefly:

  • The Act and the Code allocate the costs of censorship to the speaker: They do so by granting the government the power to ban channels, leaving the burden (financial and otherwise) upon the channels (then) to fight it out in Court. This effectively makes censorship costless for the government, as all it has to do is pass censorship orders; contrast this with a situation in which the government would first have to prove a legal violation in court, and a judicial order was required for banning channels. This would place the initial burden upon the government (and not on the citizen), and would create a judicial safeguard before speech could be taken out of the marketplace of ideas, instead of after. Now in the wake of Puttaswamy and the advent of the proportionality standard, I would argue that it is at least arguable now that this choice of legal architecture (government bans that have to be then contested in Court by TV channels) is evidently not the “least restrictive method” of achieving the government’s goals of ensuring compliance with the law. When a less restrictive method – judicial sanction (except arguably in cases of emergencies) is available, the Act and the Code fail the test of proportionality.
  • The chilling and the conforming effect: as a related point, the legal architecture of the Programme Code creates both a chilling effect and what free speech scholar Margot Kaminski calls a “conforming effect.” That is, given that censorship is costless (and challenging it is costly), a number of bans of this kind will go unchallenged in Court. What this leads to is a “conforming effect”, where grounds set out in one banning order serve as signals to other channels to comply with them, whatever the legality might be. For example, the present orders cite apparent bias against the Delhi Police and the Rashtriya Swayamsevak Sangh (RSS) as grounds for the ban. It should be abundantly clear that this is grossly illegal; as the illegality, however, is effectively costless to the State (at best, the TV channels will fight the ban and get it overturned a few months – or years – later), it can do it again, and again – in the future. Channels know that fact just as well, and are likely to modify their behaviour to not criticise the police or the RSS, if the likely consequence is going to be an immediate 48-hour ban. This too infringes Article 19(1)(a) of the Constitution.
  • Vagueness: This is, by now, almost tedious to repeat. The provisions of the Programme Code are exceedingly vague, leaving its implementation almost entirely at the mercy of the government. Once again, this feeds into the first point about legal architecture: if, at the first instance, a Court was examining the question, then presumably – even to these vague provisions – it would apply constitutional tests (such as the incitement standard for public order). But this is not the case when it comes to the structure of the Act and the Code. The original sin in this case lies in the judgment of K.A. Abbas, where a similar legal structure – including the direct transplantation of Article 19(2) into the statute – was held to be constitutional. Perhaps, in the age of the proportionality standard, it is time to reconsider that as well.
  • In this case, specifically, the impact of the vague provisions of the Programme Code is seen particularly vividly, as the banning orders take advantage of its loose language, and mirror it with even looser language (a point discussed in the previous post). Phrases such as “biased”, “siding with a particular community”, “promoting anti-national attitudes” are so boundlessly manipulable, that they can effectively mean whatever those with brute power want them to mean. Note that this is not a case of the government abusing the law; this is a case of how a badly-drafted law enables unconstitutional use by the State. This is why both the Act and the Code ought to be struck down – it is long overdue.

Defining the Political: The Supreme Court’s FCRA Judgment

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


The Foreign Contribution (Regulation) Act – as the name suggests – regulates the circumstances under which individuals or bodies can accept funding from foreign sources. Section 3(1)(f) of the Act prohibits any “organisation of a political nature” from accepting foreign funds. The power to specify an organisation as a “political organisation” flows from Sections 5(1) and 48; the Central Government, having regard to the “activities”, “ideology”, or “association … with the activities of any political party” can specify that an organisation is of a “political nature.” To further concretise this, the FCRA Rules of 2011 set out a number of guidelines. According to Rule 3 of the 2011 Rules, organisations with “avowed political objectives” in their MoA or bye-laws, Trade Unions promoting “political goals”, action groups with objectives of a “political nature”, organisations aiming to advance “political interests”, and organisations using “common methods of political action … in support of public causes”, can all be declared organisations of a “political nature” under Section 5 of the parent Act.

This composite scheme was challenged in Indian Social Action Forum v Union of IndiaIn a brief judgment, a two-judge bench of the Supreme Court upheld the constitutional validity of the Act and the Rules, but “read down” the last clause of Rule 3 – i.e., 3(1)(f) (“… common methods of political action … in support of public causes”) – to “active politics” or “party politics.” While the narrow reading of these excessively broad provisions is no doubt a good thing, nonetheless, in this post, I will flag three issues with the reasoning of the Court.

A. What is the “Political”

In paragraph 18 of the judgment, the Court notes that “preventing foreign contribution into the political arena is the object sought to be achieved by the Act. Prevention of foreign contributions routed through voluntary organisations which are not connected to party politics is the reason behind introduction of Section 3 (1) (f) and Section 5 of the Act.” Immediately after that, the Court goes on to note that “as the intention of the legislature is to prohibit foreign funds in active politics, an Association with avowed political objectives (i.e. to play a role in active politics or party politics) cannot be permitted access to foreign funds.”

Thus, the Court limits the scope of the use of the word “politics” across the Rules (and not just in Section 3(1)(f)) to “party politics” or “active politics.” Unfortunately, however, the Court fails entirely to define what “active politics” mean (especially as distinguished from “party politics”). What one can glean from the judgment – and especially the Court’s reference to “party politics” in its discussion of the legislative intent, and subsequently – in paragraph 21, the reference to “administration” – is that the purpose of the FCRA is to prevent foreign interference in electoral politics, so that the governance of the country is not affected by foreign interests. In this sense, “active politics” is probably best read alongside “party politics”, and – more broadly – as a prohibition upon organisations that seeks funds for electoral purposes (whether through party politics or otherwise).

If this is the meaning of “active politics”, however, then it should have been clarified. This is especially true because the word “political” is capable of boundlessly wide meaning. Indeed, as feminist thought has shown us over the years, the history of many struggles and movements is the history of attempts to shift the line between that which is “political” (and therefore subject to democratic norms, and ideas of liberty and equality), and that which is “private”. The core problem with the FCRA is the manner in which the word “political” is used throughout the statute and the Rules, without any indication of the work that it is meant to be doing. While “party politics” is at least an identifiable and specific narrowing down of the word, “active politics” has the potential to only multiply the confusion (unless, potentially, it is read in the manner suggested above).

B. Vagueness, Over-Breadth, and Abuse

This reluctance to be specific affects the Court’s judgment throughout, and leads to a serious misstep in paragraph 19, when it is addressing Rule 3(v) (“organisations … addressing political interests.” The Court holds:

We are in agreement that the words ‘political interests’ are vague and are susceptible to misuse. However, possible abuse of power is not a ground to declare a provision unconstitutional.

Unfortunately, this is a basic conceptual error that turns the doctrines of vagueness and over-breadth on their head. When a statute or a rule is attacked on the grounds of “over-breadth” or “vagueness”, the argument is not that it should be struck down because there is a “possible abuse of power.” The argument is that the language of the statute or rule is either broad enough or vague enough so as to encompass both constitutional and unconstitutional application within the terms of that language. The problem is not, therefore, the unconstitutional abuse of the law, but its unconstitutional use. As the Supreme Court of the United States noted in Grayned v Rockford, the judgment that first articulated the vagueness standard with clarity:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.”

 

It should therefore be clear that once there is a judicial finding of vagueness of over-breadth, it is that finding itself that provides the reasons for unconstitutionality. The point is, as Grayned points out, that a vague or over-broad statute provides plausible legislative cover for unconstitutional State action. Or, in the words of Chintaman Rao v State of MP, a judgment that this bench does not cite: “so long as the possibility of [a statute] being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”

C. Reading Down

A final, related point: the Court’s chosen strategy in this case (as indicated above) is to “read down” the word “politics” wherever it is found in the statute and the Rules to “party politics” or “active politics.” I have argued above that the reading down method was inapplicable in this case, as a matter of law. There is, however, a more pragmatic point that needs to be made. The strategy of “reading down” works in a situation where – after the reading down – there are mechanisms to swiftly correct the abuse of law if and when the government continues acting in the same old way, and does not follow the Court’s interpretation of the statute. As we have repeatedly seen, however – and most recently, in the case of sedition – Supreme Court judgments that “read down” legal provisions (and that, effectively, create a gap between what the text appears to mean and what the Supreme Court says it means) that are otherwise clearly unconstitutional – very quickly turn into dead letters. Without the existence of some mechanism to ensure that the “reading down” is actually effective, judgments such as these appear to be bringing the government to account, but their net impact is negligible in terms of enforcement. That is a pragmatic reality that appellate Courts should be taking into account when they fashion remedies in cases of this kind.

The Supreme Court’s Humpty Dumpty Jurisprudence on the Question of Referral

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


In its judgment delivered on the 2nd of March (Shah Faesal v Union of India), while deciding whether the challenge to the alteration of Article 370 required to be referred to a bench of seven judges, a five-judge Constitution Bench of the Supreme Court had this to say about the importance of precedent in an adverserial system:

When   a   decision   is   rendered   by   this   Court,   it   acquires   a reliance interest and the society organizes itself based on the present   legal   order.   When   substantial   judicial   time   and resources are spent on references, the same should not be made   in   a   casual   or   cavalier   manner.   It   is   only   when   a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well­ established principle, that a reference will be made to a larger Bench. (paragraph 19)

Until very recently, this would have been a non-controversial reiteration of a proposition that virtually everyone believed was settled law. Unfortunately, however, these observations are flatly contradicted by everything that has happened since November 2019, in proceedings arising out of the Sabarimala “Review” order. These proceedings have been covered extensively on this blog, but suffice it here to recall that:

  1. The five-judge review bench (split three to two) – despite being unable to indicate any error in the original judgment – “referred” certain “questions of law” to a larger bench on the principal ground that these questions might arise in certain future cases before the Court.
  2. The five-judge review bench also justified this decision of referral by noting the existence of two prior five and seven-judge bench judgments, but failing utterly to show what the conflict was between them, or how they were irreconcilable.
  3. The new Chief Justice then established a nine-judge bench on the strength of this referral-in-review order. Before the nine-judge bench, the exact arguments that the Court makes in paragraph 19, quoted above, were made. Some of the judges on that nine-judge bench were also part of the Shah Faesal bench. Yet, the nine-judge bench decided to go ahead and hear the “referred” questions on their merits.
  4. To this day, there has been no explanation forthcoming from the Court how either of the two propositions set out in paragraph 19 – “a contradiction by a judgment of the same bench” or an “unworkable proposition” – were present in the proceedings arising out of the Sabarimala review. Nonetheless, the nine-judge bench is going ahead.

What, then, is the position of law on referral? Is it the law set out in paragraph 19 of Shah Faesal? Or is it what flows from the Sabarimala review order? And what is one to do when the same judges who sign on to paragraph 19 see no compunction in throwing its principle to the winds in a simultaneously progressing hearing?

Perhaps the only answer is to be found in the dialogue between Humpty Dumpty and Alice, in Lewis Carroll’s Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master*—that’s all.”


* Any resemblance to the “Master of the Roster” is purely coincidental.

 

Privacy, Data Protection, and the National Population Register

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The constitutionality of the National Population Register [“NPR”] – authorised by the Citizenship Rules of 2003 – is presently under challenge. Grounds of challenge include questions about excessive delegation, the doctrine of ultra vires, disproportionate burdens upon rights, and so on. At its heart – as the Citizenship Rules show – the NPR is a data collection exercise, involving the collection, storage, and processing of personal data (for the purposes of preparing a National Register of Indian Citizens [“NRIC”]). Consequently, issues around data protection and the right to privacy (as set out in Puttaswamy) come to the fore.

In this context, the Internet Freedom Foundation has prepared an important briefing paper that examines the interface between the NPR and the ongoing legislative discussion around the proposed Personal Data Protection Bill. IFF’s intervention is particularly important because it engages in a reflective analysis of the NPR and the PDP, in a manner that brings out crucial shortcomings in both.

Constitutional principles stipulate that in cases of non-consensual collection of personal data (as in the NPR), at the minimum, (a) data protection best practices, including data minimisation and purpose limitation must be followed, (b) data collection must follow the principles of necessity and proportionality (especially if rights are affected). Within this framework, some issues come to the fore immediately. The first is the disjunction between the statutorily stipulated “purpose” of the NPR, and the public discourse around it. The IFF Brief points out that – as per the Citizenship Rules of 2003 – the only statutorily mandated use to which NPR data can be put is the preparation of an NRIC. In public discourse, however, the government has claimed that the purpose of the NPR is to ensure targeted delivery of welfare schemes. This – naturally – finds no mention in the Citizenship Rules. This is a classic case of “function creep”, and was witnessed for many years in the case of Aadhaar (until under pressure because of litigation, the Aadhaar Act was passed in 2016).

For this reason, the IFF Brief suggests that Section 5 of the PDP make clear that purpose limitation requires the specific and concrete purposes for which the data will be collected to be “anchored” in primary legislation. This is important for three reasons: first, once the purposes are set out, the proportionality of data collection can be examined with respect to each purpose, separately (for example, in the Aadhaar Case, the Supreme Court found that the proportionality standard was not met for bank accounts and mobile phones, but was met for welfare subsidies and income tax); secondly, it ensures that citizen and resident databases are not open-ended enterprises that – once data is collected – can be used for any purpose at any time; and thirdly – and following from the first two reasons – it rules out interlinking of databases and the accompanying profiling and surveillance (which was explicitly deemed unconstitutional by the Supreme Court in the Aadhaar judgment).

Indeed, the IFF Brief points out how a rigorous implementation of purpose limitation – along the lines suggested above – would bring out clear and evident shortcomings in the NPR process itself. If the statutorily stipulated purpose of the NPR is to prepare an NRIC (caveat: contrary to IFF’s suggestions, this is part of the Rules, and has not been set out in primary legislation), then only that much data as is required for the purposes of establishing citizenship may be collected (caveat #2: this is without prejudice to the overall arguments against the NPR). Thus, for instance, the NPR process cannot mandate the collection of Aadhaar details (as Aadhaar is not a proof or even an indication of citizenship), and the NPR database cannot be seeded with Aadhaar (as has already been partially done).

The IFF Brief points out, in addition, that the PDP Bill’s broad exemption clauses enable the possibility that the entire NPR exercise could be taken out of the ambit of data protection principles altogether. This is obviously a serious problem, and it is worthwhile to note that in the original Srikrishna Bill, the Government was not authorised to simply dispense with the requirements of necessity and proportionality when engaged in non-consensual data collection. The potential non-application of the PDP Bill to an exercise as important and sensitive as the NPR, therefore, demonstrates an urgent need to tighten the Bill’s provisions in order to ensure constitutional compliance.

In sum, therefore, the NPR process is precisely the kind of large-scale, nationwide data-gathering and database-creating exercise that requires principles of data protection to be applied rigorously. When, however, we measure the NPR and the PDP against those constitutional principles (as set out in Puttaswamy and elsewhere), we find important shortcomings in both. The IFF Brief provides an important starting point from which to identify these shortcomings, and also indicates what a strong data privacy regime would look like in practice.

Guest Post: Article 131 and the Power of State Governments to Challenge Laws: A Response to Amlan Mishra

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[This is a guest post by Kevin James.]


This post is a response to Amlan Mishra’s interesting piece on the question of whether States can challenge central laws, published on this blog a few days ago (available here). The immediate context for this is the suit filed by Kerala on January 15th against the Centre before the Supreme Court, challenging the constitutional validity of the Citizenship (Amendment) Act, 2019 (“CAA”). This suit was filed under Article 131 which vests exclusive jurisdiction in the Supreme Court over legal disputes between the Centre and States. On the basis of a structural interpretation, Mishra argues that Article 131 ought to be read as granting States the right to challenge central laws. In this post, I address the same question through a different approach, and arrive at a different conclusion.

‘Legal Right’ under Article 131

For a suit under Article 131 to be maintainable, a key requirement is that the dispute must involve a question of a law or fact “on which the existence or extent of a legal right depends”. But what is the meaning of a ‘legal right’? In jurisprudence, a legal right is generally understood to be an immunity against the legal power of another. For example, against the power of the State, citizens possess a legal right to freedom of speech and expression under Article 19. Thus, while the State may exercise certain powers over its citizens, it cannot violate a citizen’s right to freedom of speech.

Similarly, in a federation underpinned by a written constitution, individual States also have certain rights against the powers of the Centre. The requirement under Article 131 is that the dispute should involve a question of law, the answer to which will determine whether or not a State has a legal right against the power of the Centre in that particular case. A good example of a case where this requirement is clearly met is the suit filed by the State of Chhattisgarh against the Centre under Article 131. This suit, filed a day after Kerala’s suit, challenges the constitutional validity of the National Investigation Agency (NIA) Act, 2008. In the wake of the 2008 Mumbai terrorist attacks, this statute established the NIA as a central agency for the investigation of terror-related cases. Chhattisgarh challenged Parliament’s legislative competence to enact such a law on the ground that it encroaches upon the State’s power over “Police” as per the Seventh Schedule of the Constitution (List II, Entry 2).

This fulfils Article 131’s subject-matter requirement as follows: The answer to the question of whether Parliament has the competence to pass the NIA Act will determine whether Chhattisgarh has a legal right to conduct its own investigations through its police, against the power of the Centre to conduct investigations in the State through the NIA. The State is directly affected by this matter, and whether or not it has the aforesaid right against the Centre’s power in this case depends upon the constitutional validity of the NIA Act.

The Article 256 argument

From the above analysis, it follows that the first question that needs to be answered for Kerala’s suit to be maintainable under Article 131 is: Do States have a legal right against the Centre’s power over citizenship? Unlike in the USA, all Indians have a single Indian citizenship and the Centre has exclusive legislative and executive power over it (List I, Entry 17). Thus, a citizenship law, even if unconstitutional and violative of fundamental rights, does not directly affect any legal right of a State. In other words, no State has a legal right against the power of the Centre over citizenship. The question of law, ‘does the CAA violate fundamental rights?’, does not meet the subject-matter requirement of Article 131 as the existence of a legal right of any State does not depend on it.

Perhaps for this reason, Kerala’s suit frames the specific dispute under Article 131 in terms of Article 256. Article 256 requires States to ensure compliance with central laws, and vests in the Centre a power to give directions to recalcitrant States for this purpose. In effect, Kerala argues that the legal dispute in this case stems from the fact that the State will be compelled to enforce an unconstitutional law, thereby violating the legal rights of the State.

However, if the CAA is declared to be unconstitutional (and there are nearly 150 petitions in the Supreme Court challenging the CAA through other routes), then there is no question of it being enforced, let alone anyone being compelled to enforce it. As said earlier, a legal right is an immunity against a legal power. The effect of the CAA being declared unconstitutional would be that the Centre would have no power to direct its enforcement in the first place, and thus there is no question of a State having a right against such a power. Therefore, this contention does not meet Article 131’s requirement either.

The fundamental rights argument

Kerala’s suit also states that the dispute involves the enforcement of the fundamental and other rights of its inhabitants. But does a violation of the rights of a State’s inhabitants constitute a violation of the legal right of the State for the purposes of Article 131?

Typically, fundamental rights are enforced through Article 32, which confers a fundamental right to move the Supreme Court for this purpose. This is in addition to Article 226, which provides a broader remedy before the High Courts for enforcing fundamental and other rights. With the advent of Public Interest Litigations (PILs) several decades ago, entities other than the directly aggrieved persons can move the Supreme Court on their behalf. Article 32 petitions are typically filed against the Central or State Government, but interestingly, there have been cases where these governments have themselves filed petitions under Article 32.

In 2017, when West Bengal sought to challenge the Aadhaar Act under Article 32, the Supreme Court orally observed that a State cannot file such a petition against a central law. However, it did not give any reasons to support this view. On this question, the court should have looked at its judgment in the 2015 case of Union of India v. V. Sriharan, which was regarding the State of Tamil Nadu’s decision to remit the life sentences of Rajiv Gandhi’s assassins. In this case, the Centre moved the Supreme Court against the State of Tamil Nadu for the enforcement of the fundamental rights of the victims of the 1991 blast. This was done under Article 32, in the Centre’s capacity as parens patriae or guardian of its citizens. This case illustrates how Article 32 could be used by a State to enforce fundamental rights. As such, there does not seem to be any reason to interpret Article 32 in a manner that prevents the State or the Centre from moving the Supreme Court.

If Kerala wished to challenge the constitutional validity of the CAA on the ground of violation of fundamental rights, the nature and source of the remedy would flow from the persons whose rights are being enforced, and not from the State that seeks to enforce them. Therefore, in my view, Kerala should have moved the Supreme Court under Article 32 to challenge the CAA, and not under Article 131. Of course, if Kerala were to choose this route of challenging the CAA, it could technically have acted on behalf of anyone whose fundamental rights were violated, and not just its own inhabitants. But to move under Article 131, the dispute needed to be concerning the constitutional relationship between the Centre and the States, and the rights and powers that flow from this relationship.

In summary, I submit that the answer to the question of whether States can challenge central laws rests on the following. If the challenge is made under Article 131, then it should be on the ground of legislative competence and not for violation of fundamental rights. In a case of violation of fundamental rights, States should be able to challenge central laws under Article 32, and not Article 131.

Given the absolute majority at the Centre, opposition politics appear to have moved to the Centre-State sphere. The possibilities and limitations of the federal scheme of our Constitution will thus be rigorously examined, and questions such as the ones raised by Kerala’s suit will only become more prominent in the near future. Although the CAA appears to be unconstitutional on several grounds, and although many States have rightly expressed their opposition to the same, there are constitutional limits to the articulation of these concerns along federal lines. Kerala’s suit against the CAA looks likely to attract one such limitation.

Proving Citizenship: Lessons from the African Court on Human and Peoples’ Rights

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Ochieng v Tanzania and Penessis v Tanzania are two recent decisions of the African Court of Human and Peoples’ Rights, that demonstrate a humane and sensitive approach to the vexed question of citizenship challenges. Both cases involved challenges by individuals who had been declared non-citizens by Tanzanian authorities.

In Ochieng v Tanzania (22 March 2018), Tanzania deported a declared “non-citizen” to Kenya, who then “deported” him back, leaving him stuck in what the Court called a “no-man’s land” on the border. The basis of the Tanzanian authorities’ decision was that the Mr. Ochieng had forged his documents to obtain his passport – and, in particular, on the basis of “discrepancies” between the documents and the result of an investigation conducted in his village. The Court noted that deprivation of nationality could only be done in compliance with international standards, including the four-pronged test of proportionality. In order to determine whether Tanzania had complied with these standards, the first question that arose was: on which party did the burden lie to demonstrate Mr. Ochieng’s nationality, or lack thereof? In paragraph 80, the Court answered that:

… the instant case, the Applicant maintains that he is of Tanzanian nationality, which is being contested by the Respondent state. In the circumstance, it is necessary to establish on whom lies the burden of proof. It is the opinion of the Court that, since the Respondent State is contesting the Applicant’s nationality held since his birth on the basis of legal documents established by the Respondent State itself, the burden is on the Respondent state to prove the contrary.

The State of Tanzania made a number of arguments that would be familiar to Indian readers, such as spelling discrepancies between documents and testimonies, conflicting oral testimonies, and so on. The Court rejected these arguments, noting that as Tanzania had neither (a) prosecuted Mr. Ochieng for forgery, or (b) conducted a DNA test to determine his link to his parents (who were admittedly Tanzanian citizens) despite him having offered to do so in order to resolve the contradiction between the testimonies, it had failed to discharge its evidentiary burden.

Penessis v Tanzania involved somewhat similar facts. Mr. Penessis was convicted of being an illegal immigrant in 2010, and then placed in detention (also a familiar story for Indian readers). He lost his appeals in the higher courts, which eventually passed orders for his deportation. As in Ochieng’s Case, the dispute revolved around documents: Mr. Penessis claimed that he had a valid birth certificate and Tanzanian passport and was a citizen by birth; the State of Tanzania, on the other hand, argued that he also had British and South African passports, and that Tanzania did not allow for dual citizenship.

Going beyond its judgment in Ochieng’s Case, the African Court referred to international legal instruments to note that “the right to nationality is a fundamental aspect of the dignity of the human person.” (paragraph 87) Consequently, the Court went on to note that “a person’s arbitrary denial of his/her right to nationality is incompatible with the right to human dignity.” (paragraph 88) These observations were crucial, because they went to the heart of the same question that had occupied the Court in Ochieng’s Case: in a dispute over citizenship status, where did the burden of proof lie?

The Court noted, at paragraph 92:

… the burden of proof lies with the alleging party and shifts to the other party only when discharged. Having said that, the Court is of the view that this principle is not static and may be subject to exceptions especially in circumstances where the alleging party is not in a position to access or produce the required proof; or where the evidence is manifestly in the custody of the other party or the latter is entrusted with the means and prerogatives to discharge the burden of proof or counter the alleging party.

That said, citing various other judgments, the Court went on to note:

… when it comes to human rights, this rule cannot be rigidly applied and there must be an exception among other circumstances, where … the means to verify the allegation are likely to be controlled by the state … In such cases, the … the burden of proof is shared and the Court will assess the circumstances with a view to establishing the facts … The International Court of Justice (lCJ) in the Nottebohm Case (Liechtenstein v. Guatemala)2s also held that to determine a nationality link, it is necessary to take into account the very important social factors which bind the Applicant to the Respondent State. (paragraphs 93, 95)

What followed from this, therefore, was that:

… the Applicant who alleges that he holds a certain nationality bears the onus to prove so. Once he has discharged the duly prima facie, the burden shifts to the Respondent State to prove otherwise. (paragraph 96)

On the facts, the Court noted that (a) the State of Tanzania had alleged that the Mr. Penessis’ birth certificate was forged, but had adduced no evidence to prove that; (b) that the facts of Mr. Penessis’ birth were testified to by a person who (according to his birth certificate) was his mother, and that therefore, the initial presumption of citizenship had been established. The Court then observed that:

At this juncture, the Court further notes that all the documents tendered by both parties are copies or certified copies and that neither of the parties adduced originals of the documents used as evidence. In the circumstance, the Court is of the opinion that the Respondent State, as a depository and guarantor of public authority and custodian of the civil status registry, has the necessary means to correctly establish whether the Applicant was a Tanzanian, South African or a British citizen. The Respondent State could also have obtained and produced concrete evidence to support its assertion that the Applicant has other nationalities … In view of the aforesaid, the Court considers that there is a body of documents especially the certified copy of the birth certificate and the certified temporary travel document issued by the competent authorities pending finalisation of the passport, establishing that the Applicant is Tanzanian by birth and that the Respondent State has not been able to prove the contrary. It therefore finds in conclusion that the Applicant’s right to Tanzanian nationality has been violated, contrary to Article S of the Charter and Article 15 of UDHR. (paragraphs 102 – 103)

 

In both Ochieng and Penessis, therefore, the African Court provided important insights into the vexed issue of burden in citizenship cases. According to the Court, because the bases of proving citizenship (documentary evidence) was in the possession of the individual, the initial burden lay upon him. However, once prima facie citizenship had been demonstrated, the burden would shift to the State, and the State would be held to a strict standard of proof, given the human rights consequences of deprivation of nationality and statelessness.

Compare, however, these judgments with the recent judgment of the Gauhati High Court in Noor Begum v Union of India. The Gauhati High Court upheld a decision of the Foreigners’ Tribunal rejecting the citizenship status of Noor Begum – a decision that involved dismissing no fewer than eight official documents. Curiously, there was no evidence that the documents were forged. What the Court held was that some of the documents were not admissible because they had not been proved by the Issuing Authorities, and even the document that was admissible (a school certificate) did not make it “the end of the matter”, as the Headmaster who had issued it had not been examined. Additionally, Noor Begum produced documentary evidence of the citizenship status of her projected grandfather and father, and oral evidence of her projected mother to draw that link. However, the High Court disaggregated these two pieces of evidence, holding that (a) the documentary evidence of Noor Begum’s projected grandfather and father was worthless because it did not establish her link to them, and (b) the oral evidence of her projected mother (that would have established that link) was worthless because it was only oral, and with no supporting documents! The Court justified this by noting that “the relevant facts being within the knowledge of the procedee, the therefore, the burden of proving citizenship absolutely rests upon the procedee.”

The approach of the Gauhati High Court is in stark contrast to the approach of the African Court of Human and Peoples’ Rights. As both Courts observed, the initial burden of proof rests upon the person claiming citizenship (the logic being that that person would be in the possession of relevant information required to substantiate that claim, and it would be difficult for the State to “prove a negative”, so to say). But while the African Court went on to hold that this was only an initial burden, which would flip once a prima facie case was made out, the Gauhati High Court turned it into an “absolute burden” (there is no warrant for that in the Foreigners Act). The High Court then placed a series of essentially onerous conditions upon the applicant (such as having to examine the headmaster of a school she graduated from twenty years ago) which – it should be obvious – would be very difficult to fulfil. Noticeably, in none of this was there any allegation that any document was forged, or that the oral testimony was false; this is specifically important because – as the African Court correctly noted – when it comes to the question of forgery, it is actually lies more within the government’s power to demonstrate that (its own official) documents have been forged, rather than for the applicant to (now) “prove the negative”.

It is submitted that the international presumption against statelessness and the link between stateless and human dignity requires a nuanced and sensitive approach towards the question of burden of proof in citizenship cases. This is especially true in countries like Tanzania and India, where there exist large numbers of marginalised and vulnerable people, whose access to documents is limited to start with. The approach of the African Court represents the correct balancing of interests, and – it is submitted – would be a better fit with Indian constitutional commitments, as opposed to the zero-sum approach of the Gauhati High Court. Perhaps that task will lie with the Supreme Court.

Guest Post: Article 131 and the Power of State Governments to Challenge Laws

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[This is a guest post by Amlan Mishra.]


The question of whether Article 131 of the Constitution can be used by states to challenge the vires of a Central legislation was referred to a larger bench of the Supreme Court in State of Jharkhand v. State of Bihar. With Kerala and Jharkhand challenging the constitutionality of Central laws, this question has come to the limelight again. In this piece I put forward a structuralist interpretation of the Constitution, to argue that states have such a right. ‘Structural interpretation’ here is taken to indicate the use of multi-provisional implications which are sensitive to the context and purpose of the provisions of the constitution.

Legal position so far

Article 131 provides that the Supreme Court shall have original jurisdiction to try cases between different federal units, if the dispute involves ‘any question of law’ on which the ‘existence or extent of a legal right depends’. The reference to a larger bench is for the interpretation of the words ‘legal right depends’. Two cases of the Supreme Court propose contradictory interpretations to this question. Both cases fail to offer any substantial philosophical or structural reading of the constitution in arriving at their conclusions.

First, consider State of Karnataka v. Union of India, where the Supreme Court held that ‘legal right’ here does not just mean the ‘legal right of the state’, but includes any legal right of State government or of other people. This case identified two ingredients that are necessary for an original suit under A. 131, a) the two parties (states or centre) and b) a substantial question of law arising out of ‘some legal right’. The interpretation of ‘legal right’ was delinked from the concept of a ‘cause of action’, such that the legal right of the ‘plaintiff’ (in this case, the state) need not be violated to move an original suit under this Article. The absence of a ‘legal right of the plaintiff’, the court held, should not stop the court from hearing the parties on merits. J. Chandrachud stressed on the ‘delicate relationship’ between the centre and the state to point out that the constitutional capacity of the litigants under Article 131 should not be narrowly limited. J. Bhagwati in his opinion undertook a textual reading of the Article, by noting that it does not explicitly say ‘legal right of the plaintiff only’. In absence of such a clear indication in the article, he was unwilling to read the concept of ‘cause of action’ into it.

The second case is State of MP v. Union of India wherein the constitutionality of a legislation was held to be unassailable by a state government moving a suit under Article 131. It gave a strained explanation which hinged on the 42nd Amendment and its subsequent repeal. It held that the amendment had, in the past, weakened writ jurisdiction under Articles 32 and 226 by giving exclusive jurisdiction to the Supreme Court, to adjudge constitutionality of central laws by inserting Art. 131A. So the latter repeal of Art. 131A, the court held, should be understood to mean that constitutionality of central laws are now to be decided solely under the writ jurisdiction of the courts. State of Madhya Pradesh does not, however, articulate as to why an additional challenge to constitutionality of statute cannot be moved under Article 131 (as is the case in Kerala’s challenge to the Citizenship (Amendment) Act, 2019), alongside other petitions under Art. 32. A petition under one need not limit the other.

In what follows I propose that using a structural interpretation of the Constitution, states have the right to challenge Central laws under Article 131.

Structuralist reading of Article 131: Basic structure as supra-statutory duty

The immutability of the key provisions of the Constitution, in the face of executive or legislative action, is a crucial facet of liberal democratic Constitutions. For example, the US Constitution provides under Article IV that the federal government shall guarantee a ‘republican form of government’. Deriving from this (see Ambedkar’s statement drawing the parallel), the Indian Constitution under Article 356 provides that the President’s rule can be invoked if the administration of the state is ‘against the provisions of the Constitution’.

In SR Bommai v. Union of India, Article 356 was invoked in 3 BJP ruled states, on the grounds that the state governments were acting against secular principles during the Babri Masjid demolition. The Supreme Court observed that ‘administration according to the provisions of the Constitution’ includes within its ambit more than mere ‘governance in accordance with electoral democracy’. It also includes fidelity to fundamental values of the Constitution, such as secularism. Accordingly, the test of ‘government in accordance with the Constitution’ demanded adherence to the ‘basic structure’ of the Constitution. Consider these statements by the judges.

Justice Sawant observed:

Any profession and action that go counter to [secularism] are a prima facie proof of the conduct in defiance of the provisions of the Constitution.

Similarly, Justice Reddy observed:

[I]t is clear that if any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution it would certainly be guilty of following an unconstitutional course of action.

It is to be noted that SR Bommai did not hold merely that anti-secular actions were a violation of basic structure, (thereby integrating basic structure considerations into the review of a higher executive’s action). It also established concomitantly, as Gary J. Jacobson argues in The Wheel of Law (2003), that the Union government has the power to take positive action to uphold the basic structure. Thus ‘electors’ and ‘courts’ were not the only decision-makers as to whether a government was working ‘against the provision of the Constitution’. The centre could also invoke Article 356 to put forward its version of the Constitutional truth and the courts, by reviewing such an exercise, could adjudicate if that reading of the Constitution was correct. In Bommai, the courts rooted this power of the Centre – in the duty of elected governments to not only abide by the basic structure but also to positively enforce it. Consider this by J. Ramaswamy in Bommai:

Secularism . . . is a part of the fundamental law and basic structure of the Indian political system to secure to all its people socio-economic needs essential for man’s excellence with material and moral prosperity and political justice.

 

Jacobson reads this as “[g]overnment is being invited to act in furtherance of the basic features of the Constitution, not simply to refrain from acting in situations where fundamental rights have been threatened or violated.”(Pg. 150)

Is this invitation to act in furtherance of the Constitution a one way street? Surely, no counterpart of Article 356 exists for the states to move against the Centre. However, Article 356 is useful to see how one unit’s interference in the sphere of another is justified if it is to further the basic structure of the Constitution. The centre, by virtue of its more dominant position, can discipline the states if they don’t follow the basic structure.

But states also have a similar, albeit less explicit obligation to defend the Constitution in their respective spheres. This is by virtue of the oath a Governor takes where he swears to ‘preserve, protect and defend’ the Constitution. The Chief Minister of a state similarly swears to act ‘according to the Constitution’. In Manoj Narula v. Union of India the court read the oath to confer a ‘constitutional expectation’, albeit non-binding, upon the Prime Minister and the Chief Minister, to not include criminals in their cabinets. The oath of these functionaries, read with Jacobson’s idea that states have a positive duty to enforce the basic structure, raises a strong Constitutional expectation in the state government to defend and work in furtherance of the basic structure. What happens when their constitutional obligation/expectation to protect and defend the Constitution is in the opinion of the state in conflict with any act of the centre?

To illustrate this let me draw an analogy between the basic structure of the Constitution and Radbruch’s idea of ‘Supra- Statutory authority’. Evolved after the carnage of the holocaust, the principle says that actions of any government functionary should not be tested just on the ‘positive law’/’orders of superiors’ but also against some basic supra-statutory principles like human rights. The oath of a Governor can be said to test the action of a State Government (acting under his name) on the touchstone of the Constitution. This cannot, however, mean that the states should dissent when confronted with an unconstitutional act by the Centre. The Constitution, as I discuss below, forbids such dissent. There should be an alternative mechanism to voice this disagreement.

Enforcing unconstitutional directions?

Crucially, Article 247 under the Indian Constitution provides that directions can be issued to the State government, inter-alia to not impede the Centre’s executive functioning. Article 365 provides that non-adherence to instructions of the Centre is enough to invoke Article 356 in the states. Such a compulsory direction from the Centre cannot exist in absence of the right to challenge the constitutionality of the Central government legislation on the ground that it goes against the duty of the centre to act in furtherance of the basic structure. For example, if during the enforcement of the recently enacted Citizenship (Amendment) Act, 2019, the Centre directs State Government to make its machinery available for verifying the documents of refugees in India for eligibility for citizenship, the state may have to enforce what it feels is an unconstitutional act of the centre.

The states then should have a mechanism to clarify if it is indeed a violation of the Constitution. It can be done only by challenging it with reference to the Constitution.

Integrating text with structure

Let us see if we can apply the aforesaid structural reading to the text of Article 131. Article 131 uses in clear terms the phrase: ‘legal rights depends’. What I propose is to look closely at J. Chandrachud’s opinion in State of Karnataka. He stressed the ‘delicate federal relationship’ of India to read the words ‘legal right depends’ liberally. Inherent in this idea is the understanding that ‘the legal right’ should arise in the course of the federal relationship, which admittedly is incapable of precise description. On similar lines, in the case of State Bihar v. Union of India the court noted that ‘the legal right [under Article 131] should arise in the context of the constitution and the federalism it sets up’.

What is important to note here is that the Indian Constitution does not provide ‘rights’ (claim rights) to constituent units against each other (in the strict Hohfeldian sense). Instead it gives them ‘power to legislate’ (see Article 246). In addition to this the Constitution provides for immunities (enjoyed by constitutional functionaries), duties, privileges (enjoyed by legislators), and expectations (arising out of oaths) to/on constituent units [jural relationships]. More often than not, all constitutional provisions confer on constituents a fusion of these ‘jural’ terms. For example Article 356, as Jacobson’s exposition shows, confers on the central government a ‘power + duty’ to enforce provisions of the Constitution in a state.

Let us imagine these ‘jural relationships’ as spheres inside of which the units must operate, with occasional access to each other’s sphere as laid down in the Constitution [jural spheres]. It is the unconstitutional encroachment into each other’s ‘jural spheres’ that must be at stake for a dispute to fall under Article 131. Each unit, as I have established above, enforces the Constitution in its own sphere. [See a similar characterisation of the word ‘rights’ in J. Bhagwati’s opinion in State of Karnataka]

For the Centre, enforcement of the Constitution maybe mean incursion into the state’s sphere through the invitation in Article 356 to act in furtherance of the Constitution. This is an issue squarely under the jurisdiction conferred by Article 131 as illustrated by State of Rajasthan v. Union of India, wherein Article 131 was used to challenge the dissolution of State Legislative Assembly. Similarly a duty/expectation to defend the Constitution in a state is also incumbent on the States acting in the name of their higher functionaries. A violation of core constitutional values by the centre may then infringe the higher functionaries ability to ‘defend the Constitution’, thereby infringing on the sphere of action of the state.

Such a conflict of ‘legal rights’ may not seem as obvious a conflict as the issue of ‘who can try the Chief Minister of the state for corruption’ (a question involved in State of Karnataka). But this is definitely a question arising out of the federalism set up by the Indian Constitution. Thus the phrase ‘legal right depends’ can be read to mean competing jural relationships in the Constitution which arise from the obligation of each constituent unit to enforce and uphold the Constitution in its respective sphere.

In sum, therefore, if the states hold a good faith belief that the enforcement of the CAA or the NRC (for example) runs contrary to core constitutional tenets, Article 131 ought to be read as granting to them the right to challenge this before the Court, and contest the centre’s understanding of what the Constitution allows.

Notes from a Foreign Field: Public Participation, Constitutional Rights, and Technological Design in the Kenyan High Court’s Huduma Namba Judgment [Guest Post]

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[This is a Guest Post by Anand Venkatanarayanan. Anand served as one of the Expert Witnesses for the Petitioners in the constitutional challenge to NIIMS/Huduma Namba, the Kenyan national biometric identification project, before the High Court of Kenya.]


This post analyses the Huduma Namba judgement of the Kenyan High Court, which was delivered on January 30, 2020 on the weighing stone of “public participation” (a guaranteed right under the Kenyan Constitution). It must be read along with the legal analysis for better context. 

Transparency Principle

It is now a well settled proposition that when it comes into deprivation of rights, people cannot be harmed based on a secret law whose contents and workings are unknown and unknowable to the affected party. Now, what if the State builds a technical system, whose workings are classified as a secret, based on which a determination is made about whether residents are eligible for welfare benefits? And what if the State then passes a law that governs the technical system and invites public consultation on the law, but not on the technical system itself

Arguments of the Parties

In the Huduma Namba case, the 2nd Petitioner, Kenya Human Rights commission, raised the issue of lack of public participation, as a ground for declaring the amendments unlawful (Paragraph 152). Note that – as indicated above – the Kenyan Constitution explicitly requires public participation as a precondition for passing legislation

a) A declaration that the amendments to the Registration of Persons Act, Cap 107 Laws of Kenya, vide the Statute Law Miscellaneous (Amendment) Act No. 18 of 2018 are unconstitutional null and void.

b) A declaration that the amendments to the Registration of Persons Act, Cap 107 Laws of Kenya, by the Statute Law Miscellaneous (Amendment) Act No. 18 of 2018 were enacted unprocedurally and without public participation contrary to Articles 10(2)(a) and 118(1)(b) of the Constitution.

The witness for the 2nd Petitioner, Mr. George Kegoro, brought out the issue of lack of information on the technical details of the system, in his testimony (Paragraph 195, Special emphasis included):

The second failing identified in the impugned law by the 2nd Petitioner was what was perceived as the opaqueness that surrounds the actual software that has been deployed for NIIMS. Mr. Kegoro averred that the nature, capabilities, ownership details and other critical features of the system were known only to the State, with no information with regard thereto known by the public. He discounted the 5th Respondent’s assertions that it designed and developed NIIMS with the combined effort of an inter-ministerial taskforce specifically formed for this purpose as a bare statement. In his view, there is no way of verifying that NIIMS meets minimum integrity, transparency and accountability standards as would guarantee privacy of personal information stored therein from unintended third parties or from abuse from within.

Another witness for the 2nd Petitioner, Ms. Munya, brought out an essential facet on the design being public, by advocating for Open Source design (Paragraph 236)

In supporting the position taken by the Petitioners that Kenya should have used ‘open source’ in the design of NIIMS, Ms. Munyua deposed that her company embraces ‘open source’. She stated that the term referred to “something people can modify and share because its design is publicly accessible.” She further averred that “the open source way” and “open source projects, products, or initiatives embrace and celebrate principles of open exchange, collaborative participation, rapid prototyping, transparency, meritocracy, and community-oriented development.

The argument, therefore, was that when a legislation encodes into law the a technological system, “public participation” on the terms of the law without public participation with respect to the design of the system, is meaningless.

On the other hand, the 2nd and 3rd Respondents, on the issue of public participation with respect to the design of the system, made the following averments (Paragraph 357, SIC):

When questioned on the public participation on NIIMS, Dr. Kibicho testified that he and various government officials and the national government administration infrastructure had sensitized the members of the public and carried out civic education on the benefits of NIIMS. He denied that they stated or threatened that the registration for Huduma Namba was compulsory. 

The witness for the 5th Respondent, Mr. Ochieng, made the following averments in reply (Paragraph 418):

On the preparations and development of NIIMS, Mr. Ochieng stated that the discussions on NIIMS started in January 2018, and he referred to a copy of his letter dated 10th May 2018 inviting the technical committee on NIIMS to a meeting. He, however, clarified that the technical development of NIIMS commenced in February 2019 even though the preparations had started much earlier. He testified that the software for NIIMS was developed by Kenyans, and stated that tests had been dome on algorithms to ensure they work, and on the system to verify its security and integrity, and ensure that there is no deduplication of data. He also explained that the data collected from NIIMS was currently not being utilized, in compliance with the orders of this Court, but that they had developed and tested the algorithms needed to utilize the data.

Another witness for the 5th respondent, Mr. Omwenga, made the following observations regarding using Open source software (Paragraph 442):

Secondly, open source software rides on the presumed goodwill of the coding community which assumption is flawed since open source software attracts all and sundry, including persons with malicious intent. A third reason is that closed source software fosters accountability unlike open source software which does not inspire accountability for the simple reason that the general public is a non-entity. Lastly, whereas the innovation cost of the open source software is borne by the general coding community, the costs attributable to additional services, assistance or added functionality are non-transferable and open source software is therefore not entirely free 

The government witness further reiterated that he was not aware of the design and the architecture of the system (Paragraphs 431, 449, 452, 455):

Mr. Omwenga contended that the said population registers may either be centralized, decentralized or a combination of both, and could also be manual or electronic. He noted that the United Nations Principles and Recommendations for a Vital Statistics System provides that a population register need not take a specific form and states have unfettered discretion regarding the choice of the form, and the content of their respective population registers. It was his deposition that the rationale for this unfettered discretion is logically informed by the need to allow states to customize their respective population registers to suit their unique circumstances, which discretion enjoys adequate expression in international law. He cited Article 86 of the European Union General Data Protection Regulation 2016/679 (GDPR) which gives Member States the discretion to determine the specific conditions for the processing of a national identification number or any other identifier of general application.

Dr. Omwenga stated that he had enrolled for the Huduma Namba using his identity card in order to be able to get government services. He, however, could not tell if he could have registered for it if he did not have his identity card. He conceded that though he had testified as a government expert, he had not tendered any evidence on the design and architecture of NIIMS. He maintained, however, that the more information NIIMS had the more accurate it would be, and DNA could be included as a means of identification. 

It was Mr. Omwenga’s evidence that the consolidated Petitions raise legitimate concerns on security of the system, accuracy of NIIMS and misuse of data. He could not, however, confidently explain what NIIMS was since he was only involved in giving advice at the initial stage. His evidence was that it was the client, the Ministry of ICT, that was involved with designing NIIMS

With regard to the issue of encryption of data, his evidence was that he did not know the encryption standard the government employed for the data collected in NIIMS. He further stated that if the government were to predefine its encryption standard for data it collects in NIIMS, it would address the Petitioners’ concerns. 

Another witness for the 5th respondent, Mr. Muriithi, in his witness statement, viewed Open source as dangerous and preferred the closed source approach (Paragraph 478, 482):

Specifically, the costly programme that perform non-sensitive tasks were derived from open source software, which explains why NIIMS data capture kits were programmed to run on android operating system. On the other hand, programmes that perform critical and highly sensitive tasks such as encryption and deduplication were derived from closed source software in respect of which the government of Kenya restricts the sharing, viewership and modification of the underlying source codes to essential personnel only. He expressed the view that it would therefore amount to veritable irresponsibility on the part of the Kenyan government to disclose, to the general public, the very codes that found the programme meant to guarantee the safety of personal data of its citizens and foreign nationals resident in Kenya.

He further testified that the technical safeguards are only known to the developers of the system, and that the safeguards they put in place for children was that their biometric data would only be captured from the age of six years. According to Mr. Muriithi, there are two levels of architecture of NIIMS. The first, which he termed the high level architecture, can be disclosed. However, that the second, which is the low level detailed architecture of the system, cannot be provided for security reasons. 

The Court’s framing of the Issues involved

With the summary of the averments as described above, the Court framed the issue of Public participation as described below (Paragraphs 566, 570):

The Petitioners contend that the enactment of the impugned amendments did not comply with the constitutional requirement for public participation. The 1st Petitioner submits that apart from a call to the public to give views on the Statute Law (Miscellaneous Amendments) Bill 2018, no information was made available to the public as to what NIIMS was, what it would entail, its potential vulnerabilities, and how it would affect the lives of Kenyans and foreign nationals resident in Kenya. It submits that the right to public participation is intertwined with the right to information since, for adequate participation to take place, those participating must have the salient information necessary to intelligibly form and articulate their opinion on what is proposed. The 1st Petitioner cites the decision in the case of Katiba Institute vs President’s Delivery Unit & 3 others [2017] eKLR as stating that successful and effective public participation in governance largely depends on the citizen’s ability to access information held by public authorities, and the right to access information becomes a foundational human right upon which other rights must flow. 

The 1st Petitioner’s submission on the issue of public participation is linked to the claim that there was insufficient information on NIIMS. The 1st Petitioner submits that given the significant implication of NIIMS, the national government had a duty to disclose the information in order to allow the public to understand what was being proposed, how it would affect their lives and to make an informed decision whether the proposal was reasonable or not. 

It noted that the existing Kenyan jurisprudence on threshold of public participation requires citizens to have the necessary information (Paragraph 623):

Ensuring that ordinary citizens the “hoi polloi,” the “lala hoi” have the necessary information and are given opportunity to exercise their say not merely in election and appointment to political office but also economic participation, and conduct of their affairs.

 

And after a detailed analysis of various judgements, the Court concluded that there was indeed sufficient public participation under the given circumstances, without returning a finding if there was technical information available about the project as the petitioners had raised (Paragraph 636):

We also recognize that there were efforts made by the National Assembly in facilitating public participation when using the omnibus Bill mechanism in the Statute Law (Miscellaneous Amendments) Bill 2018. Unlike in the case of 2013 Law Society Case where the object of the Bill was clearly indicated as intended to effect minor amendments, in the instant case there was clear indication that the legislature intended to carry amendments on the targeted Acts without the use of the term ‘minor”. It is also clear that from the advertisement of 7th May 2018 that each Act targeted for amendment was linked to the relevant committee. Therefore, in effect, only a part of the amendments and not all of them were subject to stakeholder engagement in the Committees. Coupled with the fact that there was sufficient time availed to the public to give their views on the amendments, we find that there was sufficient public participations in the circumstances of these Petitions.

Why this is Problematic

Recall that the Petitioner’s case was that there was no effective public participation is not just about the law, but also about the technical information available about the NIIMS system. Even witnesses for the government testified in the court that 

  1. Only developers of the system know about the technical safeguards, and that they – i.e., the goverment witnesses – are themselves not aware of it. 
  2. The general public is a non-entity when it comes to open source.
  3. The state has unfettered discretion in designing the system. 
  4. Encryption and deduplication algorithms must not be disclosed. 

This actually proved the petitioners’ contentions. 

The Court, however, did not engage with the issue that was raised and instead focussed only on the legal and procedural aspects. Now, while a court might think that it does not have the competence to deal with technical architecture (this is problematic but we will deal with it later in subsequent posts), it definitely has the competence and the facts before it to determine if non-disclosure of technical information about a project that affects every resident Kenyan’s life can be construed as a “lack of public participation”. Indeed, a more nuanced understanding of “public participation” in this context would also be consistent with the principle of “technological self-determination” – discussed before on this blog – that requires individuals to have meaningful choice when it comes to engagement or participation in overarching technological systems.

Encryption standards in particular have been open for as long as 40 years and algorithms are open source for anyone to have a look and conduct security research. Modern browsers (Firefox, Chromium) are open source. Compared to NIIMS, they have much more access to individuals’ private data. Hence, the bar is already much higher, even for private corporations that are not backed by state power on information disclosure. 

That the Court chose not to decide this aspect, one way or another, is disappointing because there is no NIIMS (i.e., the biometric identification project) without the underlying technology layer. This is a general fact about all technological systems, and especially those that impact civil rights: the choice of design bears a direct correlation with the impact the system has on people’s rights. Thus, it is really not possible to separate the project’s technical aspects from its legal aspects, no matter how hard anyone tries; indeed, the legal form encodes the technological design, in a manner of speaking. 

Hence restricting the definition of public participation to only legal aspects but not the technical aspects is a blinkered view that requires reconsideration.

Nine Judges, Seven Questions

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Tomorrow, a nine-judge bench of the Supreme Court will begin hearing seven “questions” that have arisen out of a reference made in the Sabarimala review. On this blog, we have questioned the manner of the referral, the constitution of the bench, the constitution of the bench, and the framing of the questions. That said, the Court has decided to go ahead with the hearing in its present form; so the question now turns to what would be the best manner in which to answer these questions.

As a preliminary point, it is important to reiterate that many of the questions are framed in abstract terms. The best-case scenario remains – of course – for the Court to refrain from answering them in the absence of specific facts, from which legal doctrine can develop. If the Court does, however, intend to answer all the questions, then it follows that the answers, too, must be framed in the language of principles, not as concrete legal propositions. A good example of this is the last time a nine-judge bench was called upon to answer a purely constitutional question, in the absence of facts: Puttaswamy (I) v Union of India (the “privacy judgment”). Faced with the question of whether the Indian Constitution guaranteed a right to privacy, the Court – in the operative part of its judgment – simply affirmed that it did. Working out the contours of the right to privacy was left to future benches, which – for example – happened in Puttasamy II (the “Aadhaar judgment). The nine-judge bench, therefore, set out the principles involved, while concrete shape and flesh to those principles was given by later benches that had the benefit of specific facts before them. It is submitted that this salutary approach ought to be followed here as well.

On to the specific questions themselves: I will not in this post examine them individually (some of that work has been done before on this blog, and in this article, here). That may be left to later in the hearing, when there is a clearer sense of the parties’ arguments. What I want to indicate here, however, is that there is one common theme that runs through (many of) the questions: that is, the conflict between the individual and the group in the context of religion.

This conflict arises because the Indian Constitution understands religion as something that is practiced both individually (guaranteed under Article 25 of the Constitution) and in community (guaranteed by Article 26 and, in particular, Article 26(2)). In most circumstances, the contest will be between an individual and the State, or the community and the State, when laws are passed seeking to regulate or restrict elements of religious practice. There do exist, however, a set of cases where individuals are pitted against their communities – when the individual’s conception of what religious practice requires differs from what is officially sanctioned by the community, or when the individual believes that their rights are being violated by the manner in which the community’s decision-making structure functions. The classic example of this, of course, is the famous Dawoodi Bohra case, which involved the question of religious excommunication.

Now, how ought a Court to decide such a conflict if it comes before it? It is important to note, first, that there is no default “neutral” position on offer. The Constitution grants to religious denominations the right to determine matters of religion. It also grants to all the right to equally profess and practice religion. Thirdly, it grants a number of other individual rights, some of which are applicable between private parties (such as the right against “untouchability”) while others that are applicable against the State nonetheless place upon the State a positive obligation to protect them (i.e., affirmatively act to ensure that private parties are not violating them). The Constitution itself does not suggest a hierarchy of norms. Consequently, the question is one of interpretation.

Let us imagine two possible extreme approaches. Let us call the first extreme “group supremacy.” The group supremacy holds that once there exists a formal, community-sanctioned version of what religious faith or practice requires, that is sanctified by the Constitution, and nobody can interfere. Within the religious domain, in other words, there is no space for intra-group dissent, for individuals to assert their own interpretations of what faith requires, or any question of violating individuals’ rights.

The second extreme is that of “individual supremacy.” This approach holds that rights under Article 26 are entirely subject to all other parts of the Constitution. There can be no claim on behalf of the group, therefore, that conflicts with other constitutional principles (such as the right to equality, for example), and to the extent that individual and group articulations of faith come into conflict, that of the individual will prevail.

Both extremes, I suggest, are unsatisfactory, and unfaithful to the constitutional vision. The “group supremacy” approach ignores entirely what Madhavi Sunder refers to as “cultural dissent”: that is, it ignores the fact that norms internal to religious groups are often under contestation and challenge. What the “group supremacy” approach does is to put State power (through the Courts) in service of the status quo, which is the version of religious truth imposed by the formal decision-making apparatus of the group. The group supremacy approach also ignores the fact that there exist, in our country, an entire set of practices sanctified in the name of religion, that have been – and still are – violent assaults on basic human dignity (see the example of madesnana, for instance). Group supremacy, therefore, would be fundamentally contrary to our constitutional ethos.

Individual supremacy, on the other hand, is equally unsatisfactory, as it ignores the undeniable fact that the Constitutional scheme considers group autonomy in matters of religion a fundamental value. And if group autonomy means anything, it means the power of the group to determine what norms it follows for itself, without interference by parallel sets of norms (such as – again – strict requirements of individual equality).

If neither group supremacy nor individual supremacy are satisfactory ways of interpreting the scheme of Articles 25 and 26 and how they are nested within Part III, then what is? I suggest that the answer is to be found in recalling a point that Ambedkar made in the Constituent Assembly: that the fundamental unit of the Constitution remains the individual. Group rights exist in the Constitution because the framers understood that individuals need community in order to fully flourish as human beings. However, the very rationale for group rights serves to place a limit upon their extent: the group has autonomy upto the point that its norms or practices do not cause harm to the dignity or civil rights of its constituents. What is crucial to note is that the dignitarian or other harms must not lie solely within the domain of religion, because that would make the argument circular: they must extend beyond the strictly religious domain. Once again, madesnana – where Dalits are required to roll upon the leftovers of food eaten by Brahmins – is an excellent example of dignitarian harm that is deeply linked to broader social structures that go beyond simple religious faith.

The ultimate rationale for this is – as many scholars have pointed out – that in India, religion continues to be deeply linked with larger society and social and cultural structures. The consequences of unequal – or oppressive – religious practices, therefore, is not always limited to questions of faith. And it is precisely when it goes beyond that the Constitution and the Courts step in. And of course, whether that test is satisfied is for individual cases, based on specific facts.

Elsewhere, we have called this the “anti-exclusion principle.” The idea is a very simple one: the Constitution guarantees rights to both individuals and groups. In cases of conflict, a balance is essential. This balance is best-served by asking whether a particular practice under consideration has the effect of causing exclusion, or of treating certain constituents as second-class members of society, in ways that harm their dignity, or other rights in the non-religious domain. Thus, when the Court is faced with a host of competing interpretations of the Article 25/26 scheme in the coming days, this basic moral and ethical framework may come of some use in charting a path through the minefield.

Reference in Review: A Response

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


[This is a Guest Post by Shivendra Singh.]


Background

An unexpected turn of events has led to the formulation of a preliminary question of law before the nine-judge Bench in Court No.1 of the Supreme Court of India. The issue formulated by the Hon’ble Court for adjudication is: “Whether this Court can refer questions of law to a larger Bench in a Review Petition”? Mr. Fali Nariman, Senior Advocate has essentially doubted the competence of a Bench hearing a Review Petition to refer questions of law to a larger Bench.

Scope of the Post

At the outset, I must clarify that this short article is being written as a response to Gautam’s post and I wish to express no opinion on the merits of the matter. This article is restricted only to the preliminary question before the Court on 6.2.2020 – which has now been answered in the affirmative.

Source of Review Jurisdiction of the Supreme Court

One of the issues that has arisen is the applicability of Order VI, Rule 2 of the Supreme Court Rules, 2013 (the “Supreme Court Rules”) to review petitions. The substantive source of the creation of the review jurisdiction of the Supreme Court is not to be traced to the Supreme Court Rules but Article 137 of the Constitution of India which reads as under:

“137. Review of judgments or orders by the Supreme Court- Subject to the provisions of any law made by Parliament, or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it”.

In fact, Article 145(1)(e) of the Constitution specifically provides as under:

“145. Rules of Court, etc.- 145. (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—

……

(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered.”

Interpretation of Order VI, Rule 2 of the Supreme Court Rules

One must look at Order XLVII of the Supreme Court Rules against the substantive backdrop of Article 137 read with Article 145(1)(e) of the Constitution. Order XLVII of the Supreme Court Rules is neatly divided into five sub-rules. Now the question is whether Order VI of the Supreme Court Rules which is titled ‘Constitution of Division Courts and Powers of a Single Judge’ would be applicable to Order XLVII of the Supreme Court Rules. Order VI, Rule 2 of the Supreme Court Rules reads as under:

“Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing for it”.

The amplitude of the words ‘any cause’, ‘appeal’ or ‘other proceeding’ in Order VI, Rule 2 of the Supreme Court Rules is certainly wide enough to include review petitions under Order XLVII. Any other interpretation will not only be against the settled cannon of statutory interpretation that the rules in a subordinate legislation should be read holistically, but will also amount to imposing an artificial restriction on the untrammelled jurisdiction of the Supreme Court to refer matters of substantial public importance to a larger bench while considering review petitions under Order XLVII.

Prior Instance of Reference to a Larger Bench in Review Jurisdiction

Even otherwise, there has been at least one instance of the Supreme Court actually referring a question of law to a larger Bench/Constitution Bench in exercise of its review jurisdiction. I urge the readers to go through the judgment in Behram Khurshed Pesikaka v. The State of Bombay reported in [1955] 1 SCR 613 which was an appeal by special leave from a judgment of the Bombay High Court reversing the order of acquittal passed in favour of the appellant Behram Khurshed Pesikaka by the Trial Court, and, convicting him of an offence under section 66(b) of the Bombay Prohibition Act, 1949, and sentencing him to one month’s rigorous imprisonment and a fine of Rs. 500. A Bench of three learned judges heard the Special Leave Petition and dismissed it on 19.2.1954 by a majority of 2:1 (separate majority opinions of Justices Jagannadhadas and Venkatarama Ayyar). Justice Bhagwati, who dissented, allowed the appeal and acquitted the appellant Pesikaka. The majority judges, while maintaining the conviction, were pleased to reduce the sentence imposed upon Pesikaka to that already undergone by him. Being aggrieved, Pesikaka filed an application for review under Article 137 of the Constitution and Justice Bhagwati passed the following order on 28.4.1954 for the same Bench:

“58. We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us. Under proviso to article 145 of the Constitution, we refer the following question for the opinion of the Constitution Bench of the Court.

“What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara ([1951] S.C.R. 682) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparation containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?”

59. On receipt of the opinion the case will be taken up for further consideration.”

 

On 23.9.1954, the Constitution Bench gave its opinion on the referred question and on the very next day, the original Bench quashed the conviction of the appellant Pesikaka. It is also important to point out that the original Bench did not identify any error apparent on the face of the record or any other patent error to review its final order 19.2.1954. The tables were turned in favour of Pesikaka only because of the reference to the Constitution Bench, and the favourable opinion rendered by it on the question.

To conclude, there is no reason to hold that the Supreme Court cannot refer questions of law to a larger Bench in a review petition.