(This note has been prepared by Shiwangee Chandrakar and Indra Kumar Lahoti. They are both Managing Editors of the PCLS blog.)
On 24 August 2020, the Progressive Constitutional Law Society had a reading session on “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India”, written by Professor Taruanabh Khaitan. PANEL DISCUSSION 1 The paper touches upon the gradual democratic deconsolidation in the country which has been relatively more visible in recent years. Professor Khaitan maps the steps taken by Bhartiya Janta Party that have slowly and then steadily threatened Indian democracy. The first term of the BJP led government between 2014 and 2019 was when the major groundwork for incrementally damaging the accountability-seeking mechanisms was laid down. It is significant to note that these attacks on constitutionalism by BJP were not as direct as the ones during the emergency period, which is to say that the said assaults on democracy were carried out with subtlety and care.
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(This brief note has been prepared by Neha Shetty and Shubham Singh. Neha is a Core Committee Member of PCLS and Shubham is a fourth year student of HNLU. The meeting was held on 14 August 2020 over Skype.)
Internet intermediary is an entity that facilitates the use of the internet for a user. It acts as a medium or passage of transference of information, ideas and opinions. Since it does not actively participate in generating content, it ideally should not be liable for the acts of users that generate such content. However, this immunity (also known as safe harbour), is subject to certain conditions. To understand the same from different perspectives, PCLS had a discussion on August 14, 2020 as elaborated in the present note. (This brief note is prepared by Akshat Bhushan, a second-year student and Associate Editor of PCLS Blog. The meeting was held on 27 July 2020 over Skype.)
In light of the contempt proceedings initiated against Advocate Prashant Bhushan, the Progressive Constitutional Law Society-HNLU Chapter, held a detailed discussion on this subject on July 27, 2020. In this meeting the members of the Society touched upon various issues regarding the contempt law in India. The members first analysed the provisions of Contempt of Courts Act, 1971 and Constitution of India. Section 2(b) defines civil contempt as wilful disobedience of any judgment order, writ or other process of a court or wilful breach of an undertaking given to a court. Section 2(c) which defines criminal contempt brings within the purview of its definition any publication which ‘scandalises or lowers the authority of the courts’, ‘prejudices the judicial proceedings’ or ‘obstructs the administration of justice’. Section 12 lays down the punishments that can be awarded for contempt of court. The members also made a reference to Article 129 which empowers the Supreme Court and Article 214 which empowers the High Court to punish for contempt of itself. Therefore even if we repeal the Contempt of Courts Act 1971 the courts would still have the powers under the constitutional provisions to punish for contempt of itself. (This note was prepared by Yatin Gaur, Radhika Ghosh, Shrishti Jain, Sanskruti Jain, and Arjit Mishra; all second year students and PCLS members. The meeting was held on 16 July 2020 over Skype.)
When the Apex Court of India recognized the transgender community as the third gender in NALSA v Union of India and directed the central government and the state governments to take steps to protect the rights of the transgender community, there arose a ray of hope within the transgender community. But, this hope got a setback when the Government of India passed the Transgenders Persons (Protection of Rights) Act, 2019 because it failed to provide justice to the transgender community. On this very pertinent issue, we had a discussion at PCLS in which we discussed and debated on every disputed aspect of the Act and the following is the detailed report on the same. The Progressive Constitutional Law Society - HNLU Chapter conducted a reading session with Mr. Gautam Bhatia on 10 June 2020. The readings for the session included Amy Kapczynski's 'The Right to medicines in an age of Neoliberalism' and Alex Gourevitch and Corey Robin's 'Freedom Now.' The session involved discussion on the human rights framework, judicialisation of right to medicines, concept of freedom in and from the workplace and the role of market order in the human rights discourse. Readings for the session included: 1. Amy Kapczynski's 'The Right to medicines in an age of Neoliberalism' : http://humanityjournal.org/issue10-1/the-right-to-medicines-in-an-age-of-neoliberalism/ 2. Alex Gourevitch and Corey Robin's 'Freedom Now' : https://www.journals.uchicago.edu/doi/pdfplus/10.1086/708919 (Utkarshani Srivastava, Muazzam Nasir, Varnika Jain, Ashish Kumar, and Ruchira Joshi, members of PCLS have prepared the note.)
RIGHT TO PRIVACY The discussion began with the reading of the judgment ‘Justice K S Puttaswamy vs Union of India’[1].The constitutionality of Adhar Scheme noted in an order dated 11 August 2015 was challenged on the ground that the norms for and compilation of demographic biometric data by government, violate the right to privacy. The case was initially dealt by a Bench of three judges of the Supreme Court. On finding that the question of importance involves the interpretation of the Constitution, they opined that the pronouncement should be made by a Bench of appropriate strength. The said pronouncement of 3-judges bench was consideredappropriate by a Constitutional Bench presided over by the learned Chief Justice of India, hon’ble Mr. Jagdish Singh Khehar and as a result a Bench of 9 judges was constituted to resolve the issue. The basic question in the case was whether the right to privacy is a constitutionally protected right or not. The members discussed about the previous judgments relating to the right to privacy, which were also dealt in the said judgment of Justice KS Puttaswamy vs Union of India. At first, the members discussed the case of MP Sharma v Satish Chandra[2] in which the challenge was that the search warrants violated the fundamental rights of the petitioners under Article 20(3) of the constitution which contains the provisions regarding self-incrimination. The court held that the guarantee against self-incrimination is not offended by a search and seizure. The court also observed that the constitution makers did not put the limitation on the regulation by recognizing the fundamental right to privacy. Then the case of Kharak Singh v State of Uttar Pradesh[3] was discussed whereKharak Singh was subjected to regular surveillance according to the Regulation 228 of Chapter XX of the UP Police Regulations which included the midnight knocks. Kharak Singh moved to the court for a declaration that his fundamental rights were violated by the said regulation. Rajagopala Ayyangar J., speaking for the majority of five judges invalidated the domiciliary visits night provision (midnight knocks) on the ground that they violated the dignity of the individual and not on the ground of being violative of Article 21 of the constitution. But the rest of the provisions of the said regulation were held to be valid. The court held that the rest of the provisions restrict the movement of an individual in the manner in which privacy is invaded and the right of privacy is not a guaranteed right under our constitution. Hence, any fundamental right guaranteed by part III of the constitution is not infringed by the regulations. Subba Rao J. dissented and held that the rights conferred by part III have overlapping areas. He was of view that the Constitution does not expressly declare the right to privacy a fundamental right but such a right is essential to personal liberty. Having discussed the abovementioned judgments showing Supreme Court’s stance on right to privacy, members moved onto discussing the Gopalan[4] doctrine. The said doctrine was the ascendant of the MP Sharma case and Kharak Singh case. In Gopalan case,Kania CJ.construed the relationship between Article 19 and 21 to be one of mutual exclusion. It means thatwhatever was comprehended by Article 19 was excluded from Article 21 and hence article 21 was a residue. Fazl Ali J. dissented and he adopted the view that the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom. The Gopalan doctrine was abrogated in R C Cooper v Union of India[5] which was revisited in a 7-judge bench decision in ManekaGandhi v Union of India[6].ManekaGandhi judgment carried the constitutional principle of the overlapping nature of fundamental rights. It was held that a law which provides for a deprivation of life of personal liberty and under Article 21 must lay down not just any procedure but a procedure which is fair just and reasonable. 0n 24th August 2017, a nine-judge bench of the Supreme Court in K.S Puttuswamy vs Union of India passed a historic judgement by affirming the constitutional right to privacy. It declared privacy is an essential component of Part III which lays our fundamental rights ranging from right to equality, freedom of speech and expression and protection of life and personal liberty. The judgement further affirms (i) intrusion with an individual’s physical body (ii) informational privacy and (iii) privacy of choice. The Supreme Court stated that the right to privacy is not an “absolute right” and a person’s privacy can be overridden in the interests of the nation security. Binding Part In this case, Chandrachud J. wrote the plurality opinion, on behalf of Kehar C.J, Agarwal J., Nazeer J., and himself, while Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J wrote concurring opinions. Thus, while Justice Chandrachud's opinion is the "plurality" opinion, it does not constitute the majority, since it has not been signed by a total of five or more judges. Similarly, the concurring opinions too, are not binding and do not constitute 'precedent' for future cases. Thus, the operative part of the judgment, i.e. the binding part, is only the order that has been signed by all nine judges, which holds: The eight-judge bench decision in M P Sharma (1954), which held that the right to privacy is not protected by the Constitution, stands over-ruled; The Court's subsequent decision in Kharak Singh (1962) also stands over-ruled to the extent that it holds that the right to privacy is not protected under the Constitution. Since, a majority of the judges agree that privacy is an inalienable, natural right that forms part of the binding element of the case. Supreme Court views on Privacy The views of Chandrachud J., was the centre of the discussion. Chandrachud J. elucidated that privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution. Test for Infringement of privacy The action of the State to impose restriction on privacy is to be tested on the following parameters:
The discussion concluded on the idea that Puttuswamy Judgement is an evolutionary step towards ensuring right to privacy in India. The exact boundaries of the right will continue to develop on a case by case basis. DATA PROTECTION BILL, 2019 A crucial part of the agenda for the meeting was the Personal Data Protection Bill which was tabled in the Parliament in the preceding year i.e. 2019. The members elucidated the various nuances present in the bill from its applicability to the interplay of personal data between data fiduciary (the authority that has the power to process the data) and the data principal (the person whose data is being produced). The entire thread of discussion revolved around the preliminary advancements of the bill, which seeks to serve as an instrument of protecting data of the individuals but has some intrinsic fault lines which categorically reduce its strength in achieving this aim. The members were of the opinion that though such a legislation should have ideally brought India's data protection regime at par with stepping stone set by the European Union's General Data Protection Regulation (GDPR) regime, it instead has allowed the state and its institutions to wilfully take privacy into its helm without the data principal's consent at various instances. The major bone of contention thus was Section 12 of the Personal Data Protection Bill, 2019 which broadly allows data to be used without consent in the following instances: a) For the performance of any function of the state authorised by law b) Provision of any benefit for data principal from the State c) Under law in force 'for the time being' by Parliament or State legislature d) For compliance with the court/tribunal judgment e) Response to a medical emergency involving a threat to the life or a severe threat to the health of data principal or any other individual f) Undertaking measures to provide health services to any individual during an epidemic g) During a disaster or breakdown of public order The members argued on these grounds and identified instances where such non-consensual data processing could be a valid ground in light of the Puttuswamy judgment which lays down certain instances involving public health emergencies as exceptions to a finite Right To Privacy but subjects the same to the test of proportionality laid down in Modern Dental College vs Union of India . The members were of the unanimous opinion that any intrusion by the State, which is most likely to happen even during the present Covid-19 pandemic cannot be brushed with a single stroke and has to be proportionate and should ideally be in consonance with Section 20 of the Personal Data Protection Bill, 2019 which gives the data principal, the right to be forgotten i.e. the right to restrict the data fiduciary from further processing his data if the purpose is served and should also adhere to sub clause (d) of clause 1 of Section 18 which gives the data principal the right to erasure if his data is no longer necessary for the purpose of processing. The members were of the unanimous opinion that the bill lacked certain critical components and needed to be further strengthened before being tabled in the Parliament again. RIGHT TO BE FORGOTTEN The meeting on the Right to Privacy covered various aspect of the right, from its evolution to the expected developments in the future.The Personal Data Protection Bill, 2019, aims to protect privacy and rights of an individual and regulate the processing and transfer of their personal data is one such step in the development of the right to privacy. The bill confers three broad rights to individuals in relation to their personal data—the right to be forgotten, right to correction and erasure and right to access data. The intricacies of the right to be forgotten was discussed as an Important agenda of the bill. Some of the aspects being:
The right as described by the members allow people to delete their presence from the Internet if the data has been obtained without their clear and specific consent and affects their safety, career or relationships. The bill allows people to approach an adjudicating officer to restrict or prevent continuing disclosure of their personal data by a data fiduciary (one who controls or holds the data). Further the members elucidated on the three scenarios where an individual’sright to be forgotten under Section 27 of the bill can be applicable, those being:
Indian cases dealing with the right. Further the discussion paced towards how India has been dealing with the with situations when people demand for removal of their personal data. The stand on the issue is not clear as the Data Protection bill ,2019 is yet to be passed by the parliament. So to understand the situation better the members contemplated primarily over two major Indian cases one of the Gujrat HC which ruled against the petitioners request for removal of data and the other of Karnataka HC which ruled to the contrary. Discussing the two cases the members came to a conclusion that at present India has no clear basis for deciding on the Right to be forgotten. Challenges faced in the application of the right. The criticism to this right have occurred mainly, for its potential to curtail free speech, putting additional burdens on data controllers and for its implications on the Right to Information and accountability, especially when there is a lack of sufficient safeguards. The question as to what would categorise as primary data and whether data relating to more than one person or community would categorise as the same remains in the minds of the members. Finally, the members considered the right to be forgotten as a progressive step in the development of right to privacy but it also leaves us with certain doubts as to what power will the adjusting officer have, will he be appointed by the central government that itself is a data fiduciary. And whether the right can maintain the balance between the Right to privacy and the freedom of speech and expression. AAROGYA APP AND PRIVACY As the Government of India introduced the AarogyaSetu app during the lockdown period in the country, the discussion on Right to Privacy saw the inclusion of privacy concerns with the app. The government launched its official COVID-19 tracking app, called Aarogya Setu, which has been developed by the Ministry of Electronics and Information Technology (MEiTY). The app is meant to alert users if they have come in contact with a COVID-19 positive patient, and what measures they need to take in case that happens. But cybersecurity experts worry that AarogyaSetu could violate its users’ privacy and be a surveillance tool in the hands of the government. The data collected by AarogyaSetu is stored both on the device and on central servers. Currently, there is no legal framework that governs the AarogyaSetu app, beyond the privacy policy and the terms of use. The major issues with the app discussed were: 1. Personal Data Collected and its Use The app, as per its privacy policy collects the following personal information during registration and stores it in the cloud: (i) name; (ii) phone number; (iii) age; (iv) sex; (v) profession; (vi) countries visited in the last 30 days; and (vii) whether or not you are a smoker and a person’s current medical condition collected through a series of questions when the app is run for the first time to assess the condition of the user. Moreover, the App continuously collects the location data of the registered user and maintains a record of the places where the user had come in contact with other registered users. This can lead to excessive collection and use of sensitive personal data. This could also lead to mass surveillance. 2. Non-liability of Government The liability limitation clause of the “Terms of Services” limits the Government's liability even if inaccurate information is given by the App or in case of failure to generate true positives. It is pertinent to note that this acquits the Government’s liability in case of any harm caused due to incorrect information. Moreover, the liability clause also exempts the Government from liability in the event of “any unauthorised access to the [user’s] information or modification thereof”. This means that there is no liability for the Government even if the personal information of users is leaked. The communication converged to qualifying the app as useful but there still stands questions as to the extent and period of the usage of the personal data registered while accessing the app, the liability of government and most importantly insuring no misuse of the data by the government or a third party. [1]Writ Petition (Civil) No. 494 of 2012 [2] (1954) SCR 1077 [3](1964) 1 SCR 332 [4] A. K. Gopalan v State of Madras, AIR 1950 SC 27 [5] (1970) 1 SCC 248 [6](1978) 1 SCC 248 (Neha Shetty, a Core member of PCLS and a fourth year student has prepared the note) From the enthusiastic response to the first virtual meeting, PCLS conducted its second online group discussion on 9th April 2020. In light of the Kerala High Court’s recent order in the Karnataka-Kerala border closure dispute on account of COVID-19, the members decided to discuss and debate the territorial extent of a High Court’s jurisdiction. The primary questions the members set out to address in the course of the discussion were: 1. Is the High Court of a State empowered to pass directions which have an application outside the State’s territory? 2.What is the binding effect of a High Court’s order holding a Central legislation as unconstitutional on the other High Courts of the country? The discussion began with the cursory reading of Article 226 of the Constitution. Article 226(2) empowers a High Court to issue directions, orders, writs to “any Government” in relation to the territory where the cause of action has arisen notwithstanding that the "seat of the government is outside such territory". At this juncture, the members discussed the Karnataka-Kerala border closure tussle, where the Kerala High Court had ordered the Central Government to remove blockades imposed by the Karnataka State Government at the Kerala-Karnataka border. The members discussed whether the Kerala High Court was empowered to do so. Few members opined that the instant case falls within the meaning of Article 226(2), as the cause of action has arisen in the State of Kerala, where the citizens’ fundamental right to movement has been restricted, hence it called for an intervention by the Kerala High Court. While others responded with the argument that the case falls outside the Kerala High Court’s jurisdiction and it is either the Karnataka High Court or the Supreme Court which can review the actions of the State Government of Karnataka. It was however concluded that cause of action under Article 226 is effects-based, and considers where the effect of a decision is felt i.e where the injury is occasioned. Therefore, it could be stated that the instant matter falls within the ambit of Kerala High Court’s jurisdiction. Another point of discussion was with respect to the jurisdiction of a High Court in dealing with cases challenging the vires of a Central legislation. Interestingly, earlier Article 226(A) added by way of the 42nd amendment barred the consideration of a challenge to a Central Act by invoking article 226. This provision was later repealed by the 43rd Amendment. Currently, the Supreme Court’s judgement of Kusum Ingots v. Union of India (2004 (6) SCC 254), sheds some light on this question. In Para 22 of the judgement, it is observed that a High Court’s decision regarding the constitutional vires of a central legislation will have effect throughout the country. Relying upon this observation, in numerous cases, High Courts in the country pay heed persuasively to the order of a single High Court of a State declaring the provisions of a central Act as unconstitutional. Upon discussion, a few members opined that empowering High Courts of the country to pass orders invalidating Central Acts could be problematic, in so far as it (i) allows for the application of a High Court’s order throughout the country (ii) it restricts other High Courts from differing with the view of a single High Court regarding the vires of the Central Legislation. Numerous suggestions arose to counter this problem. One member suggested that the Supreme Court alone must be allowed to decide on questions of the constitutionality of a Central legislation. However, others felt that this would lead to considerable hardship to litigants belonging to the remotest parts of the country who could not access the Supreme Court having its seat at the capital, New Delhi and would prefer approaching the High Courts of their home State. However, it was agreed that setting up regional benches of the Apex Court could go a long way in addressing this problem. (Joyjeev Medhi, a Core member of PCLS, a fourth year law student prepared the note) The current lockdown has compelled our Society to find new ways to continue its discussion sessions. It did so by analysing the anti-defection law in India and the role of the Speaker over Skype last week.The Society settled on this topic due to the growing trend of defection in legislatures across the country. The purpose of the entire exercise was to make each other aware of the law, understand it, figure out answers to essential questions that form the base of the legislation and suggest solutions if we were able to come up with any. This note aims to bring the highlights of the discussion to those who missed out: At the outset, we began with a brief introduction on the topic. The Anti-defection law was introduced in 1985 by the Rajiv Gandhi government due to the large number of defections that took place in legislatures across the country. A popular incident was that of an MLA of the Haryana State Assembly who defected three times within the same day. This led to the famous saying of “Aaya Ram gaya Ram” when referring to defections. To deal with this issue, prevent horse-trading in legislatures and have a stable government this law was brought in. A few essential details about the Act which were discussed were: It is the Presiding Officer of the House who decides on the disqualification of a legislator due to defection. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.It needs to be noted that there is no time limit within which the Presiding Officer has to give his decision however his decision is reviewable by the courts. The first question which came up was whether the anti-defection law has served its purpose and prevents political horse-trading? This question had different answers from each PCLS member. While some believed that the anti-defection law, in essence, was good and required a few tweaks to sort out the problem other members thought that it is not what the country’s democratic ideals support. The latter argued that in a democratic set up like ours each legislator should be allowed to vote according to his conscience or on the interest of his electorate since that would lead to an actual expression of opinion in legislatures and further better debate. However, this view goes against the premise of the anti-defection law itself which believes that legislation is based on party lines. This brought us to the question, “Do we, as a voter, elect a candidate or a party?” Recognising the importance of a political party in legislation, the alternative to the anti-defection law suggested by some of the PCLS members was that legislators should be allowed to vote their conscience on most issues while mandatorily abiding by the party line on essential votes such that of no-confidence and the budget. The immediate objection to that and any alternative that involved MPs/MLAs voting their conscience was the increased amount of time this would require to make laws resulting in an inefficient legislature. The next question which was addressed was concerning the role of the Presiding Officer in dealing with the disqualification. Is he/she the right person to make this decision? What changes could be brought in to make the law more effective? The PCLS discussed the various suggestions put out by multiple judgements and legal luminaries. Some of which were:
ESSENTIAL RELIGIOUS PRACTICE TEST: ARTICLES 25 & 26 IN LIGHT OF THE SABARIMALA JUDGMENT (MEETING)5/3/2020 (Saumitra Shrivastava, a Core member of PCLS is a fifth year student at HNLU)
PCLS-HNLU Chapter conducted an introductory session on the Sabrimala judgment review and following are a few talking points: 1. Whether such a 'review' was legal and comes within the scope of the review defined by law of the land. 2. The judgment based itself significantly upon the ERP(Essential Religious Practice) Test which essentially provides that a religious practice if essential to a religion would not be the subject of constitutional scrutiny. 3. The fundamental controversy is whether the right to equality(Art.14) will trump over right to religion(Art. 25 and 26). And how can individual right to religion(right of women in menstruating age) will be affected by religious denomination's(rights of sect of Lord Ayyappan worshippers) right to regulate religion? 4. Justice Chandrachud's anti-exclusion rule and Justice Indu Malhotra's dissent 5. The difference between essential religious practice test and essentially religious test and which one is more suitable in Indian context. We'll be doing more sessions on the same. Also we will post links to articles dealing with the issue. Let us know in comments as to what do you think of the issue. Keep engaging! Keep reading! |
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