[ Ed Note: This article has been written by Raghuveer R. Sattigeri. The article has been co-edited & coordinated by Mariyam Mayan, Gayatri Gupta & Anushri Bhuta from our Student Editorial Board.]

Introduction

Over the years there have been demands for structural changes in the Supreme Court of India [“SC”] based on different grounds including the strength of judges, regional representation in judiciary, location of the Court and its function, etc. In this piece, I look at two specific demands on the grounds of location and function owing to the historical significance and current relevance of the same. The demand on the ground of location relates to the establishment of regional benches of the SC in order to provide better access to people from different regions; and the demand on the ground of function relates to the institutional division of the SC into Constitutional and Appellate Courts. To mention a few recent instances, on July 26, 2021, the Chairmen of the Bar Councils of the southern States met and appealed to the Chief Justice of India, Justice N.V. Ramana, and Vice-President, Mr. Venkaiah Naidu, to consider their demand for setting up a southern bench of the SC. On March 18, 2021, K.C. Ramamurthy, MP from Karnataka, put forth his demand in the Rajya Sabha for having four regional benches of the SC. The Law Commission of India [“LCI”], on several occasions (in its 95th, 125th & 229th Reports), has recommended the division of the SC into Constitutional and Appellate Courts.

The roots of these two demands go back to the pre-constitutional period and have been dealt with in two phases of history. The evolution of the Federal Court, relating to the demand of institutional division, can be classified as the first phase, and the Constituent Assembly Debates relating to the demand of regional benches, can be classified as the second phase. In this piece, I attempt to understand these historical claims by drawing inferences from George Gadbois’ book[1] titled, ‘Supreme Court of India: The Beginnings’, more particularly from Chapter One -‘Evolution of the Federal Court of India’, and from the Constituent Assembly Debates.

I then attempt to relate these historical claims to the current context with the help of empirical findings. While there are many empirical studies done by scholars on the Indian SC, including those by Abhinav Chandrachud, Nick Robinson, Aparna Chandra et al., Tarunabh Khaitan etc., I  rely on two studies: one by Nick Robinson on the demand for regional benches and the other by Tarunabh Khaitan on the demand for institutional division.

Phase I – Demand for Two Separate Courts

Before 1937, the year in which the Federal Court was established, British India did not have an all-India level Court. Matters were taken up by the High Courts and from there the appeals were taken to the Judicial Committee of the Privy Council. George Gadbois, in his book, engages with historical documents and helps us in understanding the narratives behind the establishment of the Federal Court. The history of its establishment starts with the efforts made by Hari Singh Gour, a member of the Central Legislative Assembly, who pitched the idea of having an indigenous all-India level Court based on a few reasons, including that of the distance and expenses incurred in carrying an appeal to the Privy Council. In the year 1921, he introduced a resolution in the Assembly and recommended the establishment of a Court of Appeal in India that would replace the Privy Council for such matters. However, the proposal was rejected in the Assembly because it was considered impractical to get great lawyers and jurists from England to come and argue before the Indian benches; and that the establishment of an all-India level court would have financial repercussions.

Gour’s proposal for having an all-India level court took a new shape in the Round Table Conferences held from 1930–32, particularly in the Third Conference. By this time, the only question considered was whether there should be two separate courts i.e., a Federal Court for constitutional matters and a Supreme Court for appellate matters or only one court which would sit in two divisions. Although Tej Bahadur Sapru and his colleagues argued for the former, they agreed to the latter in the interests of economy and efficiency. According to a few, the Supreme Court was not an essential part of the new Constitution, as the idea behind having a Supreme Court was to hear only appeals, whereas the need of the hour then was a Court to adjudicate federal issues. Hence, in the absence of consensus, the idea of having a separate appellate court (Supreme Court) was dropped. The recommendation for having a Federal Court was published in a document called White Paper Proposal, 1933, which formed the basis for the Government of India Act, 1935, finally paving the way for the establishment of the Federal Court in India. In Gadbois’ words – “matter of a Supreme Civil and Criminal Appellate Court was left hanging, to be taken up again at some later date by some other body”.

Findings in support of the claim for Institutional division:

 A study done by Tarunabh Khaitan regarding the empirical analysis of the SC’s discretionary appellate jurisdiction under Article 136 of the Constitution shows how the docket of the SC is dominated by Special Leave to Appeal Petitions [“SLPs”]. Khaitan observes that the SLP-dominated docket has cannibalized the SC’s role as an effective Constitutional Court. He argues that the institutional division of the SC into Constitutional and Appellate functions will at least permit the Court to better discharge its constitutional functions. He highlights the impact of pending cases on the SC’s constitutional functions through the example of Suresh Kumar Koushal v. Naz Foundation wherein the SC, sitting in an ordinary bench (of two Judges), decided upon the constitutional validity of Section 377 of the Indian Penal Code [“IPC”], 1860, instead of sitting in a Constitutional Bench (of five or more judges), as provided for in the Constitution. To cite few examples of this kind, in the year 2016, the SC, in the case of Subramanian Swamy vs. UoI, decided upon the constitutional validity of Sections 499 and 500 of the IPC, by sitting in a two-judge bench. In the year 2017, the SC, in the case of Independent Thought v. UoI, read down Exception 2 to Section 375 of IPC and refrained from making any observation on marital rape of a woman who is 18 years of age and above, by sitting in a two- judge bench. In the year 2018, the SC, in the case of Common Cause (Registered Society) v. UoI, held that article 21 which guarantees right to life includes right to die with dignity, by sitting in a three- judge bench. Recently in this year, the SC, in the case of UoI v. Rajendra Shah & Ors., partially struck down the Constitution (Ninety-Seventh) Amendment Act, 2011, by sitting in a three-judge bench instead of sitting in a constitutional bench.  

 Looking at the examples cited above, we can infer, although not conclusively, that the increase in the total number of pending cases is affecting the adjudication of constitutional cases of the Supreme Court. However, to draw a meaningful and conclusive inference, there is a need for a comprehensive study on the following aspects:

Data on the total number of cases involving constitutional issue/s and analyzing those cases to know how many cases the Court has decided by sitting in ordinary benches of two or three Judges.
To identify the reasons behind the court sitting in ordinary benches to hear and decide constitutional cases and to see whether the total number of pending cases has any impact on it.

In this context, it is pertinent to refer to the reasons given by Tej Bahadur Sapru and his British Indian colleagues to support their claim for the institutional division of the Federal Court. They reasoned their claim on the ground of efficiency. Further, in the Third Round Table Conference, Maurice Gwyer supported the claim for institutional division of the Federal Court on the ground of expediency, because according to him, if the Federal Court could sit in two or more divisions, it would expedite its business. So, in the current context, the claim for institutional division can be justified by relying on the historical reasons of both efficiency and expediency; reasons which are further buttressed by contemporary empirical findings.

 

Raghuveer R. Sattigeri is a Lawyer and his areas of interest are Constitutional Law, Welfare Rights, and Legal System Reforms. 

 

 

[1] Gadbois George H., ‘Evolution of the Federal Court of India’ in Vikram Raghavan and Vasujith Ram (eds), Supreme Court of India: The Beginnings (OUP 2017)

In the month of August 2021 we welcomed new members to our LAOT Team. In addition to DGV Rithvik, we had Anushri Bhuta and Suhani Paruvelly join us as Technical Editors, and Natasha Singh and Yashaswini Santuka as Social Media Editors. Also joining our team are Nitya Ravichandran and Shanthan Reddy as Senior Analysts, and Harsh Jain, Mrityunjoy Roy, and Saumya Khandelwal as Associate Analysts.

This month, we published a range of articles & discussions. Below, we bring you an update on the Blog’s activities over the month of August 2021.

Blog Posts

We started off with Kavya Arora’s article titled Education Rights Trust v. Government of Karnataka: Need to Prevent Legislature from Diluting the Spirit and Object of the RTE Act, which argues that Rule 12(2) of the Karnataka Education Rules dilutes the spirit of the RTE Act. This was followed by the piece titled Decrypting Rule 4(2) written by Ankush Rai, which analyzes Rule 4(2) of the new IT Rules 2021 by focussing on the rule and the press release issued by the Government of India on it. Next, our editors Pranjal Gautam and Shravani Shendye brought you a Reading List on Pegasus Controversy. We also had Tanmay Malik evaluate the legality of mandatory vaccination in light of recent judicial orders by Indian Courts in the piece titled Compulsory Vaccination Dilemma. This was followed by Rishika R’s piece about the Regulatory Implications of the Electricity (Amendment) Bill, 2021, which discusses the Bill’s implications on the electricity sector’s federal structure and how Delhi’s centralised authority can disincentive renewable energy generation by making contract enforcement out of reach.

New Scholarship

In the New Scholarship section, we bring you recently published scholarship in the area of public law with engaging discussions surrounding some of them.

This month we continued our discussion on Prof. Upendra Baxi’s article titled Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial. We published a response written by Prof. Jinee Lokaneeta titled Human Rights as Jural Postulates: A Vision for CJS. Prof. Lokaneeta focuses on commandments like the freedom from torture and right to counsel during interrogations, and notes that Baxi’s essay is a plea to actors to consider these jural postulates not just at the level of everyday practice as tactics or strategies but remind one of the centralities of these human rights as the very basis of a rule of a law-based system.

This was followed by Ameya Bokil’s response titled Fair Trial in the Times of Tyranny?: A Case for Abolition, which has been written from a human rights skeptic and abolitionist perspective. He lists out a few recent events to ask what it would take for critical scholars to be less hopeful about human rights. Ameya defines the CJS as a system of colonial and casteist social control, relying on systematic criminalisation, incarceration and exploitation of the labour of certain communities to protect the Brahmanical, Patriarchal, Capitalist and Colonial social order. He concludes by asking us to abandon this false hope that this system is fixable without dealing with ‘constitutive violence’.

We also continued our discussion on Volume 9 of the Indian Journal of Constitutional Law. Devdutta Mukhopadhyay provided us a summary of her co-authored paper with Apar Gupta titled ‘Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age’, which discusses the Supreme Court’s judgements relating to internet restrictions imposed in Jammu & Kashmir. 

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Introduction

Devdutta Mukhopadhyay, and Apar Gupta from the Internet Freedom Foundation, in their paper “Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age” present a notable effort in documenting and explaining the jurisprudence around recognizing the right to Internet access and protecting the same within the Indian Constitutional system. Specifically, the paper traces the recent Supreme Court Judgements related to the internet shutdown in the erstwhile state of Jammu and Kashmir. For me, the paper highlighted some key takeaways

The problem in arguing for protection of Article 19 when the restrictions imposed are on the grounds of national security.
The failure of the court to play its role as the apex court with the power to review executive action, especially in the second case, Foundation for Media Professionals v. Union Territory of Jammu and Kashmir & Anr.
The evolving jurisprudence on the right to internet access in India.

Anuradha Bhasin Case

The paper begins with an overview of the internet shutdown in Jammu and Kashmir and the subsequent legal interventions against it in the Supreme Court. As the authors have pointed out, the court has consistently limited its role when it has had to review administrative actions taken on the grounds of national security. I partially agree with the authors that the judgement in Anuradha Bhasin is a more dangerous version of this trend, but I do not fully agree with the authors that the court failed to provide any justice.  First, the court made it very clear that the state is obligated to disclose information to fulfill the right to remedy under Article 32, as confirmed in Ram Jethmalani v. Union of India. In para 15 of the judgement, the court specifies that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know”. The court confirmed that protections available under 19 also extend to the internet, with the rider that the restrictions imposed on 19 would also apply. The court also confirmed that the test of proportionality applies while reviewing all government actions that curtail fundamental rights and would also apply here. The court extended this further to clarify that an indefinite internet ban would not be a proportional restriction and all executive actions of such nature are up for judicial review. I also do not agree with the authors assertion that the court’s understanding of an emergency is flawed. The court discusses the concept of emergency in some detail, and then concludes, correctly in my opinion, that “we may only point out that the ‘public emergency’ is required to be of serious nature, and needs to be determined on a case-to-case basis”. The court has also asked the state to consider allowing access to websites comprising essential services in areas where internet access is not restored. These are important points, and it seems that the court is trying to strike a balance between providing relief while also not encroaching the space occupied by the executive. There are of course many flaws in the judgement, and the authors have highlighted these in some detail in the paper. For me, the biggest problem was that once the court has acknowledged that executive decisions of this nature need to be in the public domain, and restrictions on internet must be proportionate, it is inexplainable that the court does not question the state further on these points. This is important, because if the executive action is shown as arbitrary, then as per Ajay Hasia v Khalid Mujib Sehravardi, this can be struck down as a violation of Article 14. The Tata Cellular case, is generally considered as clarifying the scope of judicial review of administrative action. The three elements required are Illegality, Irrationality, and Procedural Impropriety. The authors have detailed how the petition incorporates the presence of all three elements, but the court does not address any of these elements satisfactorily.

Further, it is quite clear from the judgement that the court is cognizant of the geopolitical situation of Jammu and Kashmir. The history of terrorism in Kashmir has been acknowledged and the state has also shared some data points for the same. I do agree with the author’s that the court failed to establish a convincing link between internet access and terrorism and should have pressed the state further to show the link between restricting access and increasing terrorism. In this context, it would be interesting to see if the court shows the same amount of reluctance to engage if the restrictions on internet are posed in Delhi for example.

Flaws in Anuradha Bhasin Petition

In my opinion, there are two main flaws in the Anuradha Bhasin petition. First, as the court has pointed out, there was no direct nexus shown between the restrictions imposed and the restriction of the freedom of press. The petitioners were not able to show any one specific order that restricted their freedom of press and argued for a cumulative effect, thus showing an indirect connection, rather than a direct one. Further, the fact that other similarly situated newspapers were able to publish during the same period further weakened the petitioner’s case. Second, it has been pointed out that the internet shutdown in Kashmir has consequences which go beyond the freedom of expression. In my article here, I have criticized the court for not recognizing this. However, the fact remains that this is something which was not covered by the petitioners as well.  This is something that could have been highlighted in the paper to give some context of the court’s judgement. Additionally, throughout the Anuradha Bhasin case proceedings, we can see the state talking about allowing limited internet access, or 2G internet access and the court acknowledging this as a sign of easing of restrictions on internet access. Here, the authors could have discussed the concept of ‘meaningful connectivity’, which essentially talks about minimum standards required for internet access to be meaningful. This is also something which could have been mentioned in the petition when the court was discussing how the state is easing restrictions.

Foundation for Media Professionals Case

The author’s then move on to discussing the second case, Foundation for Media Professionals v. Union Territory of Jammu and Kashmir & Anr. The petitioners in this case improved on some of the flaws I have identified earlier in Anuradha Bhasin. First, it was mentioned that internet restrictions effect not only the right to freedom of speech and expression, but also the right to health and education.  Secondly, they have tried to show how internet shutdown has affected a wide section of society by sharing testimonies of people from different professional backgrounds.

However, the court was even more reluctant to engage in this case. I fully agree with the authors that the court had an opportunity to improve on its judgement in Anuradha Bhasin, which was squandered. As the authors point out, the court had already given enough grounds for review in Anuradha Bhasin, and the petitioner’s contentions in the Foundation case were based on the same. However, the court did not meaningfully engage with any of these contentions. The authors have mentioned how the court ‘outsourced’ its decision making to an executive committee and I cannot think of a more appropriate term to describe this. The court did not engage with the additional factors of right to education and health or the data added to the Foundation case.  In my opinion, the Anuradha Bhasin case was essentially framed as a question between 19 (1) (a) and 19(2), making it easier for the court to defer to the executive on the grounds of national security. This was not the case with Foundation, which posed slightly different questions which the court should have engaged with in more detail. It is truly ‘Evasion by Abnegation’, as pointed out in this blogpost, which details the extent of the court’s failure when it comes to the Foundation Case.

Right to Internet Access

In the final part of the paper, there is a brief discussion about the nature of a right to internet access. The authors correctly point out that currently, the right to internet access is recognized as an auxiliary right, which facilitates the exercise of different rights under Article 19. The paper also highlights that the court’s assertion that other than 21A, all other fundamental rights are negative rights is misleading. Various positive rights have been recognized under Article 21, often recognized based on socio-economic goals recognized through the Directive Principles of State Policy. I have argued that the right to internet access should be located as a part of the right to life, because of its role as being an essential element for exercising various socio-economic rights. This contention is also forwarded by the authors, who state that the internet is now not just a means of communication, or information but an essential lifeline which fosters “economic participation, social inclusion and civic engagement”.

To get a better understanding of the nature of the right to internet access, I would suggest two further readings. First, is “The Human Right to Free Internet Access”, by Merten Reglitz. Here, it is argued that the right to internet access is “sui generis right because it fulfils functions that could not be exercised by alternative means. I would extend this argument to and say that the internet is becoming a non-substitutable medium for other rights, such as education, health, social security, and livelihood. Regiltz argues that “Internet is both necessary for the exercise of some key human rights and a uniquely expedient tool for democratic empowerment” An important point made by Regiltz as well as the authors in their section on the right to internet access is to clarify that a recognized positive right to internet access does not mean the state is obligated to provide free internet access to everyone. The state has the freedom the implement socio-economic rights in a progressive manner, based on budgetary considerations. Here, the right to internet would be like the right to health, where based on state policy and capacity, the right may be gradually realized at different levels.

Second, “Right to Internet Access: Quid Iuris?” provides an overview of how the right to internet access has progressed internationally and in other jurisdictions. The paper makes a few important observations. First, the paper shows that under International Law, internet access is not seen as an autonomous law, but a digital projection of other fundamental rights, essentially following the ‘instrumentalist’ approach. The paper also makes a very important observation about the problem of looking at the right to internet in a limited manner as a subset of the right to freedom of expression. It shows how it has been assumed that the internet itself is raising new problems with respect to protection of certain fundamental rights, and because the internet is raising unprecedented legal issues, restrictions on the right to freedom of expression may be more widely accepted. So, conceptualizing the right to internet access as a subset of the right to freedom of expression ignores the influence of internet access on a human’s life and weakens the protection available to the right of freedom of expression.

Concluding Thoughts

In the conclusion of the paper, the authors discuss how these two cases have some positives for the future; First, the court not dismissing the nature of internet as an essential requirement, and supporting the same, albeit in a limited conceptual framework as an instrument for the Freedom of Speech and Expression. Secondly, by reaffirming a minimum standard of judicial review even in cases that affect national security, and finally by giving strong directions against an infinite internet shutdown. The authors are correct in concluding that the main talking point would remain the reluctance of the court to engage in all the points considered in the case, especially with reference to the Foundation of Media Professionals case.

It also gives us an indication of future jurisprudence around the right to internet access. Limiting internet access to just a medium for the freedom of expression if a flawed approach and does not reflect the importance of internet access in the lives of individuals and communities. However, the journey to establishing internet access as a positive right will need more data, analysis, and investigation on the relation between internet access and other socio-economic rights, with the specific context of India.

 

Sumeysh is a legal researcher who writes on issues of access and technology.

The Economic Survey of India 2020-21 observed that India’s regulatory problems do not arise from the lack of standards or compliance but because of overregulation, due to the state’s need to prepare for every eventuality. Stakeholders in the tech-policy space in India have drawn parallels stating that uncertainty and complexity are defining characteristics of the technology sector. Therefore, it is difficult to foresee every outcome For India to avoid an over-regulated fate, they advocate for the adoption of abstract, principles-based regulation rather than state-led, detailed, rule-based regulations for the tech sector. 

Amitabh Kant, the CEO of NITI Aayog, a public policy think tank of the Indian Government, claims that “AI will be the single largest tech revolution of our lifetimes with the potential to disrupt almost all aspects of human existence.” If this is indeed the case, it would be absurd for the state to take a backseat at such a significant point in our collective future. Although, as we shall see, this is exactly what NITI suggests about the regulation of AI in India.

This piece explores some of the outcomes of adopting a combination of principle and risk-based approaches to regulate Artificial Intelligence [“AI”] in India and cautions that lawmakers must contend with the challenges that can arise before regulatory path-dependencies are laid down. Three challenges that this piece identifies are the weakening of regulatory systems, in the long run, the inability to meet regulatory goals because of an overreliance on self-correction, and the displacement of democratic processes in establishing the thresholds of human rights.  

Understanding Principle and Risk-Based approaches to regulating AI

There have been several attempts to define ethics and human-rights based principles to guide the development and deployment of AI. These principles have tended to converge around certain common themes including privacy, fairness and non-discrimination, accountability, and transparency. Since the risk of AI violating principles (such as the right to privacy) can range from insignificant to critical, it is argued that regulations should be proportionate to the potential risk the AI  generates. 

In the face of rapid technological growth, detailed rules tend to have short shelf lives. A principles based-approach provides regulatory flexibility and therefore avoids the proverbial catch-up game lawmakers are forced to play. This is because it shifts the responsibility of meeting regulatory objectives from the regulator to the regulated through the adoption of codes and co-regulatory methods.

The document on Responsible AI, #AIforALL by NITI Aayog seems to indicate an inclination towards adopting a combination of principle and risk-based approaches. The principles identified include the right to equality, non-discrimination, privacy, safety, transparency, and accountability, drawn from multiple sources, including the Constitution of India, and will be enforced through a flexible, risk-based approach.

Three discernible challenges to India’s approach to AI include:

The weakening of regulatory ecosystems: Without the state setting the boundaries for commercial activity, excessive risk-taking can ensue. If the state does not invest in its institutions in the long run, it may not be able to make corrections when private risk-taking harms the public interest. For instance, while a principles-based regulation of mortgage lending in the United States led to innovative products and short-term profits, in the long-term the lack of detailed regulation resulted in “substantial losses for financial institutions that threatened the soundness of the U.S. banking system.” The International Monetary Fund blamed the subprime mortgage crisis on endemic regulatory failure that resulted from excessive risk-taking. 

In India, even as the private sector ramps up commercial exploitation of AI, it remains largely unregulated. To imagine what a regulatory deficit can mean against the background of AI deployment in India, take the use of AI in labour management. Tech companies are beginning to offer AI-based solutions in human resource management. While using AI may improve efficiency in hiring, it is also known to result in discriminatory outcomes that can adversely affect marginalized groups. Organizations that have studied hiring patterns in India have noted marked discrimination against certain groups, especially when filling positions at higher levels. 

Unlike many other countries, in India, the constitutional right to equality is not supported by complementary legislation. For example, no law prevents private companies from discriminating based on religion in their hiring decisions. Using AI to sort through job applications could entrench structural discrimination and deflect responsibility from the company onto the technology for such outcomes. There is an acute need for a comprehensive anti-discrimination law in the country that could hold employers accountable if the AI hiring tools they use the result in biased decisions. One example is the Anti-Discrimination and Equality Bill, 2016  that seeks to protect citizens against all forms of social discrimination. It is also important that third parties audit AI to ensure fair outcomes which should be enforced by laws and/or regulations.

Self-regulation may not meet regulatory goals: Professor Jodi L. Short identifies three regulatory voids within which self-regulation usually occurs — knowledge gaps of the regulator (or information asymmetry), political gaps (resulting from contested norms and political opposition), and lastly institutional gaps (when there are no competent institutions to enforce norms). Short claims that not all regulatory voids are amenable to self-regulation. While self-regulation may correct knowledge gaps, in the case of political gaps, it tends to disregard public goals and often leads to regulatory capture. To avoid such undesirable outcomes, the Indian regulator must understand the kind of gap it is seeking to fill before employing the self-regulation of AI.

There are, for instance, contesting norms or potential political gaps in the regulation of AI. In allowing the private sector to self-regulate considerations of efficiency may often be preferred over the contesting goal of preservation of rights. The Strategic Director of Innovation at the London School of Economics, Julia Black, observes that principles-based regulation combined with a risk-based approach could create an ethical paradox. The former may encourage ethical business decisions, “but when compliance becomes a matter of risk management, non-compliance becomes an option.” The European Union’s risk-based approach to regulating AI has been criticised by organizations on similar grounds. Access Now, an organization that advocates for digital civil rights have argued that this approach necessitates companies engaging in a trade-off between pursuing their interests and respecting fundamental rights. The latter should be non-negotiable, immaterial of the level of risk encountered.

The displacement of democratic processes in establishing the threshold of rights: NITI Aayog has stated that the regulation of AI should/will be decentralized by encouraging self-regulation, and the adoption of standards and guidelines. Currently, India does not have a law to protect the data privacy of individuals, as it is yet to pass the Data Protection Bill that was introduced in the House of the People in 2019. In the meantime, the Bureau of Indian Standards has issued standards for personal data protection. In the absence of a data protection statute, these standards are the closest we have to ensure businesses respect the informational privacy of users. 

However, it is important to remember that standards are not rights. NITI Aayog may borrow from the language of the Constitution by using terms like equality and non-discrimination, but by confining these rights to standards, their vitality is lost. Unlike rights, standards are not publicly made, reasoned, contestable, and transparent to those it affects, all important markers of the rule of law. Standard-setting bodies tend to be secretive and averse to public scrutiny. Mature standard-setting bodies such as the Institute of Electrical and Electronics Engineers [“IEEE”] and The Internet Engineering Task Force [“IEFT”] (the use of whose standards have been recommended by NITI) have been accused of being captured by dominant players. 

This is not to say that technical standards should not be used to enforce rights concerning the regulation of technology. But that it should be preceded by relevant laws, developed through participatory methods (which involve all affected stakeholders), and followed up by independent oversight. 

Conclusion

To conclude, we need more than abstract principles and technical fixes if we are to truly advance human well-being in the digital age. Legislatures in other jurisdictions have introduced bills for algorithmic transparency and accountability to counter the discriminatory outcomes that AI often engenders, among other things. This piece is therefore calling for state-led rulemaking for AI, of which right-based laws are an important component.

 

Amrita was a research fellow at Tandem Research, an interdisciplinary research collective in Goa that generates policy insights at the interface of technology, society, and sustainability. This piece was produced as part of Tandem’s Responsible Tech Initiative, supported by Omidyar Network India. 

[Ed Note: Over the next few days, we shall be discussing Prof. (Dr.) Upendra Baxi’s article titled “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial” published in the Annual Journal of the National Human Rights Commission, Volume-19, 2020. This is the third response to the article by Ameya Bokil, co-founder of the Criminal Justice and Police Accountability Project. The introductory post and the links for responses from other commentators (Prof. Amita Dhanda & Prof. Jinee Lokaneeta) can be found here.]

Though overcome with protest for its content, I welcome Professor Baxi’s article on fair trial and human rights as a springboard for being able to express some of my thoughts on this very subject. I must apologise to Prof. Baxi and the readers expecting an engagement from what might be considered a place of reasonableness. To paraphrase anarchist criminologist Prof. Jeff Ferrell, I believe the legal and cultural machinery of the State and a life lived under the current regime of power compels one to present unreasonable and unthinkable propositions. I intend to respond to Prof. Baxi from a human rights skeptic and abolitionist perspective. I personally do not consider these perspectives unthinkable, having been written about for over a century by Anarchists and libertarian socialists, Marxists, and Black feminists[1] and being put in practice by social movements.

I write this with the custodial death of Father Stan Swamy in fresh memory; in the midst of the Pegasus spyware scandal and reports of falsified evidence being planted in the devices of the ‘Bhima Koregaon’ accused; at a time, Jammu & Kashmir continues to be under military occupation with thousands detained under the Jammu & Kashmir Public Safety Act with the remedy of habeas corpus frustrated by the High Court and the Supreme Court (“SC”); families being put into detention camps in Assam through a process riddled with arbitrariness; and the detention of people protesting the destruction of their homes in Khori, each of these actions, either sanctioned or acquiesced by the SC.

The purpose of listing these out is to ask what it would take for critical scholars to be less hopeful about human rights. There has been an expanding scholarship on the left that questions the foundations of the post-World War II human rights discourse as well as its utility of its invocation by social movements.[2]  It is argued that the human rights discourse  rather than being reduced by “the emergence and entrenchment of market-friendly and trade-related governance and development” as Prof. Baxi sees it  is an invention of capitalism and imperialism, which in turn helped the creation of the essential preconditions required for these to function: turning of complex relationships and claims as obtainable and tradable commodities.[3]

It does so by diluting political claims (whether for overturning existing power relations or ending oppressions) to rights claims that everyone from the financial institutions like the World Bank and world’s neo-imperialist powerhouse United States seem to uphold. Some examples that D’Souza cites is the reframing of the indigenous people’s claim over land (“synonymous with Time’s claim to places”) and third world anti-colonial claim of sovereignty into claims of right to property, and right to free and fair elections respectively: claims that must now invoke of international law and invite capitalist and imperialist interventions.[4]

Reframing Equality and Liberty to Fair Trial

Prof. Baxi wants to locate his jural postulates of a civilized Criminal Justice System (“CJS”) mainly within the Constitution of India. The 10 postulates are distilled into the concept of ‘the right to fair trial’; a concept rooted in concepts of equality and liberty.

Prior to the moment of the framing of our Constitution, liberty and equality were political demands of the anti-colonial and anti-caste struggles and responses to direct oppressions of the colonial state and the Brahmanical order. Not all participants of these struggles perhaps shared the same articulation of equality and liberty. In particular the conception of equality shared by Savarna caste leaders of Indian National Congress was discriminatory and harmful, and was the subject of criticism by BR Ambedkar.[5] Yet, the most radical articulations of these demands were at least available to be drawn upon for the framing of the Constitution. BR Ambedkar refers to the significance of the liberty to choose one’s profession in a caste based society. On the question of law and order which is relevant to our discussion, KG Kannabiran[6] and Gautam Bhatia[7] refer to speeches of Motilal Nehru[8] and CR Das. CR Das had noted in his 1922 Congress presidential address, “The personal liberty of every Indian today depends to a great extent on the exercise by persons in authority of wide, arbitrary or discretionary powers. Where such powers are allowed the rule of law is denied.”

Bhatia defines this particular ‘civil liberties tradition’ by three characteristics: its locating of personal liberty in opposition to concentrated coercive power of the State; its critique of the various aspects state of exception; and its universalism that would allow it to be applied to a post-independence State. I believe these held within them a larger critique of the state of exception itself that would have gone further than the text of the Constitution as it was framed in ensuring liberty remained inviolable even when ‘national security’ was purported to be under threat.

Turning to how this claim came to be ignored while framing our fundamental rights chapter, we can refer to the exceptions, and the absence of due process requirements in Article 21 to say this political claim was not reflected in the text. We can refer to the fact that freedom themselves were defined in a way that ignored culture and needs of Adivasi communities as Jaipal Singh Munda had tried to resist.[9] We might also refer to Articles 22(4) to 22(7), and the saving of the preventive detention regime. An earlier discussion on LAOT between Abhinav Sekhri and Shrimoyee Ghosh captures the violence embedded in these clauses with Ghosh also pointing out the denial of even these basic safeguards and suspension of habeas corpus in J&K until 1979, all that Prof. Baxi seems to have passed over while venerating Article 22(1.

To borrow Ghosh’s words, there is a lot to answer for the “constitutive violence at the heart of India’s constitutional democracy”, and the answer is not to reduce notions of liberty into tiny pieces of fair trial. And thus, Prof. Baxi’s postulate and Indian SC’s rhetoric on presumption of innocence cannot undo the foundational rejection of the claim of liberation in this wider sense during the Constituent Assembly and the consistent history of utilisation of the preventive detention regime.

Indeed, the postulate “All investigation should be constitutionally just and reasonable, and the difference of kind as well as degree between prosecution and persecution must at all times be observed”, rests on the absolutely misplaced presumption that the police are hapless individuals lacking the discipline and the capacity to respect constitutional values of equality and liberty, instead of what are essentially a casteist, colonial and capitalist institution of coercion and control.[10]

The reframing of claims of liberty and equality into fair trial has not only legitimised a permanent state of exception that we live in but has allowed its co-option in self-interest by the very oppressive institutions against which liberty and equality protects us. A recent example is the attempt by the SC E-committee to package surveillance technologies sold by corporations and used by the executive as a tool for speedy and fair trial. Artificial Intelligence based technologies have also been introduced by the SC through the Supreme Court Portal for Assistance in Courts Efficiency (SUPACE), for allocation of cases as well as helping judges in decision making. The logical end seems to be, as we have seen in some US jurisdictions, taking AI’s help in making decisions with respect to bail and sentencing.[11]

Towards Abolition

In the normative world of rights, Prof. Baxi’s postulates might have led us to better (but not entirely liberatory) outcomes. Sadly, the normative world is much too disparate from the real world and curiously, legal scholars fail to acknowledge this. This begins with the refusal to take into account the actual nature of the state and its institutions.

Can we change the nature of these institutions and the state by pleas based on human rights alone or just incremental reforms? For instance, can the postulate asking treating bail as a right and jail as an exception disturb the violence at the core of criminalisation and imprisonment? An ideology of incarceration is not one that can permit a principled usage of bail and imprisoning.

Incidentally, the emergence of imprisonment as a punishment was itself a reform brought about in Europe as a reform to crueler modes of punishments, with the rise of capitalism. This was possible only upon the recognition of inalienable rights of individuals, rights that could be taken away as punishment.[12]

The prison system in India, David Arnold writes, “grew out of the British preoccupation with the extraction of revenue and the maintenance of ‘law and order’… [It was] a strictly material adjunct to a colonial system of economic exploitation and political control.” Criminalisation was borne out of the need to protect its immediate economic interests of safe transport, revenue and monopoly over land and forest resources. This led to laws meant to deter ‘Thuggee’ and later, the Criminal Tribes Act (“CTA”), aimed at the sedentarisation of nomadic forest dwelling and forest dependent communities, mainly Adivasi and communities who now identify as Vimukta, by branding them as ‘hereditary criminals’, and incarcerating them in penal colonies. The rationale for this was provided by the caste system which already determined one’s status and occupation by birth.

Arnold writes, one of the cardinal ways the British came up with to profit from the captive prison population: one, the incarcerated were subject to “practical form of colonial control over productive labour” and jails were turned into factories producing carpets to lithographs and profits for the British.[13]

The prison system (and CJS) to this day exists with these characteristics: overwhelmingly, the offences for which pretrial incarceration remains common, fall in the domain of order maintenance, revenue extraction and protection of capital; that these disproportionately house persons based on the rationale of caste through the continual process of criminalisation of communities; and that these continue to exploit physical labour.

Entire gamut of everyday policing practices is geared towards maintaining order and control: in our analysis of the arrests made during 2020’s lockdowns in Madhya Pradesh in a study on pandemic policing, 81% of all arrests were for harmless/low-harm or victimless order-maintenance related offences constituting minor quarrels under the IPC and offences under the Excise Act and the Public Gambling Act.[14] This is largely true with some variation of the degree for other states and at other times. This alongside discriminatory policing, which is a legacy of the CTA but sustained by the persistent caste system and colonising mindset, and access to good legal representation determined by social and economic capital has led to a situation where 66% of the prison population belongs to the SC, ST and OBC administrative categories. On the backs of convicts, State Prison departments reap enormous profits by running prisons as factories with operations and revenue expanding every year. This is in its own way Prison-Industrial Complex with caste taking up a central role by continuing to determine how work is assigned.[15] According to the National Crime Records Bureau’s Prison Statistics India Report from 2019, prisons netted a revenue of Rs. 845 Crores through selling products the inmates manufactured with Telangana alone contributing nearly Rs. 600 Crores amounting to Rs. 8,93,093 worth of goods produced per inmate who are paid Rs. 30 to Rs. 100 per day. No state pays anything even close to their respective minimum wages.[16]

Knowing this, I define our CJS as a system of colonial and casteist social control[17] relying on systematic criminalisation, incarceration and exploitation of the labour of certain communities to protect the Brahmanical, Patriarchal, Capitalist and Colonial social order. It has been so since its origin and so by design. And there does not seem to be a way to fix this system without abandoning oppressive institutions themselves.

When movements talk of abolishing prisons, they are not imagining a brick and mortar institution with a different name but what Angela Y Davis calls “a constellation of alternative strategies and institutions” that includes working to annihilate the fundamental systems of oppressions: Brahmanism, Patriarchy, Capitalism, Colonialism and the State itself, but do this while pre-figurative politics of setting up institutions of care and for resolution of conflicts that center survivors of abuse.

As practitioners, we cannot ignore the need for tactical deployment of the postulates advanced by Prof Baxi, and we indeed push the courts to read rights in more liberatory ways. However, we should hope normative discussions like the one presently initiated will push us into the next century of how social movements will engage with the violence and oppressions, and neither postulates nor ‘human rights discursivity’ can bring us meaningful liberation and equality. As D’Souza suggests, human rights discursivity continues to be invoked ad nauseam despite its failures in delivering outcomes for social movements owing to “liberalism’s capacity to generate an unending series of new hopes and a feeling of agency”.

I ask you to abandon this false hope that this system is fixable without dealing with ‘constitutive violence’, and ask social movements consider whether they want the next seven decades to be just like the last seven. Then, propositions like abolition of prisons and our CJS will not seem as ‘unthinkable’.

 

References 

[1] Present discourse on the subject can be traced to works of Angela Y Davis, Ruth Wilson Gilmore, Michelle Alexander and Mariame Kaba.

[2] Please see Radha D’Souza, What’s Wrong with Rights?: Social Movements, Law and Liberal Imaginations (2018), Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (2019), Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018); Samuel Moyn, The Last Utopia: Human Rights in History (2010) and James Peck, Ideal Illusions: How the U.S. Government Co-opted Human Rights (2010).

[3] D’ Souza and certainly indigenous writers before her define land as a relationship between humans and nature and one another. This was transformed into property by rights discourse, hence tradeable on the market.

[4] D’ Souza argues that the ‘will of the people’ in Global South’s newly independent countries was repackaged as a question of free and fair election opening doors to international election monitoring agencies that have legitimized anti-democratic interventions whether by occupying armies of financial institutions like the World Bank. For the full argument please see Chapter 4 of D’ Souza (2018).

[5] BR Ambedkar, Annihilation of Caste (1936). In this undelivered lecture, Dr. Ambedkar cites several examples of the attitudes of Congress leaders including the attempt by BG Tilak and WC Bonnerji to shut down Social Conference, a wing complementary to the National Congress to focus on social reform focused on ending inequities within Hindu Society that he believed must precede political reform that demanded self-rule. See Also, BR Ambedkar, What Congress and Gandhi Did to the Untouchables? (1945) where he speaks of MK Gandhi and other leaders’ endorsement of the caste system and its practices and their unwillingness to allow social and political reforms geared towards equality including Separate Electorates for the Depressed Classes.

[6] KG Kannabiran, Wages of Impunity: Power, Justice, and Human Rights (2004).

[7] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (2019).

[8] Motilal Nehru in his 1919 Congress Presidential Address took on the Rowlatt Act passed by the British: “[just] because there are … Some persons who endanger public safety, the whole nation must submit to the disgrace of allowing this terror to hang over it … the only justification pleaded is that the Act is not meant for the innocent and the law-abiding who need have no fear of its application to them. But … the sole judge of the innocence or guilt of any person … is the executive”.

[9] Jaipal Singh Munda raised the demand for the right to bear arms for Adivasis on cultural and practical grounds with respect to Article 19(1)(b) (the freedom to assemble peaceably and without arms).

[10] See Chapter 1 of Aditi Pradhan et al., Countermapping Pandemic Policing: A Study of Sanctioned Violence in Madhya Pradesh, Criminal Justice and Police Accountability Project (September 2020) and David Arnold, Police Power and Colonial Control: Madras 1869-1947 (1986).

[11] Jelsyna Chacko, The integration of Artificial Intelligence in the Indian judiciary: In conversation with CEO of MCIL, Manthan Trivedi, Bar & Bench (3 July 2021) available at: https://www.barandbench.com/interviews/integration-artificial-intelligence-indian-judiciary-mcil-ceo-manthan-trivedi-interview  and Tom Simonite, Algorithms Were Supposed to Fix the Bail System. They Haven’t, Wired (19 February 2020) available here: https://www.wired.com/story/algorithms-supposed-fix-bail-system-they-havent/

[12] Michel Foucault, Discipline and Punish: Discipline and Punish: The Birth of the Prison (1975) and Chapter 4 of Angela Y Davis, Are Prisons Obsolete? (2003). This way these inalienable rights were framed also allowed exceptions to be made that ostensibly legitimised genocides and African slave trade, sufferers not deemed to be full individuals by the white man.

[13] Also see Padmini Swaminathan, Prison as Factory: A Study of Jail Manufactures in the Madras Presidency, Studies in History 11(1) (1995) for colonial attempts to rationalize it.

[14] Aditi Pradhan et al., Drunk on Power: A Study of Alcohol Policing in Madhya Pradesh, Criminal Justice and Police Accountability Project (August 2021). Here we find that policing of people from marginalised communities manufacturing and selling small quantities of country liquor is motivated by corporations/ persons given the exclusive contract to sell the liquor in an area who employ people to complain against the former. This ‘legitimate’ trade is monopolized by people from Savarna communities.

[15] Please see Sukanya Shantha, From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System, The Wire (10 December 2020) for an analysis of various Prison Manuals as well as prevailing practices. This adds a new layer to the understanding of Prison-Industrial Complex which is defined as a set of complex relationships between prison inmates, the state and private corporations with the latter too exploiting prison labour for profits and with vested interest in expanding prison population, privatisation of prisons, etc.

[16] Manipur is supposed to pay as little as Rs. 8 to an unskilled worker per day for their labour. Not enough information is public but private companies including The Himalaya Drug Company and Minda Furukawa Electric Pvt. Ltd. have been utilising prison labour and yet expanding their programmes.

[17] Here I use ‘colonial’ not just as the legacy of the past but policies the Indian State presently has towards Kashmiris, indigenous people in mainland India and the North East, and others as well as their lands and resources. ‘Social control’ is exerted of course not only through incarceration (mass incarceration is a separate problem seen in US) but overarresting, surveillance of certain communities and their labeling as ‘Habitual Offenders’, , ‘Goondas’, etc., violence and keeping communities under the hold of the police. People quoted in Drunk on Power report say boys and men refrain from accessing markets and big towns should they be detained and falsely implicated, thereby having their freedom of movement limited by the police.

[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Volume 9 of the Indian Journal of Constitutional Law. You can access all the posts in this discussion here . In this piece, Devdutta Mukhopadhyay provides us a summary of her co-authored paper titled ‘Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age’, which discusses the Supreme Court’s judgements relating to internet restrictions imposed in Jammu & Kashmir.]

 

Introduction

Indians experience the highest number of internet shutdowns in the world. In particular, the people of Jammu & Kashmir have been subjected to the longest internet shutdown ever imposed in a democracy. Internet services were restricted in Jammu & Kashmir from 05 August 2019 to 05 February 2021 citing national security and public order concerns. These 550-day long internet restrictions led to multiple rounds of litigation before the Supreme Court of India. The result is the judgements delivered in Anuradha Bhasin v. Union of India [“Anuradha Bhasin”] and Foundation for Media Professionals v. U.T. of Jammu & Kashmir [“FMP”]. Our article examines both these judgements and critiques the Court’s outsourcing of decision-making to government authorities and its narrow conception of the right to internet access.

 

The Judgements in Anuradha Bhasin and FMP

In Anuradha Bhasin, the Supreme Court held that the right to access the internet to express oneself and to conduct one’s business was protected by Articles 19(1)(a) and 19(1)(g) of the Constitution respectively. This right could be restricted only in accordance with the proportionality standard, which requires the government to narrow down the temporal and geographic scope of internet restrictions. Unfortunately, these principles were not applied by the Court to grant any effective relief to the people of Jammu & Kashmir. Instead, the Court directed the government to apply the proportionality standard to evaluate its own internet shutdown orders.

 

From a practical standpoint, the Court found it difficult to evaluate the internet shutdown orders because only eight sample orders were produced before it. Despite specific prayers being made by the petitioners and intervenors for production of the orders, the government did not place them on record. While the Court did not penalise the government for its failure to produce the orders, it did recognise the larger underlying problem. The Court noted that the Temporary Telecom Suspension Rules, 2017 were deficient because the government was not required to proactively publish internet shutdown orders. Further, the Rules did not provide for any period review of internet restrictions. As a stop-gap measure, the Court directed proactive publication and periodic review of all internet shutdown orders till the Rules were amended.

 

After the judgement in Anuradha Bhasin was delivered, the government gradually relaxed the internet restrictions but mobile internet speed continued being slowed down to 2G. This meant that the vast majority of internet users in Jammu & Kashmir did not have effective internet access. In Jammu & Kashmir, there are 73 mobile internet subscribers for every fixed-line subscriber. And 2G mobile internet is too slow for people to access online education, telemedicine and remote work facilities, which have become essential during the pandemic.

 

In FMP, the Supreme Court was called upon to determine the constitutionality of the internet slowdown in Jammu & Kashmir during the pandemic. This time, the internet slowdown orders had been published by the government and they were placed before the Court. But the Court once again refrained from issuing any binding directions. Instead, it constituted a Special Committee consisting of senior bureaucrats to examine the issue in accordance with the proportionality standard.

 

National Security and Judicial Review

In the article, we comment upon the Supreme Court’s decision to endorse the evidence-based proportionality standard in principle while giving primacy to vague national security concerns in practice. The most obvious example of this is the Court’s warning against “excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity.” We argue that carving out a national security exception to the application of the proportionality standard is deeply flawed for two reasons. First, the Court failed to explain why such an exception is necessary and what would be the alternative standard of review in such cases. Second, a national security exception helps the government avoid rigorous judicial review without formally declaring a state of emergency.

 

We go on to highlight that the Supreme Court in Anuradha Bhasin and FMP abstained from engaging in any judicial review on both substantive and procedural grounds. Courts in India have historically been reluctant to engage in substantive review of executive action when national security concerns are raised. But Anuradha Bhasin and FMP represent a more dangerous version of this trend because the Court refrained from even answering procedural questions which could have been decided on narrow statutory grounds without engaging in controversial constitutional adjudication.

 

Most importantly, we caution against the judiciary’s tendency to outsource decision-making to the government in national security related cases. While the Court’s attempt to fix the deficiencies in the Temporary Telecom Suspension Rules, 2017 is well-intentioned and valuable, it is not enough. Merely improving mechanisms for administrative review will not prevent arbitrary and disproportionate internet restrictions. Judicial review remains necessary because constitutional judges are best placed to evaluate the humanitarian impact of internet restrictions on the local population. Our Constitution creates a system of checks and balances to protect the fundamental rights of citizens and it does not allow the executive branch to be the final judge in its own cause.

 

The Right to Internet Access and its Dimensions

In Anuradha Bhasin, the right to internet access was held to be a derivative fundamental right that enables the exercise of primary fundamental rights. These primary rights include the right to freedom of expression guaranteed under Article 19(1)(a) and the right to freedom of trade guaranteed under Article 19(1)(g) of the Constitution. Interestingly, the Court limited the scope of the right to internet access to a negative right against government interference. In the article, we argue that the Court’s cursory dismissal of a positive right to internet access is inconsistent with its past jurisprudence, government policy and international human rights norms. 

 

The Supreme Court has previously recognised various socio-economic rights which impose positive obligations on the State to provide food, education and healthcare as a part of the fundamental right to life under Article 21. Therefore, there is no a priori justification to limit the scope of the right to internet access to a purely negative right which only provides protection against government interference but does not impose any positive obligation on the government to facilitate internet access by creating necessary infrastructure. Further, as evinced by the Universal Service Obligation Fund and the National Broadband Mission, the government itself recognises internet access as an essential service and seeks to ensure universal broadband coverage.

 

In light of this, we find the Court’s observation that “positive prescription of freedom of expression will result in different consequences which our own Constitution has not entered into” to be unwarranted. Recognising a positive right to internet access does not mean that every citizen must be immediately provided a smartphone and an internet connection. It is well-established that positive rights may be gradually realised keeping in view budgetary constraints. Therefore,  the Court’s pragmatic concern about “socio-economic costs of such proactive duty” can be easily addressed.

 

We also clarify that in Anuradha Bhasin and FMP, the Court was only required to enforce a negative right against government interference with internet access. It did not have to direct the government to create any new digital infrastructure. It only had to prohibit the government from disabling existing digital infrastructure. Since this would not require any additional financial outlay, the violation should have been addressed in an urgent and binding manner. So, we find that the Court did not even enforce the narrow negative right to internet access that it did recognise.

 

Conclusion

While the judgements in Anuradha Bhasin and FMP did not go far enough, they marginally improved the status quo by nudging the government to restore limited internet access. These cases have also laid down the groundwork for future litigation. In particular, the Court’s finding that internet restrictions must be narrowly tailored in their temporal and geographic scope could be used to challenge wide ranging and prolonged internet shutdowns imposed in the future. Further, by requiring proactive publication of orders, the Court has made it easier for aggrieved citizens to challenge internet shutdowns. Unfortunately, all this may be of little solace to the people of Jammu & Kashmir who saw their health, education and livelihood destroyed by these 550 day long internet restrictions.

 

Devdutta Mukhopadhyay is currently working as an associate at Ikigai Law. Earlier, the author was a litigation counsel at Internet Freedom Foundation. 

Introduction

The Electricity (Amendment) Bill, 2021 (Bill) was introduced with the intention to table it in the Monsoon Session, despite urges to put it on hold by the power engineer’s body, and protests by certain states, power sector employees and farmers. The proposed amendments introduce several key changes to the power sector which has long been facing numerous challenges. As per the Statement of Objects and Reasons of the Bill, it has been introduced in the context of issues plaguing the power sector for decades including the loss-making distribution utilities (DISCOMs), increasing uncertainty in the sector impacting private investment and non-performance of long term power purchase agreement between power generators and state utilities. The Central Government in the last decade has also been pushing for an increase in India’s renewable energy capacity in both generation and manufacturing capabilities, to establish soft power in the sector. It is intended that the amendments would support this goal and increase renewable energy capacity as well.

The Bill proposes changes to the regulatory framework of the power sector to seemingly address the above concerns. First, it introduces a new authority, the Electricity Contract Enforcement Authority (ECEA) with powers similar to that of a tribunal; second, it increases the powers of the Appellate Authority; and third, it proposes changes to the powers and composition of the State Electricity Regulatory Authority (SERC). In this article, I discuss the Bill from a regulatory governance perspective, and seek to understand whether the changes to the regulatory framework of the power sector correlate to the goals of the Bill.

Background to governance of electricity sector

The main legislation governing the electricity sector is the Electricity Act 2003 which lays down the law relating to generation, transmission, distribution and trading of electricity. The Act constitutes two regulatory authorities – the Central Electricity Regulatory Commission (CERC) and the State Electricity Regulatory Commissions (SERC) governed by the Electricity Regulatory Commissions Act 1998 and state Electricity Regulatory Commission Acts respectively. Electricity falls in the Concurrent List of the Constitution, thus granting law making powers to both states and the Centre.

CERC has the responsibility to regulate generating companies owned by the Central Government, and regulate transmission, determine tariff, issue licenses and adjudicate disputes relating to inter-State operations. SERCs enjoy similar functions at the state level and govern all intra-State operations. Section 86 of the Electricity Act 2003 sets out the functions of SERCs which include:

Regulating purchase and procurement of electricity by Distribution Utilities (DISCOMs) Determining tariff for generation, supply, transmission and wheeling of electricity within the State; Promoting co-generation and generation of electricity from renewable sources of energy; Adjudicating disputes between DISCOMs and generating companies.

Every State also has one or multiple DISCOMs, which are primarily state-owned companies, who are in charge of the purchase and sale of power in their supply area. DISCOMs typically enter into long-term power purchase agreements with power generators and sell the power to consumers at differential tariffs depending on the consumer. For example, residential and agricultural consumers have a lower tariff compared to industrial and commercial consumers. Due to several long-standing issues, DISCOMs suffer from weak financial health, currently owing a total of Rs. 97,111 crores to power generating companies.

The electricity sector has long been scrutinised for the lack of an efficient and independent regulatory body. SERCs are often at the centre of several competing interests including access to reliable electricity at a low cost to consumers, promoting renewable energy, and increasing private sector participation. States have struggled to meet these goals, a large part attributable to the lack of financial capability of DISCOMs.

What does the Bill propose?

The Bill limits the power of SERCs wherein the proposed ECEA will now adjudicate upon disputes relating to the enforcement of contracts. In recent years, several states including Andhra Pradesh, Karnataka, and Madhya Pradesh have attempted to either cancel or renegotiate existing Power Purchase Agreements (PPAs) given state DISCOMs’ struggle to purchase power at the tariff rates determined at the time of signing of the contract. The most frequent disputes between DISCOMs and private generators involve DISCOMs seeking lower tariff rates due to delays in the performance of contracts or other non-performance of obligations by the generator.

From the Centre’s perspective, non-performance of contracts comes in conflict with its goal to increase investment in the sector, since it may create uncertainty and disincentivize private participation. Currently, disputes between DISCOMs and generators are heard by the SERCs, who decide upon both – whether there has been a breach in the contract and the subsequent determination of tariff. However, given recent trends of cancellation and re-negotiation of such contracts, the Bill introduces the central ECEA to hopefully strengthen contract enforcement. The ECEA will consist of a Chairperson, two or more Judicial Members and three or more Technical Members to be appointed by the Central Government on the recommendation of a Selection Committee. The ECEA has sole jurisdiction over disputes involving the performance of contracts of purchase and sale between generating companies and DISCOMs which was earlier under the jurisdiction of SERCs.

Potential challenges

The new reforms have significant implications on the electricity sector’s federal structure, which falls under the Concurrent List of the Constitution. The proposed ECEA will decide upon contractual disputes which will impact power purchase and sale agreements entered into by the State. Under the Electricity Act 2003, the function to adjudicate disputes between DISCOMs and power generators rests solely with the SERC. The Bill, which was drafted without consultation with state governments, now prescribes that “the sole authority and jurisdiction to adjudicate upon matters regarding performance of obligations under a contract related to sale, purchase or transmission of electricity, provided that it shall not have any jurisdiction over any matter related to regulation or determination of tariff or any dispute involving tariff.”

Currently, contracts entered into for the sale or purchase of electricity by states are governed by SERCs which are granted the following functions:

approve Power Purchase Agreements (PPAs) entered into by DISCOMs and generators; determine the tariff at which electricity will be purchased by DISCOMs, and; adjudicate upon dispute that arises between the parties.

Although, the Bill retains the first two functions with SERCs, contractual disputes often have significant implications on both, the power purchase arrangement entered into by States and tariff determined by the SERCs. The proposal to grant a central authority to adjudicate disputes goes against the spirit of federalism by granting a central authority the power to effect changes to tariffs and purchase power arrangements.

In addition, the proposed Bill forms a central Selection Committee for the appointment of the Chairperson and members of all three regulatory authorities – CERC, SERCs and the ECEA. The ‘Statement of Objects and Purposes’ states that a single selection committee would bring uniformity and efficiency in the selection process. The concern of ‘regulatory capture’ by states will merely be replaced by the potential capture by the Central Government for all state institutions. States including Tamil Nadu, West Bengal and Kerala have also opposed the Bill arguing that the Centre is entering into the domain of states.

Second, the proposed Bill in essence splits the regulatory function and the adjudicatory functions of the SERCs. A large number of cases are related to contractual disputes which are currently being heard by SERCs. The Bill, by also removing the requirement for a Judicial Member in SERCs, strips them of their adjudicatory powers. Similar divisions can be seen across regulators and have also been recommended for the proposed Data Protection Authority, the rationale being to maintain independence between the adjudicatory functions and the law-making and executive functions. However, this is not met when one central committee is in charge of appointments for both authorities. The Bill, being designed based on a limited and near-sighted goal of contract enforcement, has failed to incorporate learning and recommendations from other regulators which have similar enforcement structures.    

Third, according to the Bill, the benches of the ECEA shall ‘ordinarily sit in Delhi’, with the possibility of other benches as decided by the Central Government in consultation with the Chairperson of the ECEA. Situating a regulatory body in Delhi, with the responsibility of adjudicating disputes between state DISCOMs and generators can prove to be inaccessible for many people. This conflicts with the goal of the Bill to promote renewable energy, which comprises several small players including farmers and residents with solar rooftop systems. Having a centralised authority located in Delhi can disincentive renewable energy generation by making contract enforcement out of reach.

Fourth, the Bill does not have clarity on the jurisdiction between the ECEA and the SERCs. Most disputes have implications on tariffs which rest with SERCs. Often, contractual disputes and tariff determination overlap, which may lead to conflict between the two authorities. This may also incentivize forum shopping by both DISCOMs and private generators. Orders of ECEA could be appealed before the Appellate Authority and subsequently the Supreme Court. It is to be noted that High Courts do not have appellate powers over decisions by the ECEA. During the pendency of these disputes, contracts may remain on hold and only after resolution will the tariff be determined by SERCs. Further, the SERCs will have to refer any matter that comes to them to the ECEA, if it concludes that it falls under their jurisdiction. With the current practice of generators approaching SERCs for dispute settlement, SERCs are likely to hear several jurisdictional challenges with each state taking different approaches on the same. While the Bill makes the distinction between disputes relating to non-performance of contracts from other disputes, in practice, this line is not very clear. Attempting to delineate one form of disputes from the others, may prove to be complicated to implement for SERCs. States may also attempt to retain their power in this process by avoiding referring matters to the ECEA, thus leading to non-uniform implementation across states.

Concluding remarks

The ‘Statement of Objects and Reasons’ to the Bill claims that the proposed amendments to the regulatory structure will better deal with issues related to the performance of contracts by both DISCOMs and generators. However, in pursuance of that goal, the Bill merely introduces a centralized authority, replacing the several state authorities that were earlier entrusted with this responsibility. The Bill follows the recent trend of the Centre relying on regulatory bodies and tribunals to resolve sectoral issues. However, it remains unclear whether these bodies in their current form can effectively deliver the goals they are entrusted with. With regulators being created for key sectors such as real estate and data protection, careful thought needs to go into designing their powers.

 

Creation of vaccine for COVID-19 was a moment of euphoria and pride. However, till today, to the dismay of all, neither have the vaccines become panacea, nor has the virus evanesced. The pandemic has affected human rights globally, be it India, Australia or Europe. One of these rights is the ‘right to choose to not be vaccinated.’ Amidst the fatal crisis, a large stratum of the society is willing to take the vaccine, but there is rising vaccine hesitancy with few people either not feeling the need to get vaccinated, or others not believing in its efficacy.

Nations across the world have, directly or indirectly, forced the vaccination drive, with many rights now contingent on vaccination. For instance, the right to travel has been restricted with people and states have introduced the idea of vaccine passports, allowing entry only upon vaccination, sometimes with only specific vaccines. These restrictions have even caused people to travel to neighbour countries in order to get the required jabs. Despite vaccination being advisory in India, right to work and right to wages or salary have also been curtailed. There is also discussion of making it an offence for the vaccine no-shows, making similar experiences of disadvantage and benefits more likely in the future.

In the past few months, various Indian courts have decided or gave dicta on compulsory vaccination. In the present piece, I seek to analyse the legality of compulsory vaccination by examining the exercise of balancing of public rights vis-à-vis individual rights by the judicial systems across nations, with a special focus on the Indian decisions.

I.  Individual Rights’ Triumph

Recently, the Gujarat High Court (HC), heard a petition by an Indian Air Force (IAF) officer to quash a show-cause notice issued by IAF for him not getting vaccinated. He averred that “his consciousness does not allow to get vaccinated instead of using ayurvedic methods” and that as per Union of India’s response in a RTI application, vaccination is voluntary. HC directed the IAF to not take any coercive action against the officer and adjourned the proceedings until its final decision.

The Meghalaya HC, addressing vaccine hesitancy vis-à-vis compulsory vaccination, declared that executive orders mandating vaccination to resume business are “coercive in nature and spirit”. Though the court recognised that vaccination is “absolute necessity” to overcome the pandemic, yet it held that its compulsion violated Article 21.

This decision was based on the right to livelihood under right to life and personal liberty. The judgment has two important components – (i) equating right to livelihood’s contingency on vaccination as compulsory vaccination, and (ii) holding the measures of compulsory vaccination as “excessive”. The legal reasoning for the latter was that compulsory vaccination is not  “reasonable, just and fair” and according to procedure laid down by law, as was required by the Supreme Court (SC) in Olga Tellis v BMC.

Further, the decision recognised that compulsory vaccination poses “a risk of running into infringing on the fundamental right to privacy and exercise of personal liberty”. Right to bodily integrity and autonomy were held as major components of right to privacy in the Puttaswamy v. UoI,as “decisional autonomy comprehends intimate personal choices”.

Referring to the Meghalaya HC’s decision, an Aizawl division bench of Guwahati HC passed a similar order, while disposing off a writ petition against compulsory vaccination. Taking a step further, it held compulsory vaccination to be violative of not only Article 21, but also Article 14 (right to equality) as it created an “unjustified, grossly unreasonable and arbitrary” classification between vaccinated and non-vaccinated people. Further, such policies by the State under Disaster Management Act, 2005 were also held unreasonable under the scope of Article 19(6).

II. Public Rights’ Triumph

The support for direct or indirect compulsory vaccination is found in right to health under Article 21 – vaccinating the full population is in public interest.

A division bench of the Madras HC, decided on a PIL regarding vaccination for persons homebound due to disabilities . The state submitted a report citing “an element of reluctance in some quarters to take the vaccine.” The Court, recognising the indispensable nature of vaccine in the pandemic, advised the state to take persuasive measures, while emphasizing on asymptomatic COVID and doubts on vaccine hesitancy in the larger interest of public health.

Referring to Jacobson v. Massachusetts, Justice Chandrachud recently noted that the government does need “room for free play in the joint” in such cases of public emergency as provided the same qualify the test of reasonableness and proportionality.

Scholars have also argued that governments have sufficient options to make vaccination compulsory. If not, the Centre may pass bills like The Public Health Bill, 2017 having provisions, inter alia, for mandatory vaccination in line with The Compulsory Vaccination Act, 1892. It is arguable that such actions are in consonance with the fact that fundamental rights are not absolute. For instance, right to move freely can be curtailed for public order as provided under Article 19(2) of the Constitution. Similarly, right to privacy was held to not be absolute in Puttaswamy case.

 III. Balancing of rights

Though Indian courts have not dealt with the question of compulsory vaccination before, the central issue of balancing public rights vis-à-vis individual rights has been decided upon in different context. In such, there exist two choices – declare one of them superseding the other, or harmoniously balance the two.

Leaning towards the approach of balancing rather than a definite primacy to one, the SC in Mr X v. Hospital Y held that it is in public interest that the HIV status of a man is disclosed to his fiancée, prioritising right to health over his right to privacy. In Asha Ranjan v. State of Bihar, SC stated that scale of balance should tilt to public interest if it instils rule of law. In Avishek Goenka v. UoI, SC held that shaded glasses on vehicles can be banned as general public safety outweighs trivial individual privacy. It is evident that though proportional balancing of the two rights is the key, there is no constitutional clarity on its modus operandi. There are been multiple ways of balancing them – morality based, or public interest based – but they are best characterised as ad hoc decisions and the situations remains unclear.

Cross-jurisdictional opinions can be referred to for consideration. The European Court of Human Rights (ECHR) in Avilinka & Ors. v. Russia, a case involving right to privacy of Jehovah’s witnesses, held that even though abstinence to blood transfusion results in death, forced treatment is violative of physical integrity under Article 8 of the convention. A decade ago in Solomakhin v. Ukraine, ECHR held compulsory vaccination to be an interference with right to private life. Contrastingly, recently ECHR in Vavřička v. The Czech Republic held compulsory vaccination as necessary and not violative of human rights.

The US SC in Jacobson v. Massachusetts allowed compulsory small pox vaccination, with J. Marshall opining public health supersedes individual rights. In Zucht v. King US SC also held constitutional bar on non-vaccinated students in vires. Similarly in City of Newark v. JS, it was held that a tuberculosis patient can be admitted to hospitals against his will, provided it is the least restrictive measure. On the contrary, the New York Court of Appeals in Schoendorff v. Society of New York Hosp. held that one has right to determine what happen to one’s body in a medical procedure.

 IV. Conclusion

The contrary decisions of courts highlight the dilemma. Non-eternal and dwindling efficacy of vaccines against new variants make the advocacy for public interest even weaker. Vaccines being the only known inhibitor of deadly COVID weakens the case for individual rights. Thus, neither a blanket ban, nor a blanket approval for compulsory vaccination, is feasible.

A dynamic balance, with the present equilibrium being persuading people through awareness is required because belief curbs hesitancy. Incentives like doughnuts, lotteries, etc. are other ways. While formulating these policies, governments must ‘carefully account for constitutional rights’. Indian government should follow the communication strategy laid down by MoHFW and people should also contribute by building a collective sense of accountability.

Thus, it is best for the authorities to walk a tight rope between public interest and individual rights and push for persuasive vaccination to bring adaptive behavioural changes.

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