Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

The power to certify

The Hindu

Context

  • Recently, the Aadhaar Bill and the Finance Bill were passed as Money Bills, though they may not have met the strict criteria laid out in the Constitution.
  • This meant that the Rajya Sabha had only a recommendatory role while discussing these Bills.
  • While the Speaker has the power to determine whether a Bill fulfils the requirements of a Money Bill, there has to be a check to ensure that this power is not misused.
  • The Supreme Court should examine this issue under its power of judicial review .

What is a Money Bill?

  • Article 110(1) of the Constitution states that a bill can be termed as a Money Bill if it contains “only” six types of provisions or anything incidental to these.
  • Broadly speaking, these include taxation, government receipts and expenditure, government borrowings, and guarantees.

Procedure for the passing of Money Bills

Article 109 of the Constitution laid down the special procedure in respect of Money Bills .  The  following is the procedure for the passing of Money Bills in Parliament :

  • A Money shall not be introduced in the Council of  States.
  • After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations and the Council of States shall within  as period  of fourteen  days  from the date of receipt  of the Bill return the Bill to the House of the people  with  its recommendations.
  • If the House of the people accepts any of the recommendations of the Council  of the States , the Money Bill  shall be deemed  to have been  passed  by both Houses with the amendments  recommended  by the Council of States and accepted  by the House of the People.
  • If the House of the People  does not accept any of the recommendations of the Council of States  the Money Bill shall be deemed  to have  been passed  by both Houses in the form in which  it was passed  by the House of the People  without  any of the amendments recommended by the Council of States.
  • If a Money Bill passed by the House of the People and transmitted  to the Council  of States for its recommendations and is not returned to the House of the People within the said period of fourteen  days, it shall be deemed to have  been passed by both  houses at the expiration of the said  period in the  form in which  it was passed  by the House of  the People  .

Aadhaar Bill passed as Money Bill

Arguments in favour Arguments against
The primary objective of the Aadhaar Bill is to create a system for providing subsidies, and as the provisions relate to government expenditure the Bill can be termed as a Money Bill. The counterargument is that the Aadhaar Bill has several other provisions, including permitting use of the system for other purposes, so it does not meet the requirement of having “only” the six provisions.

Finance Bill passed as Money Bill

  • The Finance Bill too had provisions other than those related to taxation.
  • It amended the Reserve Bank of India Act to enable the creation of a monetary policy committee.
  • It also amended the Foreign Contribution Regulation Act (with retrospective effect) to change the definition of foreign company.

Can the Supreme Court examine whether the certificate of the Speaker was correctly given?

  • Article 110(3) states: “If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.”
  • In addition, Article 122 prohibits courts from inquiring into proceedings of Parliament and examining their validity.

Case Study:-

  • In  Mohd. Saeed Siddiqui v State of U.P. , Supreme Court decided that the decision of the Speaker is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212.
  • The Article 212 applies to State legislatures and is analogous to Article 122 for Parliament.

If the Supreme Court cannot examine whether the Speaker gave the certificate correctly, what prevents a misuse of this provision to prevent scrutiny by the Rajya Sabha?

  • To illustrate with an extreme example, if a Bill to amend the Indian Penal Code is certified as a Money Bill, is that decision final and not open to judicial scrutiny?
  • There are several prior cases in which the Supreme Court has examined the decision of the Speaker or the legislature.

Case Study:

  • In Kihoto Hollohan v. Zachillhu, the Supreme Court examined the constitutional validity of   Paragraph 6(1) of the Tenth Schedule.
  • In this case , SC said  that Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen, is valid.
  • But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.
  • It went on to say that the protection of Articles 122 and 212 was only to protect the validity of proceedings from mere irregularity of procedure.
  • The Court also struck down paragraph 7 (which barred judicial review) stating that it did not meet the requirements of Article 368(2), which requires ratification of half of all State legislatures for any changes made to provisions related to the higher judiciary.

Case Study:

  • In Amarinder Singh v. Spl. Committee , Punjab Vidhan Sabha , the court has set limits to the privilege of the legislature under Article 122, and overturned its resolution to expel a member.

Conclusion

  • The Constitution has a system of checks and balances, which includes the Rajya Sabha as a check on the Lok Sabha.
  • It requires all Bills to be passed by both Houses, with the exception of Money Bills (as these Bills are effectively equivalent to confidence motions).
  • While the Speaker has the power to determine whether a Bill fulfils the requirements of a Money Bill, there has to be a check to ensure that this power is not misused.
  • The Supreme Court should examine this issue under its power of judicial review under the principles laid out in the Kihoto Hollohan and Raja Ram Pal cases.
Editorials, GS-2, Indian Polity, Uncategorized

SC upholds law on criminal defamation + A disappointing verdict + Speak no evil

What happened?

  • The Supreme Court has maintained the constitutional validity of Sections 499 and 500 of the Indian Penal Code which criminalise defamation.

Section 499 defines defamation

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Section 500 defines Punishment for defamation

  • Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Reasoning given by the court

  • Court said that the reputation of an individual was an equally important right and stood on the same pedestal as free speech.
  • The court said it would be a stretch to say that upholding criminal defamation in modern times would amount to imposition of silence.
  • The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression.
  • The right to reputation is a constituent of Article 21 of the Constitution. It is an individual’s fundamental right.
  • Court held that deliberate injury to the reputation of an individual is not a mere private wrong, worth only a civil case for damages.
  • Instead, it is a “crime” committed against society at large and the State has a duty to redress the hurt caused to its citizen’s dignity.

Analysis of the judgement

  • The judgment  holds far-reaching implications for political dissent and a free press.
  • Existence of criminal defamation on the statute book leads to self-censorship, and that it is often used to stifle legitimate criticism.
  • It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component.
  • In the Indian context, criminal defamation is not generally a dispute between two individuals.
  • It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.
  • The protection of reputations is a reasonable goal, in practice, the law is used as a tool for harassment and intimidation.
  • By criminalising defamation, the law inflicts the extreme punishment of loss of liberty.

What could have been done?

  • The two-judge Bench could have referred the matter to a Constitution Bench.

What should be done?

  • Defamation should be decriminalised and it  should be reduced to a civil offence.

    Why Supreme court ruling on section 499 of IPC might be flawed?

    1. It held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”. Now, Article 21 only protects the individual’s life and liberty against interference by the state. Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. The court never explained how this balancing exercise was to be carried out.
    2. To have it prevail over free speech — have no basis in either the text or the structure of the Constitution. Instead of using Article 21 as a shield to protect the individual against State persecution or indifference, it used it as a sword to cut down the fundamental right to freedom of speech and expression.
Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

Uttarakhand: The way forward

The Union government suffered a major setback with Uttarakhand High Court quashing President’s rule in the hill state and directing ousted CM Harish Rawat to prove his majority on April 29th. The HC had also upheld the disqualification of 9 rebel MLAs observing that they have to pay the price for constitutional sin of defection. But, in the latest development the SC has set aside High Court’s order and re-imposed President’s rule in the state.

Background:

The High Court’s judgement is based on previous Supreme Court judgements. The Supreme Court has clarified in several judgments that Central rule was no substitute to testing a democratically elected government’s strength on the floor of the assembly.

  • In 1977, then Janata Party government asked CMs of nine Congressruled states to resign or face dismissal through Article 356. This was challenged in the SC, which took a lenient view of the political manoeuvring. It said judicial review of presidential proclamation was on a limited ground and couldn’t touch political aspects.
  • But the judiciary started taking a stern view of Article 356’s misuse after overturning the Centre dismissed SR Bommai in Karnataka and the Meghalaya government in 1989 and 1991. Bommai case ruling of 1994 became the guiding light for constitutional courts.
  • Here, the court said floor test was the best method to judge an elected government’s majority. It said, “The SC or HC can strike down the proclamation if it is found mala fide or based on irrelevant or extraneous grounds. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action.”
  • In the Ranmeshwar Prasad Vs Union of India case (2005), the supreme Court reiterated this position: “The President’s satisfaction has to be based on objective material. The objective material must vindicate that the government of the state cannot be carried on in accordance with the provision of the Constitution. That is a condition precedent before the issue of the proclamation.”

Was it necessary to impose President’s rule in Uttarakhand?

No, say few experts. It is because none of reports, submitted by the governor to the centre, spoke about the breakdown of constitutional machinery in the state. Instead, President’s rule was imposed in the state by the President based on Centre’s advice. The centre’s argument is based on the way the appropriation bill was passed in the state.

What the law says?

The President can exercise powers under Article 356 ‘either on the report of the Governor or otherwise’. Here, the word ‘otherwise’ means the President may act even without the governor’s report. Article 356 says that if any piece of advice is given by the Centre and a state government does not comply with it, it shall be deemed that ‘there is breakdown of the constitutional machinery of the state’. It does not mean corruption or misuse of powers by the Speaker.

Way ahead:

Now, the Supreme Court of India; the final arbiter of the constitutional maters will decide the case. While doing so, it will definitely look back to the point when a judgement by their predecessors changed the course of federal politics in the country. While pronouncing its judgement in S R Bommai case, the constitutional bench of the highest court made the arbitrary use of Article 356 of the Constitution very difficult. Now more than two decades after the Bommai case, apex court will once again deliberate upon the use and abuse of the Article 356.

If Supreme Court overturns the high court order, it would raise serious questions about the ability of judges of lower courts in handling matters of constitutional crisis. The Supreme Court also needs to take a serious look at the current lacunae in the system like the Parliament approval within two months when a government is in minority in the Upper House.

Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

Not a court of everyday appeal

Article Link

How?

  • National Court of Appeal (NCA)
  • By establishing a more robust judiciary

National Court of Appeal (NCA)

  • Establishment of a National Court of Appeal (NCA)  would act as an intermediate forum between the Supreme Court and the various high courts of India.
  • It  would relieve the Supreme Court of the weight of hearing regular civil and criminal appeals
  • It will allow the court to concentrate on determining only fundamental questions of constitutional importance.
  • NCA’s regional benches would allow greater access to litigants from remote parts of the country, for whom the distance to New Delhi acts as a grave barrier to justice.

Problem with NCA

  • Supreme Court has today used the pliability of its power to grant special leave to often interfere in mundane disputes is therefore not a product of any structural problem, but rather of a deliberate decision by the court’s judges.
  • Viewed thus, it is difficult to understand how the creation of an NCA would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was, after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.
  • The focus ought to be not on altering the core structure of the judiciary, but in aiming to make changes that are more pragmatic, that place an emphasis on the strengthening of the base of India’s judicial edifice.

 

A bottom-up approach needed

 

  • If socially conscious and meritorious women and men, who subscribe to the best constitutional values, are elevated as judges to our subordinate judiciary and the high courts, the idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether.
  • This would allow the Supreme Court to be more discerning in its use of discretion, thus substantially reducing its burden of acting as a corrector of simple errors.

Road ahead

  • Our judiciary isn’t broken because of any deficiencies in structure, but rather because of the feeble infrastructure that we have installed to support our justice delivery system.
  • If we work towards establishing a more robust subordinate judiciary, it would not only negate any requirement on the part of most litigants to approach the Supreme Court, but it would also free the court of its shackles, allowing it to possibly regain its constitutionally ordained sense of majesty.
Editorials, GS-2, Indian Polity, Uncategorized

Show Me The Money (Money Bill)

Article Link

The Lok Sabha has cuccessfully passed the Aadhaar Bill that aims to ensure targeted services to intended beneficiaries by assigning them unique identity numbers. These numbers will be given to each person who has stayed in India for 182 days in the year preceding the date of application.

  • The government, having seen the fate of the Goods and Services Tax (GST) Bill, chose to package the legislation as a money bill to ensure that it was not blocked by the Rajya Sabha, where the ruling NDA is short of a majority. The bill will now go to the Rajya Sabha, which can deliberate on it and suggest amendments.

How government defends this move?

The government, citing Section 110 of the Constitution, says any bill which facilitated the payment of moneys into or withdrawals of money from the Contingency Fund of India was a money bill.

Why such move?

In all democratic parliaments, as in India, the Lower House alone has the power to grant money to the executive. A bill that deals with such matters is called a money bill. A money bill cannot be passed or rejected by the Rajya Sabha, which can keep such a bill for only 14 days, after which it will be deemed to have been passed by both Houses. Hence, such route is often preferred by the governments.

What the law says?

As per Article 110(1), a bill that contains only provisions dealing with the following qualifies as a money bill:

  1. The imposition, abolition, remission, alteration or regulation of any tax.
  2. Regulation of borrowing or the giving of any guarantee by the government of India, or undertaking financial obligation by the government.
  3. The custody of the Consolidated Fund of India (CFI) or the Contingency Fund of India, the payment of moneys into or withdrawal from them.
  4. The appropriation of moneys out of the CFI.
  5. Declaring any expenditure as a charged expenditure on the CFI.
  6. The receipt of money on account of the CFI or the public account of India or the ambit of accounts of the Union or of a state.
  7. Any matter incidental to the above issues.

Does Aadhar Bill deal with any of the above mentioned provisions?

According to few experts, Aadhaar bill does not deal with imposition, abolition, alteration, etc, of tax; nor does it deal with the regulation of borrowing or giving a guarantee by the government or an amendment in respect of any financial obligation to be undertaken by the government.

  • This bill also does not deal with the custody of the CFI, etc. The moneys paid into or withdrawn from such funds are incidental.
  • Besides, the bill is not an appropriation bill that appropriates money from the CFI. It does not deal with declaring any expenditure as a charge on that fund.
  • Further, it does not deal with the receipt of money on account of the CFI or the public account, or the custody or issue of such money, or the audit of the accounts of the Union or states.

Why Aadhaar bill cannot be a money bill?

The object of the Aadhaar bill is to create a right to obtain a unique identity number, regulate the enrolment process to collect demographic and biometric information, and create a statutory authority for regulating and supervising the process. It also specifies offences and penalties.

  • Thus, the obvious purpose of the bill is to deal with all aspects relating to the unique identity number of Indian residents, which will be used for multiple purposes.
  • Also, clause 4(3) states that the Aadhaar number may be accepted as proof for “any purpose”, not merely for the payment of subsidy or other monetary benefits.
  • Therefore, the above analysis clearly shows that the Aadhaar bill is not a money bill. Subtle attempts have been made to give it the appearance of a money bill by referring to the CFI in certain clauses. But this does not alter the character of the bill, which does not deal with the CFI.
  • Further, subsidies, subventions, etc, are not a part of this bill. The Aadhaar bill does not make any provision for subsidies or other government benefits or specify beneficiaries.

Where does it fit then?

The Aadhaar bill comes under the category of financial bills under Article 117, which would inter alia involve expenditure from the CFI.

  • The Constitution stipulates that such bills be considered only after the president has recommended their consideration. However, such bills can be introduced in either House and, as per Article 107(2), need to be passed by both Houses.

Conclusion:

In this case, prima facie it appears that the government has taken the money bill route to bypass the upper house. This move is even backed by the speaker of the Lok Sabha, whose decision is final on the question of whether a bill is a money bill. However, this constitutional provision cannot be seen as a convenient tool to deal with an inconvenient second chamber. The Constitution reposes faith in the speaker’s fairness and objectivity. Article 110(1) provides the touchstone of the decision to be taken by the speaker under Article 110(3). Any decision actuated by extraneous considerations can’t be a proper decision under Article 110(3). The speaker’s decision needs to be in conformity with the constitutional provisions. If not, it is no decision under the Constitution.

Editorials, GS-2, Indian Polity, Internal security, Uncategorized

Section 124A should stay

There’s a strong case to retain Section 124A.

Chapter Six of the IPC section 121 to 130 is titled “Offences against the state

  1. which included the offences of waging war against the government of India a
  2. Collecting arms with the intention of waging such war.

124A, Sedition:

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffectiontowards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

SC:

The day after the assassination of Indira Gandhi, two persons raised slogans of “Khalistan zindabad” and “Raj karega Khalsa”.

The Supreme Court acquitted the accused,

Observing that the raising of some slogans a few times, which did not evoke any response and did not create any law and order problem, did not attract Section 124A.

Law Commission of India:

In its 42nd report, published in 1971, it wanted the section to be extended to include disaffection towards,

  1. The Constitution of India
  2. Parliament and state legislatures
  3. The administration of justice
  4. It also wanted the punishment to be reduced to a maximum of seven years

The call for its abolition may be incorrect

  1. No data on the number of complaints that have been filed under this section in different states.
  2. What were the seditious utterances or activities?
  3. How many persons have been convicted?

Without an analysis of the empirical evidence on the implementation of this section, it would be incorrect to abolish it as an anachronistic colonial provision.

Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration.

These groups openly advocate the overthrow of the state government by revolution.

Against the backdrop of this stark reality, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicised cases.

Editorials, Essay, Social Empowerment, Social Issue

Dalit atrocities issues

The Dalit mobilisation that is gaining momentum in the wake of Rohith Vemula’s suicide reflects structural issues.

Reservations have given birth to Dalit entrepreneurs and a Dalit middle class benefiting from government jobs. because of this, anti-Dalit attitudes have been on the rise.

Cases of anti-Dalit atrocities  :

The number of registered cases of anti-Dalit atrocities jumped by 17.1 per cent in 2013 (compared to 2012) according to the National Crime Records Bureau (NCRB). Theincrease was even more dramatic between 2013 and 2014 is19.4 per cent.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the PoA act), gives a list of “offences and atrocities”. Which are,

Someone forces a Dalit or an Adivasi “to drink or eat any inedible or obnoxious substance”
“forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him [sic] naked or with painted face or body”
Dispossesses him “from his land”,
Compels him to do “bonded labour”
Exploits her sexually
“corrupts or fouls the water” he or she is using,
Denies him or her “right of passage to a place of public resort”
Forces him or her “to leave his house, village or other place of residence”, etc.

Because of the detailed list the Constitution drafted by Ambedkar had already taken care of most of these issues.

Article 17 abolishes untouchability
Article 23 prohibits bonded labour and
Article 15(2) stipulates that no citizen should be subject to restriction with regard to access to shops, public restaurants, hotels and places of entertainment, the use of wells, tanks, bathing ghats, roads and places of public resort on the grounds of caste.

In 1955, the Untouchability (Offences) Act reasserted that Dalits should not be prevented from entering any public place.

Then, in 1976, the Bonded Labour System (Abolition) Act was passed.

All the above mentioned Acts failed to fulfil its purpose. In 1989, The PoA Act was made. This also doesn’t make a huge impact either. Evident from the figures mentioned above regarding crime against Dalit.

Examples:

In October 2014, a 15-year-old boy was burnt alive by an upper-caste man in Mohanpur village (Rohtas district) because his goats had eaten his paddy crop.
In June 2015, two Dalit boys were killed because they were short of Rs 4in a flour mill of Allahabad.
In October 2015, two kids of three and eight were burnt alive in their house in Ballabgarh village (Haryana) after an argument with local Rajputs.Dalit women continue to be victims of violence and rape.

What has been the response of the state, lately?

new law was passed , Last month. Existing legislation even more sophisticated. This law provides stringent action against atrocities against dalits.

Will that make any difference?

If the police and the judiciary do not change their attitude, No law will be effective. In spite of the fact that the PoA Act has introduced, special courts for speedy trials,

the conviction rate under this act has remained very low and has declined even — from 30 per cent in 2011 to 22.8 per cent in 2013 .And the percentage of “pending cases” has increased from 80 to 84 per cent.On average, only one-third of the cases of atrocities are registered under the PoA Act. The police is reluctant to do so because of the severity of the penalties likely to be imposed by the act.

Many Dalits do not know their rights anyway and cannot fight a legal battle that is costly in terms of time and money.

2011 Census:

74 per cent Dalit live in rural areas
The per-household land area they own on an average is less than hectare. Most of them are landless.
only 22 per cent of the Dalit households live in larger homes
only 34 per cent of them have toilets in their premises
More than 50 per cent Dalit households use firewood as their main fuel for cooking
literacy rate crossed the 66 per cent landmark.
Educated Dalits want more to join the university system.Some of them have succeeded in doing so, but they often face frustrating experiences when they are discriminated.

Editorials, GS-2, Indian Polity, Uncategorized

The Basics for Free Speech

Article Link

It is generally understood that the contempt of court jurisdiction in India is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. However, the recent notice issued by the Bomaby High Court to the Booker Prize-winning writer Arundhati Roy for committing what the court believed constituted a clear case of criminal contempt of court has raised a few eyebrows in the country. The court pulled up Ms. Roy up for writing an article criticizing the Indian state, including the country’s judiciary.

What is ‘Contempt of Court’?

According to the Contempt of Courts Act, 1971 there are two common forms of contempt:

  1. Civil contempt will include, among other things, a wilful disobedience of a court’s judgment, order or direction.
  2. Criminal contempt will include publications that do one or more of the following: (a) scandalise or lower the authority of any court; (b) prejudice or interfere with the due course of any judicial proceeding; or (c) interfere with or obstruct the administration of justice in any other manner.

The promise of the Constitution:

Article 19 of the Constitution of India guaranteed the right to freedom of speech and expression, but also allowed restrictions on this right to be imposed by law, including any Law of Contempt, provided only that the restrictions were reasonable.

Articles 129 and 215 of the Constitution explicitly spelt out the power of the Supreme Court and High Courts to punish someone for contempt.

Criticisms:

The 1971 law clearly divides different types of contempt. Some of these categories- 1 and 2 (b) – are more obviously justifiable as offences. But the idea that the judiciary can also punish acts that have very little to do with the actual administration of justice and all to do with the impact of speech on the institution’s supposed reputation in the eyes of the public is substantially more problematic.

  • Also, the power to punish acts which ostensibly scandalise or lower the authority of the court indicate the sense of insecurity that court might be having.

Discussions on this in the Constituent Assembly:

During the course of drafting the Constitution, there was a marked uncertainty among the framers about the understanding of contempt they were inserting into the Constitution.

  • When T.T. Krishnamachari suggested the inclusion of contempt of court as one of the permissible limitations to free speech, many members of the constituent assembly opposed his suggestion right away.
  • One of these challengers, Pandit Thakur Das Bhargava, believed that contempt of court was simply not germane to a discussion on freedom of speech and expression. He argued that powers to reprimand contempt concerned only actions such as the disobedience of an order or direction of a court, which were already punishable infractions.
  • Speech in criticism of the courts, he argued, ought not to be considered as contumacious, for it would simply open up the possibility of gross judicial abuse of such powers.

Supreme Court’s interpretations:

India’s courts have routinely invoked the long arm of its contempt powers to often punish expressions of dissent on purported grounds of such speech undermining or scandalising the judiciary’s authority. But, while doing so, the court has rarely conducted a strict analysis on whether those acts posed any actual threat to — or interfered in any direct manner with — the administration of justice.

  • In its 1996 judgment the Supreme Court ruled that “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority” amount to punishable contempt.
  • This judgment changed the meaning of free speech in the Indian context. Some experts argue that this judgment henceforth allowed courts oppose some forms of speech purely by virtue of their content as opposed to any actual anti-democratic harm stemming through their expression.

Amended Contempt of Courts Act:

In 2006, with a view to reducing the breadth of the judiciary’s powers, Parliament amended the Contempt of Courts Act of 1971. The law now provides two additional safeguards in favour of a dissenter-

  • One, it establishes that a sentence for contempt of court can be imposed only when the court is satisfied that the contempt is of such a nature that it substantially interferes, or tends to substantially interfere with the due course of justice.
  • Two, the truth in speech now constitutes a valid defence against proceedings of contempt, if the court is satisfied that the larger public interest is served through the publication of such content.

In spite of these amendments, courts have continued to routinely equate the supposed scandalising of the judiciary’s authority to an act of contempt.

Conclusion:

In spite of the fact that contempt of court is one of the explicitly spelled out restrictions to the guaranteed right to freedom of speech under the Constitution, in a democracy, properly understood, it’s difficult to locate any justification for opposing speech at the face of the judiciary. Punishing speech for supposedly scandalising or lowering the authority of the court falls afoul of whichever rationale we might wish to adopt in our theorising of the abstract right to free expression in India. Hence, the power of contempt should be used sparingly and that too, only against those wilfully subverting justice, and not against critics of the state.

Big Picture, GS-1, Social Issue, Uncategorized

Religion and Women’s Rights

Debate over Religion Vs Women’s Rights is back in focus after the detention of over 350 women by the Police in Maharashtra. Hundreds of women activists were stopped by the police when they attempted to enter the Shani Shingnapur Temple situated in Maharashtra to challenge its 400-year-old tradition of allowing only men to enter its main shrine. After a public outcry of the incident, the Chief Minister of Maharashtra has urged the temple authorities to hold a dialogue with the activists.

Women activists argue that in the 21st century different and progressive thinking is required. However, temple authorities maintain that the men-only tradition has stood for centuries and it would be wrong to change it. On the other hand, opposing this argument, women activists say practices like sati have ended or changed for the better; hence tradition is no excuse for continuing with regressive practices.

More interestingly, the incident comes at a time when women cutting across religious lines are challenging centuries-old taboos the world over. It is not just about women’s right to enter a temple. Muslim women are questioning discriminatory religious laws. Elsewhere, Christians are challenging the Church’s rules on abortion and contraception. There is also a petition demanding that women be allowed into the Haji Ali dargah. In many places of worship, there are areas that women cannot access for different reasons, prime among them being ‘purity’. These are age-old practices and only now are women coming together to challenge it, through on-ground activism, social media campaigns and petitions.

Going a step further in the raging debate over gender discrimination at Shingnapur, and at Sabarimala where women of a certain age group are not allowed, activists say religious trusts must amend such patriarchal practices, built up by gender prejudice rather than any principle of worship being vitiated. This is an argument that goes beyond even the constitutional rights as enshrined in Articles 14 and 15 and involves a higher natural principle of gender equality, which must be upheld. A huge change in attitude is called for if a genuine change of heart is to take place soon.

The constitution of India allows to everyone to follow religion of their choice and also allows anyone not to follow any religion. While the Constitution protects religious freedom, clause 2(b) of Article 25 allows the state to intervene in religious practice. The Untouchability Offences Act threw open temple doors to all castes, and many states passed laws extending those rights to all classes and sections of Hindus. Women activists question; if temples have no right to bar dalits or untouchables, why should they be allowed to bar women? Hence, it is the responsibility of the government to mediate and try to solve the issue.

But, institutions like Shani Shingnapur and Sabarimala argue that they are defending particular customs of their own. But traditional taboos against women cannot pass constitutional muster, unless the guardians of the tradition demonstrate that discrimination is an “essential practice” for the religion. The chief minister has taken the right call, speaking up for the women and saying that traditions should evolve with time. The fight is now clear: who controls religion? Women across faiths are asking this question. The answer might not be palatable to all. The world has changed and religious institutions need to move with the times and ensure there is no discrimination.

Editorials, GS-2, Indian Polity, Science & Tech, Uncategorized

Ensuring Privacy in a Digital Age

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28th January, 2106 was celebrated as the International Data Privacy Day around the world. The idea behind Data Protection day is to celebrate our right to data protection and raise awareness of the law in this area.

Why this day (28th Jan)?

It is because it was on this day (28th Jan), in 1981, the European Council signed the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

About the convention:

Popularly known as Convention 108, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data is the first legally binding international treaty dealing with privacy and data protection.

  • All members of the Council of Europe have ratified the treaty, except Turkey.

Significance of 28th Jan 2016:

2016 marks the 10th anniversary of Data Protection Day.

Significance of data protection:

Data protection is a bigger part of our lives. But, often we ignore its importance. We come across data protection issues at work, when browsing the internet, when dealing with public authorities, when we shop, when we book tickets online and in many other circumstances.

  • As digitalisation increases, more and more of our data is being captured. How this data is used and held is becoming increasingly important.
  • However, it is well known that most citizens all over the world are unaware their rights in relation to data protection. And some people are breaching data protection laws unknowingly on a daily basis.

Indian scenario:

According to an Internet and Mobile Association of India report, India has around 400 million Internet users. This number took a decade to reach 100 million from 10 million, three years to reach 200 million and just another year to reach 300 million.

Concerns:

The Internet is essentially a data ecosystem where every node is engaged in generation, transmission, consumption and storage of data. Massive amounts of information and data are being generated every day.

  • Various government schemes like Adhaar, digi locker and DBT are increasing the availability of large-scale sensitive data online.
  • But the situation is such that while we are generating such high volumes of data, we do not have in place measures that safeguard the privacy of this data, nor regulate data retention by platforms collecting it.
  • As a result, ordinary citizens are unaware of how their personally identifiable information is collected, stored, used and shared.
  • The Information Technology Act, with its limited scope to penalize government agencies for breach of data privacy, is the only legal instrument available to citizens against contravention of their privacy in the data ecosystem.
  • This leaves citizens exposed—as in 2013, when the Maharashtra government simply lost the personal data of 300,000 Aadhaar card applicants.

What should be done now?

The need of the hour is a comprehensive legislation that provides for a right to privacy as a fundamental entitlement to citizens. The groundwork for such legislation has already been laid in 2012 by a Justice A.P. Shah-headed group of experts constituted by the Planning Commission.

The commission had proposed a set of national privacy principles that would place an obligation on data controllers to put in place safeguards and procedures that would enable and ensure protection of privacy rights. These include:

  • Notice to be given to users while collecting data.
  • Choice and consent of users while collecting data from them,
  • Collection limitation to keep user data collected at the minimum necessary.
  • Purpose limitation to keep the purpose as adequately defined and narrow as possible.
  • Access and correction for end users to correct or delete their personal data as may be necessary.
  • Disclosure of information: private data should not be disclosed without explicit consent of end user.
  • Security: defining responsibility to ensure technical, administrative and physical safeguards for data collected.
  • Openness: informing end users of possible collection and utilization of personal data.
  • Accountability: institutionalize accountability for adherence to these principles.

Significance of the proposed framework:

  • The proposed framework aims at being technology neutral and compliant with international standards already in place to protect user privacy.
  • It also recognizes the multiple dimensions of privacy and aims at establishing a national ethos for privacy protection, while remaining flexible to address emerging concerns.
  • It seeks horizontal applicability with both the public and private sectors bought under the purview of privacy legislation.

Way ahead:

An attempt to introduce such legislation in Parliament failed in 2011 as there could not be a consensus on which government agencies could seek exclusion from such provisions and collect citizen data without any oversight.

Until such provisions are established by law, it will be necessary to adopt mechanisms that ensure compliance towards use of privacy enhancing technologies (PET).

What are PETs?

PETs are essentially processes and tools that allow end users to safeguard the privacy of their personally identifiable information that they willingly provide to government agencies and other service providers.

  • PETs put the end user in control over what information to share, with whom to share and a clear knowledge of the recipients of this information. For example, using PETs the end user can make use of data encryption and can mandate multi-factor authentication for access to data.

What else can the government do?

  • The government needs to start with aligning its technology laws with the evolving Internet landscape.
  • User privacy concerns and secure designing should be integrated in the charters of respective standard-setting organizations.
  • There needs to be active user education that makes them aware of their choices.
  • Lengthy and complex privacy policies that practically hand over control of user data to the platforms collecting it need to be replaced with ones that are user friendly in draft and execution.
  • Policy documents that address these concerns need to be widely discussed and debated in the public domain.

Conclusion:

There’s no doubt that this year’s Data Protection Day serves as a timely reminder for organisations about the importance of correctly handling and safeguarding individuals’ personal data. It also highlights the uncertainty around how these regulations may change and develop in the coming months, as decisions are reached to align future legislation with our modern data footprint. However, sensing the urgency, the Supreme Court in 2015 referred to a constitutional bench the petition seeking inclusion of the Right to Privacy under Article 21 (Right to Life). While the verdict of the honourable court is still awaited, we can take the first steps towards safeguarding ourselves by voluntarily inculcating digital privacy principles.