Big Picture

Amnesty and Sedition Charges: Is It Vali

The notorious Section 124A of Indian Penal Code is back into limelight and this time Amnesty International India in Bangalore has been booked under this section. An event was organized as a part of its campaign for seeking justice against human rights violations in Jammu and Kashmir which ended with some heated arguments and slogans. The FIR has been filed on the basis of a complaint filed by ABVP (Akhil Bhartiya Vidyarthi Parishad)

Section 124A and what constitutes the act of sedition:

The Indian Constitution does not define the word sedition. The word has been defined under Indian Penal Code which reads as follows-

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 disaffection towards 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.”

Sedition defined under Section 124A has its roots in colonial rule. While the British used this to suppress the voice of the Indians demanding freedom, it should not be misused in India to suppress the freedom speech and expression of its own people. During the British rule, Bal Gangadhar Tilak and Mahatma Gandhi were also booked under charges of sedition.

 

Is it being used for the right purpose?

 

  1. This provision of law has even before been misused in several cases recently like those involving Kanhaiya Kumar, Hardik Patel, Aseem trivedi and many more. In a routine practice, our police tend to put every section in a FIR. They play safe and try to be defensive while registering a case. Which section has to be invoked in the case should come at a later stage after the complaint has been registered. There is a clear cut lack of understanding of the provision of laws among the investing agencies. When 124A is being invoked, it must be done with the consultation of the seniors.

 

  1. In the case of Amnesty International India, the Karnataka Government has said that there would be proceedings in the case only after substantial evidences are found. Hence, this is a sort of safeguard where no case can be brought to court without government’s sanction. However, the harassment of those booked under this section begins in between as the whole issue is conflated and made oversensitive by the media.

 

  1. Despite the highest judiciary of independent India reading down the Section, there appears to be little political restraint in scrapping it totally.

 

  1. The problem lies with interpretation of this provision as well. Speeches are often blown out of proportions and then deemed to be seditious. Afterwards, only the portion of the speech assumed to be seditious is totally isolated from the context in which it was made.

 

  1. The definition of sedition as mentioned in Section 124A itself has loose ends and is vague. It requires to be reconsidered. In most of the cases where this section is used, public disorder, contempt or exciting disaffection is absent. But the limitations of the section have rarely stopped the prosecuting authorities from using it.

 

  1. The Law Commission, while revisiting the issue, should take into account recent developments, especially the glaring instances of misuse of the sedition law and the tendency to invoke it against those involved in strident forms of political dissent. One way to limit its mischief is to narrow the definition.

 

It needs to be understood that the Republic of India is much stronger than a mere slogan or speech. There is a need to understand the ingredient of offence before 124A is used. It is time for India now to abolish these kinds of colonial laws.

GS-2, Indian Polity, Uncategorized

L-G can’t claim immunity, says CIC

Issue

  • Central Information Commission (CIC) has directed the L-G of Delhi and Union Home Ministry to disclose the report on the basis of which Delhi Assembly was dissolved in November 2014.

L-G cannot claim immunity

  • The information sought here is a report sent by the UT Administrator to Union Government or President.
  • L-G cannot claim immunity given under Article 163(3), which says that “the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court”.
  • Article 163(3) of the Constitution does not apply to Union Territory of Delhi, which could be invoked only in case of a full fledged and not to the UT with assembly like Delhi.
  • Article 163(3) applies specifically to the ‘advice of a Council of Ministers to the Governor.
  • Even in those cases where Article 163(3) applies, there is no immunity from disclosure.
  • There is no bar against citizen from having a copy of the advice/report of LG to Union government CIC has directed  the office of LG and the Home Ministry, to provide certified copies of report along with all other papers sent by LG to the Union Government, within 30 days from the date of receipt of this order.
GS-2, Indian Polity, Uncategorized

Why we must have the right to choose death

Livemint

Issue:

  • Legal provisions for euthanasia
  • The proposed Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill regarding passive euthanasia—its draft is posted on the health ministry website for public feedback—is one such instance. It is a step in the right direction, even if it has shortfalls to be addressed.

The question of whether a terminally ill person—or in the case of someone rendered medically incapable, the relatives and medical professionals—should be allowed to choose when to forgo treatment or life-prolonging medical support speaks to fundamental issues of a human life’s intrinsic value and the authority to end it.

  • Less than a dozen countries in the world currently have legal provisions for euthanasia.
  • Supreme Court’s 2011 verdict in the Aruna Shanbaug case: Allowed for passive euthanasia (as opposed to active euthanasia, which would entail the doctor administering drugs to end the patient’s life).
  • The current bill seeks to codify and regulate that framework.

There are two perspectives on the issue.

  1. Legal perspective: The state has an understandable interest in maintaining its monopoly on the right to—in crude terms—end a citizen’s life. This is foundational to its legitimacy and authority.
  2. Euthanasia is difficult to regulate and laws allowing it can be vulnerable to malicious intent. At the very least, moral pressure could be exerted on the terminally ill to choose this option.

Individual’s right:

  • These concerns do not outweigh the individual’s inalienable right to choose how to conduct their private life when that conduct does not cause harm to other individuals or the state.
  • This is particularly so when a patient has no hope of recovery and is suffering greatly, or is in a vegetative state and kept alive by medical apparatus.
  • For the state to insist for its own benefit that the patient continue to spend financial and physical resources in order to continue suffering is perverse.

There is also a broader ethical and theological perspective:

  • India’s Constitution draws upon Western liberal ideals and the constitutions wherein they are enshrined.
  • The philosophy of Western thinkers such as Thomas Aquinas and Immanuel Kant goes against the idea of Euthanasia.
  • But Indian philosophical and theological traditions across various strands of thought—from Jainism to Buddhism and Hinduism—have a more nuanced understanding of an individual’s right to decide on their life and the ethical considerations therein. That understanding dovetails here with the evolution of democratic thought and the limits of state power.

Government has done well to propose this bill, its formulation fails on one front:

  • In Clause 9, it says that relatives, medical personnel and the like can apply to the relevant high court for “withholding or withdrawing medical treatment of… a competent patient who has not taken an informed decision”.
  • This is dangerous.
  • The bill defines informed decision in subjective terms pertaining to an individual’s understanding of the nature of their illness and the forms and consequences of treatment.
  • As long as the individual is competent, it must not be left to anyone else to judge the merit of their understanding in something as fundamental as their life.
  • This has the potential for misuse and is antithetical to an individual’s fundamental rights. It must be amended before the bill is introduced.

Conclusion:

  • Although the ethical and philosophical arguments for passive euthanasia apply equally to active euthanasia, the government has made the correct decision in addressing only the former at the moment.
  • By doing so, it has curtailed the potential for misuse of the proposed legislation.
  • A revised bill would be a significant step towards allowing suffering individuals a measure of human dignity.
Editorials, GS-2, Uncategorized

A blow against free speech

Article Link

In a landmark verdict, the Supreme Court recently turned down a clutch of petitions challenging provisions of criminal defamation under the Indian Penal Code. The Supreme Court has ruled that the provisions are valid and do not violate the Constitution. The apex court’s verdict will have a significant effect particularly on politicians, activists and journalists.

Important observations made by the court:

  • The court has observed that the law is constitutionally valid and said the law has a “chilling effect” on free speech.
  • It observed, “Sections 499 and 500 of the Indian Penal Code make defamation a criminal offence. A person’s right to freedom of speech has to be balanced with the other person’s right to reputation and therefore the two Sections are necessary.”
  • It also rejected an argument that defamation could become a criminal offence only if it incited to make an offence. It said that defamation had its own independent identity, which has enabled the state to maintain a balance between fundamental rights.
  • The court also pointed out the distinction between sections 499 and 500 on one hand and section 66A (prosecution for obscene social posts) of the Information Technology Act on the other, saying the latter was struck down by the apex court on the ground of vagueness and procedural unreasonableness.

Background:

Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

  1. Section 499: 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.
  2. Section 500: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

What is defamation all about?

Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form is libel. Defamation in India is both a civil and a criminal offence.

  • In Civil Law, defamation falls under the Law of Torts, which imposes punishment in the form of damages awarded to the claimant (person filing the claim).
  • Under Criminal Law, Defamation is bailable, non-congnizable and compoundable offence. Therefore, the police cannot start investigation of defamation without a warrant from a magistrate (an FIR cannot be filed). The accused also has a right to seek bail. Further, the charges can be dropped if the victim and the accused enter into a compromise to that effect (even without the permission of the court).

There are certain basic requirements for a successful defamation suit:

  • First, the presence of defamatory content is required. Defamatory content is defined as one calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. However, the test for such content is the ordinary man test where meaning of the content is considered to be what a common, ordinary man will comprehend it to be.
  • Second, the claimant should be identified in the defamatory statement. The content must be clearly addressing a particular person or a very small group for it to be defamation. General statements like “All lawyers are thieves or all politicians are corrupt” are too broad a classification and hence no particular lawyer or politician can consider it to be personally attributed to them. Therefore, such statements are not defamation.
  • Third, there must be a publication of the defamatory statement in either oral or written form. Unless the content is published – made available to someone other than the claimant, there can no defamation.

Under a civil suit, once all these conditions are satisfied, a defamation suit subsists, and the defendant has to plead a privilege or take up a defense. If the defendant fails to do so satisfactorily, the defamation suit is successful. Under a criminal suit, intention to defame is an important element. In the absence of intention, the knowledge that the publication was likely to defame or is defamatory becomes essential. All this is further subject to the normal standard of proof in criminal cases: beyond reasonable doubt.

Why defamation should remain a criminal offence, according to the centre?

  • Defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim in some cases.
  • Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
  • Also, criminalisation of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
  • Unlike in the U. S, defamation in India cannot be treated only as civil liability as there is always a possibility of the defamer being judgment free, i.e., not having the adequate financial capability to compensate the victim.
  • Besides, Sections 499 and 500, framed in 1860, cannot be said to obsolete in a modern democratic polity as there are 10 exceptions to Section 499 of the IPC. These exceptions clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good.

What are the valid legal arguments to ward off defamation charges?

  • ‘Truth’ is generally considered to be a defence to defamation as a civil offence but under criminal law, truth is a defence only in a limited number of circumstances. Besides the statement or writing being demonstrably true, it also requires to be proved that the imputation was made for public good.
  • Critics argue that defamation law impinges upon the fundamental right to freedom of speech and expression and that civil defamation is an adequate remedy against such wrongs.
  • Many countries worldwide are in favor of treating defamation as a civil wrong, not as a criminal offence. Also, in 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing.
  • The misuse of law as an instrument of harassment is also pervasive in India. Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. Thus, the process itself becomes the punishment.
  • Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.
  • The law can also be used by groups or sections claiming to have been hurt or insulted and abuse the process by initiating multiple proceedings in different places.
  • Also, criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents.
  • Defamatory acts that may harm public order are covered by Sections 124, 153 and 153A, and so criminal defamation does not serve any overarching public interest. Even though Section 499 provides safeguards by means of exceptions, the threat of criminal prosecution is in itself unreasonable and excessive.

Conclusion:

All this is not to say that defamation must not be discouraged. But decriminalising it will bring the IPC in accord with Article 19(2), ensuring that the means used to discourage defamation do not end up damping legitimate criticism.

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.
GS-2, Indian Polity, Uncategorized

A tale of two judgments

The Hindu

Context

  • The author has shown the contrast between two judgements, one given by the Supreme Court and the Bombay High Court, related to “procedural established by law”.

Article 21 in The Constitution Of India

  • Protection of life and personal liberty :- No person shall be deprived of his life or personal liberty except according to procedure established by law.

Difference between “Due process of law” and  “Procedure established by law”

Procedure established by law

  • It means that a law that is duly enacted by legislature or the concerned body is valid if it has followed the correct procedure.
  • In this the court would assess that whether there is law or not, whether the Legislature is competent to frame the law and whether it had followed the procedure laid down to legislate and would not assess the intent of the said law.
  • This doctrine has a major flaw. It does not assess whether the laws made by Parliament is fair, just and not arbitrary.
  • “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity.
  • Strictly following procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law making authorities. Thus, Procedure established by law protect the individual against the arbitrary action of only the executive.

Due Process of Law

  • Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person, but also see if the law made is fair, just and not arbitrary.
  • If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights.
  • Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must confirm to the laws of the land like – fairness, fundamental rights, liberty etc.
  • It also gives the judiciary to assess the fundamental fairness, justice, and liberty of any legislation.
  • Thus Due process protect the individual against the arbitrary action of both executive and legislature.

The difference in layman’s terms is as below:

Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary.

What is practically followed in India?

  • In India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protect individual rights.
  • In Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure established by law’ within the meaning of article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
  • Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

Why in news?

  • In a recent case, Rajbala v. Haryana (2015), a two-judge bench of the Supreme Court of India strongly rejected the doctrine of substantive due process in India.
  • In this case, the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, 2015 was in question.
  • The Act was challenged on the ground that it was “wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution”.
  • Though the Supreme Court rightly held that a statute cannot be invalidated merely because it is “arbitrary”, it also went on to reject the U.S. doctrine of substantive due process by holding that Indian courts “do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution”, as “to undertake such an examination would amount to virtually importing the doctrine of ‘substantive due process’ employed by the American Supreme Court”, and under the Indian Constitution “the test of due process of law cannot be applied to statutes enacted by Parliament or the State Legislatures”.
  • The Rajbala decision is particularly interesting because in  earlier cases,SC have repeatedly held that substantive due process and due process generally are a part of Indian constitutional law under Article 21 of the Constitution.

The other judgement

  • In Shaikh Zahid Mukhtar v. State of Maharashtra, a Division Bench of the Bombay High Court was dealing with the constitutional validity of the Maharashtra Animal Preservation Act, 1976, as amended by the Maharashtra Animal Preservation.
  • It was held that the “right of life and liberty under Article 21… clearly covers the [substantive] due process aspect envisaged in the American jurisprudence.”

Conclusion

Thus, interestingly, while the Supreme Court of India in the Rajbala case has strongly rejected the doctrine of substantive due process, the Bombay High Court has, following earlier Supreme Court pronouncements, applied and reiterated the doctrine in Indian constitutional law.

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, Uncategorized

Towards a Law on Euthanasia

A year-and-a-half after strongly objecting to the Supreme Court’s decision to adjudicate a plea for making passive euthanasia legal, the NDA government has now made a U-turn, saying that it was on the verge of framing a legislation permitting the process but would await the court’s verdict on it.

  • Based on the recommendations of the expert committee, the Directorate General of Health Services (DGHS) has proposed formulation of legislation on passive euthanasia.

What has the committee suggested?

  • The expert committee has suggested certain changes in the draft bill on euthanasia.
  • The committee has not agreed to active euthanasia since it has more potential for misuse and as on date it is prevalent in very few countries worldwide.

What is euthanasia?

Euthanasia is a medical term meaning ‘easy death’. It is the act of deliberate or voluntary end of someone’s life to prevent any further suffering or pain to the person.

Active and Passive euthanasia:

  • Active euthanasia involves a doctor injecting a lethal medicine to trigger a patient’s cardiac arrest.
  • In passive euthanasia, doctors, with the consent of relatives, withdraw the life support system of a person being kept alive with the help of machines.

What’s the issue now?

The issue surrounding the debate is about the rights of a terminally-ill person once doctors unanimously rule out chances of his or her survival.

Background:

In July 2014, a five-judge supreme court bench had decided to adjudicate the legality of active and passive euthanasia and the emerging concept of ‘living will’ after shying away for decades from examining this highly emotive and legally complicated issue.

  • The Centre had then stoutly objected to the exercise. The government then did not accept euthanasia as a principle. It had categorically said, “In whichever form, the court has no jurisdiction to decide this. It’s for Parliament and the legislature to take a call after a thorough debate and taking into account multifarious views.”
  • The court had agreed it was a matter of public policy and that Parliament and the legislature were competent to decide it. But it wanted a countrywide debate and had sought views of states and Union territories.

Supreme Court’s views on this matter:

Previously in 2011, in Aruna Shanbaug case the Court had ruled in favour of passive euthanasia and the law ministry had opined that the SC’s “directions should be followed”.

  • In its landmark 2011 verdict that was notable for its progressive, humane and sensitive treatment of the complex interplay of individual dignity and social ethics, the Supreme Court laid down a broad legal framework.
  • It ruled out any backing for active euthanasia, or the taking of a specific step such as injecting the patient with a lethal substance, to put an end to a patient’s suffering, as that would be clearly illegal.
  • It allowed ‘passive euthanasia’, or the withdrawal of life support, subject to safeguards and fair procedure.
  • It made it mandatory that every instance should get the approval of a High Court Bench, based on consultation with a panel of medical experts.

Questions now before the Court:

The question now before a Constitution Bench of the Supreme Court is based on a petition by the NGO Common Cause. It asks whether the right to live with dignity under Article 21 includes the right to die with dignity, and whether it is time to allow ‘living wills’, or written authorisations containing instructions given by persons in a healthy state of mind to doctors that they need not be put on life-support systems or ventilators in the event of their going into a persistent vegetative state or state of terminal illness.

Worldwide practice:

The perception of ethicality of euthanasia varies in different countries and cultures. Laws and religious sentiments of people often play a major role in the way it is perceived.

  • The deliberate act of taking away a person’s life is classified as a murder and thus a crime. Aiding and abetting someone in suicide too falls under crime. Owing to this, various countries have greatly varying legal stance towards euthanasia.
  • Euthanasia has been criminalized by the likes of Philippines, Australia, New Zealand and the United Kingdom. These nations saw several failed attempts to legalize euthanasia.
  • There are some nations which allow ending a terminally ill person’s life if the person or next of kin consents. However, several conditions govern the definition of the term ‘terminally ill’. Legalizing euthanasia in these nations aims at preventing any further distress and suffering to the person.
  • Euthanasia is legal in Colombia, Luxembourg, Canada and Belgium.

Should Euthanasia be legal?

Arguments For Euthanasia:

  • It provides a way to relieve extreme pain.
  • It provides a way of relief when a person’s quality of life is low.
  • Frees up medical funds to help other people.
  • It is another case of freedom of choice.

Arguments Against Euthanasia:

  • Euthanasia devalues human life.
  • Euthanasia can become a means of health care cost containment.
  • Physicians and other medical care people should not be involved in directly causing death.
  • There is a “slippery slope” effect that has occurred where euthanasia has been first been legalized for only the terminally ill and later laws are changed to allow it for other people or to be done non-voluntarily.

Way ahead:

The Centre has told the Supreme Court that it was creating a legislation permitting passive euthanasia but would wait for the SC’s decision on the matter.

Conclusion:

Euthanasia is a topic which touches various aspects of our society. It requires a focussed perspective considering all the pros and cons. The dilemmas regarding the legal issues surrounding euthanasia are often due to the ethical aspects which raises question about the rights of a person to take someone else’s life. The debate over the ethicality of euthanasia is a never-ending one. Hence, to resolve this conflict between pain and death, the sooner that a comprehensive law on the subject is enacted, the better it will be for society. Even if permitted, euthanasia should be used in deserving cases only, that too sincerely, honestly and consciously under strict control and supervision of a statutory body.

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.