Seven Judge Constitutional Bench of the SC relooking at the Hindutva Judgment: Day 3 Updates

Day 3 began with Mr. Shyam Divan’s arguments. He continued from the previous day and recapped the structure and scheme of his arguments. He began with the subject of corrupt practice and attempted to show how it has been dealt with by the Legislature over years. He tried to trace the legislative history of corrupt practices by elaborating on the provisions dealing with the three categories of corrupt practices namely, major, minor and illegal that existed prior to the amendments in the RPA.

With reference to corrupt practices, the court on the previous day had asked Mr. Divan about the consequences of committing a corrupt practice under the RPA. Mr. Divan had endeavored to answer the court’s question by referring to the penal provisions under the Act. While dealing with one such provision, Section 8A of the RPA, the court wanted to know as to what did disqualification under the RPA entail. Mr. Divan referred to all the provisions under the RPA that have dealt with disqualification i.e. Section 7(b), Section 11(A)(2) of the 1951 Act, Section 16(1)(c) of the 1950 Act, Section 100(1)(b) of the 1951 Act and Sections 133 and 135 (these two sections are not relevant for the purposes of this case).

Thereafter, Mr. Divan referred to the impugned judgment and reiterated the scope of the issue that has been referred to the seven judge Constitutional bench. In his opinion the only issue that merits consideration by the bench is the interpretation of “his religion” appearing in Section 123(3) of the RPA. He therefore, stated that he would be limiting his arguments only to the interpretation of Section 123(3).

Mr. Divan began his submission by requesting the court to literally/strictly interpret “his religion” under Section 123(3). He argued that the only meaning that can be attributed to “his religion” is the religion of the candidate or his opponent. There can be no other interpretation of “his religion”. The court delved on the issue and were more inclined to attribute a more expansive meaning to “his” by including within its ambit the candidate, his agent, any other person who commits a corrupt practice with the candidate’s consent, his election agent and the voter. The court with an attempt to test this proposition gave several instances where the literal interpretation of “his” will not hold good.

The Chief Justice in this context referred to two scenarios; firstly, where a candidate belonging to religion ‘A’ appealed to the people to vote for him on the basis of his religion would unquestionably be hit by Section 123(3). Secondly, a person belonging to religion ‘B’ appeals to people belonging to religion ‘B’ to unite and vote for the candidate who belongs to religion ‘A’. Would the second scenario not call for a wide interpretation of “his” to include the religion of the voters as the appeal is based on the religion of the voters i.e. religion ‘B’ and not on the candidate’s religion i.e. religion ‘A’. The Chief Justice opined that the entire purpose of the provision was to keep the electoral process free from influences based on religion, race, caste and language.

Justice Chandrachud proposed that there could be two possible interpretations of “his religion”: one, the religion of the person who is making the appeal. Second, the religion of the person in whose name the appeal is being made. At this point, Justice Rao added a third possibility i.e. the voter’s religion. Justice Chandrachud was also of the view that “his religion” has to be read in juxtaposition with the religion of the voter.

Mr. Divan argued that “his” can only be referred to the candidate’s religion as this seems to have been the legislative intent. He argued that the word ‘elector’ which refers to the voter has been defined and used throughout the RPA. Therefore, if it were the intention of the legislature to read the voter or elector’s religion in “his religion” occurring in Section 123(3), the legislature would have used the term “elector” in the provision. Justice Bobde retorted to this submission of Mr. Divan by stating that merely because the word “elector” has not been used does not mean it cannot refer to the voter/elector’s religion.

Mr. Divan further contented that “his religion” should be given a restrictive meaning so as to balance competing free speech interests. He made several references to the provision as it stood prior to the 1956 amendment to fortify his argument that “his religion” was inserted by the legislature to purposely give it a narrow construction.

Justice Bobde disagreeing with Mr. Divan’s contention explained with an illustration a situation where an election campaign is being held in Gujarat before a Tamil speaking population. The candidate does not mention his language or his opponent’s language. But, by exciting in the voter the pride of being Tamil, appeals them to not vote for the opponent who does not speak Tamil. Does this then not fall foul of Section 123(3) as the provision prohibits appealing for votes on the basis of “religion, race, caste, community or language”?

The Chief Justice observed that religion should not be the basis for either an appeal to garner votes or an appeal to refrain from voting. If Section 123(3) is interpreted in this context then the whole approach towards looking at the provision would change and “his” will be given a broader meaning.

With reference to the intention of the legislature in including “his”, Mr. Divan submitted that the provision has been constantly amended over the years, last being in 2014. Therefore, this shows the intent of the legislature to give the provision a narrow scope. He submitted that the legislature has accepted the restrictive meaning given to the provision since it has not changed its phraseology. This seems to have been the intention of the legislature as it has been well aware of the several constitutional challenges pending before the Supreme Court regarding the issue.

Justice Lokur on reference to the discussion on the provision in the Select Committee Report observed that the provision should be given the widest possible meaning. This was mainly to stamp out any traces of communalism.

Further, the Chief Justice opined that the very purpose of making an appeal for votes on the basis of religion etc. a corrupt practice was to keep the electoral process completely free from any prejudices based on religion, race, caste, community or language.

To canvass his argument of giving “his” a restrictive meaning, Mr. Divan relied on a series of judgments namely, Jagdev Singh Sidhanti vs Pratap Singh Daulta, Kultar Singh vs Mukhtiar Singh, Kanti Prasad Jayshanker Yagnik vs Purshottamdas Ranchhoddas Patel, Dr. Ramesh Yeshwant Prabhoo vs Shri Prabhakar Kashinath Kunte, Mohd. Aslam vs Union Of India & Ors and S.R. Bommai & Ors vs Union Of India & Ors.

Before breaking for lunch, the court had requested the opposing counsels appearing in the matter to prepare a list of issues to be addressed by them during the course of their arguments and apprise the court of it. On reassembling after lunch, Mr. Salman Kursheed and Ms. Indira Jaising appearing in the matter acquainted the courtwith the issues to be addressed by them during their arguments. The court after hearing the counsels observed that the court will hear only those issues that pertain to the question that is referred to the court and nothing else.

Mr. Divan continued with his arguments post lunch and referred to the abovementioned case laws. He also made several references to the parliamentary debates containing Mr. A.K Sen, the then law minister’s speech.

He contended that a reference to and discussion on religion, race, caste, community or language to garner votes is not proscribed by the provision. But, appealing for votes on the basis of a candidate’ religion, race etc. and inciting hatred and enmity on that basis. is what is proscribed. He submitted that merely because there is an issue with respect to reference to religion etc. sanitizing the electoral process from making any references to religion etc. is undesirable.

The Chief Justice opined that the ambit of the pre-amended Section 123(3) which did not contain “his religion” was considerably wider. According to him the pre-amended provision was more liberal and promoted secularism.

Mr. Divan further submitted that the correct approach towards interpreting the provision is to look at the language as was done in the Ramesh Yeshwant Prabhoo case, read the provision strictly or literally and interpret it to mean the religion of the candidate only.

However, disagreeing with Mr. Divan’s submission yet again, Justice Bobde gave a fact scenario where a Hindu candidate appeals to a minority community to vote for him assuring to protect them from all kinds of oppression and subjugation. Then is it not appealing for vote on the basis of the voter’s religion.

Mr. Divan proposes that the fact situation as illustrated by Justice Bobde could be looked at from a different perspective. He was of the opinion that appealing to an oppressed and neglected minority community to vote for a candidate who assures to protect and uplift the community will not fall foul of Section 123(3). This argument was fervently opposed by Justice Bobde who was of the opinion that such kind of sectorial and divisive political tactics for the candidate’s selfish motive of garnering votes is the causal root for a divided society on the basis of caste, community, religion etc.

Justice Chandrachud observed that since secularism is part of the Basic Structure of the Constitution, a provision runs the risk of falling foul of the Constitution if it outlaws the reference to religion on the basis of the candidate’s religion but allows reference to the religion of the voter. He said that religion, race, caste, community and language are a very important part of a person’s personal identity but that cannot be used when one steps in the public light.

The Chief Justice observed that the essence and ethos of the Constitution mandates religion to be kept separate from politics especially in secular matters like the electoral process. In view of this can religion be used in a secular activity like elections?

Mr. Divan replied by stating that the interpretation Section 123(3) as has been canvassed by him is absolutely consistent with the secular ethos of the Constitution. Mr. Divan then goes on to conclude his arguments on the interpretation of Section 123(3).

Mr. Divan before the conclusion of the hearing for the day cited a few judgments on different principles that he desired the court to rely on while addressing the issue. Principle 1: it is not desirable for the courts to revisit its earlier judgments when there is a long standing precedent and no compulsive reasons. Relied on The Keshav Mills Co. Ltd vs Commissioner Of Income-Tax and Jindal Stainless Ltd.& Anr vs State Of Haryana & Ors. Principle 2: While interpreting statues if more than one interpretation is possible, then such construction must be placed as will save the statute from constitutional challenge. Relied on Shah & Co., Bombay vs The State Of Maharashtra & Anr.

The next date of hearing has been fixed for 25.10.2016.

Seven Judge Constitutional Bench of the SC relooking at the Hindutva Judgment: Day 2 Updates

Mr. Arvind P. Datar continued his arguments on Day 2. He commenced by referring to his earlier arguments from the previous day on the interplay of Sections 98 and 99 of the Representation of People Act, 1951 (‘RPA’) and reiterated the issues framed by the three judge bench mentioned here.

He submitted that there is no conflict with the stand taken by the Supreme Court in the Manohar Joshi case. He read out several relevant portions of the judgment which talks about the mandatory nature of Section 99 especially where a returned candidate has been alleged of corrupt practice vicariously for the conduct of any other person with his consent. He stated that the question regarding the returned candidate being guilty of corrupt practice can be decided only at the end of the trial after an enquiry against the other person is concluded by issuing them notices under Section 99 and accordingly, the trial under Sections 98 and 99 has to be a composite trial. According to Mr. Datar, it will lead to an absurd situation if the trial against the returned candidate is concluded first and then the proceedings under Section 99 are commenced for the purpose of deciding whether any other person is also required to be named as being guilty of the corrupt practice. After extensive arguments on this issue, Justice Goel was of the opinion that the trial under Sections 98 and 99 must be one composite trial which may take place in two steps but not in two separate phases.

The Court then posed a question to Mr. Datar regarding the stage at which notice can be issued to a third party and the nature of such notice under Sections 98 and 99 since none of the previous cases have examined or answered this issue. Mr. Datar reiterated his submission that Sections 98 and 99 have to be interpreted to mean that notice to a third party can be issued only during trial and not at the conclusion of the trial. Furthermore, the Chief Justice opined that a notice cannot be issued mechanically by the High Court. Before issuing such notice, the High Court has to be prima facie satisfied with the role of the collaborators in the commission of the corrupt practice.

In regard to the nature of notice under Section 99, Mr. Datar referred to the third issue framed by the three judge bench i.e.,

“On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?”

Mr. Datar contended that the notice to a third party or collaborator should contain the specific charges and specific portions of the speech allegedly amounting to corrupt practice. With reference to the Manohar Joshi case, he contended that the notice does not have to be in the form of a mini judgment. At this juncture, the Chief Justice expressed reservations on the use of the phrase “mini judgment” and opined that it is not appropriate to use the word in this context.

The Court also observed that the judicial principles that govern the analogous provision contained in Section 319 of the Criminal Procedure Code should also apply to Section 99 of the RPA. The Court further observed that since it is a quasi-criminal charge under the RPA, apart from the evaluation of evidence, the third person or collaborator to whom notice is being issued has to be informed of the reasons for such issuance of notice.

Thereafter, the Court considered the issue of ‘naming’ of a third person or a collaborator under Section 99. The issues under consideration were firstly, when can you ‘name’ a third party or collaborator and secondly, whether ‘naming’ is mandatory under Section 99. Mr. Datar contended that on a conjoint reading of Sections 98, 99 and 123(3), it is clear that there are only three categories of persons who can be named i.e. the candidate, his agent or any other person who has indulged in corrupt practices with the consent of the candidate.

While dealing with this subject, the Chief Justice posed a very pertinent question as to whether a person can be ‘named’ for corrupt practices under Section 99 for a speech made prior to the elections. To exhort his point further he gave an instance where elections may be scheduled for after four years. But, a person preparing to contest the elections may request some religious leaders to make speeches on his behalf. The candidate may then use the video recording of the speech at the time of elections. In such a situation can the religious leaders be ‘named’ under Section 99 for having committed a corrupt practice since the speeches were made prior to the notification of elections?

After testing various such propositions, the Chief Justice concluded that the test is not whether the speech was made prior to the elections but whether it was made with the consent of the candidate. If it was made with the consent of the candidate then the religious leaders can very well be named for having committed corrupt practices. He further questioned whether it is mandatory for the Court to name every person who has committed a corrupt practice but is not made a party. Mr. Datar replied in the negative to this proposition.

Mr. Datar through an example sought to distinguish between two scenarios – firstly, where two corrupt practices were committed, one by the candidate independently and one by his agent. Secondly, where the candidate is alleged of a corrupt practice based on the conduct of another. He reasoned that in the first scenario since the candidate had committed a corrupt practice independently, his agent need not be named. Whereas, in the second scenario, since the allegation of corrupt practice against the candidate was based on the conduct of another person, it was necessary to name that other person in order to prove corrupt practice. Therefore, ‘naming’ under Section 99 in the second scenario was contended to be mandatory and non-compliance of which would vitiate the finding of corrupt practice against the candidate.

Taking his argument forward, Mr. Datar said that there cannot be a straitjacket formula while coming to the conclusion of corrupt practice. As stated in the second scenario mentioned above, it is mandatory to name and hear the third person who made the speech before holding the candidate guilty of consenting to the corrupt practice.

The Chief Justice opined that there cannot be recording of finding of corrupt practice unless the person who has committed such corrupt practice is identified. The Chief Justice then considered the case of Mr. Abhiram Singh on its merits and observed that since all the evidence and findings are against Mr. Abhiram Singh and he was given an opportunity of being heard and to prove his case, then it is irrelevant whether the other persons were named or not. Therefore, this does not vitiate the finding or decision against him.

Post lunch, Mr. Shyam Divan appearing for one of the respondents in a connected matter commenced his arguments by narrating the brief facts of his case. Thereafter, he addressed the Court by referring to the legislative history of Section 123(3) of the RPA in order to better understand the scope and interpretation of the said section.

Mr. Divan elaborated that the issue for consideration before the bench was only limited to the interpretation of “his religion” appearing in Section 123(3). For a better understanding of Section 123(3), Mr. Divan briefly took the Court through the parliamentary debates pertaining to the section and also the various legislative amendments to the Section.

Mr. Divan will continue with his submissions when the hearing continues tomorrow.

Seven Judge Constitutional Bench of the SC relooking at the Hindutva Judgment: Day I Updates

Today, a seven-judge Constitutional Bench of the Supreme Court of India comprising of Chief Justice T.S Thakur and Justices Madan B. Lokur, S.A Bobde, A.K Goel, U.U Lalit, D.Y Chandrachud and L.N Rao commenced hearing a batch of petitions to examine whether appeals in the name of religion for votes during elections amounts to “corrupt practice” under Section 123(3) of the Representation of People Act, 1951 (‘RPA’). The Court is relooking at the 1996 judgment where it was held that seeking votes in the name of “Hindutva” or “Hinduism” is not a corrupt practice and therefore, not in violation of RPA.

One of the appeals which has been tagged in the present case was filed by a political leader Mr. Abhiram Singh whose election to the legislative assembly in 1990 was set aside by the Bombay High Court in 1991 for violation of this provision.

Section 123(3) of RPA prohibits a candidate or his agent or any other person with the candidate’s consent to appeal for votes or refrain from voting on the grounds of his religion, race, caste, community or language. The issue before the Court was whether ‘his religion” mentioned in this provision referred only to the candidate’s religion or if it also includes the voters’ religion to be considered as a corrupt practice.

Mr. Arvind P. Datar, appearing on behalf of Mr. Abhiram Singh commenced his arguments by stating that for the purposes of Section 123(3) a reference to religion in a candidate’s electoral speech per se would not deem it a corrupt practice. It would amount to a corrupt practice only if such a candidate uses religion, race, caste, community or language as a leverage to garner votes either by appealing people to vote or refrain from voting on such basis. He further argued that “his religion” mentioned in Section 123(3) should be construed to mean only the candidate or the ‘rival’ candidate’s religion. It should not be read to include the voters’ religion.

In this context, the Chief Justice through an example tried to counter Mr. Datar’s submission of giving “his religion” a restrictive meaning. He put forth a hypothetical situation where a candidate belonging to religion ‘A’ appeals to people belonging to religion ‘B’ to vote for him or otherwise they would incur “divine displeasure”. In the instant case, though the candidate is not referring to his own religion but he is still appealing on the basis of religion i.e. religion of the voters. He further gave instances to draw a distinction between appealing on the basis of the candidate’s religion and religion per se.

To emphasize his point further, the Chief Justice put forth other scenarios where religious sentiments may be invoked directly or indirectly to seek votes by the candidate or any other person on his behalf. During the course of the hearing, Justice Bobde observed that “making an appeal in the name of religion is destructive of Section 123(3). If you make an appeal in the name of religion, then you are emphasizing the difference or you are emphasizing the identity. It is wrong.” The Court was inclined to give a broad interpretation to “his religion” to include within its ambit not only the candidate or the rival candidate’s religion but also the voters’ religion. .

The hearing post lunch was more focused on the merits of Mr. Abhiram Singh’s petition which devolved on the interpretation of Sections 98 and 99 of the RPA. Section 98 of the RPA provides for the decisions that a High Court may arrive at after the conclusion of the trial of an election petition. Section 99(1)(a)(ii) of the RPA further provides that in case of an allegation of any corrupt practice at an election, the high court shall name all persons who have been proved to be guilty of any corrupt practice, however, before naming any person who is not a party to the petition, the high court shall give an opportunity to such person to appear before it and also give an opportunity of cross-examining any witness who has already been examined.

In this backdrop, the following issues which were framed earlier by the three judge bench were considered by this Court:

  1. Whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators (leaders of the political party under whose banner the returned candidate contested the election) or any other person on his behalf?
  2. Whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?
  3. On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?

The Court was of the opinion that the answer to the second issue is in the affirmative and the Court shall only consider the remaining two issues.

Mr. Datar argued that the election of Mr. Abhiram Singh was set aside by the Bombay High Court on the basis of the speeches made by Mr. Balasaheb Thackeray and Mr. Pramod Mahajan in which they made reference to ‘Hindutva’ to garner votes for the Shiv Sena and BJP candidates. His argument was that before coming to this conclusion, the Bombay High Court should have complied with the mandatory procedure provided in the proviso to Section 99(1)(a) which has been explained above.

The Court countered this submission by stating that the finding against Mr. Abhiram Singh stands independently irrespective of whether the process laid down in Section 99 has been followed by the Bombay High Court or not. The Court also observed that in case the High Court names certain individuals for indulging in corrupt practice without following this provision, then it is for such individuals to approach the High Court under Section 99. The Court further stated that the judgment against Mr. Abhiram Singh certainly cannot be vitiated due to such non-compliance. Mr. Datar continued to stress on his argument that the process under section 99 of the RPA must be followed by the High Court before any conclusion of a corrupt practice has been arrived at. He relied on the judgment passed in the earlier cases to buttress his submissions. Additional updates from Day I are available here.

The seven-judge bench will continue the hearing today. We will keep you posted regarding the further developments in this case.

Encryption- Backdoors or Trapdoors?

According to the National Cyber Security Co-ordinator, a national encryption policy is under consideration by the government and will be released soon. It has been reported that that the new policy will be designed to provide support to security agencies against terrorists, who are using tools like encryption to aid in their activities.  In our previous post on encryption, we had briefly examined the issue of exceptional access to encrypted communications for law enforcement and intelligence agencies. In this post, we take a closer look at the arguments for and against such exceptional access for government agencies- also known as access through “back-doors” installed in encryption systems.

While encryption was once used exclusively by the military or intelligence agencies, encryption tools are now affordable and available for all users of internet communication technologies- including terrorists and criminals. The use of encryption has been found to impede routine investigation into and prosecution of criminal offences. Terrorists and extremists groups have also been found to be increasingly using the “dark web” or encrypted messaging. This data cannot be accessed by intelligence and law enforcement agencies. Accordingly, it is alleged the pervasive use of encrypted tools that resulted in the loss of the technological advantages governments have previously had over terror groups and criminals. This is the context in which the installation of backdoors has been put forth by law enforcement agencies and governments as necessary and urgent.

In a report by Amnesty International, “backdoors” are defined as “technical measures which weaken or undermine encryption tools, devices and services in order to facilitate access to information and communications by actors other than the service provider, and parties to the information or communications”. This expansive definition of backdoors includes measures such as the generation and retention of encryption keys for government access; the placement of encryption keys “in escrow”; mandating diminished encryption strengths for usage; and the mandatory deployment of only approved forms of encryption.The ability to decipher encrypted communications through “backdoors”, it is argued, will allow law enforcement authorities to gather evidence in relation to operational details of terrorism, espionage and other criminal activities or act quickly in emergency situations.

However, the arguments against the installation of backdoors are many and as compelling. These have been articulated by civil society, academia, and technologists. The primary argument against such mechanisms for access by government agencies is that they are not technologically viable.  A report by the world’s leading computer scientists and security experts categorically states that any attempts to install backdoors for special access by law enforcement would pose “grave security risks” and “imperil innovation”. The installation of backdoors in encryption systems, according to the report, would be a departure from best security practices. These include, for example, the practice of “forward secrecy” which requires decryption keys to be deleted immediately after use; to prevent security compromises. Further, the installation of backdoors has also been criticized as it would lead to a substantial increase in the complexity of security systems leading to new and unaddressed vulnerabilities. The interconnectedness of the internet means that a weakness in one area will necessarily lead to weakness in others. Therefore, intentional flaws built into encryption systems, even for arguably legitimate purposes, will invariably undermine the security of all users online.

The compulsory installation of backdoors in encryption systems can also have economic consequences. Backdoors have been argued as undermining not only the security of businesses- but also their competitive position, in a market where consumers are constantly looking for the most secure products and systems. The health of the internet ecosystem depends on the proliferation of strong encryption and backdoors are fundamentally antithetical to this. Indian businesses are being found to be increasingly vulnerable to online attacks. Mandating backdoors in encrypted technology will not only affect financial technology but also off-shore data processing- a sector in which India has substantial investments.

However, the most compelling argument against the weakening of encryption through the installation of backdoors is founded in human rights. Encryption has been hailed as a critical enabler of the realization of the right to privacy and freedom of expression on the internet. Limitations on encryption are, therefore, are an infringement on the enjoyment of these rights.  Mandating the installation of backdoors in encryption tools, devices and products not only undermines the security of communications and data, it also indiscriminately affects all users’ online privacy. A blanket system of backdoors may be inherently disproportionate and impermissible under international human rights law.

In the Indian context, it is heartening to note there have been no legislative attempts to mandate backdoor vulnerabilities in encryption technologies yet. Nevertheless, it must be noted that the approach of the Government to encrypted communications has not been consistent. Reports indicate that in 2011, the Government pressurized the telecommunication company Research in Motion (which owns Blackberry) to allow access to messaging services and corporate e-mails through disclosure of their encryption keys. This approach of the government was also reflected in several provisions of the draft National Encryption Policy (“draft Policy”) which was released in September 2015, although it was promptly withdrawn. The draft Policy sought to establish permitted algorithms and key sizes for encryption, mandate the storage of encrypted data for 90 days, allow compulsory access to encrypted data for law enforcement agencies upon request, and registration of encryption suppliers with the government. Some of these features fall squarely within the definition of backdoors as described in the report by Amnesty International. Nevertheless, in a heartening move, the Government has specifically stated that there is no proposal to introduce “backdoors” for smart phone encryption (in response to a question in the Lok Sabha).

While security should not be sacrificed at the altar of privacy, the encryption dilemma requires the achievement of public policy objectives such as law enforcement and national security in an age where encryption is the norm. The debate needs to be reframed to also reflect the very real threats to security which are posed by the installation of backdoors. This is now being reflected in the flexible positions being adopted by governments globally. A position paper released by the Dutch Government categorically states that restrictive legal measures against encryption are not appropriate. In a joint statement, the Europol and the European Union Agency for Network and Information Security (ENISA) have noted that the “focus should be on getting access to the communication or information, not on breaking the protection mechanism’”. In a report by the US Department of Homeland Security, the need for continued and focused public engagement on the issue to develop policy and legislative recommendations has been emphasized upon.

 The new encryption policy has been reported to be developed on a multi-stakeholder model within which the Government will work with industry, academia and civil society. While it remains to be seen if this is truly reflected in the policy, there is a need for continued and active engagement to ensure that encryption systems are not weakened by the installation of backdoors. Meanwhile, intelligence and law enforcement agencies must devote more attention to investigative methods using existing vulnerabilities present in apps and systems of devices. While this might prove to be more expensive, it would be a desirable trade-off towards ensuring both the privacy of data and communications, as well as security interests.

“The Right to be Forgotten”: Balancing Personal Privacy with the Public’s right to access Information

Evolution of the right and Global framework

In the Internet age, when access to information is quick and easy, procuring personal information or past records about an individual is no longer a herculean task. The relevance of such information or the duration for which such data should be available for public access has hitherto not been debated.

There is growing global debate on a new right called “the right to be forgotten” or “the right of erasure”. This right allows people to request for removal of their personal information/data online after a period of time or if such information/data is no longer relevant. The origin of this right can be traced back to the French jurisprudence on the ‘right to oblivion’ or droit à l’oubli. The rationale behind this right was to allow criminal offenders who have already served their sentence to object to the publication of information regarding their crime and conviction. This was done to ease their process of social integration.

It was along these lines that the 1995 EU Data Protection Directive acknowledged the right to be forgotten. Under the Directive, it was stipulated that the member states should give people the guaranteed right to obtain from the ‘controller’ the rectification, erasure or blocking of data relating to them, the processing of which does not comply with the provisions of the Directive. The term ‘controller’ here refers to a natural or legal person, public authority, agency or any other body which alone or jointly determines the purposes and means of processing personal data.

In May 2014, the Court of Justice of the European Union (‘Court’) recognized the right to be forgotten as a part of the fundamental right to privacy in the Google case. The plaintiff, in this case, had requested for delinking of search results appearing on Google and the deletion of newspaper articles appearing online with respect to bankruptcy proceedings against him. The Court held that individuals have a right to request search engines to delink information which causes prejudice to them. However, the Court was careful to state that this right is not absolute and can be applied only when the data becomes ‘inadequate, irrelevant, excessive, not kept up to date, or kept for longer than necessary’ with respect to the purpose for which it was collected or processed. Accordingly, the Court directed Google to delink the search results in the instant case. It was further held that the publication of accurate data may be lawful at a given point in time, but in due course, it might become inconsistent with the law.

While the judgment in the Google case is a step in the right direction, it leaves much to be desired. The Court did not set out any guidelines or parameters to filter out information as ‘inadequate’ or ‘irrelevant’ or ‘excessive’. It has thrust the onerous task of balancing the right to privacy of an individual and the public’s right to access information on private search engines like Google. This raises critical questions regarding the suitability of private entities taking decisions which are of constitutional import. Pursuant to this judgment, the EU adopted the Data Protection Reforms which includes the right to be forgotten as an essential right under Article 17 of the Data Protection Regulations. This lays down the conditions for application of the right to be forgotten, and requires entities processing personal data to inform third parties regarding requests for erasure of links to any personal data. A detailed discussion of these regulations and their impact on India can be found here.

Challenges in enforcement

There are many legal and technical challenges in the enforcement of the right to be forgotten. The success rate of governments across the world in banning or removing pornographic websites or torrent sites from the Internet has not been great, since there are various ways of circumventing such bans. Further, the blocking or delinking of URLs by search engines does not guarantee that such information has been blocked or deleted from the Internet. There is also no way to ensure that such information is not uploaded again.

To enforce the ruling of the case discussed above, Google has created a mechanism through which an individual can make a request for taking down of or delinking of a specific search result bearing an individual’s name. Google evaluates such requests on various parameters like whether these results are an infringement on his right to privacy or whether such information is of public interest. In case of the former, the individual’s right to be forgotten trumps the public’s right to access information. However, if the information is of public interest, the right to information of the public prevails over privacy rights. This squarely makes Google the decision maker of the relevance, adequacy, and need for data to be available online for public access or not.

With the growing recognition of the right to be forgotten, the number of requests that search engines receive for taking down or delinking is only likely to increase, making it extremely difficult and cumbersome to scrutinize such requests manually. According to Google’s Transparency Report, as on 9th October, 2016, Google had received 565,412 requests for the removal of URLs. The Report further states that it has already evaluated 1,717,714 URLs since May, 2014. The Report shows that Google has removed 43.2% of the URLs from the requests received. With a substantial increase in the number of requests, search engines may even consider using algorithms to deal with such requests instead of manually evaluating the privacy rights vis-à-vis public interest.

Further, search engines are also likely to tread on the side of caution and accept such requests rather than face expensive legal challenges across jurisdictions for non-compliance. This right may be misused by individuals as it will lead to artificial alteration of the content available online which may result in the delinking of pertinent information.

Recent developments in India

The data protection regime and data privacy laws of India are not comprehensive and dynamic enough to respond to technological advances in the modes of collection, transfer and use of personal information. The Information Technology Act, 2000 and the rules framed under the Act make up the primary legal framework that governs this subject. The Delhi High Court is currently hearing a matter (Laksh Vir Singh Yadav vs. Union of India, WP(C) 1021/2016) where the petitioner has requested for the removal of a judgment involving his mother and wife from an online case database. The petitioner claims that the appearance of his name in the judgment is causing prejudice to him and affecting his employment opportunities. It will be interesting to see the outcome of this case and how the larger debate of the right to privacy of an individual versus the right of public to access information unfolds in this case.

It is pertinent to note that the Delhi High Court is dealing with the request for removal of a court order which is a public document. This request is unusual and distinct from a request for delinking of search results appearing in search engines like Google since such delinking does not result in the removal of the information itself. Allowing the removal of such judgments from online case databases could result in the expunging of public records. Furthermore, the removal of judgments from online public databases will obstruct public access to case materials shedding light on critical questions of law.

While implementing the right to be forgotten, a very fine balance has to be struck between the right to freedom of speech and expression, public interest and personal privacy. To balance these conflicting rights, the judiciary may consider implementing a system where personal information like names, addresses etc. of the litigants are redacted from reportable judgments/orders especially in personal disputes. The courts have, in the past, refrained from divulging the identities of parties in order to respect their privacy in many rape or medico-legal cases.

With many unanswered questions surrounding this right, India requires a comprehensive data protection regime to regulate the entities collecting and processing personal data and to define the terms of use, storage and deletion of such personal data. This will ensure that such entities are obliged to take due care of the personal data in their possession and will also provide a framework for dealing with requests for removal or erasure of such personal data.

India and Internet Governance: The Challenge of Multistakeholderism

The recent signing of the US-India Cyber framework capped off a landmark year in India’s digital diplomacy. In addition to bilateral agreements, India played an important role in negotiations at international fora like the Ten Year Review of the World Summit on Information Society (WSIS+10 Review) and the Internet Corporation for Assigned Names and Numbers (ICANN). India’s increasing interest in internet governance suggests that it is a priority area for the government. However, as our report on multistakeholderism suggests, there is a need for a domestic multistakeholder setup that supports India’s international engagements on internet governance.

The global internet governance regime has for long been the site of a contentious debate between multilateral and multistakeholder forms of governance. In their simplest form, multilateralism privileges the role of governments while the multistakeholderism accords an equal role to all stakeholders in the governance of the internet. In the last year, India has reiterated its support for the multistakeholder model of governance at ICANN, the WSIS+10 Review and the Internet Governance Forum (IGF). As a key swing state in these debates, India’s position has been instrumental in moving the debate in favour of multistakeholderism.

Across fora, multistakeholderism is emerging as the de facto model of governance. However, our report has found that there has been limited participation from Indian stakeholders at three internet governance institutions over the last 5 years. To have greater impact at these institutions, there needs to be greater engagement of Indian stakeholders from across stakeholder groups. This is only possible if there is a domestic multistakeholder environment that encourages greater participation of Indian stakeholders while also serving as a discursive space for policy discussions. The India Internet Governance Forum, conceived in 2013 is a multistakeholder body that was supposed to fill this gap. Three years on, it is yet to take shape and it is unclear as to why this is the case.

Multistakeholderism and India

There is some debate on the meaning of multistakeholderism, as the various internet governance institutions follow different models of multistakeholder governance. From ICANN, which is now administered by a ‘global multistakeholder community’, to a largely multilateral process like the WSIS, the divide between multistakeholderism and multilateralism is best described as a spectrum. At the heart of the multilateralism versus multistakeholderism debate is the role played by governments in the global governance of the internet.

In line with its policy in other issue areas, India had for long supported multilateralism in internet governance as well. However, at the IGF in Baku in 2012, the then Minister for Communication and Information Technology, Mr. Kapil Sibal came out in favour of multistakeholderism. Ever since, India’s external stance has warmed towards multistakeholderism. The critical juncture, as many observers note came at the ICANN52 meeting in Buenos Aires last year when Mr. Ravi Shankar Prasad, the Minister for Communications and Information Technology declared India’s unequivocal support for multistakeholderism.

Almost all respondents interviewed for our report believed that there is a need for consistent engagement with domestic stakeholders that could translate into greater Indian engagement on global internet governance. In the absence of strong interest from the private sector, they also believed that the government had a central role to play in creating such a domestic multistakeholder environment. This would also be in line with many countries around the world which have set up domestic and regional IGFs. Such initiatives help create a space for domestic conversations on internet related issues in a multistakeholder setting that could better inform policy making. In the last few months, countries in the neighbourhood like Pakistan and Bangladesh have announced domestic initiatives similar to the IGF. However, as the experience of the IIGF suggests, this may be a non-starter in India.

India Internet Governance Forum

Following the establishment of the IGF in 2006, many national and regional IGFs have been established around the world. Domestic IGFs have served as discursive spaces which feed into international policy making bodies. These initiatives have also contributed to knowledge dissemination and help increasing the interest of stakeholders in internet governance.

The US-India Cyber Framework, the IANA Transition and the upcoming ICANN57 meeting in Hyderabad have generated a lot of buzz around internet governance in India. ICANN57 in particular offers an opportunity to restart the conversation around domestic multistakeholder engagement and possibly the IIGF. It remains to be seen if this will be a temporary spike in interest or if it can be sustained in the coming months to create a tangible framework for domestic stakeholder engagement.

India is enrolling infants and children in Aadhaar – but what about their consent?

This post originally appeared on on 19th September 2016.

On September 7, Seema (name changed) became the youngest person in India to get an Aadhaar number, after she was enrolled within five minutes of her birth in Khajuwala, Rajasthan.

The government’s biometric-based identification system, which assigns each citizen a unique number, covers 98% of India’s adult population, according to the latest figures. The coverage among children, however, is far less, and when taken into account, brings total enrolment to 82%

To plug this gap, the government has proposed to link five child-specific schemes to Aadhaar. The inclusion of the mid-day meal scheme among others in this list means that for children in government schools, even getting a hot cooked lunch would be contingent on their biometrics.

Lifelong decision at infancy

Passed in March, the Aadhaar Act makes no distinction between the enrolment of infants (below five years old), children (aged 5 to 18) or adults.

This gives rise to two concerns. First, more than 2.5 crore children have already been enrolled under the programme, without any procedural safeguards that look into issues pertaining to consent, or review of information.

Second, though the Unique Identification Authority of India, which operates the Aadhaar programme, has been asked to take “special measures” while issuing an Aadhaar number to children, the Act does not make any mention of what the measures are, and the programme does not allow children to opt out at a later stage. This is an important clause because children are largely not the ones deciding to enroll in the first place.

Researchers agree that children differ from adults in terms of their capacity to make decisions. They point out that the ability to make logical and rational decisions comes with age and the development of one’s cognitive skills. This is not a new finding – lawmakers have been aware of children’s inherent incapacity for a long time. The need for parental consent for children’s medical treatment or the legal invalidity of contracts by minors are examples of this.

In the context of Aadhaar however, these concerns seem to have completely escaped the consideration of our lawmakers. Raising an entire generation in an environment of biometric ubiquity merits a hard look at the implications of such a society and its impact on our children.

Practical concerns

In recent months, the government has been pushing to register children under Aadhaar right at birth, at the hospital itself, to ensure full enrolment in India by 2017.

Children under the age of five do not need to provide biometrics for enrolment. Their Aadhaar number is mandatorily linked to that of their parents. Children are required to submit their biometrics once at the age of five and subsequently at the age of fifteen. This is because biometrics such as fingerprints and irises are yet to fully develop.

However, several problems arose during the pilot project for this. Enrolment agencies found it tough to capture acceptable images because newborns would not keep still. The absence of distinguishing features between children made the photographs meaningless. Further, many children in India are not named immediately at birth. Despite these practical hurdles, the government seems undeterred from its plan of enrolling infants at birth.

Privacy issues

The information collected by the Unique Identification Authority of India is stored on a central database. Apart from the personal details, including biometric information, the database also keeps a record of all transactions made using the Aadhaar number

As a result, every time someone uses the number, a new entry gets created against their record in the system. With children being forced to enrol, this database can become a lifelong trail of all their transactions.

Under the Aadhaar Act, this information can be shared “in the interest of national security” and if ordered by a court. Consequently, detailed information from an individual’s childhood could be retrieved several years later in a completely different context.

At present, the Supreme Court is hearing petitions against the Aadhaar programme. If Aadhaar survives these legal challenges, the UIDAI must ensure that all authentication records are automatically deleted once a child turns 18.

Question of consent

The UIDAI requires parents’ Aadhaar information to be linked with children only up till the age of five. Its website clarifies that children above that age need to submit their biometrics.

However, it makes no mention of parents’ consent being required for enrolment of children between five and 18. Further, there are no rules allowing parents to access their children’s information and review or correct the same.

Several countries across the world have given statutory recognition to the fact that children lack capacity to give consent. The UK Protection of Freedoms Act mandates that written consent of at least one parent is necessary before schools use biometric information of children. This consent can be withdrawn at any stage. Any objection raised by the child overrides parental consent. Further, it is the school’s duty to provide reasonable alternatives to make those services accessible if there is no consent.

Similarly, the US has the Children’s Online Privacy Protection Act to safeguard children’s information on the internet. It requires websites and applications to obtain a parent’s consent for children below the age of 13. It allows parents to access this information and request that it be deleted.

One may argue that the absence of choice with regard to Aadhaar makes the whole issue of informed consent moot. After all, the resultant exclusion from benefits as a result of non-enrolment implies that people will be forced to enroll. But it is erroneous to think that informed consent is limited only to choice.

Understanding and appreciating the consequences of a decision are inherent aspects of decision-making, and this is a capacity that children lack. However, the enrolment of children under Aadhaar continues unabated without addressing these concerns.

The processes in place for children’s enrolment, if any, are completely opaque. There is little clarity on the role of parents’ consent in capturing biometrics, accessing information, correcting it and the duration that every minor’s data can be held for.

As a result, children are being enrolled in a system without any understanding of it and without an option to have their information deleted once they attain adulthood.

And so, many children like Seema will have to prove their identity throughout their lives for the most innocuous and mundane transactions. Within five minutes of her birth, her parents and the health centre officials in Khajuwala, Rajasthan, decided she must have an Aadhaar number. In all probability, she will never have an opportunity to review this decision for herself.