On 21st September 2022, the Department of Telecommunications (“DoT”) released the Draft Telecommunication Bill, 2022 for feedback and public comments. The draft is based on the consultation paper on ‘Need for a new legal framework governing Telecommunication in India’ which was published by the DoT in July 2022. The proposal aims to replace three laws: the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.
CCG submitted its comments on the Bill, highlighting its feedback and key concerns. The comments were authored by Aishwarya Giridhar, Priyanshi Dixit, Sidharth Deb, reviewed and edited by Jhalak M. Kakkar, Shashank Mohan, Sachin Dhawan with research help from Shreenandini Mukhopadhyay and Shreya Parashar.
CCG’s key comments on the Government of India’s proposals under the Bill are divided into 6 parts –
Exclude digital/ internet based services from telecommunication regulation
The Information Technology Act, 2000 (“IT Act”) exclusively deals with issues pertaining to the internet and digital platforms, and provides corresponding regulation and user safeguards. The Bill’s proposed inclusion of digital services within telecommunications law may create a parallel legal regime and regulatory confusion that hinders innovation and the ease of doing business. Additionally, this Bill would likely subsist in parallel to the forthcoming Digital India Act which is under development at the Ministry of Electronics and Information Technology (“MeitY”). Therefore, we propose that the telecommunication regulation in India should not include digital services as it would create dual compliances for services which will negatively impact India’s overall internet ecosystem.
Revisit the Premise of Licensing Internet Based Digital and Software Services
Telecom Service Providers (“TSPs”) require a license to operate in the market since their operations are dependent on the use of spectrum, which is a limited natural resource. It is based on this scarcity that the Government grants exclusive licenses to access and use spectrum to select service providers. The Government’s privilege in this regard emerges from spectrum scarcity and the public trust doctrines. Conversely, internet based services do not function with the same scarcities and resource requirements as TSPs. Instead, they offer their services over the internet/ telecom network infrastructure. The internet is an ecosystem of abundance and thus digital service providers need not contend with the same infrastructural scarcities as network operators. Since OTTs services do not require exclusive allocation of a scarce public resource like spectrum, imposing strict licensing requirements on them would hinder innovation, consumer choice and user accessibility.
The Bill Should Avoid One Size Fits All Regulation
The Bill in its current form deploys overbroad definitions for several terms including “telecommunication services” and “message”. This particular definition will envelope all OTT communication services, data communication services, email, and other digital platforms within a common licensing regime as all telecom services. Aside from compromising the principle of legal certainty, this overbroad definition contributes to a one size fits all regulatory approach for both carriage and content providers. Such a broad approach is antithetical to the internet’s innate characteristics and heterogeneities across its network stack. It is also inconsistent with the growing international and domestic consensus that the internet requires differential regulations which are curated to the features and contextual harms which are native to specific types of platforms and services.
The Bill’s Interception Proposals are Overbroad and may Violate Constitutional Rights
The Bill allows the State to order the interception of messages transmitted over telecommunication services or networks in specific situations. The broad definition in the Bill allows this provision to broadly apply to all messages communicated over all digital services, which may amount to a disproportionate restriction on users’ right to privacy. Under Indian jurisprudence, measures restricting privacy must: (a) be provided by law; (b) pursue a legitimate aim and be necessary in a democratic society; (c) be proportionate to the need for the interference with the right to privacy; and (d) contain procedural safeguards to prevent against abuse. Existing provisions permitting interception must be re-examined for conformity with these standards and recent Supreme Court jurisprudence. Additionally, interception provisions in the Bill overlap with those in the IT Act and risks creating a parallel regulatory regime over digital services.
The Bill’s ID Verification Proposals may Violate Constitutional Rights to Privacy and Free Expression
The Bill requires service providers to identify users of their services, and also requires the identity of persons sending messages over telecommunication services to be made available to the recipient. Although these measures may have sought to target cyber-fraud, they will also serve to effectively remove anonymity in online communications. Online anonymity and encrypted services can however play a key role in protecting user privacy and the right to free expression, and mandated identity verification systems can significantly restrict these rights, particularly for minorities and vulnerable populations.
Provisions relating to the Suspension of Telecommunications Services Would Restrict the Right to Free Expression
The Bill authorises the State to direct the suspension of communications transmitted or received by telecommunication networks. It allows for the suspension of ‘telecommunication services’, which would include all digital services, along with phone calls, text messaging, etc. This provision would expand the ambit of suspension powers to allow states to restrict or blacklist specific services, in addition to restricting access to the internet as a whole. The internet plays a key role in exercising fundamental rights such as free expression and education, and in accessing essential services. Wide powers to restrict access to the internet as a whole, as well as specific services can therefore significantly restrict the fundamental rights of users.
You can read CCG’s full submission to the DoT here.
Recent judicial decisions have transformed our understanding of privacy, autonomy, and equality; significantly so post the Supreme Court’s PuttaswamyI judgement. In Puttaswamy I, the Court reaffirmed privacy as a fundamental right grounded in the ideas of autonomy and dignity. An important consequence of this understanding of privacy is its impact on questions of individual privacy within the confines of a marriage. For example, in a recent case on the subject of marital rape, the Karnataka High Court allowed rape charges against the husband and emphasised the importance of reinforcing the right to equality and the right to individual autonomy and dignity of a woman within a marriage.
One such provision within family law that raises concerns about individual autonomy and privacy within marriage is the Restitution of Conjugal Rights (‘RCR’). It is a legal remedy available to spouses where one spouse deserts the other without a ‘reasonable’ excuse or on certain ‘unlawful’ grounds. In such cases, the ‘aggrieved’ party has the right to seek a decree for RCR, by which a court order may direct the deserting party to compulsory cohabit with the ‘aggrieved’ party. The remedy of RCR is provided for under Section 9 of the Hindu Marriage Act, 1955 as well as, Muslim Personal Law, the Parsi Marriage and Divorce Act, 1936 (S. 36), the Indian Divorce Act, 1869 (S. 32-33), and the Special Marriage Act, 1954 (S. 22). Generally, if a person fails to comply with a RCR decree a court can attach their property under the Civil Procedure Code (Order 21, Rule 32).
In this post, I analyse the State’s objectives in providing spouses with the RCR remedy and argue that the remedy itself violates the right to privacy under Article 21 by failing to satisfy the test of proportionality.
Privacy, autonomy, and State interference
State regulation of domestic relations has seen laws governing marriage, divorce, adultery, and sexual relations between consenting adults, for example the criminalisation of homosexuality. Marriage is a social contract recognised by the State and to a certain extent, is also subject to regulation by the State. Although regulations around marriage may be for a variety of reasons, it may be argued that they serve two key interests: protection of individual rights, and the State objective to protect the institution of marriage (often articulated as maintaining “cultural ethos and societal values”). Examples of the former rationale include laws recognising domestic violence, cruelty, and prioritising individual autonomy by providing divorce as a remedy. The latter rationale can be seen in laws criminalising adultery and homosexuality (both of which have been struck down by the Supreme Court of India post Puttaswamy I) and providing restitution of conjugal rights as a remedy. However, by protecting the institution of marriage, the State also protects a particular conceptionof that institution, specifically the socially accepted notion of a monogamous, heterosexual, and procreative marriage.
It is widely accepted that RCR is an archaic English law (from a time when cohabitation was expected of women) that, as the Bombay High Court noted in 1885, did not exist prior to colonial rule. However, the remedy was codified in the Hindu Marriage Act in 1955 even after India achieved independence and continues to exist despite its patriarchal connotations. The 71st Law Commission Report of 1978 (page no. 27, para 6.5) emphasised the importance of cohabitation to protect the ‘sanctity of marriage’. The High Court of Delhi, in Harvinder Kaur vs. Harmander Singh Choudhry (1984)also adopted this view and held that the restitution of conjugal rights is an important remedy to protect the institution of marriage. The Delhi High Court rejected privacy considerations by stating that a decree of RCR was not the “starkest form of governmental intervention into marital privacy” since it merely aims to restore cohabitation and does not enforce sexual intercourse. As I argue below, this reasoning raises questions about individual autonomy. However, the Delhi High Court’s rationale was accepted by the Supreme Court in Saroj Rani vs. Sudarshan Kumar Chadha (1984), where the apex Court upheld the constitutionality of RCR and reiterated that the right to cohabitation is “inherent in the very institution of marriage itself.”
This view of RCR — to preserve the institution/ sanctity of marriage — creates tensions with the objective of the State to protect individual rights. An RCR decree interferes with the right to privacy and autonomy by compelling an individual to cohabit with their spouse against their will. This may especially be true after the articulation of the right to privacy by the Supreme Court in Puttaswamy I. The decree of RCR creates an unwanted intrusion into a person’s personal life by denying them autonomy over where they live, and also potentially on the sites of sexual and reproductive decision making. Any analysis of RCR must recognise the power asymmetry within domestic relations that pervasively results in women being subject to physical and sexual violence at home. Thus, contrary to the reasoning given by courts in Harvinder Kaur and Saroj Rani, by compelling women to cohabit with men they have deserted, a decree of RCR may place women at significant risk of domestic violence, economically compromised living conditions, and non-consensual sexual intercourse.
The Andhra Pradesh High Court in T Sareetha vs. Venkata Subbaiah in 1983 recognised that the grant of an RCR decree would amount to an interference of the State into the private sphere, compelling cohabitation or even indirectly, sexual intercourse. The High Court found that this interference of the State through RCR violated the right to privacy, autonomy, and dignity of the individual against whom the decree was sought by ‘transferring the decision to have or not have marital intercourse from the individual to the State’. This decision was overruled by the Supreme Court’s Saroj Rani decision in 1984. While the Puttaswamy 1 judgement in 2017 did not expressly refer to Sareetha, all nine judges broadly adopted the approach taken in the Sareetha judgement, adopting a conception of privacythat recognises its basis in individual autonomy and dignity.
In Puttaswamy I, the Supreme Court ruled that individual autonomy, that recognises the ability of individuals to control vital aspects of their life (including reproductive rights, sexual orientation, gender identity), is an intrinsic part of the right to privacy guaranteed under Article 21 of the Constitution. By this reasoning, a decree of RCR does not account for the right to autonomy of an individual and violates their right to privacy by legally compelling the individual to cohabit despite them making a conscious choice to separate from their spouse.
In recent years, there has been a shift in the thinking of courts, where the right to individual privacy and autonomy is prioritised as opposed to protection of the institution (and specific conceptions of that institution) of marriage. For instance, in Joseph Shine, the Supreme Court held that the law that criminalised adultery treated women as property and was unconstitutional. It opined that although the criminalisation of adultery was introduced to protect the institution of marriage, it serves the interests of one party and denies agency to women. The Court noted –
“The provision is proffered by the legislature as an effort to protect the institution of marriage. But it proceeds on a notion of marriage which is one sided and which denies agency to the woman in a marital tie. The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects.”
Bearing in mind this view of the court, RCR would not stand up to judicial scrutiny as a constitutionally valid right, since it disregards the autonomy and dignity of an individual under the notion of the State aim to protect the institution of marriage.
The proportionality test
In 2017, Puttaswamy I laid down a four-part test for determining the validity of an infringement of the right to privacy. The test’s first limb necessitates the existence of a codified law, which is met with in the case of RCR through various statutory provisions. The test also requires the existence of procedural safeguards against abuse of State interference, which is of reduced significance in the case of RCR as both a RCR decree and post-decree attachment of property require prior judicial authorisation and oversight. In addition to the need for statutory authorisation and procedural safeguards, for an infringement to be valid it must satisfy the limbs of legitimate aim, necessity, and proportionality. The Puttaswamy II (Aadhar) case applied this test, which was first articulated in the Modern Dental College judgement in 2016. This test requires:
any limitation of a constitutional right is enforced for a proper purpose (legitimate aim);
there is a rational nexus between the proper purpose and the measure adopted to achieve it and there are no alternative measures which would achieve the purpose but are less restrictive of rights (necessity); and
the restriction on the constitutional right must be proportionate to the purpose set out by the State (balancing or proportionality).
Firstly, it must be noted that, as observed by the Supreme Court in Saroj Rani, the stated purpose of the measure is protecting the institution of marriage. As stated above, in Joseph Shine the Supreme Court rejected the State’s argument that protecting the institution of marriage was a proper purpose where the State’s measure protected “a notion of marriage that is one sided and denies agency to women.”. In this context, RCR only protects a notion of marriage where individuals cohabit and engage in sexual intercourse, denying agency to individuals and violating individual autonomy. Secondly, the decree of RCR should have a rational nexus with the aim of protecting the institution of marriage. In this regard, it is relevant to note that, in certain instances, individuals routinely file RCR cases expecting non-compliance by the other party, using this non-compliance with the RCR decree as a ground for divorce. Thus, the historically dominant objective of the State of “protecting” the institution of marriage through the positive remedy of RCR may also not be satisfied.
Even if RCR furthers the State’s aim of protecting marriage, it would need to pass the third prong of the proportionality test, i.e., the State must meet the objective of the law through the ‘least restrictive measure’. The State could resort to alternate measures, similar to the ones observed under divorce petitions; an order of mediation or a ‘cooling off’ period provisioned in cases of divorce with mutual consent furthers the aim of protecting the institution of marriage without violating individual rights. However, in a decree of RCR there persists a violation of an individual’s privacy, enforced by coercion through the attachment of property.
The fourth part of the proportionality test emphasises the need to have a balance between the interest of the State and the rights of individuals. As stated earlier, the infringement of individual rights through an RCR decree creates severe consequences that violate the right to privacy and autonomy of an individual, including putting women in particular, at risk of harm. Thus, the gravity of the rights violation arguably outweighs the State interest of protecting marriage, especially since the State aim is often not met and the decree becomes a ground for divorce.
The application of the test of proportionality by Indian courts has garnered criticism as being deferential to the State. However, even with this deferential application, as demonstrated above, RCR would likely not pass the four-part test of proportionality endorsed by the courts in Modern Dental College and Aadhaar.
Conclusion
In the post-Puttaswamy era, various High Courts have recognised the autonomy and dignity of women within marriage under the fundamental right to privacy. For instance, in a recent right to abortion case, the High Court of Kerala relied on Puttaswamy I and held that a woman’s autonomy of body and mind with respect to reproductive decisions are part of the right to privacy. As discussed above, the High Court of Karnataka, in its recent decision, while allowing rape charges against the husband, acknowledged that the exception of marital rape stems from an archaic notion of marriage where the wife was considered property. On similar grounds, one may argue that RCR should be considered invalid since it is based on the outdated notion of marriage where the wife was considered the property of the husband and had no individual autonomy of her own. As noted above, it is also incompatible with the test of proportionality.
On 30 December, 2021, the Gujarat HC observed that an RCR decree could not force a woman to cohabit with her husband. The court recognised that a decree of RCR needs to consider both the parties’ and not solely the ‘right of the husband’. Further, it opined that the very fact that there exists an option given to not comply with the RCR decree under the Civil Procedure Code indicates that the court cannot force a woman to cohabit against her will. The court further laid down certain grounds under which a person could refuse to comply with an RCR decree including cruelty, adultery, and failure of the husband in performing marital obligations. Although this decision seems to encourage considering the rights of women in a marital relationship – it fails to reaffirm the right to privacy and autonomy of the subject of the decree against a law that is effectively discriminatory. It grants power to the courts to decide on a case-to-case basis whether the right can be granted, which could lead to a potential violation of individual rights given the nature of this provision.
Striking down RCR provisions does not mean that there must be a complete embargo on the interference of the State into marriage – for example, the power asymmetry in domestic relationships necessitates the enforcement of laws against domestic violence and most likely requires the criminalisation of marital rape. However, taking into consideration the constitutional scrutiny of laws against the backdrop of State interference and right to privacy, RCR may not stand the test of constitutionality. Currently, a petition challenging the constitutionality of RCR is pending before the Supreme Court – if the above arguments are considered by the court, RCR may be struck down on the grounds that it violates the right to privacy.
This post was originally published on Livelawon 26 April 2022.
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