The Ministry of Electronics and Information Technology (“MeitY”) proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) on January 17, 2023. The draft amendments aim to regulate online gaming, but also seek to have intermediaries “make reasonable efforts” to cause their users not to upload or share content identified as “fake” or “false” by the Press Information Bureau (“PIB”), any Union Government department or authorised agency (See proposed amendment to Rule 3(1)(b)(v).) The draft amendments in their current form raise certain concerns that we believe merit additional scrutiny.
CCG submitted comments on the proposed amendment to Rule 3(1)(b)(v), highlighting its key feedback and concerns. The comments were authored by Archit Lohani and Vasudev Devadasan and reviewed by Sachin Dhawan and Jhalak M. Kakkar. Some of the key issues raised in our comments are summarised below.
Misinformation, fake, and false, include both unlawful and lawful expression
The proposed amendment does not define the term “misinformation” or provide any guidance on how determinations that content is “fake” or “false” are arrived at. Misinformation can include various forms of content, and experts have identified up to seven subtypes of misinformation such as: imposter content; fabricated content; false connection; false context; manipulated content; misleading content; and satire or parody. Different subtypes of misinformation can cause different types of harm (or no harm at all) and are treated differently under the law. Misinformation or false information thus includes both lawful and unlawful speech (e.g., satire is constitutionally protected speech).
Within the broad ambit of misinformation, the draft amendment does not provide sufficient guidance to the PIB and government departments on what sort of expression is permissible and what should be restricted. The draft amendment effectively provides them with unfettered discretion to restrict both unlawful and lawful speech. When seeking to regulate misinformation, experts, platforms, and other countries have drawn up detailed definitions that take into consideration factors such as intention, form of sharing, virality, context, impact, public interest value, and public participation value. These definitions recognize the potential multiplicity of context, content, and propagation techniques. In the absence of clarity over what types of content may be restricted based on a clear definition of misinformation, the draft amendment will restrict both unlawful speech and constitutionally protected speech. It will thus constitute an overbroad restriction on free speech.
Restricting information solely on the ground that it is “false” is constitutionally impermissible
Article 19(2) of the Indian Constitution allows the government to place reasonable restrictions on free speech in the interest of the sovereignty, integrity, or security of India, its friendly relations with foreign States, public order, decency or morality, or contempt of court. The Supreme Court has ruled that these grounds are exhaustive and speech cannot be restricted for reasons beyond Article 19(2), including where the government seeks to block content online. Crucially, Article 19(2) does not permit the State to restrict speech on the ground that it is false. If the government were to restrict “false information that may imminently cause violence”, such a restriction would be permissible as it would relate to the ground of “public order” in Article 19(2). However, if enacted, the draft amendment would restrict online speech solely on the ground that it is declared “false” or “fake” by the Union Government. This amounts to a State restriction on speech for reasons beyond those outlined in Article 19(2), and would thus be unconstitutional. Restrictions on free speech must have a direct connection to the grounds outlined in Article 19(2) and must be a necessary and proportionate restriction on citizens’ rights.
Amendment does not adhere with the procedures set out in Section 69A of the IT Act
The Supreme Court upheld Section 69A of the IT Act in Shreya Singhal v Union of Indiainter alia because it permitted the government blocking of online content only on grounds consistent with Article 19(2) and provided important procedural safeguards, including a notice, hearing, and written order of blocking that can be challenged in court. Therefore, it is evident that the constitutionality of the government’s blocking power over is contingent on the substantive and procedural safeguards provided by Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. The proposed amendment to the Intermediary Guidelines would permit the Union Government to restrict online speech in a manner that does not adhere to these safeguards. It would permit the blocking of content on grounds beyond those specified in Article 19(2), based on a unilateral determination by the Union Government, without a specific procedure for notice, hearing, or a written order.
Alternate methods to counter the spread of misinformation
Any response to misinformation on social media platforms should be based on empirical evidence on the prevalence and harms of misinformation on social media. Thus, as a first step, social media companies should be required to provide greater transparency and facilitate researcher access to data. There are alternative methods to regulate the spread of misinformation that may be more effective and preserve free expression, such as labelling or flagging misinformation. We note that there does not yet exist widespread legal and industry consensus on standards for independent fact-checking, but organisations such as the ‘International Fact-Checking Network’ (IFCN) have laid down certain principles that independent fact-checking organisations should comply with. Having platforms label content pursuant to IFCN fact checks, and even notify users when the content they have interacted with has subsequently been flagged by an IFCN fact checker would provide users with valuable informational context without requiring content removal.
Following the judgment of the Supreme Court in Puttaswamy, the privacy rights of accused persons have been litigated upon across various High Courts in India. The right to privacy is especially relevant at various stages of a criminal case where numerous situations can potentially infringe the accused’s privacy. In this post, I will examine how privacy claims made by the accused have been examined by courts post-Puttaswamy. I specifically examine two types of claims: (i) cases where the personal information of the accused is available (or has been made available) in the public domain; and (ii) cases concerning the procedures an accused may be subjected to.
In cases where the accused has raised a privacy claim, the State typically makes a ‘countervailing interest’ argument; that a key governmental interest such as effectively investigating crimes is furthered by interfering with an individual’s privacy, and hence is justified. However, Puttaswamy, laid down that State infringements on privacy cannot merely serve an important interest, but must fulfil the four-part test of legality, necessity, proportionality, and reasonable safeguards. The Supreme Court held that “An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” The proportionality limb also specifically requires the State’s measure to be the least rights infringing measure possible that continues to fulfil the State’s desired objective, with courts balancing competing interests. Justice Kaul’s separate opinion would add a fourth limb to this test, ‘procedural safeguards against abuse of interference with rights’, in line with Article 21’s guarantee of a ‘procedure established by law’.
The first set of privacy claims is where the personal information of accused persons were made public due to them being the subject of a criminal prosecution and judicial interventions were sought to safeguard this data. One of the prominent cases in this regard was Re: Banners before the Allahabad High Court. The district administration and police had put up banners displaying the names and photographs of persons who were accused of vandalism.
Expressly referring to Puttaswamy’s, and applying thefour-tier test, the High Court in Re: Banners first held that there were no statutory provisions “permitting the State to place the banners with personal data of the accused” in public (contravening the ‘legality’ test). Further, the publication of personal data also failed the ‘legitimate aim’ and ‘proportionality’ requirements. The purported aim, as argued by the State, was to deter people from violating the law. According to the Court, this was insufficient as the action of publishing personal information on banners was not necessary to achieve this aim. Therefore, the banners were ordered to be removed and the administration was asked to refrain from such actions in the future without legal authority.
In Karthick Theodre, an individual who had been acquitted of criminal charges by a 2014 judgement sought the “erasure or redaction of his personal information from the public domain.” In other words, the petitioner sought the redaction or erasure of his name from the judgement. Relying on Puttaswamy, various arguments including the right to be forgotten were raised before the Madras High Court. The apprehension of the petitioner was duly noted, that whenever his name was searched through search engines, results relating to the judgment would appear. However, the Court dismissed the plea on the grounds that without an adequate data protection law, laying down the parameters of when the redaction of the names of the accused should be directed, there was no objective criteria based on which the court can pass orders. While certain High Courts have granted reliefs based on the right to be forgotten, (See Jorawar Singh Mundy, Zulfiqar Ahman Khan,) the Madras High Court held that absence of a statute renders the petitioner remediless.
The second set of cases are privacy claims by accused persons as to the procedures they can be subjected to during an investigation. In Mursaleen Mohammad, the appellant was convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS”). The appellant was subject to an x-ray examination by the authorities and subsequently confined till he defecated to recover the contraband allegedly stored in his body. The Calcutta High Court observed that the search and recovery of contraband from a person contemplated under section 50 of the NDPS Act does not allow for invasive medical procedures absent compliance with strict statutory safeguards. The Court noted that there were procedural irregularities in collecting the ‘evidence’. By relying on Puttaswamy, the Court affirmatively held that ‘recovery of contraband inside the body of a suspect must not only be in accordance with the procedure established by law but also be compatible to (sic) the dignity of the individual and ought not subject him to cruel, inhuman treatment.” The recovery of contraband, according to the Court, encroached on the appellant’s right to privacy.
In Vinod Mittal, the Himachal Pradesh High Court considered the legality of an order by a Special Judge, directing the petitioner to undergo a polygraph test and provide a voice sample to the investigating agency. The petitioner challenged the constitutionality of these directions, relying on Article 20(3) of the Constitution and the decisions in Ritesh Sinha and Selvi. The petitioner, however, admitted that he was willing to provide the sample if the court found such procedures to be legally permissible. The High Court said that the tests the accused could be subjected to could broadly be divided into three kinds: “(i) permissible with or without consent, (ii) permissible with consent only, and (iii), impermissible altogether.” After studying relevant judgments, the Court held that polygraph tests fall under the second category.
The Court concluded that “It is not legally impermissible [for a court] to issue direction[s] to a person to undergo Narco Analysis, polygraph and BEAP test, but such direction shall be subject to consent of said person and the person has a right to elect to consent or refuse to undergo such test…” The Himachal Pradesh High Court, therefore, indicated through this case that such techniques, if done in an involuntary manner, would be an unjustified intrusion and violate an individual’s (mental) privacy.
These cases demonstrate that the four-tier test laid down in Puttaswamy has been significantly engaged with by constitutional courts in interpreting the right to privacy of the accused. The use of the conjunctive test laid down by the Supreme Court has facilitated a more robust scrutiny of State action vis-à-vis accused individuals. The interpretation certainly requires further development, with greater sophistication in enhancing the analysis under Puttaswamy. However, these are positive judicial observations that will likely result in a consistent and continuous engagement with violations of the right to privacy. While various aspects of the right to privacy, including the right to be forgotten, await comprehensive judicial recognition, privacy jurisprudence has tremendous potential to protect the rights of the accused in the years to come.
On 25 June 2022, in Dobbs v. Jackson, the U.S. Supreme Court (“SCOTUS”) declared that the U.S. Constitution does not guarantee a right to abortion. SCOTUS thus overturned the celebrated 1973 judgment titled Roe v. Wade which had held the right to abortion to be constitutionally protected. This post analyses Roe and Dobbs, examining how and why they treated the term “liberty” differently. It then contrasts these definitions with the Indian understanding of “liberty”.
“Liberty” and “tradition”: A brief overview of Roe and Dobbs
The legal issue on which Roe and Dobbs disagree concerns the word “liberty” in the Fourteenth Amendment to the U.S. Constitution. The Amendment states that the State shall not “deprive any person of life, liberty, or property, without due process of law”. SCOTUS decisions prior to 1973 interpreted the word “liberty” narrowly . They held that the word does not include all kinds of liberties; it refers to those liberties which were historically and traditionally considered fundamental in the U.S. For example, Palko (1937) held that the Fourteenth Amendment only protects liberties “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Similarly, Snyder (1934) held that the words “due process” imply the processes traditionally guaranteed in the U.S.
The Court in Roe (1973) was aware of these precedents. However, the majority ultimately held that the Fourteenth Amendment protects “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’.” Conspicuously, the reference to history and tradition was omitted, presumably implying that history and tradition are not essential to the analysis. Hence, while narrating the history of abortion, the majority did not deem it necessary to locate a right to abortion in American tradition. It merely found that “at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect” (emphasis supplied). It then proceeded to hold that the right to abortion was protected under the Fourteenth Amendment as a facet of the right to privacy. Roe’s treatment of history and tradition would eventually become the main reason for its overturning in Dobbs.
But Roe was not alone in treating history and tradition as inconclusive. SCOTUS has generally wavered on this issue. E.g., in Obergefell (the 2015 decision affirming a right to same-sex marriages), SCOTUS held that while history and tradition “guide and discipline this inquiry”, they “do not set its outer boundaries”. Contrast this with Glucksberg (the 1997 decision rejecting a right to assisted suicide) which held that the “outlines” of the word “liberty” are to be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition,” indicating a conclusive reliance on tradition. Thus, the question of whether “liberty” is to be interpreted purely normatively (‘implicit to ordered liberty’), or must also be grounded in historical experience is itself contested in SCOTUS jurisprudence and has changed over time – often based on the composition of the court on a given day and case.
In attacking Roe’s conclusion, then, the main objection taken by the Dobbs Court — composed of a 6-3 conservative majority — was a historical one. The majority re-examined historical evidence and found that abortion has been traditionally criminalised, or at least negatively treated, in most states: “By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history….” Citing Palko (1937) and Glucksberg (1997) for the necessity to ground liberty in historical practice, the majority rejected the idea that an abortion right was “deep-rooted” in American history and tradition. Thus, it found, the word “liberty” in the Fourteenth Amendment did not protect a woman’s right to medically terminate her pregnancy.
The implication is this. After Dobbs, the 14th amendment itself does not include a right to medically terminate a pregnancy because the right is not “deeply rooted” in American history and tradition. Thus, there exists no need to examine whether there exists a countervailing right of the woman which must be “balanced” against the State’s interest in protecting prenatal life. As described by the dissent: “The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s….”
It is easy to see why SCOTUS’ reliance on history and tradition is problematic. The point of a Bill of Rights is to insulate freedom and equality from majority control. It is hence paradoxical that the meaning of liberty turns on popular tradition. Relying on a male political majority’s treatment over a period of time of women (at a time when the latter were denied political representation – women were not allowed to vote when the 14th amendment was passed – and equal standing in society) to determine the liberties afforded to women today risks codifying past injustices into modern rights law. The Dobbs dissent rightly argues, quoting Obergefell, that “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification.” This circular test—which sees the Constitution as a tool to cement tradition rather than challenge it—allows all kinds of regressive, liberty-restricting practices to be upheld so long as they are rooted in American history and tradition. Finally, history itself may be contested and heterogeneous, and the Court’s approach provides few safeguards against the selective reliance and interpretation of “history” by the majority.
Yet, the dissent struggles—and so does an amicus brief —to articulate an alternative test to define “liberty”. The dissent argues, rightly, that history and tradition are not captured “in a single moment” and should be understood with reference to “the longsweep of our history and from successive judicial precedents”. But this does not take us very far. Is tradition relevant at all? How relevant? When can you overlook it? Is it possible to ensure that judges will not start interpreting the word “liberty” based on their own personal biases, in ways completely disconnected from American tradition? The dissent does not argue that tradition is irrelevant, and does not provide any principled test to determine when its relevance is reduced.
“Liberty” in the Indian Constitution
While the Indian Supreme Court often discusses the history of the issue before it (very common in reservation cases, e.g.), history and tradition have never been the determining factors to define “liberty” in Art.21 of the Indian Constitution. The meaning of “liberty” has been determined by other considerations.
Art.21 prohibits the State from depriving any person of “personal liberty” except as per procedure established by law. Separately, Art.19 lists six (originally seven) freedoms: speech, assembly, association, movement, residence and trade. In its early years, the Supreme Court was called upon to decide if the “liberty” contemplated by Art.21 was broad enough to include the six freedoms listed in Art.19. This question was first answered in Gopalan (1950). By a 5-1 majority, the Court held that since Art.21 spoke only of “personal” liberty—i.e., liberty of one’s person—it had to be interpreted narrowly to mean freedom from bodily restraint. As Das J. put it, liberty is the “antithesis of physical restraint or coercion”. The majority viewed Art.19 and Art.21 as distinct rights having no overlapping content. In other words, the content of “liberty” in Art. 21 was not informed by the rights enumerated in Art. 19
In the Gopalan era, therefore, Art.21 had a narrow scope. It did not, e.g., include the right to privacy, as held in M.P. Sharma (1954) and Kharak Singh (1964). But Gopalan was overturned after the Emergency. In Maneka (1978), the Supreme Court held that fundamental rights are not siloed; they are overlapping in terms of their content. Accordingly, the meaning of “personal liberty” in Art.21 was held to include and be informed by the six enumerated freedoms of Art.19 and other constitutional sources.
But none of these activities or rights have had to pass a historical test before being recognised. The term “personal liberty” has been understood as being “of the widest amplitude” (Maneka 1978) and defined as “a power of acting according to the determinations of the will” (Mhetre 2011). These holdings imply that the words “personal liberty” encompass the freedom to do whatever one wants, although the freedom is not absolute and is subject to any fair, just and reasonable law made by the State (such as criminal legislations which identify and punish certain acts like murder, theft etc.) on legitimate grounds. In other words, the idea of “liberty” does not depend on the act being performed or its historical acceptance. In contrast with the SCOTUS, Indian courts have called the Constitution a “transformative” document, emphasizing its role as a revolutionary instrument that appropriately challenges tradition rather than protect it.
In one sense, this is a much neater test as compared to the one followed by SCOTUS. In context of abortion, because the interpretation of “liberty” does not presumptively exclude the right to terminate a pregnancy (Dobbs) it means that the Court must recognise two competing rights—the woman’s right to have an abortion and the fetal right (if it is shown to exist) to life—and resolve the conflict by evaluating the necessity and proportionality of the restrictions placed by the State.
Conclusion
This is not to say that the test under Art.21 has no flaws. The flexibility of the “fair, just and reasonable” standard also means that it is vague, and a restriction deemed to be reasonable by one bench or court could well be deemed unreasonable by another. Yet, the advantage of the Maneka test is that it does not allow the Court to outrightly reject either competing right on the ground that it does not comport with historical practices and popular traditions. The Court must at least enter the balancing exercise and explain why particular restrictions on rights are proportionate or disproportionate.
“Liberty” under the Indian Constitution is substantially different from that under the U.S. Constitution. The SCOTUS test is problematic; tradition and history are not objective and using them to define “liberty” is not wise. In contrast, Art.21 protects all liberty, and is open to recognising competing rights within the constitutional scheme. A woman’s right to abortion is hence recognised, but is to be ‘balanced’ against the right to life of the fetus (if such a competing right is shown to exist). This allows for a much more principled inquiry into the competing interests and for testing the necessity and proportionality of the State measure in question.
The Dobbs ruling has serious implications for privacy rights. The immediate implications are on pregnancy and reproductive autonomy: 11 states in the U.S. already have laws criminalizing abortions, while 13 more states are speculated to pass such laws in the near future. The de-recognition of the right to abortion as a fundamental right also poses dangers of surveillance and sensitive data collection by law enforcement agencies by piggy-backing on the data stored with financial companies and even mentruation-tracking apps in an effort to track individuals who may have had an abortion in a state where it is illegal. Looking beyond pregnancy, the Dobbs decision might imply—as both the concurrence (by Justice Thomas) and the dissent suggest—a threat to other rights which were recognized by SCOTUS as flowing from the right to privacy, including the right to contraception, the right to same-sex marriage, homosexuality rights, etc. The majority rejects this suggestion because “none of these decisions involved what is distinctive about abortion: its effect on what Roe termed ‘potential life’”. However, as the dissent notes, other rights based on the 14th amendment’s guarantee of autonomy and privacy may also fail the test of being “deeply rooted” in tradition. The effect of Dobbs on those other rights may be more complex than what the various Justices suggest. These and other aspects of the Dobbs fallout will be discussed in a future post.
This blog was written with the support of the Friedrich Naumann Foundation for Freedom.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”) were challenged before several High Courts (refer here and here) almost immediately after their promulgation. In one such challenge, initiated by the publishers of the online news portal ‘The Leaflet’, the Bombay High Court, by an order dated August 14, 2021, imposed an interim stay on the operation of Rules 9(1) and (3) of the 2021 IT Rules. Chiefly, this was done because these provisions subject online news and curated content publishers to a vaguely worded ‘code of ethics’, adherence to which would have had a ‘chilling effect’ on their freedom of speech. However, the Bombay High Court refused to stay Rule 16 of these rules, which empowers the Ministry of Information and Broadcasting (“MIB”) to direct blocking of digital content during an “emergency” where “no delay is acceptable”.
Part I of this two-part series, examines the contours of Rule 16 and argues that the Bombay High Court overlooked the procedural inadequacy of this rule when refusing to stay the provision in the Leaflet case. Part II assesses the legality and constitutionality of the rule.
Overview of Rule 16
Part III of the 2021 IT Rules authorises the MIB to direct blocking of digital content in case of an ‘emergency’ in the following manner:
The MIB has correctly noted that Rule 16 is modelled after Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”) (analysed here), and confers upon the MIB similar emergency blocking powers which the Ministry of Electronics and Information Technology (“MeitY”) has possessed since 2009. Both provisions confer discretion upon authorised officers to determine what constitutes an emergency but fail to provide a hearing to impacted publishers or intermediaries at any stage.
Judicial findings on Rule 16
The Bombay High Court’s order in the Leaflet case is significant since it is the first time a constitutional court has recorded its preliminary findings on the rule’s legitimacy. Here, the Bombay High Court refused to stay Rule 16 primarily for two reasons. First, the High Court held that Rule 16 of the 2021 IT Rules is substantially similar to Rule 9 of the 2009 Blocking Rules, which is still in force. Second, the grounds upon which Rule 16 permits content blocking are coextensive with the grounds on which speech may be ‘reasonably restricted’ under Article 19(2) of the Indian Constitution. Respectfully, the plausibility of this reasoning is contestable:
Equivalence with the 2009 Blocking Rules: Section 69A of the IT Act and the 2009 Blocking Rules were previously challenged in Shreya Singhal, where both were upheld by the Supreme Court (“SC”). However, establishing an equivalence between Rule 16 of the 2021 IT Rules and Rule 9 of the 2009 Blocking Rules to understand the constitutionality of the former would have been useful only if Shreya Singhal contained a meaningful analysis of Rule 9. However, the SC did not examine this rule but rather broadly upheld the constitutionality of the 2009 Blocking Rules as a whole due to the presence of certain safeguards including: (a) the non-emergency process for content blocking under the 2009 Blocking Rules includes a pre-decisional hearing to identified intermediaries/originators before content was blocked; and (b) the 2009 Blocking Rules mandate the recording of reasons in blocking orders so that they may be challenged under Article 226 of the Constitution
However, the SC did not consider that the emergency blocking framework under Rule 9 of the 2009 Blocking Rules not only allows MeitY to bypass the essential safeguard of a pre-decisional hearing to impacted stakeholders but also fails to provide them with either a written order or a post-decisional hearing. It also did not address that Rule 16 of the 2009 Blocking Rules, which mandates confidentiality of blocking requests and subsequent actions, empowers MeitY to refuse disclosure of blocking orders to impacted stakeholders thus depriving them of the opportunity to challenge such orders.
Thus, the Bombay High Court’s attempt in the Leaflet case to claim equivalence with Rule 9 of the 2009 Blocking Rules as a basis to defend the constitutionality of Rule 16 of the 2021 IT Rules was inapposite since Rule 9 itself was not substantively reviewed in Shreya Singhal, and its operation has since been challenged on constitutional grounds.
Procedural safeguards: Merely because Rule 16 of the 2021 IT Rules permits content blocking only under the circumstances enumerated under Article 19(2), does not automatically render it procedurally reasonable. In People’s Union of Civil Liberties (“PUCL”) the SC examined the procedural propriety of Section 5(2) of the Telegraph Act, 1885, which permits phone-tapping. Even though this provision restricts fundamental rights only on constitutionally permissible grounds, the SC found that substantive law had to be backed by adequate procedural safeguards to rule out arbitrariness. Although the SC declined to strike down Section 5(2) in PUCL, it framed interim guidelines to govern the provision’s exercise to compensate for the lack of adequate safeguards.
Since Rule 16 restricts the freedom of speech, its proportionality should be tested as part of any meaningful constitutionality analysis. To be proportionate, restrictions on fundamental rights must satisfy four prongs[1]: (a) legality – the requirement of a law having a legitimate aim; (b) suitability – a rational nexus between the means adopted to restrict rights and the end of achieving this aim, (c) necessity – proposed restrictions must be the ‘least restrictive measures’ for achieving the aim; and (d) balancing – balance between the extent to which rights are restricted and the need to achieve the aim. Justice Kaul’s opinion in Puttaswamy (9JB)also highlights the need for procedural safeguards against the abuse of measures interfering with fundamental rights (para 70 Kaul J).
Arguably, by demonstrating the connection between Rule 16 and Article 19(2), the Bombay High Court has proven that Rule 16 potentially satisfies the ‘legality’ prong. However, even at an interim stage, before finally ascertaining Rule 16’s constitutionality by testing it against the other proportionality parameters identified above, the Bombay High Court should have considered whether the absence of procedural safeguards under this rule merited staying its operation.
For these reasons, the Bombay High Court could have ruled differently in deciding whether to stay the operation of Rule 16 in the Leaflet case. While these are important considerations at the interim stage, ultimately the larger question of constitutionality must be addressed. The second post in this series will critically examines the legality and constitutionality of Rule 16.
[1]Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors., (2016) 7 SCC 353; Justice K.S. Puttaswamy & Ors. v. Union of India (UOI) & Ors., (2019) 1 SCC 1; Anuradha Bhasin and Ors. v. Union of India (UOI) & Ors., (2020) 3 SCC 637.
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.
About the Author: The author is a 2021 graduate of National Law University, Delhi. She is currently working as a Research Associate with the Digital Media Content Regulatory Council.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Tejaswita Kharel, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you agree with the Supreme Court’s pronouncement in Anuradha Bhasin that access to the internet is an enabler of other rights, but not a fundamental right in and of itself? Why/why not? Assuming for the sake of argument, that access to the internet is a fundamental right (as held by the Kerala High Court in Faheema Shirin), would the test of reasonableness of restrictions be applied differently, i.e. would this reasoning lead to a different outcome on the constitutionality (or legality) of internet shutdowns?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
INTRODUCTION
Although it did little to hold the government accountable for its actions in Kashmir, it would be incorrect to say that the judgment of Anuradha Bhasin v. The Union of India is a complete failure. This reflection paper evaluates the lessons learnt from Anuradha Bhasin and argues in favour of access to the internet as a fundamental right, especially in light of the COVID-19 pandemic.
EXAMINING INDIA’S LEGAL POSITION ON RIGHT TO INTERNET
Perhaps the greatest achievement of the Anuradha Bhasin judgement is the fact that the Government is no longer allowed to pass confidential orders to shut down the internet for a region. Moreover, the reasons behind internet shutdown orders must not only be available for public scrutiny but also be reviewed by a Committee. The Committee will need to scrutinise the reasons for the shutdown and must benchmark it against the proportionality test. This includes evaluating the pursuit of a legitimate aim, exploration of suitable alternatives, and adoption of the least restrictive measure while also making the order available for judicial review. The nature of the restriction, its territorial and temporal scope will be relevant factors to determine whether it is proportionate to the aim sought to be achieved. The court also expanded fundamental rights to extend to the virtual space with the same protections. In this regard, the Court made certain important pronouncements on the right to freedom of speech and expression. These elements will not be discussed here as they fall outside the scope of this paper.
A few months prior in 2019, the Kerala High Court recognised access to the internet as a fundamental right. Its judgement in Faheema Sharin v. State of Kerala, the High Court addressed a host of possible issues that arise with a life online. Specifically, the High Court recognised how the internet extends individual liberty by giving people a choice to access the content of their choice, free from control of the government. The High Court relied on a United Nations General Assembly Resolution to note that the internet “… facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education…” – a fact that has only strengthened in value during the pandemic. The Kerala High Court held that since the Right to Education is an integral part of the right to life and liberty enshrined under Article 21 of the Constitution, access to the internet becomes an inalienable right in and of itself. The High Court also recognised the value of the internet to the freedom of speech and expression to say that the access to the internet is protected under Art. 19(1)(a) of the Constitution and can be restricted on grounds consistent with Art. 19(2).
ARGUING IN FAVOUR OF RIGHT TO INTERNET
In the pandemic, a major reason why some of us have any semblance of freedom and normalcy in our lives is because of the internet. At a time when many aspects of our day to day lives have moved online, including education, healthcare, shopping for essential services, etc. – the fundamental importance of the internet should not even be up for debate. The Government also uses the internet to disseminate essential information. In 2020 it used a contact tracing app (Aarogya Setu) which relied on the internet for its functioning. There also exists a WhatsApp chatbot to give accurate information about the pandemic. The E-Vidya Programme was launched by the Government to allow schools to become digital. In times like this, the internet is not one of the means to access constitutionally guaranteed services, it is the only way (Emphasis Added).
In this context, the right of access to the internet should be read as part of the Right to Life and Liberty under Art. 21. Therefore, internet access should be subject to restrictions only based on procedures established by law. To better understand what shape such restrictions could take, lawmakers and practitioners can seek guidance from another recent addition to the list of rights promised under Art. 21- the right to privacy. The proportionality test was laid down in the Puttaswamy I judgment and reiterated in Puttaswamy II (“Aadhaar Judgement”). In the Aadhar Judgement when describing the proportionality for reasonable restrictions, the Supreme Court stated –
“…a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).” –
This excerpt from Puttaswamy II provides as a defined view on the proportionality test upheld by the court in Anuradha Bhasin. This means that before passing an order to shut down the internet the appropriate authority must assess whether the order aims to meet a goal which is of sufficient importance to override a constitutionally protected right. More specifically, does the goal fall under the category of reasonable restrictions as provided for in the Constitution. Next, there must be a rational connection between this goal and the means of achieving it. The appropriate authority must ensure that an alternative method cannot achieve this goal with just as much effectiveness. The authority must ensure that the method being employed is the least restrictive. Lastly, the internet shutdown must not have a disproportionate impact on the right holder i.e. the citizen, whose right to freedom of expression or right to health is being affected by the shutdown. These reasons must be put down in writing and be subject to judicial review.
Based on the judgment in Faheema Sharin, an argument can be made how the pandemic has further highlighted the importance of access to the internet, not created it. The reliance of the Government on becoming digital with e-governance and digital payment platforms shows an intention to herald the country in a world that has more online presence than ever before.
CONCLUSION
People who are without access to the internet right now* – people in Kashmir, who have access to only 2G internet on mobile phones, or those who do not have the socio-economic and educational means to access the internet – are suffering. Not only are they being denied access to education, the lack of access to updated information about a disease about which we are still learning could prove fatal. Given the importance of the internet at this time of crisis, and for the approaching future, where people would want to avoid being in crowded classrooms, marketplaces, or hospitals- access to the internet should be regarded as a fundamental right.
This is not to say that the Court’s recognition of this right can herald India into a new world. The recognition of the right to access the internet will only be a welcome first step towards bringing the country into the digital era. The right to access the internet should also be made a socio-economic right. Which, if implemented robustly, will have far reaching consequences such as ease of social mobility, increased innovation, and fostering of greater creativity.
*Views expressed in the blog are personal and should not be attributed to the institution.
About the Author: The author is a 2020 graduate of National Law University, Delhi. He is a Delhi-based advocate practicing at the Supreme Court of India.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Bharti Singh, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you think the ongoing COVID-19 Pandemic could have been better managed (more efficiently or more democratically) if the government had invoked emergency provisions under the constitution instead of relying on the national disaster management act? Why or why not?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
INTRODUCTION
After the onset of the Covid-19 pandemic, India’sMinistry of Home Affairs (“MHA”) vide Order No. 1-29/2020-pp dated 24th March 2020, under section 6(2)(i) of the Disaster Management Act (“DM Act”), 2005, announced a nationwide lockdown and restrictions among other things. The order included an imposition of restrictions on movement and other liberties of Indian citizens. Wide ranging restrictions articulated in that order and subsequent orders under the DM Act directly impacted, among other things, individuals’ right to movement [Art. 19(1)(d)] and their right to livelihood (Art. 21). Though well-intentioned, these measures left much to be desired in terms of government support. Several significant administrative issues and concerns were raised. In this article, I argue that the Indian Government could have managed the pandemic better if it had invoked emergency provisions under Part XVIII of the Constitution instead of relying primarily on the DM Act, 2005 .
LIMITATION OF THE DISASTER MANAGEMENT ACT IN COUNTERING COVID-19
To be fair, the government’s interventions have relied on the trinity of the DM Act; the Epidemic Diseases Act, 1897; and relevant state-level Public Safety Act(s). However, such interventions have resulted in some pretty significant concerns. Specifically, administrative officials, located far away in the national capital i.e. New Delhi, are invoking powers and issuing decrees under these statutes. They are granted the power to control and restrict the movement of a billion lives in the country. In essence we are observing that the decision(s) of officials who are far removed from ground-level realities are impacting the lives of individuals residing in remote cities, towns and/or villages.
I argue that since health is a state subjectState governments should have been ordinarily tasked with both the primary responsibility as well as power to decide how to best deal with the pandemic. However, given the extraordinary scale of the pandemic, a different route was chosen wherein the Union Government could exert tight control and issue numerous advisories and directives over an extended period. This was consistent with the idea that a streamlined uniform approach towards tackling the pandemic would work best across all states. As was observed later, States struggled to manage the crisis due to institutional and budgetary constraints. It was quite transparent how dependent States are on the Union Government for financial aid as well as technical expertise. As stated earlier, ground level realities are most closely dealt with by the district bureaucracy, and therefore involving them in the crisis management planning apart from implementation measures would have been beneficial. Emergency provisions under India’s Constitution could have served as an effective alternative which allowed the country to manage the crisis in a different and perhaps, more effective manner.
In the initial period of the pandemic, parliamentary operations suffered major disruptions. A direct result of these disruptions was a lack of meaningful legislative discussion and accountability. Our constitution envisages a system of checks & balances between the powers of the legislature, executive and judiciary. Disruptions to the operation of Parliament signalled that, over a period of several months, direct executive action could face little oversight or accountability from the legislative branches of government at both the Central and State levels.
In such a situation, it is reasonable to turn to the judiciary for ensuring adequate accountability of executive actions. Unfortunately, the judiciary has failed on most occasions with its lax attitude towards the apathy of the officials. While the courts have occasionally rebuked the governments on specific points such as its handling of the migrants’ crisis, there has been no concerted effort by the Indian judiciary in holding the executive or its officials accountable for its management of the crisis. This is in addition to the fact that an extended period of the lockdown ensured that only those few fortunate enough to have constant access to high-speed internet could approach the judiciary for remedies/to submit its petitions as well.
The DM Act, strictly speaking, was not enacted to issue directives on public health emergencies or pandemics. In fact, the Epidemic Diseases Act, 1897 has been enacted with the intent of controlling infectious disease outbreaks like Covid-19 . Though creative and inclusive interpretation would allow for a pandemic to be covered under the scope of the DM Act, the structure and mechanism within the statute has been rendered useless or ineffective to deal with a crisis of such magnitude. These circulars and the regulations that they invoke continue to remain disproportionate and outside the scope or stipulated purpose of the particular statute.
However, the DM Act has brought with itself immense powers that are enshrined with the government. Any regulation or decision may be taken by the government that is deemed fit and necessary in its own opinion, to aid in the efforts of reducing risks of a disaster (or a pandemic in this case). Additionally, Section 8(1) of the DM Act empowers the Central Government to constitute a National Executive Committee (‘NEC’), comprising senior bureaucrats and leaders [S. 8 (2)].
The NEC is empowered to issue directions so as to fulfill obligations and objectives under the Act. State governments and district bureaucracy are bound by circulars or regulations which are issued by the NEC. In fact, the NEC can empower another authority or other authorities to issue guidelines that would bind State Governments as well. Such an overarching framework under Article 256 of the Constitution has essentially been put in place to ensure that where the Union Government finds itself in certain extraordinary situations, it has the necessary tools to adopt measures across all States in a uniform manner. In this case, the Union Government empowered the Union Home Ministry to issue all necessary guidelines for State authorities.
EMERGENCY PROVISIONS AS BETTER AVENUES AGAINST HEALTH EMERGENCIES
In contrast, Articles 355 and 356 read alongside Articles 246 and 256 would grant wide powers to the Government of India to impose emergency and invoke these provisions to grant itself all the necessary powers to deal with the crisis. Interestingly, emergency provisions still do stipulate a time limit period whereas the DM act does not. The DM Act grants an unlimited time period to the government machinery to apply these regulations and deems it applicable to all places deemed worthy of its application.
After the bitter experience of the emergency period of 1975-1977, drastic changes were made in order to make the extension of an emergency period contingent on legislative accountability as well. However, with the DM Act, regulations do not require any legislative sanction or even a discussion to that effect either. Therefore, the broad powers enshrined under the DM Act appear to contradict Constitutional ideals, though there has been little critique of the same in the public discourse.
This silence is perhaps owed to the fact that almost every citizen wishes to see the Government mount an aggressive and effective response to such a pandemic, without creating significant hurdles in their path to do so. However, in doing so, these wide-ranging regulations have also brought forth a huge chilling effect and have the potential to incentivise abuse of power by officials in such situations as well.
CONCLUSION
With the large-scale powers that the DM Act accords to officials, India’s treatment of the pandemic essentially resembles an emergency situation. Extraordinary powers are held by the State machinery with little or no safeguards/mechanisms in place that ensure periodic review and/or legislative accountability. Therefore, the current framework serves as a de factoemergency framework.
This is a departure from most mature democracies. Countries have taken the aid of new legislations aimed at the public health emergency, with numerous parliamentary democracies ensuring that regulatory interventions continue to have some kind of legislative scrutiny. The UK legislated close to a hundred laws (collectively referred to as the ‘lockdown laws’ in the UK) to deal with the pandemic, whereas New Zealand pushed for a single comprehensive law instead.
Instead of acting without any restrictions under a statute that was not originally meant for handling a pandemic that has stretched over many years, the Indian Government could have followed this example and relied upon the extant emergency powers within the constitutional framework or legislated a new public health law which could empower officials with the safeguards necessary in a democratic setup instead.
*Views expressed in the blog are personal and should not be attributed to the institution.
About the Author: The author is a 2020 graduate of National Law University, Delhi. In 2021 she completed her LL.M. from National Law School of India University, Bengaluru. She is currently working as a researcher in areas related to health policy.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Kumar Ritwik, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you think the ongoing COVID-19 Pandemic could have been better managed (more efficiently or more democratically) if the government had invoked emergency provisions under the constitution instead of relying on the national disaster management act? Why or why not?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
Introduction
Since the introduction of the Constitution of India, the COVID-19 pandemic represents an unprecedented event. It has created extraordinary infrastructural challenges to both governing authorities and legal institutions. In the initial phases of this pandemic the Government of India faced the difficult task of not only adopting containment measures which minimise the effects and casualties of the virus; but also ensure the delivery of essential services to its citizens. It has had to execute these tasks whilst preserving citizens’ liberties and the basic values of the Constitution. Given the death toll along with, economic, financial, political, educational and broader health related costs exacted by the pandemic it is critical for the government to deploy best-in-class infrastructural solutions which remain consistent with India’s constitutional values.
In this article, I argue that after evaluating the competing options, the Government of India’s decision to rely on the Disaster Management Act (“DM Act”), 2005 rather than invoking the Constitution of India’s emergency provisions was the appropriate course of action. The DM Act defines the term ‘disaster’ as a situation of “… catastrophe, mishap, calamity or grave occurrence which has arisen because of man- made or natural causes and has resulted in “substantial loss of life or human suffering”. Further, it has to be “… of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”. The gravity of human suffering caused by the COVID-19 pandemic, both in terms of aggregate infections and deaths, becomes more and more evident with the passage of time.
Limitations of Constitutional Emergency Provisions
An emergency can be proclaimed pursuant to Article 352(1) of the Indian Constitution. According to it, if the President is satisfied that the grave emergency exists to the security of India or any part thereof is threatened by “war/ external aggression or armed rebellion”. The term “armed rebellion” replaced the former term “internal disturbance” after the emergency proclamation in 1975. When an emergency is proclaimed, Article 353, permits (1) the Central government to direct any state on how to use its executive power (2) permits parliament to make laws even in matters which are in the state list. Article 358 suspends the six fundamental rights protected under Article 19 during Constitutional emergencies. Article 359 suspends enforcement of fundamental rights during emergencies.
In the context of COVID-19, any decision by the Government to declare a national emergency under Article 352 of the Constitution, would be unconstitutional in light of the 44th Constitutional Amendment in 1978. The 44th Amendment holds that such emergencies can only be declared if the security of India or any part thereof is threatened by war or external aggression or armed rebellion (Emphasis Added). These are the only three grounds under which an emergency can be declared under Article 352.
The Constitution of India does not have any explicit provisions for disaster management. In absence of any such provision, disaster management was conventionally considered to be within the competence of the states as per colonial practice. The legal basis of the Disaster Management Act can be traced in Entry 23, Concurrent List of the Constitution which relates to “Social security and social insurance” as well as Entry 29, Concurrent List which relates to “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants,”. Owing to the federal structure of India’s Democracy, public health and public order are listed in the State List under the Seventh Schedule of the Constitution. Critically, while operationalising and implementing Government interventions to contain the spread of COVID-19, the Government’s use of provisions under the DM Act must be mindful of the unprecedented and unique factors of this disaster where the primary causality is human life and not degradation of environment or loss of property.
The framework of the DM Act is consistent with the federal structure of India’s democracy. Conversely, the proclamation of Emergency under the Constitution centralises powers within the Union Government. When in effect, the Union Government can direct state governments and make laws on the entries present under the State list in the Constitution of India. Under Article 357 of the Indian Constitution, the power of state can be vested in the legislature, which can delegate it to the President and the President can further delegate it to an appropriate authority. In his way the powers vested in the Central Government under the provisions of emergency are very flexible. However, this compromises the quasi federal structure of India’s constitutional democracy.
In India’s Constituent Assembly Debates, the Emergency provisions were being conceived as an exception to otherwise federal structure of the Government., Originally this power to declare emergency/President’s Rule in a particular State was envisioned to be vested with the Governors of the State. At the time, the position of Governor was supposed to be an elected office. Ultimately this was not the case as the office came to be appointed by the President. In effect this means that the power to declare an emergency under the Constitution is essentially vested in the President. Under Constitutional emergency conditions as per Article 256, even the legislative powers can be vested in the president and need not be vested in Parliament. The President can make incidental and consequential provisions necessary to give effect to proclamation.
Conclusion: The Merits of the Disaster Management Act
India is a diverse country, not just in terms of culture and heritage but also in terms of geography. The States, with international airports and tourism specific industries, are more prone to the spread of the virus and the number of cases varies across states. In the context of COVID-19, State-specific measures become important since local authorities may have to simultaneously manage other natural and man-made disasters. Recent examples of this include the cyclone Amphan in Kolkata, or the gas leakage from the chemical plants in Visakhapatnam. States which are prone to natural calamities such as cyclones, floods, famines could be afforded the flexibility to create State and district plans under DM Act, to tackle such calamities as well as the spread of the COVID-19 in more vulnerable locations. Further, policymakers should not ignore the heterogeneity of infrastructure across the health industry as well as the strength of the economy– the dependency of which also varies from state to state.
The demand for Personal Protective Equipment (PPEs) for essential workers or essential infrastructure like ventilators also varies across states based on variables such as the number of cases. These factors dictate the need for state-specific measures and targeted district-specific measures as well. The intensity of the spread of the virus is being determined district wise by distinguishing them as red, orange and green zones, and the laying out of district plan per Section 31 becomes of utmost importance for the Red Zone districts.
The Centre should limit its role to coordination between states and the other departments of the government, rather than dictating consistency across the states. Instead, states should be empowered in terms of implementation, enforcement and the funds. The cooperative federalism envisaged in India’s Constitution will be a better model for the government to follow. This principle could have been utilised at the time of crisis of inter-state migration of workers and could further have been utilised for facilitating transportation of essential goods, in order to minimise economic harms and societal destabilisation during periods of government mandated lockdowns.
I conclude by reiterating that it is better for the Government to manage the pandemic under the Disaster Management Act, 2005. However, in case a State Government is going through the breakdown of its constitutional or infrastructural machinery and in which case it is unable or unwilling to exercise its responsibility to provide relief to affected persons, then the Central Government should impose the Constitutional Emergency provisions in such territories.
*Views expressed in the blog are personal and should not be attributed to the institution.
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