SC Constitution Bench on Aadhaar- Final Hearing (Day XXX)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Rakesh Dwivedi resumed his arguments for the Respondents. He began with the issue of  Section 7 and exclusion. The counsel responded to the argument about probabilistic systems by submitting that there are alternatives that are allowed by the Act. In the event of an authentication failure, the first alternative is to produce a proof of possession of Aadhaar. The second alternative is to provide enrollment ID, for people who haven’t yet received the Aadhaar. He submitted that the UIDAI had issued directions to this effect. A refusal to comply would be a breach under the Aadhaar Act.

Justice Chandrachud asked if the Section 7 proviso would apply to someone who had not applied for Aadhaar. The counsel replied in the negative. The counsel continued, describing the Regulation. He submitted that for State and Central agencies that require Aadhaar for benefits, they are required to ensure enrollment, including the setting up of coordination centres. Further, in the context of PDS, he argued that Clause 5 of the relevant notification allowed any member of a household to claim the benefit. He concluded that there could be no question of denial, as a result of these measures.

Justice Chandrachud asked if the systems had been tested in remote areas, with limited connectivity, such as Ladakh. Section 7 is silent on alternatives in such cases. The counsel responded that certain exemptions had been notified in the regulations.

The counsel reiterated that the system should not be demolished, but improved so that it could work. He then submitted that even today, we live in a relational world. One cannot pick and choose how one relates to the world; or how one establishes identity. All institutions require some kind of identity, and have some conditions about it.  He argued that this wasn’t a question of dignity, because these are regulatory conditions. He stated that these are permissible, and the only standard is if a fundamental right is being violated.

The Bench noted that the counsel was trivializing the Petitoners’ argument. They noted that the central concern was that of centralization of the database and its misuse.  Justice Chandrachud further argued that the issue was why only one identity had been mandated, and why multiple identities could not be allowed.

The counsel responded that one must go by the rules of the institution they want to participate in. He provided the example of the Proximity Card of the Supreme Court. Justice Chandrachud asked if the form of identity should relate to the purpose of identification. The counsel agreed, stating that there should be a rational nexus. However, he argued that allowing different forms of identity to be submitted would lead to a slippery slope which would destroy the whole purpose of the system.

Justice Bhushan added that many of the other forms of identification don’t have pan-India operation. The counsel agreed, noting that they were also sectoral, without any portability. In comparison, he argued, Aadhaar is universal. Aadhaar is also unique on account of the use of biometrics. If you abandon biometrics, the unique nature is lost. He submitted that even Smart Cards use biometrics.

Justice Chandrachud reiterated the concern about aggregation and analysis of data. The counsel responded that all protections that were socially and legally possible were in place.

He continued, stating that the argument about biometrics providing knowledge about the person was incorrect. He argued that while DNA might contain such information, fingerprints don’t. Further, only one fingerprint would be present with the Requesting Entities. Justice Chandrachud clarified that the issue was not of the biometrics themselves, but their attachment and linking to everything else, which could become a source of information about the individual. The counsel responded that no single Requesting Entity would have access to all of that information. It would be delegated and segregated. Further, any collusion or aggregation would not possible. Any misuse would require corruption at an inconceivable scale. In addition, most of the authentication would be required very rarely – once a year, or once in a lifetime. For PDS, it would be once a month.

At this point Shyam Divan interjected, that Banks had been demanding Aadhaar every time a Fixed Deposit is opened. The counsel responded that for most people, that is also a rare occurrence. Further, that was an issue on the Bank’s side, and not mandated by the Act. He argued that that can be examined separately. If the law were to be changed, to mandate authentication for every transaction, that could be questioned and challenged.

The counsel then moved on to the issue of clashes between fundamental rights. He brought the bench’s attention to the Preamble to the Constitution. He argued that the Preamble states that certain values are to be ‘secured’ by the state, and certain are to be ‘promoted.’ He argued that this imposes an obligation on the state to provide the basic minimum (for instance, minimum wages) to people. He argued that there was therefore a hierarchy, and the right to life should triumph over the right to privacy. He argued that for the people to without the bare minimum, the Constitution would amount to a mere paper Constitution.

Justice Chandrachud noted that dignity was not a peripheral value in the Constitution, but the core foundation of all rights. The Constitution protects dignity in all its forms, and food security and privacy were both aspects of dignity. The counsel responded that when they were in conflict, the first must have primacy over the second. He noted the NALSA judgment, which according to him brought about a paradigm shift in our conception of dignity.

Justice Bhushan questioned if they had to be read in conflict, and could not be recognized together. The counsel responded that they were arguing for a balanced approach, and in this case, in the favour of the right to life.

Justice Chandrachud asked if this would require a proportionality test. He stated that the question was whether the incursion on privacy is so less, to justify the benefits that have been claimed. The counsel responded that in the case of a restriction on a right, the burden lies on the state. However, this was a case of an interplay between rights. Justice Chandrachud countered that the burden was still with the state. The counsel responded that they were only submitting that the parameters for scrutiny would be different. Further, that Article 21 supersedes the rights under Article 19 and 14. Life would come first, and the other rights wouldn’t mean anything without it.

The counsel then resumed arguing for the relevance of biometrics, noting that large parts of the population were illiterate. Their thumbprints were all they had had to use in the conduct of their lives.

The Chief Justice noted that the real problems were of surveillance, aggregation, privacy and exclusion, which have to be addressed. The counsel said that the subsidies were in furtherance of life, liberty and dignity.

Justice Chandrachud asked for a clarification, whether the respondents were arguing for the tests under Puttuswamy to be abandoned. The counsel responded in the negative, and that Section 7 was not examined in Puttuswamy.

He then went on to quote from the Universal Declaration of Human Rights, and excerpts from Kesavanda Bharathi, the NALSA judgment, and German human rights jurisprudence.

The hearing will continue on April 19, 2018.

 

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SC Constitution Bench on Aadhaar- Final Hearing (Day XXIX)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Rakesh Dwivedi resumed his arguments for the Respondents. He began with stating that if there were problems with the system, they should be fixed, rather than the system being demolished completely. He argued that under Section 8 of the Act, the sharing and use of information was confined specifically to the authentication process. He further argued that the mandate of Section 29 states that core biometrics cannot be shared.

Justice Chandrachud asked how the UIDAI planned to control the Requesting Entities. The Counsel responded that control could be in terms of technical specifications of the devices, mandating approved software, mandating information systems audits etc.

In response to Justice Chandrachud’s query about the framing of Sections 8 and 29, the Counsel reiterated that the sharing of information would be limited to the process of authentication. Further, only non biometric information could be shared under Section 29.

Next, there was some disagreement between the counsel and Justice Chandrachud on the interpretation of Section 8. The Counsel stated that the Requesting Entity would not know the purpose for the authentication, but only that authentication had been done. Justice Chandrachud stated that that could be true for UIDAI, but it was uncertain if that would be true for Requesting Entities. According to him, the language of the Act didn’t conform to this design. Justice Sikri added that that would also render Section 8(3) redundant. The Counsel responded that the Bench could chose to read the Act in that way.

Justice Chandrachud then gave an example of an individual who goes to the hospital for certain services. The hospital sought authentication for him, 122 days out in 6 months. He noted that that would be potentially extremely valuable information for pharmaceutical companies, insurance providers etc. Until there was a data protection law, this could be a problem.

The counsel responded that no other jurisdiction has the sort of protections that the Aadhaar Act provides. Justice Chandrachud asked if the protection under the Act was all the data protection the citizens of India would ever need. He also gave the example of the European Union’s General Data Protection Regulation as an example of a comprehensive framework for data protection. The Counsel replied that the Aadhaar Act was sufficient, and in many ways superior. According to him, the GDPR has no penal provisions, and the States have to enact their own, which creates a patchwork. The Counsel argued that the Aadhaar framework has technological security, auditing, as well as penal provisions in place. He went on to say that there could never be 100% surety about anything. The standard to be sought was that of reasonable safeguards, and reasonable protection. He noted that none of the Petitioners had pointed out what more could be done.

Justice Chandrachud then noted that according to the Counsel’s reading, Sections 8(3) and 29(3) could be excised from the Act. The Counsel responded that nothing needed to be excised from the Act, only clarified. Further, there was no intent, purpose, or objective in the Act to allow aggregation of data, its analysis or transfer. In addition, any breach of the provisions would be punitive.

Justice Chandrachud observed that it is hard to predict commercial ingenuity, and it wouldn’t be possible to tell what use the Requesting Entities could make of the data with them. Justice Sikri interjected with the earlier hospital example, noting that the hospital would already have the data about medical treatments of the patients, and may not need Aadhaar to get that information. The main apprehension was one of misuse. The counsel agreed, questioning whether Aadhaar was adding to the problem, or making it worse in any way.

Justice Chandrachud noted that they must evaluate what safeguards can be introduced. He noted that data about individuals was now being used to influence electoral outcomes.

The counsel responded that Cambridge Analytica should not be brought into the discussion, because the nature of the data was different. Justice Chandrachud interjected, stating that that incident was symptomatic of the present times. The counsel responded arguing that the algorithms employed were different. There is a difference between matching algorithms (which Aadhaar uses) and sorting algorithms (which these companies use). He argued that there were many different types of algorithms, and the Petitioner’s had confused this distinction.  He concluded that the data could not be analyzed by the Respondents. If at all, they would have to go through proper procedure.

The counsel continued, stating that Smart Cards were entrenched technology and that the Smart Card lobby in the West didn’t want Aadhaar to succeed. He claimed that other countries like Singapore were looking to replicate our model.

Justice Chandrachud noted that the issue was that there is a big world that interacts with Aadhaar. He said that the UIDAI might only be the least of their problems, since it is a government entity subject to a lot of scrutiny. The Counsel reiterated that only matching algorithms are used.

Coming back to the Act, the counsel submitted that Requesting Entities cannot be enrolled unless they establish the need for authentication.  Justice Chandrachud asked what the purpose behind opening Aadhaar to private players was. In response, the Counsel argued that the nature of the public-private divide was changing. Private companies have been entering fields that were historically the domain of the public sector. The companies are funded by money from Banks, where the people have made deposits. So, it was actually the public that is funding these players. He argued that private players that perform public functions should also be subject to constitutional norms, review and scrutiny. Currently, public companies are subject to many restrictions, such as standards of reasonableness, while no similar shackles apply to private companies. He concluded stating that that was a larger debate for another time. For now, all that was necessary to know is that private players are also regulated by the Act.

The counsel then moved on to responding to the Petitioner’s argument that the Aadhaar framework amounted to the numbering of human beings. Counsel argued that we have been numbering humans for a long time. He cited the PNR number for flights as an example. He also noted that the Supreme Court proximity cards were numbered.

Justice Chandrachud responded that Aadhaar was a unified identity, as opposed to multiple identifying numbers. The counsel responded that just because they were assigning numbers for a specific purpose, didn’t mean that they were numbering people. Further, they were not collecting information such as race, caste etc.

Justice Chandrachud then asked how the Aadhaar became a mandate, from a mere entitlement. The Counsel responded that the Aadhaar was an entitlement, and the UIDAI was mandate neutral. It is the government that notifies that certain linkages are mandatory. Each of these could be examined or challenged separately.

The counsel resumed his arguments after lunch by examining the scope of Section 57.  He argued that the objective of the section was not to expand, but to limit power. He submitted that if this limitation did not exist, anyone could become a Requesting Entity. The provision requires that there must be a law, or a prior contract.

Justice Chandrachud asked if once there was a prior contract under Section 57, if the UIDAI would be bound to offer authentication.  The Counsel responded that UIDAI could still refuse, and there was a requirement of necessity. Further, this embargo was applicable to anyone, which is why State Resident Data Hubs are no longer possible.

The Bench noted that nothing in the Act seems to give UIDAI this type of discretion, and questioned whether there were any guidelines for how the UIDAI would come to its decisions. The counsel responded that the power came from Section 57. He gave the example of the CBSE, noting that there had been many cases of fraud. The Board could apply to be a Requesting Entity for the purpose of conducting the exam. However, this would require the presence of a prior contract, and it cannot be an ex post facto exercise. He argued that this contract must also state that authentication must be in accordance with Sec. 8 and Part VI of the Aadhaar Act.

The counsel then went on to examine the Information Technology Act, arguing that all the provisions and safeguards under that Act and its Rules would also be applicable. For instance, the CIDR had been notified as a protected system under the Act.

The counsel then discussed the attributes and benefits of biometric data. He argued that Aadhaar brings service providers face to face with the beneficiaries. He noted that Aadhaar would not be a panacea for all problems, but the issue of fake identity documents would be solved.

He then responded to other arguments raised by the Petitioners. In response to the argument that there was no legal mandate to store information in the CIDR, he brought the Bench’s attention to Section 10 of the Act. On the argument of the use of foreign suppliers and licensors, the Counsel responded that the hardware all belonged to the UIDAI, and even technicians only had access when there was some troubleshooting required. In response to the system being probabilistic, he argued that there were appropriate fall back mechanisms under Section 7.

The hearing will continue on April 18, 2018.

 

Towards a Data Protection Framework (CCG Privacy Law Series)

Smitha and I are writing a series of papers on a data protection law for India, based on our research. We hope that our discussion of the options before us and their relative merits and demerits will help other engage with these difficult questions in a nuanced manner.

The first paper sets out the context for the data protection law. It discusses the
reasons and purpose for regulation and what specifically will be regulated.
It also discusses who will be regulated, since this is important while
considering the regulatory strategies to use while implementing the data
protection principles. It is available here.

SC Constitution Bench on Aadhaar – Final Hearing (Day XVI) (Part II)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here. The arguments advanced on Day 16 have been divided into two posts, the first post can be found here.

Mr. Chidambaram continued with his arguments. He went on to discuss the concept of money bills in other jurisdictions, stating that it was meant for tax and debt related purposes.

He stated that the objective of the Act had to be within the confines of Article 110(3).

He proceeded to read out excerpts related to the consolidated fund and other related excerpts from the submissions.

Further, he stated that the law imposing GST was introduced by a money bill, which was appropriate since it was a tax bill.

Mr. Chidambaram stated that not all instances of appropriation of money would validate the use of a money bill.

He then went through provisions of the Aadhaar Act, namely, Section 7, 8(4), 23(2)(h) and 54(2)(m).

He moved on to discussing the ‘most questionable section’ of the Aadhaar Act – Section 57.

Mr. Chidambaram reiterated that if a money bill could only be passed on issues related to Article 110 (3) (a) – (f), and that anything that fell outside the purview of those provisions would be a financial bill.

He then questioned whether any provision of the Aadhaar Act fell squarely within provisions (a) – (g), stating that Section 57 certainly did not and that Sections 23(2)(h) and 54(2)(m) also do not fall within the scope of these provisions.

He further stated that even if the assumption was in favour of the government, assuming that ‘subsidies, benefits and services’ was the objective of the bill, Section 57 would introduce ambiguity and exclude the bill from the purview of a money bill. He stated that currently, the bill was beyond the scope of (a)-(g).

Justice Chandrachud raised a question about the validity of the Act, questioning if the Act could be saved if only a certain portion was introduced as a money bill, and certain portions were not. He stated that perhaps there were some portions which were related to Article 110(3) and could be saved.

Mr. Chidambaram responded, stating that this was out of question as the bill was not severable.

He went on to read out relevant portions of the Australian Constitution, specifically Articles 53, 54 and 55. He specified that if a money bill imposes a tax, it should only deal with such taxation to qualify as a money bill.

Justice Chandrachud further questioned whether the doctrine of severability would apply to the statute.

Mr. Chidambaram stated that by introducing these provisions the right of the Rajya Sabha to review had been taken away.

He stated that even assuming that ‘subsidies, benefits and services’ would come under the purview of Article 110, the afore-mentioned 3 provisions would render it outside the scope of a money bill.

Justice Chandrachud concluded that if the 3 afore-mentioned provisions were not included, the Rajya Sabha could have made amendments.

Mr. Chidambaram further stated that if this bill could slip through as a money bill, anything could pass through as a money bill. He stated that a money bill was a narrow subset of the financial bill and would have far reaching consequences if implemented incorrectly.

Mr. Chidambaram concluded his arguments and Mr. K.V. Viswanathan commenced his arguments.

Mr. Viswanathan laid out his submissions. His first submission related to the validity of Aadhaar, he stated that it construed an invasion of Article 14, 21 and the fundamental right to privacy.

Next, he stated that the three subheads relating to the ‘collection, storage and use’ of data invalidated privacy as well.

Further, he stated that Section 59 of the Aadhaar Act fell short of being a validation clause and questioned its validity.

He also addressed the ‘exclusionary aspect’ of Section 7.

He also stated that the Act lacked a purpose limitation, stating that it did not set out a purpose for data collection. He further stated that the promise that an Act will be reasonably administered would not be enough to pass muster.

Lastly, Mr. Datar revisited the issue on Aadhaar numbers being required for issuing passports, stating that this was in contravention of the Supreme Court’s orders. The Attorney General stated that Aadhaar was only required for expediting the issuance of tatkal passports and was not required otherwise.

On this matter, and all other matters related to Aadhaar linking, with the exception of ‘benefits, subsidies and services’ under Section 7, the deadline for linking stands extended indefinitely. The Supreme Court’s order detailing the same can be found here.

The hearing will continue on the 14th of March, 2018.

 

 

 

SC Constitution Bench on Aadhaar – Final Hearing (Day XVI) (Part – I)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here. The arguments advanced on Day 16 have been divided into two posts, the second post can be found here.

Senior Counsel Arvind Datar briefly addressed the issue of Aadhaar numbers required for issuing passports, despite the courts assurance against the same. The Chief Justice stated that this matter would be addressed later in the day.

Senior Counsel P. Chidambaram continued his arguments from the previous week, starting off with the 3rd proposition of his submission.

He reiterated that as per Article 110(3) of the Constitution, the speaker’s decision would not be final and would be subject to judicial review.

On the scope of judicial review, he referred to the judgment Sub-committee on Judicial Accountability vs. Union of India (1991 SC 699). He read out excerpts relating to judicial review on matters of procedural law and substantive law. One of the excerpts was as follows:

“The principles in Bradlaugh is that even a statutory right if it is related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament’s own concern. But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamentary procedure. Even in matters of procedure the constitutional provisions are binding as the legislations are enforceable. Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is. The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws. Indeed, the learned Attorney General submitted that the question whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclusively for the courts to decide.”

He then proceeded to read out excerpts from S.R. Bommai vs. Union of India (1994 3 SCC 1).

He referred to the ‘finality clause’, stating that inspite of the President’s decision being considered the final in instances of emergency being declared, such decisions were to be subject to judicial review. He also referred to certain ‘widest possible phrases’ that were discussed in this case, specifically – ‘final’, ‘conclusive’, ‘shall not be questioned in any court on any ground’.

Mr. Chidambaram then stated that it would be an inexcusable error if any bill was passed as a money bill as this would deprive the Rajya Sabha of its right to review, which could also amount to a constitutional violation. He also stated that this would strike at federalism, which is a basic feature of the constitution.

He then went on to discuss a 2007 case Raja Ram Pal vs. Speaker, Lok Sabha (2007 3 SCC 184). Referring to excerpts, he stated that procedural illegality cannot be a ground for judicial review, but substantive illegality can.

Further on the point of judicial review, he also stated that there was a breach of constitutional privilege and that the Court could not be restricted in this manner. He also stated that the Parliament was not a body affiliated with the Courts.

Mr. Chidambaram then went on to refer to Article 122 of the Constitution.

He then referred to a case titled Saeed Siddiqui vs. State of Uttar Pradesh (2010 4 SCC 1)

In this case, the U.P. Lokayakta and U.P. Lokayuktas (Amendment) Act, 2012 was passed as a money bill.  He read out the following excerpts from the case:

“Among all the contentions/issues raised, the main challenge relates to the validity of U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 2012. In order to consider the claim of both the parties, it is useful to refer the relevant provisions. The State of U.P. has brought an Act called the U.P. Lokayukta and Up-Lokayuktas Act, 1975 (U.P. Act 42 of 1975)…

…The main apprehension of the petitioner is that the Bill that led to the enactment of the Amendment Act was passed as a Money Bill in violation of Articles 197 and 198 of the Constitution of India which should have been passed by both the Houses, viz., U.P. Legislative Assembly and U.P. Legislative Council and was wrongly passed only by the U.P. Legislative Assembly. During the course of hearing, Mr. Desai, learned senior counsel appearing for the State of U.P., placed the original records pertaining to the proceedings of the Legislative Assembly, decision of the Speaker as well as the Governor, which we are going to discuss in the later part of our judgment…

…Further, Article 212 precludes the Courts from interfering with the presentation of a Bill for assent to the Governor on the ground of non-compliance with the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the Legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof…

…34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue ofArticle 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC 184, it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.

35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be… 

…Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised by anyone…

…In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589, the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.”

 It was held in this case that the decision of the speaker on the validity of a money bill was final, however, Mr. Chidambaram stated that this case does not substantively discuss why a money bill was implemented in the given case or why the amendment Act was passed as a money bill.

He then went on to discuss the case of Mangalore Ganesh Beedi Works vs. Union of India (1974 SCR (3) 221).

The discussion then moved on to ‘procedure’ under Article 199 and 212.

Mr. Chidambaram stated that Article 212 seems to make it possible for the citizen in the appropriate court of law to challenge the validity of proceedings, not from mere irregularity but illegality as well.

He then went on to discuss a 2016 case regarding the Orissa Special Courts Act, which was passed as a money bill. He referred to relevant excerpts which distinguished between regularity and irregularity.

He stated that procedural irregularity stood in stark contrast to substantive illegality.

He reiterated his proposition, stating that Article 199(3) does not bar the court from judicial review of whether a bill is a money bill.

 

Update from the SCOI: In Re: Prajwala

In 2015, the NGO Prajwala sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. Over the years, an expert committee was established, which has recommended auto-blocking select search terms and setting up online portals to register complaints against sexual abuse material, amongst others.

Our coverage on the matter can be found here.
The matter was heard today by a bench comprising of Justice Lokur and Justice Lalit.
Following from previous hearings, where the setting up of the ‘online cyber crime reporting portals’ was discussed, the petitioners have asked for 4 months time to train officers in charge of such portals.
Further, on certain proposals, petitioners and respondents disagreed on what could be administered and what was technically feasible. The respondents further stated that the technology was not available to implement certain proposals.
The order passed today can be found here.  The next hearing is scheduled for the 16th of April, 2018.

Pachauri defamation suit: Court rejects interim gag order plea

The Patiala House court at Delhi has rejected R. K. Pachauri’s plea for an interim gag order against NDTV, Bennett Coleman and Co., and the India Today Group. The media houses had been made defendants in a defamation suit filed by him in 2016.

In 2015, an FIR had been filed against Pachauri by a woman employee of TERI (The Energy and Resources Institute, of which he was then the Chief) accusing him of sexual harassment. Following these allegations, several other women had spoken out about similar experiences while they had worked at the organization. The allegations and ongoing proceedings had received extensive coverage in the media.

Pachauri filed for defamation against multiple parties, including the media houses, one of the women who had spoken out, as well as her lawyer. He sought a gag order against the media houses, and damages of Rs. 1 Crore from the victim and her lawyer.

We have written previously about how suits such as these are in the nature of ‘SLAPP’ suits – Strategic Lawsuits Against Public Participation. These are cases where powerful individuals and corporations use litigation as a way of intimidating or silencing their critics. The defendants are usually media houses or individuals who are then forced to muster the resources to mount a legal defense. Even if they are able to secure a victory in Court, it is at the cost of a protracted and expensive process.

The court has now refused to grant an interim injunction against the media houses, noting the right of the public to be aware of the developments. It further noted that public figures can be held to a higher degree of scrutiny by the public. However, it has also held that further reportage must also carry Pachauri’s views, and indicate that the matter is still pending before the Court. The text of the order may be found here.