The COVID-19 Outbreak Leaves The Criminal Justice System Paralysed

  • Isha Choudhary

“The coronavirus requires a challenging balance of rights: the rights of the defendant to a speedy trial and a trial by a jury of their peers against the rights of courtroom actors and jury members to their health” 
– Theodore Wilson, University of Albany’s School of Criminal Justice.

The global outbreak of the virus seems to have posed a challenge for the Indian prisons which are occupied exceeding their capacity. Subsequent to the warning issued by the WHO affirming that the prisons across the world have the potential to bring to a gigantic rise in the mortality rates due to this pandemic unless strong actions are taken towards the same, multiple petitions were filed in the High Courts of the country seeking a release of prisoners falling in certain categories. As per the 2018 Prison Statistics of India, the prisons are crowded over and above the capacity by 17.6%. The said figure holds relevance as this makes the prions a fecund area for the spread of the disease. Also, at the same time, it appears to be a caution to highlight the need for prison reforms in India.

  • A glance at the SC Order

Taking into consideration all such facts and factors, the Supreme Court by an order dated 23rd march 2020 asserted that the hearings would be conducted by way of video-conferencing as a measure to restrict the human interface and further escalation and spread of the deadly virus.

In addition to this, all the states and UTs were ordered to formulate committees to deliberate upon the aspect of the release of prisoners who have been jailed up as undertrials for offences providing maximum imprisonment for seven years and also those who have been jailed for up to 7 years on parole. Furthermore, restraint has been put on the transfer of the prisoners in all cases barring those of decongestion.

In furtherance of the said order, the various state governments have been active in the release of prisoners along with abiding by the guidelines provided by the apex court in the said order. Similarly, it has been suggested in an interview with prison official of Maharashtra government that 601 inmates were released from 37 prisons of Maharashtra in a matter of 3 days succeeding the SC order.

Therefore, it has become manifest that the virus outbreak has slowed down and, to a certain extent, paralyzed the law enforcement machinery of the state.

  • Challenges posed by the re-integration

 In addition to this, the challenge which is posed by the re-integration of these prisoners in society has also not been dealt with. This release of prisoners in masses has brought the said issue back to light. The struggle for these prisoners does not end with their release. Due to the existence of various societal and legal barriers, it becomes comparatively difficult for them to hold a position in society and be able to secure a consistent source of earning. This, in turn, might lead to a situation where these inmates have to live a life of poverty and consequently suffer from mental health issues also.

At the same time, the employers avoid employing such people so as to prevent any additional liability which the firm may incur as a consequence of such employment which highlights the issue of purposeful discrimination at their end.

However, it is pertinent and crucial, at the same time, to note that such release comes with various devastating social effects, also. And the cost of this is not limited so as to be measured in economic terms but also extends to the compromised overall well-being of the society.

It is suggested by the 2015 Congressional Research Service Report, that, over a period of five years, on an average 76.6% of these released prisoners will return to the prison for one or the other reason. Mass incarceration is also deemed to be a contributing force or rather a worsening factor to the pre-existing social and economic neighborhoods of the society.

  • Additional difficulties involved

Furthermore, the difficulty encompassing the herculean task of dealing with a huge number of cases so as to enable the release of the inmate accused have also been ignored by the court. On the very same lines, is the opinion of a prominent US public prosecutor Rob Sanders. He, while commenting upon the current crisis, opined that despite the necessity of release of prisoners from jail as a step towards curtailing the spread of Covid-19, the US is not prepared for the aftereffects of the pandemic and a lot of pressure has been put on the team for the execution of such release.

Conclusion

With the crisis stuck situation, the law enforcement body seems to have come to a halt. At the same time, taking regard of the need and as a measure of precaution, several steps have been taken to stop the further spread of the virus. One amongst the various measures is the decision as to the release of inmates from the prison which has been regarded as a potential hotspot for the transmission of the virus. It is seen that subsequent to the passing of the order of the Supreme Court dated 23rd march 2020, mass incarceration is the consequence.

With this, it becomes important to bring to notice the repercussion of the same on the prisoners as well as the society in which these inmates are to re-integrate. In addition, the author is of the opinion that in the course of taking all these necessary measures, the after-effects or the consequences of such release are ignored. This re-entry poses a lot of challenges not only to these released inmates, which are expected to become manifest after the end of the outbreak but also to the community.

The author further tries to bring into notice the difficulty which this step of release encapsulates. In addition to this, adopting a measure like video-conferencing for the purpose of conducting trials does not seem to be a feasible idea. The release of these prisoners and the method adopted for conducting a trial of the persons accused rather appears as a field day for these people to escape the clutches of law.

Keeping into consideration the above- discussed labyrinth of facts the author has encountered with and unearthed in the course of analysis, it is suggested that the need of the moment appears to be a set more stringent and effective guidelines to address the instant plight and adversity created by the pandemic.

The author is a 2nd Year Student of NLU, Jodhpur

The Legal Quagmire Surrounding Money Bills- K.S. Puttaswamy v. UoI

  • Muskaan Wadhwa

INTRODUCTION

The extant constitutional scheme concerning money bills has seen a trend of misuse by the executive. In case of a money bill, the Constitution carves out an exception to the general principle of bicameralism where a bill is scrutinised by both houses of the parliament. A money bill, contrary to an ordinary or financial bill, can be enacted into law without the due consensus of the Rajya Sabha. This is because the Constitution provides that the money bill can only be introduced in the House of the People. The Rajya Sabha only has the power to make recommendations that may or may not be accepted by the Lok Sabha. Furthermore, if the Rajya Sabha does not return the money bill within a period of 14 days, it is deemed to have been passed at the expiry of that period. The Rajya Sabha’s powers are therefore only recommendatory in nature and the true power lies with the Lok Sabha.[i] A bill can be certified as a money bill only if provisions of the bill fall exclusively within the categories laid out under Article 110. The Constitutions vests with the Speaker of the Lok Sabha the power to certify a bill as a money bill and such decision of the Speaker shall be final.

The unique nature of money bill has the effect of denuding the power of the Rajya Sabha as well as depriving the power of the President to return a bill for reconsideration. The peculiar character of money bills, therefore, calls for a strict and narrow construction of the word ‘only’ in Article 110. Such a strict interpretation becomes even more crucial in the current political scenario where the central government does not have a majority in the Rajya Sabha giving them an incentive to pass as many bills as money bills to avoid the scrutiny of the Upper House.

This blogpost does not focus upon the justiciability of the decision of the Speaker in designating a bill as a money bill as it has rightly been settled by the Apex Court in K.S. Puttaswamy v. Union of India[ii] by overruling Mohd. Saeed Siddiqui[iii] and Yogendra Kumar Jaiswal.[iv] This blogpost instead advocates for a narrow interpretation of the word ‘only’ in line with the basic structure of the Constitution.

ANALYSIS OF K.S. PUTTASWAMY v. UNION OF INDIA

Background

The rampant use of money bills as a tool to achieve ulterior political motives by those in power came to the forefront with the enactment of the Aadhaar Act, 2016.[v] The validity of the Act came to be challenged before the Supreme Court in Puttaswamy Judgement. While much of the judgement dealt with the issue of privacy as a fundamental right, one of the significant issues within the judgement, which in my opinion, was erroneously decided was the designation of the Aadhaar Bill as a money bill.

Arguments put forth by the Petitioners

The designation of the Aadhaar Bill as a money bill was challenged on the ground that while Section 7 of the impugned bill provided for subsidies, benefits and services from the consolidated fund of India, some other provisions of the bill, namely, Sections 23(2)(h), 54(2)(m) and 57 did not fall under any of the clauses under Article 110 of the Constitution. The petitioners were in favour of strict construction of the word ‘only’. They relied on the precedent Saru Smelting Ltd. v. Commissioner of Sales Tax where the word ‘only’ was interpreted by the Apex Court.[vi] A notification under the U.P. Sales Tax Act provided that ‘only copper, tin, nickel, zinc or any other alloy containing any of these metals’ were entitled to a reduced rate of sales tax. The questions before the court were whether Phosphorous Bronze could be exempted from sales tax. The Court considered the expression ‘only’ to be of prime importance in the instant case. Phosphorous Bronze contained Phosphorous, even though in small quantity, and therefore could not be said to fall under the said entry.

It was also contended by the Petitioners that the Rajya Sabha was an essential part of the constitutional federalism and a part of the basic feature of the Constitution. By-passing the Rajya Sabha by enactment of bills under the guise of money bills was therefore unconstitutional.

Arguments put forth by the Respondent

The government, on the other hand, contended that Section 7 of the Aadhaar Act was the “heart and soul” of the Act. This section dealt with subsidies, benefits and services, the expenditure for which was to be incurred from the Consolidated Fund of India satisfying the criteria laid down in Article 110 and argued that all other Sections were merely incidental to Section 7. The government based their argument on the doctrine of “pith and substance” and stated that the bill, in its pith and substance, should pass the test of being a money bill.

The Court accepted the Government’s argument and held that the Act had been rightfully designated as a money bill. Justice Chandrachud, however, dissented with the majority opinion stating that the Act traversed beyond the narrow confines of a money bill. He highlighted the importance of bicameralism as a check on majoritarianism and the need for adequate representation of federal States.

Issues with the Judgement

I argue that the majority judgement in the context of a money bill is erroneous on several grounds. Firstly, the doctrine of pith and substance is applied to adjudicate legislative competence and has no role to play in examining whether or not the requirements of Article 110 are satisfied.[vii] Secondly, the majority judgement’s holding that Section 7 of the Act conforms with Article 110(e) as the expenditure is made from the consolidated fund of India and all other challenged provisions are merely incidental to Section 7 is fallacious. Such a holding fails to take into account the use of the word ‘only’ in Article 110. The expression ‘only’ implies, that the provisions of the bill should deal with only those matters which are enumerated in the Article. A broad interpretation of Article 110 will have negative ramifications as any governmental activity would satisfy Article 110(e) given that most governmental functions are funded by the consolidated fund of India. Therefore, now, if a bill contains an element of one of the clauses enumerated in Article 110, it could be designated as a money bill. This would effectively give a free hand to the majority in the Lok Sabha to enact laws without any scrutiny or say of the Rajya Sabha undermining the very fabric of our constitution.

The Constitution, apart from money bills, provide for financial bills which can also only be introduced in the Lok Sabha. Financial bill, unlike a money bill, deal with both, matters enumerated in Article 110 and other extraneous matters. The intent behind financial bills was to secure the position of the Rajya Sabha who can effect amendments to a financial bill and any deal-lock between the two houses can be resolved by a joint session. The drafting intent behind this was to prevent the Lok Sabha from passing ordinary bills with some financial clauses as a money bill, denuding the power of the Rajya Sabha. By the very existence of financial bill, it becomes clear, that a bill not exclusively dealing with the clauses in Article 110 cannot be designated as a money bill. The rationale of the Court in Puttaswamy, therefore, goes against the very drafting intent of Article 110, and such an interpretation would be a fraud on the Constitution.

CONCLUSION

The object of this blog post has been to highlight the importance of strict interpretation of Article 110 in consonance with federalism. Rajya Sabha occupies an important position in a federal polity like ours. By-passing the Rajya Sabha would be against the idea of deliberative dialogue, transparency and public interest. The Apex Court recently took cognizance of the ambiguity surrounding money bills in Rojer Matthew v. South Indian Bank Ltd.[viii] The Court recognised that a liberal interpretation of Article 110 in Puttaswamy could not be in consonance with the bicameral parliamentary system envisaged by the Constitution. A seven-judge bench has therefore now been constituted to decide the correctness of passing of the Aadhaar Act as a money bill. As noted by Justice Chandrachud in his dissent, “delicate balance of bicameralism lies at the very heart of India’s parliamentary democracy.” It, therefore, becomes essential for a strict interpretation of the word ‘only’ in Article 110 of the Constitution and conferring greater scrutinising power to the Rajya Sabha.

The author is a 3rd Year Student of School of Law, Christ University.


[i] M.P. Jain, Indian Constitutional Law 71 (Lexis Nexis, 2014).

[ii] (2019) 1 SCC 1.

[iii] AIR 2014 SC 2501.

[iv] AIR 2016 SC 1474.

[v] Pratik Datta, Shefali Malhotra & Shivani Tyagi, Judicial Review and Money Bills, 10 NUJS L. REV. 1-36 (2017).

[vi] 1993 Supp (3) SCC 97.

[vii] Suhrith Parthasarathy, The Aadhaar Judgement and the Constitution – III: On Money Bill, Indian Constitutional Law and Philosophy (Oct. 1, 2018) https://indconlawphil.wordpress.com/2018/10/01/the-aadhaar-judgment-and-the-constitution-iii-on-the-money-bill-guest-post/.

[viii] 2019 (15) SCALE 615.

A Solution to Panic Buying by Game Theory

by Nitya Bothra

  1. Introduction:

Game theory can also be considered as a “study of ways in which interacting choices of economic agents produce outcomes with respect to the preferences (or utilities) of those agents, where the outcomes in question might have been intended by none of the agents.”There are various types of games based on the number of players as well as perfect and imperfect information in the market.

Panic buying is a phenomenon or herd behaviour which occurs when consumers buy unusually large amounts of a product such as food, fuel, etc. in the anticipation of, or after, a disaster or perceived disaster, or in anticipation of a large price increase or shortage. The spread of the virus COVID ’19 has caused consumers to panic buy commodities and thus, there is a scarcity of basic necessities and equitable distribution needs to be restored.

  1. Statement of the problem:

In the current crisis of the pandemic caused due to COVID ’19, more popularly known as Corona Virus which has affected over 4000 people in India, various countries including India have imposed a lockdown in their respective countries. This has led to various instances of panic buying amongst the citizens of these countries as there has been no specified time limit for these lockdowns. This has created an atmosphere of panic and as well as an opportunity for people to hoard certain supplies to sell them for profit.

This crisis of selfish behaviour and greed and fear of being left with nothing has caused the consumers to choose based on “sucker’s payoff” which in turn has caused a disparity between the hoarders and those left with nothing. Sucker’s payoff is the concern that if a consumer buys sparingly, they will end up with the worst outcome while others benefit through hoarding. This has also caused a hike in prices of commodities such as toilet paper and various other basic necessities around the globe. Toilet paper panic buying can be seen rampant in the United States of America, Australia, Japan, Hong Kong, Germany among others.

Prior to the lockdown in India, there emerged a wave of panic buying by consumers all over the country which caused a shortage for those in need such as masks and other equipment for doctors and nurses. It also created a lot of wastage of necessities such as tons of food being wasted as it rotted in the homes of these panic buyers despite reassurances being given by the government officials.

In times of crisis such as the present COVID ’19 pandemic, the decision of buying supplies in a socially responsible manner does not depend only on the consumer and their choice but also depends on the choices of other consumers. Thus, getting food in a pandemic also depends on other shoppers and consumers acting responsibly.

  1. Application of Game Theory:

Game theory is based on the assumption that people have stable preferences and that their choices are based upon choosing the alternative from a given set of alternatives that are ranked highest under these preferences. Game theorists assume that players have sets of capacities that are typically referred to in economics as comprising ‘rationality’ as can be seen in the literature about economics and game theory. This theory is further based on the aggregation of individual behaviour to examine complex phenomena. The game is a deliberate approximation, designed to include important aspects of the interaction and exclude unimportant ones.

The actions “cooperate” and “defect” are approximations of alternatives that may be much more complex. Cooperation may involve colluding in an oligopoly market or signing a treaty or an agreement, while defection may involve flooding the market with increased output or simply defying traffic rules. A “saddlepoint” in a two-person constant-sum game is the outcome that rational players would choose. The idea is not that players deduce the equilibrium or saddlepoint actions from the structure of the game, or that the equilibrium springs up with the appearance of the game itself. Instead, as people accumulate experience with the game, they choose alternatives, check how well these alternatives work, experiment with other alternatives, make mistakes, giving rise to a trial-and-error process that pushes them towards equilibrium.

Saddlepoint always exists in a game of perfect information and may or not exist in a game with imperfect information. The player tends to choose a strategy associated with the outcome where each player obtains an amount at least equal to his payoff, not considering the choices and strategy of the other player. Thus, when saddlepoints exist, optimal strategies and outcomes are easier to be determined and followed. This point of equilibrium can be often reached through the process of elimination of unfavourable outcomes. However, there always exists the possibility of there being no equilibrium or saddlepoint, thus, there being no compelling solution to the game. For panic-buying to be reduced or eliminated, the government must strive to achieve this saddlepoint and push the citizens, the players of the game, towards it.

  1. Analysis of data:

Panic buying occurs due to various factors of which the most prominent according to various studies are:

  1. Lack of trust: When there is a reduction of people’s faith and trust in market institutions, government and administration and the private sector, versions of truths, half-truths and rumours. This lack of trust is caused by insufficient and incomplete information in the market. In a market with perfect competition and perfect information, the consumer is less likely to do panic buying due to factors like price hike and fear of other consumers’ choices.
  2. Fear: Fear caused due to a pandemic or any event that is out of control of human beings tends to cause irrational behaviour. This fear can be mitigated through spreading proper information on how long the lockdown will last and rationing the supplies given to each individual or family.
  3. The tendency to avert losses: Human beings have a tendency to avoid future losses and in times of instability in terms of prices and quantity of essential products, human beings exhibit panic buying.
  4. Influence by others: Influence by role models to buy items leads to panic buying in various consumers as well. This could be used as an alternative strategy by asking role models to influence people to not panic buy.
  5. Greed: It can also be seen that certain opportunists buy necessities such as toilet paper and sanitizers in the current pandemic, only to sell it at much higher prices later.

Several factors tend to mediate the response of a group and mitigate the herd mentality as well. These factors are:

  1. Food Prices: People tend not to be afraid of the food prices don’t inflate and thus, not fear to lose or face the sucker’s payoff.
  2. Purchasing Power: It refers to the ability of the consumer to buy certain items. Those with purchasing power such as the upper class and middle class are those which can afford to panic buy.
  3. Information and awareness: Making consumers aware and giving them access to information regarding supply chains, the ability of markets, delivery statuses and present stocks helps when communicated properly.
  • Recommendations for Policy Making:

There are a few methods that can be adopted such as:

  1. Increasing cooperation: When the perception of the consumer shifts from that of requiring the supplies out of fear and greed to all consumers being faced with the same problem, panic buying tends to reduce. Mutual gain occurs in the present situation and thus, cooperation is effective in bringing equitable distribution.
  2. Promoting discussion and spreading awareness: In certain games, it can be helpful as all players are facing similar situations and choices. Promoting discussion and conversation helps improve relationships between consumers and increases information. Panic buying occurs due to selfish impulses of the consumers which reduce when information is spread and discussion of similar situations of the consumers is present. This would also increase trust between the various players of the game and increase benefits to all.
  3. Preference to needy: Various supermarkets have made it a point to open the stores for an hour only for the elderly in order to help them in this crisis situation as they are the most affected by the pandemic. This leads to the equitable distribution of resources.
  4. Deterrent punishment: Social sanctions such as naming and shaming those who hoard are often effective. Direct punishment such as fines or penalties can also be strong deterrents. Rationing the supplies and enforcing this through effective punishments can be extremely useful to reduce greed and selfishness amongst consumers.

In the methods discussed above, the herd mentality of panic-buying can be controlled and thus, equitable distribution can be restored. This will also help in flattening the curve and help in the possible stop of the spread of COVID ‘19. It would also help provide the much-needed equipment to the medical staffers and aid the recovery of the patients that are increasing by the minute.

the author is a second-year law student pursuing B.A.LL.B (Hons.) at Gujarat National Law University.

References:

  1. Panic Buying, Cambridge Advanced Learner’s Dictionary & Thesaurus.
  2. Chris Stiff, The game theory of panic-buying – and how to reduce it, The Conversation, (Mar. 31, 2020, 09:37 PM), https://theconversation.com/the-game-theory-of-panic-buying-and-how-to-reduce-it-134107.
  3. Rodney Lay, The Lessons from Toilet Paper Panic Buying, Live Wire, (Mar. 20, 2020), https://www.livewiremarkets.com/wires/the-lessons-from-toilet-paper-panic-buying.
  4. Larry Samuelson, Game Theory in Economics and Beyond, 30 Journal of Eco Perspectives 107 (2016).
  5. Don Ross, Game Theory, The Stanford Encyclopedia of Philosophy, (Jan. 25, 1997), https://plato.stanford.edu/archives/win2019/entries/game-theory/.
  6. Steven Brams, Morton Davis, Game Theory, Britannica, (Jan. 10, 2020), https://www.britannica.com/science/game-theory.

Rising Against Cyber Terrorism: Indian Perspective

by Rishabh Shukla

“Cyber terrorism could also become more attractive as the real and virtual worlds become more closely coupled” – Dorothy Dennings

Introduction

Some of the most misunderstood and confusing terms in Cyber laws are Cyber-terrorism, cybercrime, and cyber warfare. The difference between them is not known by masses which often leads to miscommunication of information. Cybercrimes are crimes conducted in cyberspace, and cyber warfare means actions by a nation-state to penetrate other nation’s computers or networks for the purposes of causing damage or disruptions[i], still, the term cyber-terrorism has a different take. Dorothy Denning, a professor of computer science gave one of the best definitions of cyber-terrorism to ever exist, defining Cyber terrorism as “The convergence of cyberspace and terrorism.

The main essence of the word includes all the unlawful attacks as well as the threat of committing such attacks against the computers in order to compel the government or its people to pursue a political or social objective.

Another requirement is that the attack must generate fear among the people, or create a situation of violence against individuals or property. This can include attacks that result in death, severe economic breakdown, and explosions, and attacks against critical infrastructures.[ii]”       

Indian Scenario

Narrowing down to the Indian scenario, according to reports, the easiest way to attack India is through the cyber networks. Although it is cost-intensive but will spare the cyber-terrorists of risking manpower and, the impact of such an attack will be immense on the national economy and infrastructure. Cyber Terrorism is a crime that has emerged in recent times in India. Well, the laws through the implementation of the Information Technology Act, 2000 was a big step towards creating punishment for such offences.[iii] But due to the ever-changing and ever-evolving nature of the internet, the laws have become more or less ineffective. There is a need for innovative laws and global standards on preventive action.

Flaws in Cyber-Laws in India

India has gradually been shifting from traditional to e-governance, which can be observed from the fact that sectors like income tax, visa, and passports have been transformed into electronic form. This proves that India has started to rely heavily on technology. Other instances where we can see the reliance on technology are banking and financial institutions, travel sectors, e-commerce, and stock markets. Due to this, these sectors are considered to be lucrative targets to create havoc in the country. The damage done can be catastrophic and irreversible.[iv]

An individual is considered to be the smallest and most essential element to create a nation, and any crime against the individual should be considered as an important aspect for the government to maintain law and order. There is a wide range of attacks and vulnerabilities which can be considered as a crime against the Nation. The most important among them are:

Challenges faced by the Administration[v]

With almost all the countries adopting the e-governance infrastructure, India is also doing the same in the shape of e-administration.

The most important goal of e-governance is to make it easy for the citizens to interact with the offices of administration and to share the information with reliability and transparency. The main essential of democracy is that the people have the power to govern themselves and to do this effectively, they must be aware of every aspect of human society such as social, political, and economic issues. This form of governance thus becomes the primary target of terrorists to destroy the communication system.

When compared to other tangible damages that are caused by the activities of traditional terrorists this would be more disastrous. Thus terrorists have the ability to obtain the information illegally which has been protected from public access and in the interest of the nation.

Denial of Services Attack (DDoS):

The main ability of the network system is the availability of the system when required. When it comes to the administration or the government, the network has to be secure and robust with appropriate network information security due to the fact that it contains the data which are in the interest of the Nation and if this data is accessed by an unwanted entity, it can create a dangerous situation for the whole country. The online security experts in India thus suggest that online security stems should be strengthened because DDoS and defacing a site attach are the most used attacks.

Damage and Disruption of Networks

The primary objective of the actions resorted to by cyber terrorists is to damage or disrupt the networks, which helps in diverting the attention of the security agencies giving them extra time to make their task comparatively easier. This process can involve combinations of many many other attacks, such as virus attacks, tampering with electronic devices, or hacking. Due to this, around 6000 websites originating in India were defaced in 2009.[vi]

Challenges to Indian Cyber Security and Cyber Laws

There are a lot of reasons which have resulted in India’s cyber-security to such vulnerability to cyber-terrorism even after implementation of laws such as IT Act, 2000 and existing counter-cyber security initiatives such as National Informatics Centre (NIC), Indian Computer Emergency Response Team (Cert-In), National Information Security Assurance Programme (NISAP), and Indo-US Cyber Security Forum (IUSCSF). Some of the reasons are mentioned as follows:

  1. Not only at the individual level but also at institutional levels, there is a deficiency of awareness and the culture of cyber-security.
  2. Lack of trained and qualified manpower to implement the counter-measures.
  3. Too many information security organizations which have become weak due to ‘turf wars’ or financial compulsions.
  4. A weak IT Act which has become redundant due to non-exploitation and age-old cyber laws.
  5. No e-mail account policy especially for the defense forces, police and the agency personnel.
  6. Cyber-attacks have not only come from terrorists but also from neighboring countries inimical to our National interest.

Suggestions/Measures to counter Cyber-Terrorism

While the threat is imminent and evergrowing with the new technologies, still there are some measures which can be taken up by common people as well the Government:

  1. Need to create awareness among the general public about the dangers of cyber terrorism. The counter cyber-terrorism bodies should follow an aggressive strategy and engage academic institutions
  2. Joint efforts by all Government agencies including defense forces to attract qualified skilled personnel for implementation of countermeasures.
  3. The organizations dealing with cybersecurity should be given all support and no bureaucratic dominance should be allowed.
  4. Agreements relating to cybersecurity should be given the same importance as other conventional agreements.
  5. More investment in this field including finance and manpower.
  6. Indian agencies working after cybersecurity should also keep a close vigil on the developments in the IT sectors of our potential adversaries.
  7. The use of digital signatures, encryption of data, security audit and cyber forensics should also be focused on as a subject matter of creating awareness.
  8. E-discovery investigation should also be given support to prevent cases of cyber crimes, corruption, and serious frauds.[vii]
  9. Bleeding edge technology to keep up with modern measures against cyber threats.
  10. Laws should meet requirements made by modern technology developments.
  11. With a combination of knowledge and expertise, a counter-cyber terrorism team can build an effective strategy for preventing cyber-terrorist incidents.
  12. More international co-operations are necessary for the eradication of the threat.[viii]

Conclusion

India is growing a lot in the IT sector with a lot of aspects of the governance and other sectors being computerised which have helped India develop but has also made it more vulnerable to cyber-attacks and cyber-terrorism. The current measures for these kinds of imminences are not enough. The rights steps have to be taken to help the country avoid any future threats that the country is prone to.  

the author is pursuing BBA LLB (4th Year) from New Law College, Bharati Vidyapeeth to be Deemed University.


[i]       Clarke, Richard A., Cyber War, Harper Collins (2010), ISBN 9780061962233.

[ii]      Chaubey, Prof. R. K., Introduction to Cyber Crimes and Cyber Laws, Kamal Law House (Reprint 2015)

[iii]     Praveen Dalal, Cybercrime and Cyberterrorism: Preventive Defense for Cyberspace Violations, Computer Crime  Research Center (March 10, 2006).

[iv]    Integrated Defence Staff, Gov. of Inda, Cyber Security in India, available at http://ids.nic.in/art_by_offids/Cyber%20security%20in%20india%20by%20Col%20SS%20Raghav.pdf

[v]     Sharma Vakul, E-governance & Information Technology Act, 2000 (Information Technology Law and Practice Cyber Law & E-Commerce) Universal Law Publishing Co. Pvt. Ltd.

[vi]    New India Express, Hackers take heavy toll on Indian websites, available at https://www.newindianexpress.com/cities/hyderabad/2010/jul/15/hackers-take-heavy-toll-of-indian-websites-170023.html (July 15, 2010).

[vii]   Insights on India, Cyber Security Related Issues: Comprehensive Coverage, available at http://www.insightsonindia.com/2014/11/25/cyber-security-related-issues-comprehensive-coverage/

[viii]  Vladimir Golubev, Problems of Counteraction to Computer Crimes and Cyber Terrorism, Computer Crime Research Center, March 16, 2004.

An Insight to the Transgender Persons Act, 2019: A progressive or displeasing statute?

  • Isha Choudhary

Abstract

With the notification of the Social Ministry, as issued on January 10, 2010, the Transgender Persons Act has come into effect. The Act, prima facie aims to end discrimination against the transgender persons and at the same time recognizes the right the self-perceived gender identity. However, the act has been labelled as dissatisfying and obscure legislation by the transgender community. The blog provides an insight to the provisions of the act and also substantiates the reasons for discontentment of the trans community by the concerned statute.

Introduction to the statute

The Transgender Persons (Protection of Rights) Bill, 2019, hereinafter referred to as ‘the bill’ was passed by the Lok Sabha on August 5, 2019 and on Nov 26, 2019, by the Rajya Sabha.

The bill by getting the Presidential assent on 5th December, 2019 has become the act of the Parliament, the Transgender Persons (Protection of Rights) Act, 2019.

The bill was sought to provide a conducive mechanism for social, educational and economic empowerment of transgender persons, however, it is found that the transgender community is crestfallen and dispirited with the legislation.

The bill was first put forward in the year 2016 and it is since then that the transgender community has been taking issue with the various silences and the errors in this previous bill, nevertheless, despite becoming an act, the position continues to be close to dissatisfying and displeasing.

Problems with the Act:

  1. The act is violative of the fundamental rights of the transgender people.
  • Qualified right to self-determination of the transgenders.

Section 4 of the act provides for a qualified right to self-determination to these transgender people. The section says that this right has to be recognized in accordance with the provisions of this act. The section 5 and 6 provide for the qualification to this right which is, that this right shall be contingent upon an application made by to magistrate, in the manner prescribed.

Furthermore, the clause (2) to section 4 states that it is upon this recognition, that the transgender people would have the right to “self-perceived gender identity”, wherein the recognition happens by virtue of the issuance of a ‘certificate of identity’ by the magistrate himself.

It is submitted that making their right subject to a certification by the state, amounts to the violation of the fundamental rights of the transgender people.

It has been categorically held by the Supreme Court in its 2014 pronouncement in the case of NALSA v UOI that the concerned right is protected by virtue of Article 21 of the Constitution.

In order to substantiate the same, the relevant excerpt of the judgment is extracted and reproduced:

Article 21, as already indicated, protects one’s right of self- determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.”

  • The Certification process is violative of the ruling of article 19 and 21 of the transpersons.

The court opined that constitutional dignity of human rights is something which ensures the normative unity of human rights. And one of the factors which express normative unity is the value of human dignity.

It states that the value of human dignity plays an important role in the determination of the proportionality of a statute which limits any constitutional right.

Furthermore, it laid down a two-step standard for giving effect of the principle of self-identification, which are, suitability and necessity.

The act does not satisfy the criteria and therefore, the limit imposed upon the constitutional right of the transgender persons, is not justified and thereby, violative of Article 19 and 21 of the Constitution.

  • The act is in contravention with the law set by the judicial precedents and is discriminatory towards the trans persons.
  • Mandatory sex reassignment surgery and burden of proving their identity, makes the bill discriminatory towards the trans persons.

The act is in contravention with the NALSA judgment which guarantees the right to self-identification without the need for any medical intervention, however, the act appears to mandate sex reassignment surgery for the transgender people.

In addition to the same, as discussed above, the act imposes an additional burden on the trans persons (certification by the state) and thereby strengthens the long standing assumption operating in the society, that being a cisgender is a norm whereas, being a trans person is an exception and therefore, these people are required to prove their identity, whereas, there is no such requirement for a cisgender.

The act, on this very point, highlights the discriminatory nature of the act and it is by virtue of putting this additional requirement, it can be inferred that the act again contravenes the precedents on other points, also.

The act is a far cry from the much celebrated and progressive 2014 landmark judgment of NALSA v UOI, which mandated an affirmative action by the government for these trans persons.

It held that ‘the state is obliged to take measures so as to treat these trans people as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in both educational institutions as well as for appointment in the public offices’.

Whereas, the terra firma reality is that the act has gone against the mandate and does not provide for reservation in either education or employment.

Chapter VIII of the act deals with acts and penalties. It provides for penalties in cases of offences like rape and sexual abuse with the transgender persons, however, it becomes pertinent to note that these penalties are different from those prescribed under the IPC, in cases of any such offence against a woman (cisgender).

For example, the penalty prescribed, under the act, for sexual abuse ranges from 6 months to 2 months which is much milder and lenient from what is prescribed under the IPC for any such offence committed against any woman. (section 354: assault or use of criminal force with the intention of outraging modesty of a woman).

It is asserted that such disparity in sentences for several offences when committed with transgenders in contrast with others, makes it discriminatory against these persons.

Hence, upon the perusal of the act, it is concluded that the act is a failed attempt at securing the constitutional rights of these trans people, which it was aimed at, and rather is a mockery of their struggles and at the same doubt leaves in doubt as to whether the act is a progressive or displeasing statute?

  • The author is a 2nd-year student at National Law University, Jodhpur

Dilemma of Proportionality in International Humanitarian Law

International Humanitarian Law is a set of rules made for regulating armed conflicts that seek to limit the effects of armed conflict, by protecting the persons who are not the part of the armed conflict. Proportionality is one of the pillars of International Humanitarian Law and an inherent part of customary international humanitarian law, which prohibits attack causing excessive incidental loss to civilians and damage to civilian objects than an expected military advantage. This principle acknowledges such inevitable collateral civilian casualties and damage to civilian objects caused even after taking reasonable care and precautions in attack by the parties of the armed conflict. Usually, caused when civilians and civilian objects are mingled with combatants and military objectives.  

According to this principle before attacking, an assessment should be done comparing incidental loss or damage from the attack and the advantage from the attack which can be expected by a reasonable person while planning or launching the attack, according to the information possessed by him at the relevant time. As stated in Prosecutor v. Prlić, principle of proportionality is defined in Article 51(5)(b) of Additional Protocol 1 of Geneva Convention 1949 and was later drawn by the drafters of Rome Statute of International Criminal Court for Article 8(2)(b)(iv) as War Crime of causing excessive incidental damage civilian objects and loss to civilians.

However, as there is no proper standard of measuring proportionality and the assessment is done on the expectation of the commander which makes it very subjective and prone to ambiguities. Furthermore, the cost of any erroneous judgment is very high because it can result into death of civilians and damage to civilian objects. Hence, there is a need for modification in this standard of proportionality.

Problems in assessing Incidental loss

Proportionality operates in the scenario in which incidental injury and damage is foreseeable, albeit undesired. Incidental loss includes injury, casualties and damage which the person planning the attack could expect. Incidental loss consists of both direct and indirect effects. Direct effects are the immediate, first-order consequences whereas indirect effects of an attack consists of the reverberated, delayed and displaced (second, third and higher-order) consequences of the action.

The incidental damage considered in proportionality assessment includes any indirect loss that may be reasonably expected and foreseeable by those launching or planning the attack. So if a commander concludes in good faith based on the information reasonably available that the incidental damage to civilian or civilian object is not excessive, the attack will not be in violation of the prohibition even if an ex post facto assessment reveals that excessive incidental damage has been inflicted. 

However, it is a contentious issue that up to what extent( i.e. upto what order) the effects of the attack have to be factored into the proportionality test. Moreover, the foreseeability of the person may also vary depending on the planning of the attacks, for example, the attacks done in defence will not be planned and the expectation of incidental loss will vary as compare to the well planned bombings. Regardless of what the possible losses are, as proportionality is assessed from the expectation of the commander hence, commander has the complete discretion to attack unless the attack is clearly disproportionate.

 Problems in assessing Military Advantage

The assessment of proportionality requires balancing of two very different sets of values and objectives. The two values are expected incidental loss and the concrete and direct military advantage which can be anticipated from the attack. The expression, “concrete and direct” is intended to show that the advantage concerned should be substantial and relatively immediate, hence the advantage which is hardly perceptible or which would only appear in the long-term should be disregarded.

Proportionality is calculated on the expectation rather than the results and the military advantage factored into this standard is determined at the time of planning or executing an attack (Commentary on HPCR manual). Thus, it means that foreseeable incidental damage, or casualties should be weighed against the foreseeable military advantage of a particular military operation including indirect effects.

However, it is not necessary that the concrete and military advantage anticipated must be the advantage of destroying or weakening the enemy’s armed forces but can also be that of the denying enemy military object and defending one’s own attacking force (DoD Law of War Manual).  In anticipation of military advantage the same prospective standard is applied which is applicable in expectation of incidental loss, hence it gives the commander the same discretion for estimating military advantage, as for incidental loss, which may vary from person to person according to the importance of the military objectives .

Problem in assessing the proportionality

As stated in Prosecutor v Galić there exists a basic obligation to spare civilians and civilian objects as much as possible and this obligation guides the attacking party while considering the proportionality. The assessment should include military advantage and incidental loss in terms of relatives values which will be included or excluded in totalling the sums, in the standard of time or space and according to the extent a military commander is obligated to expose his forces to danger to limit the incidental loss. 

Assessment of proportionality requires balancing of two very different sets of values and objectives, in a framework in which all choices will affect human life. That balancing is inherently difficult, and raises significant moral and ethical issues and raises core questions, in assessing a commander’s decision to attack like (a) whether he or she made the determination based on the best information available, given the circumstances, (b) what to include or exclude in totalling of sums (indirect effects), (c) what are the relative values to be assigned to the military advantage and incidental loss to civilians and civilian objects ,  (d) whether commander took all precautionary measures to spare civilians and civilian objects and (e) whether a reasonable commander could have reached a similar conclusion.

            The answer to these questions may differ depending on the background and values of the commander. Moreover, International Humanitarian Law lacks the definition of the term ‘excessive’ and thus, works on the general agreement that ‘excessive’ is not equivalent to ‘extensive’ and that assessing excessiveness is more than an empirical analysis. Assessment of the proportionality principle is not a matter of counting civilian casualties and comparing them to the number of enemy casualties. Hence, even extensive civilian casualties may not be excessive in the light of the concrete and direct military advantage anticipated. However, there is no standard for determining proportionality and as proportionality is estimated ex-ante therefore it becomes very subjective and difficult for anyone,  facing an immense pressure of armed conflict, to determine whether attack is proportionate or not.

Consequences of this problem

Firstly- Article 8(2)(b)(iv) of Rome Statute which criminalizes disproportionate attacks during armed conflicts, requires an evaluation by the Court based on the information available to the perpetrator. Thus judges will have to decide whether the attack is proportionate or not, from reasonable commander standard, according to the information available to him at the time. Also, according to Article 66 of Rome Statute, the onus is on the prosecutor to prove the guilt of the accused beyond reasonable doubt and until then the commander is presumed to be innocent. Hence, both the court and the prosecutor has to inspect the expectation of the commander retrospectively, which because of ambiguities and varied interpretation can make accused go scot-free.

Secondly- This proportionality principle justifies civilian deaths and damage to civilian objects, though not directly, if the commander thinks that the loss is not excessive. This facet of this principle is contrary to the rule of distinction by which parties to the conflict are obligated to distinguish between civilians and combatants, and civilian objects and military objects.  

Conclusion

The International Humanitarian Law seeks to limit the effects of armed conflicts on civilians and civilian objects by making an obligation on the parties of the armed conflict. Hence, laws are biased towards civilians and civilian objects for their protection. Like in case of doubt that whether an object is civilian or military, it shall be presumed to be a civilian object and the objects which are indispensable to the survival of the civilian population should not be attacked.

Similarly, in case of doubt i.e. in the situations where it cannot be clearly said whether attack is proportionate or not. The attack should be presumed to be disproportionate and the onus should be on the military commander to prove that the attack was proportionate, and that he acted reasonably according to the information available to him. As proportionality is assessed according to the expectation of the commander hence if he is innocent he will be able to justify it. Moreover, this will create deterrence as now commander will have to justify his assessment, and will have to take more precautions while attacking, and in dubious cases he has to refrain from attacking which will reduce incidental losses.

The author is a 2nd Year Student of GNLU, Gandhinagar

PARLIAMENTARY PRIVILEGES: A CONFLICT THROUGH THE LENS OF ARTICLE 19 (1) (A)

by Siddharth Jain

Understanding Parliamentary/Legislative privilege

Parliamentary privilege is a legal prerogative enjoyed by the members of the two Houses and their committees, which also includes the Attorney General and Union Ministers. However, it is pertinent to mention that the parliamentary privileges are denied to the President. In India, the privileges find their sanction in Article 105 of the Constitution which states that a member of parliament has freedom of speech and that a member will not be held liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.[1] Such liberty has been bestowed to the parliamentarians so that the issues of public governance can be addressed quickly, efficiently and without any fear of scrutiny. The language of Art. 105 functions mutatis mutandis to Article 194, however, Art. 194 address the Legislature of the State instead of the Parliament. The privileges categorized in these articles are non-exhaustive, only a few have been enumerated and for the rest, the privileges given are on the lines of privileges of the House of Commons (mention of House of Commons has not been explicitly stated after the 42nd amendment).

The immunities as given under Art. 105 (and also Art. 194) briefly include (to name a few) freedom of speech, immunity from civil and criminal proceedings and publication of proceedings through electronic or print media. The concept of parliamentary privilege in India is analogous to the privileges enjoyed by the members of the House of Commons in Britain. The Constitution framers felt the pressing need of providing privileges to the parliamentarians because India being a diverse country faced problems of all sorts which needed to be addressed from the floor, and thus, the sanctity of the debates in the parliament had to be kept intact. This called for a conducive environment for unrestricted and open debate and a democratic mechanism would only operate as long the elected representatives are allowed to work and discharge responsibilities freely, without any fear of judicial proceeding.

Consequences of a breach

There is no conclusive legislation to define privileges and resultantly, the punishments for the breach are also not definite. The power to castigate an offender rests with the committee on privileges, which in the past has fined the wrongdoer, left the wrongdoer with a mere warning or in some rare cases ordered imprisonment, depending upon the gravity of the offense. Lack of codification of privileges and its breach leaves this subject in the limbo.[2]

Freedom of Speech vs. Parliamentary Privileges

Though the privileges were borrowed from the British parliament, the Indian lawmakers couldn’t replicate the execution of the same law. The British parliamentarians enjoyed an unqualified privilege against the press by restricting the publication of proceedings and debates of the house and the ones who breached such privilege were punished accordingly. However, since the early 19th century, the House of Commons has hardly ever used the prerogative to punish someone for publishing parliamentary debates and reports. In England, an honest and truthful publication of the debates has been allowed so that the stake-holding public is aware of the developments going on in the country and the government’s response to such developments.[3] On the contrary, the Indian courts still attend to a plethora of cases where a newspaper reporter or an editor is held guilty for publication of on-going debates in the parliament, regardless of its authenticity.

The press naturally finds this proposition upsetting since this is an apparent encroachment of its right to free speech & expression. Media houses are restricted from publishing debates, proceedings, commentaries and even opinions. The Supreme Court in the Searchlight[4] case held that judicial review cannot be appealed against an order under Article 105/194. Also, by applying the theory of harmonious construction the court arrived at the conclusion that Article 19(1)(a) shall be subservient to privileges under article 105 and 194. Later on, in the case of Keshav Singh[5] the Apex court explained that Article 21 would have an overriding effect on the privileges and similar stance was held in Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha & Ors.[6]. Sadly, neither of these judgements addressed Article 19(1)(a) and the precedent established under the Searchlight case still holds ground, meaning that parliamentary privileges overpower the right to freedom speech and expression of the press.[7]

It is obvious that the government in power would label any publication for breach of privilege if it finds it distasteful. This clearly shows the arbitrariness with which the press is punished for doing its work which it is legally entitled to do under Art. 19(1)(a).

Conclusion

It is an established fact that the legislative privileges have done more harm than good as the politicians have abused this power to seek protection from the offences of bribery, defamation, etc.for a long time.

It would be childish to expect the legislators to give-up their immunity voluntarily as doing so would make them subject to judicial review. Jurists and press organizations have been fighting against this dog law, but for no good. Even the judiciary has shown reluctance in interfering with the functioning of the parliament. But the Supreme Court needs to change its stance now. It should pressurize the legislative to codify and then adopt parliamentary privileges, and this should be done at the earliest, or the court should announce the verdict on a case-to-case basis (merits of the case) if a case regarding legislative privilege ever comes to its door.

The current state of affairs would not reach a resolve until a codified law is in place which would define the privileges, what would constitute their breach and what would be the consequences of such breach. Such codification would not only delimit the arbitrary powers of the parliamentarians but would also provide greater autonomy to the press and media thus, safeguarding their right to freedom of speech and expression. This would result in a more transparent and accountable government which would ultimately restore public faith in government institutions.

Its time India gave up or delimited the immunities bestowed to the parliamentarians, as done by its international counterparts such the USA, Britain or even Australia. This would provide a safe space for discussion and argument on government policies, an autonomous and free press and a better democracy.

the author is a second-year law student at RGNUL, Punjab.


[1] Art.105, Constitution of India

[2] Sanjay R. Hegde &Pranjal Kishore, When freedom of the press is subject to Assembly privilege (February11, 2020, 12:52 A.M.), https://indianexpress.com/article/opinion/when-freedom-of-the-press-is-subject-to-assembly-privilege-4723471/

[3]Shivprasad Swaminathan, The Conflict Between Freedom of the Press and Parliamentary Privileges: An Unfamiliar Twist in a Familiar Tale, National Law School of India Review 123, 124 (2010).

[4]M.S.M. Sharma v. Srikrishna Sinha, AIR 1959 SC 395.

[5]In Re Presidential Reference under Article 143 of the Constitution, AIR 1965 SC 750.

[6]Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 SCC 184.

[7]Faizan Mustafa, Bringing the House up to date (February 11, 2020, 12:31 P.M.), https://www.thehindu.com/opinion/op-ed/bring-the-house-up-to-date/article19253239.ece

To ‘Live and Let Live’: Analysing the decision in Karnail Singh v. the State of Haryana

by Manvee Kumar Saidha

INTRODUCTION

Animal welfare is a statutorily perceived subject in India. Though one may argue that this novel concept is restricted to texts — as provided under the constitution, numerous legislations and regulations — the satisfaction of its mere existence seem to have sufficed. India houses along with seventeen other megadiverse countries about sixty to seventy percent of the biodiversity of the world[1]. The animal kingdom in India, which is a combination of species from diverse origins[2] has been gradually inflicted with the consequences of human greed. Though protection is afforded to animals by law, its practical employment and impact have been perpetually limited.

Though there exist various legislations with regard to animal welfare, the primary source is the Constitution of India. Article 51-A(g) of the Constitution directs every citizen to protect and improve the natural environment which includes wildlife, and that it is the fundamental duty of all citizens to have compassion for living creatures. Clause (h) of the Article provides that, ‘humanism’ is to be developed along with the spirit of inquiry and reform. Article 48-A of the constitution requires the State to protect and improve the environment and to safeguard the forests and wildlife of the country. Although these articles of the constitution, being directive principles of state policy,  are not justiciable, they provoke interpretation through an ecocentric lens in the courts of law.

Judicial pronouncements have played a significant role in provoking animal welfare and protection, taking, for instance, the case of Animal Welfare Board of India vs. A. Nagaraja & others[3], where the Supreme Court provided that animal welfare laws have to be interpreted keeping in mind the welfare and best interest of the species subject only to exceptions arising out of human necessity. Their Lordships also took cognizance of the following international standards of freedom set out for animals, which are required to be read with Sections 3 and 11 of The Prevention Of Cruelty To Animals Act, 1960 in order to provide an integrated safeguard system :

  • freedom from hunger, thirst and malnutrition;
  • freedom from fear and distress;
  • freedom from physical and thermal discomfort;
  • freedom from pain, injury and disease; and
  • freedom to express normal patterns of behaviour.

These provisions are afforded in addition to Article 21 of the Constitution which protects life and the word ‘life’ has been given an expanded definition to include all forms of life, including animal life. And as for its application, ‘life’ is purported to mean something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity. The court, through the judgement, acknowledged that the rights of animals is an issue of seminal importance, and is dealt with ‘under our Constitution, laws, culture, tradition, religion and ethology[4] …’.

To this effect, the judgement of the Punjab and Haryana High Court, in Karnail Singh vs. State of Haryana[5], wherein the court declared that animals (including those from the avian and aquatic species), are legal entities and simultaneously held that the citizens throughout the State are persons inloco parentis, who are to carry out such welfare and protection of animals, is a welcome step. This pronouncement makes Haryana, the second state to grant animals personality under law. The Uttarakhand High Court, in 2018, made a similar declaration in the case of Narayan Dutt Bhatt vs. Union of India[6]. Justice Rajiv Sharma, the judge who presided over the matter in the High Court of Punjab and Haryana, was also a member of the bench of the Uttarakhand High Court, which conferred personhood to animals in this 2018 case. The verdict was given in response to a petition filed by Narayan Dutt Bhatt, who alleged that animals which were involved in transporting goods across the Indo-Nepal border were being treated with cruelty, and faced abandonment. Directions were issued to the Uttarakhand government and local authorities to ensure the welfare of domesticated animals and the prevention of cruelty, which was also to include stray animals.

THE CASE

When the police officials were on patrolling duty near village Nagla Megha Chowk on Meerut Road they received secret information to the effect that cows were being exported to Uttar Pradesh. The trucks bearing the notified registration numbers were stopped at a Police picket near the Yamuna bridge, before the Haryana-Uttar Pradesh boundary. A total of 29 cows were recovered, and the drivers, as well as conductors, were apprehended. The cows underwent a  medico-legal examination, and sent to the nearest Gaushala, after which a challan, on completion of all the formalities, was put up.

The learned trial Court convicted them, with an imprisonment sentence for a period of two years and a fine of Rs.1500 each, for the offence under Section 4-b/8 of the Punjab Prohibition of Cow Slaughter Act, 1955 (is applicable to the state of Haryana as amended by the Haryana Act 13 of 1981). The appeal was dismissed by the appellate court, but the sentence was scaled down from two years to six months. This landmark judgement is a consequence of the revision petition instituted against such judgment whereby the conviction imposed was maintained, but the sentence was reduced from two years to six months. The Punjab and Haryana High Court upheld the conviction but in consideration of the fifteen years already spent in criminal proceedings, the sentence of imprisonment was the period already undergone. The essence of the judgement is, however, the deliberation that was delivered to the issue of animal rights and the acknowledgment of their person.

The various laws and regulations that exist to ensure animal welfare were revisited. The judgement highlights the numerous statutory-texts pertaining to conditions of security with regard to transport of animals, prevention of any form of cruelty towards them, the requisite procedure of treatment and care, etc. that, though present on paper, have been ignored and gravely violated in cases such as the instant matter itself. In the discourse of the judgement the court also observed, and intended to ascertain, the prevailing responsibility that humans, and specifically the citizens of India, have towards animals. Beginning from the values asserted through the age-old Isha-Upanishads, the inherent traditions that encourage respect towards animals, to the national and international texts that confer a responsibility on society; enough emphasis has been laid on the formal and informal obligations owed towards the fellow animal-beings.

As regards the subject matter of legal personality the judgment dwells, and deeply so, into the jurisprudence and justification of allocating it to non-human entities. Referring to the case of Shiromani Gurudwara Prabandhak Committee, Amritsar vs. Shri Som Nath Dass & others[7], wherein their Lordships, of the Hon’ble Supreme Court attributed the allocation of juristic personality to the factor of necessity that arises on account of continuous human development. An entity is recognized as a juristic person for subserving the needs and faith of society. It simply connotes the recognition of an entity to be a ‘person’ in terms of the law which otherwise it is not. In other words, it is not a natural person but an artificially created person that needs recognition as that of a person in law. Further, taking from Professor Stone’s theories, it was observed that legal personality plays an important part in ‘making a thing count in the eyes of the law’. The conferral of legal personality upon the objects or beings devoid of rights carries with it the legal recognition that those objects or beings have worth and dignity in their own right[8].

Through an elaborate discourse on the origin and ideas of legal personality that followed, the court came to establish that there lies no necessity of possession of a human personality to be a ‘person’ in the eyes of law. The emphasis generally placed upon ‘reason’ as a uniquely human attribute is not plausible. Such emphasis attributes ‘reason’ to human beings as a species, whereas it is empirically evident that many individuals who are certainly human from a genetic point of view are partly or totally lacking in it[9].  Thus, nothing inherently opposing extending legal personality to animals was identified in the concept. The court rightly pointed the undeniable, and unfortunate truth that it is only when a personality is attributed upon an entity lacking legal rights, then only humans are able to conceive of it as ‘anything but a thing for the use of ‘us’ — those who are holding rights at the time.’ Taking into consideration what the label of ‘person’ could offer to the animals and seemingly no opposition to confer it, the court decided to recognise animals as parties to legal actions, thereby providing them with the independent standing that they currently lack. With such recognition, came responsibility. The need for an ‘administrator’ of such rights was required, and it was the citizens, who would exercise their rights and interests. In conclusion of the same, mandatory directions were issued to pursue the welfare of the animal kingdom.

CONCLUSION

The dignity that the animals deserve was suggested to be granted to them by including them in the community of legal persons. While the court emphasised that such action will force humans to see the value of animals for themselves rather than seeing them simply as the object of property rights. Legal personality is a choice and a construct of law. As also noted in the judgement’s conclusion, ‘the question of whether legal personality will be bestowed on animals depends on whether human beings are prepared to acknowledge that animals need and deserve full legal protection for their rights and interests.’ Judgements that accord personality to non-humans will continue to rise in the coming times. The direction in which our societies are headed will, in fact, necessitate this; take, for instance, the debate surrounding the personhood of artificial intelligence.

That being said, the recognition of animals as persons and consequent protection is, quite literally, the end to which the judiciary can intervene in the realm of animal welfare. These decisions can only take effect when the people themselves alter their behaviour in the direction as intended by the judgement. In this case too, it is the citizens who must validate the essence of this judgement through actions. To rejoice solely on the premise that by providing legal personhood, the state of animals will change for the better is simply dubious. The problem has never been the legal status of the animals, it has been the mindset of the people who handle them. While according personhood would afford a greater degree of legal protection, who is actually going to fight for it? The executor of the rights afforded to animals as ‘persons’ remains human — those who (mis)use them as a resource, treat them with absolutely no sense of dignity in the process, and most of those who have probably not (and will probably never) even read this judgement. If judicial decisions alone could compel the ‘just and fair’ initiative that every society seeks, the need for this judgement wouldn’t have arisen in the first place.

It is said that kanoon ke haath lambe hain, but are they long enough?

the author is a 3rd-year B.A.LL.B (Hons.) student studying at School of Law, Christ University.

References:

[1] Dutt, Misra & Chatterjee, Explorations in Applied Geography, (2008)

[2] Peter Haggett, Encyclopaedia of World Geography: The Indian subcontinent, Volume 19, (2002)

[3] Animal Welfare Board of India vs. A. Nagaraja & others, 2014 (7) SCC 547

[4] Id.

[5] Karnail Singh vs. State of Haryana, 2019 SCC OnLine P&H 704

[6] Narayan Dutt Bhatt vs. Union of India, 2018 SCC OnLine Utt 645

[7] Shiromani Gurudwara Prabandhak Committee, Amritsar vs. Shri Som Nath Dass & others, AIR 2000 SC 1421

[8] Kelsen, Hans, and Albert A. Ehrenzweig. “Professor Stone and the Pure Theory of Law.Stanford Law Review, vol. 17, no. 6, 1965, pp. 1128–1157. JSTOR, www.jstor.org/stable/1227237. Accessed 8 Mar. 2020.

[9] Valerio Pocar, Animal Rights: A Socio-Legal Perspective, 19 Journal of Law and Society (1992) pp. 214-230.

The CPIO, Supreme Court of India v. Subhash Chandra Agarwal & Anr. – How transparent is transparent enough? 

  • Prince Pathak

The Supreme Court recently upheld the judgement of Delhi High Court. The landmark judgment of the five-judges bench puts the Chief justice of India’s office in the ambit of RTI (Right to information) and also held that, the office of the Chief justice of India is under the public authority[i]. This case came into the light by the Delhi RTI activist Subash Chandra Agrawal, when he filed an appeal before the CPIO (central public information officer) Supreme Court for the compliance with the declaration of the assets by the judges adopted in a Supreme Court resolution in 1997. CPIO rejected the appeal, it was filed again before the CIC (Central Information Commission) and then the matter went to the High court and the Supreme Court. The secretary-general of the Supreme Court petitioned the Supreme Court itself and challenged the Delhi High court decision in 2010. The Supreme Court took almost a decade to deliver this judgment. The judgment makes the CJI office more transparent and accountable to the people in the case of appointment. Nevertheless, the decision does not define the standards for the appointment of judges.

The breakthrough of the Supreme Court for making the judiciary accountable isn’t made for the first time. The Apex Court in 2015 by the three-judge bench, including the erstwhile Chief justice of India Dipak Mishra, Justice A.M Khanwilkar and D.Y Chandrachud gave the judgment regarding the live streaming of court cases which are of constitutional importance[ii]. This judgment was a huge step forward for maintaining the accountability of the Supreme Court to the people.

Further, the argument made by the Appellant (CPIO, Central Public information officer) in the Supreme Court was that the independence of the judiciary is utmost indispensable. The disclosure of sensitive information will cumber the independence of the judiciary; this was acknowledged by the apex court. The Respondent (Subash Chandra Agrawal) upon section 8 (1) (j) of the RTI Act which talks about the exemption from the disclosure of the information[iii], argued that disclosure of information not done unless the more substantial public interest requires that information. The respondent further expounds that the declaration must be based upon case basis if any private information is there. The question looms that whether the Supreme Court (parens patriae) which act as an intervener against the abusive power was itself responsible for this interrogation or judiciary must have to assign this responsibility to the parliament.

Coming to the aspect that concerns the squabble between the right to know and right to privacy. The apex court, in this judgment, explained that right to know is not an absolute right and can be diminuendo in some cases. The judgment held that the right to privacy is an indispensable aspect of everyone’s life and must not use an axe to grind. RTI cannot be used as the tool for surveillance which again bolsters up the independence of the judiciary.[iv]

However, the judgment is very startling in itself, the Chief justice of India appointed under Article 124 of the constitution of India, which brings CJI’s office under the domain of public authority. Because the section 2(h) of the RTI Act implies that, those authorities or bodies which constituted or established under the constitution of India called as a public authority hence, the section of 2(h) of the RTI Act instinctively making the CJI office under the domain of the public authority. Now, the question further can be asked why there was so hue and cry on this. Whether the judiciary was remiss in its duty? The Supreme Court is the highest authority of the judiciary in India. Also, Article 50 of the constitution of India bolsters up the concept of the independence of the judiciary. [v]Although privacy and accountability must go hand-in-hand, transparency cannot triumph over the privacy and vice-versa. The judgment also maintains the dignity and privacy of judges. The bench unanimously held that the RTI is not an absolute right and there should be a proper balance between the right of the judges and transparency. And if any RTI filed seeks to infringe upon the right to privacy of judges that need not be answered. Even the question cannot be put before the judges to disclose the rationale of the judgment because that information is also not on record. The judgment clearly stated what information could be provided to the information seekers and declaring of assets does not constitute the “personal information” of the judges.[vi]

But despite this landmark judgment, the odds for misusing the RTI also escalate. RTI has ushered transparency. This judgment explicitly explained that information which is of immense public interest only needs to answer hence, fabricating the lesser chances of getting misused. Apart from opportunities to get misused this decision gave the classic instance for all other bodies and authorities to declare itself under the public authority, which will help to bring transparency. In the case of DAV College Trust and Managing vs. Director of Public Instructions [vii]apex court again make a good start, held that school and college are substantially financed public authority within the meaning of Section 2(h) of the Act. Transparency must be present within all three branches of government, i.e. legislative, executive and judiciary. RTI, in this, is a stalwart weapon that enriches the accountability and transparency. However, the Supreme Court has done a splendid job by announcing CJI office as part and parcel of public authority but we must spend some time to check the ground reality of RTI in the judiciary and Supreme Court.

The author is a 3rd Year Student from BHU Law School, Varanasi


[i] Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459.

[ii] Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639.

[iii] Section 8, The Right to information, 2005.

[iv] Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459.

[v] Article 50, The Constitution of India.

[vi] Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459.

[vii] 2019 SCC OnLine SC 1210.

When Judiciary forfeits the trust of the Citizenry

  • Anchal Bhateja and Jisha Garg


Human beings are peculiar social creatures who can neither survive without socialisation nor can they prevent the inevitable frictions that stem out of it. The birth of these frictions and conflicts further gives birth to the need for having individuals and institutions that can resolve these frictions.  Due to the nature of the role of these institutions and individuals, we tend to attach various virtues like impartiality, fortitude and moral courage to these individuals who are called Judges in common parlance and features like stability, fairness and independence to these institutions which are called courts in common parlance.

In India as well, the quantum of the trust reposed in judiciary and judges is exponentially higher than that, that is reposed in any individual or any other institution in the country. Immense credence that the judiciary has to its name, is manifestly visible in the Constitution of India. Be it Article 142[i] that vests with Supreme Court the power “to pass such decree or make such order as is necessary for doing complete justice”, be it Article 13 (2)[ii] read with Article 32[iii] and 226[iv] of the Indian Constitution that empowers the supreme court and high courts to invalidate all the laws that are in contravention with the Fundamental Rights, or be it the 13  bench judgement rendered in Keshwananda Bharati v. State of Kerala[v]  that empowered the Judiciary to review laws passed by the legislature and also made this power of review, immune from any alterations by the Legislature. All these factors establish that the Judges and the judiciary are entrusted with vital constitutional and public functions, due to which the degree of moral rectitude associated with the judges is also extremely high.

However, the assumptions ingrained in the minds of the citizens, due to which they feel the  Judges are replete with virtues and are immune from biases and political pressures, are fact-free.   Such assumptions have been brutally debunked in various instances when Justices on the Collegium have made appointments based on nepotism when the collegium has made unfair transfers under political pressures when the judges have penned down politically motivated judgements and the most notably when these individuals on the bench have accepted and welcomed post-retirement appointments by the executive. The nomination of former CJI Ranjan  Gogoi has been the latest addition to the list of these Justices.[vi]

As has been argued by many jurists and commentators, this appointment has threatened the very sanctity and efficacy of doctrine of separation of powers which finds reference in Article 50[vii]  of the constitution and is indispensable for curbing the abuse of executive power, preserving the freedom of Judiciary and ensuring the efficient functioning of the three organs of the state.[viii] The fear of inefficiency resulting from the blurring demarcations between the executive and the Judiciary is only one side of the story.

But, what deems attention at this point when our Constitution has conferred on us, the right to life and liberty which entails dignified existence and not merely an animal existence[ix], is that how the citizenry views the judiciary and whether this appointment of J. Gogoi would blemish or embellish that viewpoint. It is also to be considered as to how such actions on the part of judges negatively affect individual rights, life and liberty.

Concerning the issue of the viewpoint held by the citizenry, as has been argued initially, a high degree of moral rectitude is expected out of judges. It has been pointed by J. Chandrachud in one of his lectures that irrespective of their personal background, judges and their judgements are trusted for being impartial because people generally view the judiciary as being a Bastian of justice and this perception leads to a transference of trust to all the members of the judiciary.[x]

However, immediate appointments of judges after they retire casts a shadow of doubt on the justness of the judgements rendered by them, irrespective of their merits as people presume these pre-retirement decisions to be politically coloured or aimed at securing favours from the executive. This happens because as per the judicially accepted test of bias which was laid down in the case of Rattanlal Sharma v. Managing Committee and others[xi], the presumption of bias is stronger in the case of the judiciary. The existence of actual bias is not necessary and the mere presumption of bias, which is founded on grounds that are not very improbable or unreasonable, is enough to presume a bias.

Apart from the stains on the sanctity of judiciary and the resulting loss of public trust, a further and a scarier problem can be that people who see the judiciary as a reliable adjudicator and custodian of their rights, may opt for extrajudicial means, which might not work on the principles that sit well with the constitutional ideals. Vesting adjudicatory powers with Khap panchayats that are known for not following principles of Equality[xii]  and Secularism and do not hear cases or render decisions as per the due process which is prescribed in the constitution, is one instance of such public behaviour which stems from lack of trust in Judiciary. Treading upon the unchartered territory of mobocracy and inundating the law of the land and the judicial processes by lynching people on streets for being alleged kidnappers[xiii] or beef eaters[xiv] is another such instance. Thus, it can be concluded that such a situation where citizenry loses faith in the judiciary is extremely undesirable and can lead us to a state of utter lawlessness and instability which would threaten the life and liberty of individuals.

Concerning the issue of effect on the rights of individuals, Article 32 and 226 of the Constitution empower the Supreme Court and the High Courts to armour the Fundamental  Rights of individuals. Likewise, As per the ruling in Sidheshwar Sahakari Sakhar Karkhana Ltd. V. Union of India[xv] the Judiciary is vested with the power to review the administrative decisions of the Government. All this indicates that judiciary plays a significant role in adjudicating disputes between the state and the individual which account for nearly 46% of the total litigations[xvi]. Thus, The only remedy available to an individual when they are wronged by an executive or an administrative action is the Judiciary. But when the Judiciary sheds it’s virtue of impartiality and becomes immune to Executive influence, the probability of reaching pro executive outcomes increases and the rights of individuals are detrimentally affected. In fact, which court can an individual, who is wronged by the Executive, approach apart from these pro-executive courts? This pro-executiveness of the judiciary and its impact on individual rights became quite apparent when Mr. Gogoi, the then CJI  under the PIL powers, took over the process of National Register of Citizens and thereafter, the SC decided the deadlines, procedures and documents which were to be submitted for the NRC[xvii]. The question of the constitutionality of NRC is a separate issue, however, the very fact that the former CJI played an emphatic role in a purely administrative and executive action that had the potential to affect the substantive rights of individuals, speaks volumes about his pro executive stance. Another such instance of collusion of judiciary and executive was seen when J. Gogoi rejected Habeas Corpus petitions which were filed by a few politicians and students, before the Supreme Court after the Kashmir lockdown. The unfortunate fact is that he is not the only one to accept such a political appointment, other eminent justices like P. Sathasivam, J. Ranganath Mishra, J. AK Goel and so on have also been guilty of the same in the past[xviii]. This shows that the problem of post-retirement appointments is not an isolated one but is rather systematic in nature.

Due to this, the executive’s decision to make such appointments and the judge’s decision to accept such positions should be revisited by them. The drafting   Chairman of the constituent assembly Dr BR Ambedkar was sure that the Judiciary will not have to adjudicate many disputes between the states and the citizens as he thought that the primary function of the judiciary was to resolve disputes between private parties only[xix]. This is why he rejected PK sen’s proposal to include a constitutional provision imposing an embargo on sitting and retired judges from holding offices under the  Government of India or of a state. Ambedkar’s assumption has become archaic in current times when State is a litigant in 46% of cases and Judiciary hears and adjudicates conflicts between state and citizens for most of the time. The need to have a provision identical to the one proposed by Sen has arisen, more than ever before. Even if this idea seems too radical, there at least needs to be a cooling period of a few years, before a retired judge is offered some position by the executive.

All these measures are necessary for the trust and faith in the judiciary to revive, survive and thrive. They are also important to materialise Restatement of Values of Judicial Life[xx] which was adopted by the Supreme Court on 7th May 1997. This restatement encourages the members of the higher judiciary to conduct themselves in a way, such that the people’s faith in the impartiality of the judiciary is re-affirmed.  This cannot happen unless the issue of post-retirement appointments is addressed jointly by the judiciary and the executive.

Anchal is a 2nd Year Student at NLSIU, Banglore & Jisha is a 1st Year Student at RGNUL, Patiala

Endnotes


[i] The Constitution of India, 1950, Art.142.

[ii] The Constitution of India, 1950, Art.13(2).

[iii] The Constitution of India, 1950, Art.32.

[iv] The Constitution of India, 1950, Art.226.

[v] Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[vi] Govt. of India, Ministry of Home Affairs, F. No. 15/2/2018-M & G (March 16, 2020).

[vii] The Constitution of India, 1950, Art.50.

[viii] Samanwaya Rautray, Kurian Joseph hits out at Ranjan Gogoi for taking Rajya Sabha route, THE ECONOMIC TIMES March 18, 2020.  

Available at https://economictimes.indiatimes.com/news/politics-and-nation/kurian-joseph-hits-out-at-ranjan-gogoi-for-taking-rajya-sabha-route/articleshow/74684534.cms

[ix] Maneka Gandhi v. Union of India, AIR 1978, SCC 597

[x] Rangin Pallav Tripathi, Don’t judges need the trust of the people more than people need to trust judges, THE WIRE October 7, 2019.

Available at- https://thewire.in/law/dont-judges-need-the-trust-of-people-more-than-people-need-to-trust-judges

[xi] Rattanlal Sharma v. Managing Committee and others, AIR 1993, SCC 2155

[xii] https://economictimes.indiatimes.com/news/politics-and-nation/khap-interference-in-marriages-absolutely-illegal-sc/articleshow/63477332.cms?from=mdr

[xiii] https://www.washingtonpost.com/world/asia_pacific/mobocracy-cannot-be-permitted-indias-supreme-court-cracks-down-on-social-media-fueled-lynchings/2018/07/17/f50d89a3-b198-4830-9f7f-4823f8127f0a_story.html

[xiv] https://www.washingtonpost.com/news/global-opinions/wp/2018/07/24/will-modi-stop-indias-cow-terrorists-from-killing-muslims/

[xv] Sidheshwar Sahakari Sakhar karkhana Ltd. V. Union of India, AIR 1999, SCC 5866.

[xvi] Department of Justice, Active plan to reduce Government Litigation, 2017, 2.

[xvii] Gautam Bhatia, The troubling legacy of Chief Justice Ranjan Gogoi, THE WIRE March 16, 2019.

Available at- https://thewire.in/law/chief-justice-ranjan-gogoi-legacy

[xix] Arghya Sengupta, After the judges retire: time for a fresh look at sensitive judicial afternoons and evenings, May 8, 2019.

Available at- https://timesofindia.indiatimes.com/blogs/toi-edit-page/after-the-judges-retire-time-for-a-fresh-look-at-sensitive-judicial-afternoons-and-evenings/

[xx] Revathi Krishnan, Supreme Court crisis: These are the 16 values of judicial life our judges swore to uphold, THE PRINT May 2, 2019.

Available at- https://theprint.in/judiciary/supreme-court-crisis-these-are-the-16-values-of-judicial-life-our-judges-swore-to-uphold/229845/