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.

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

The Dilemma of Conscience- A Closer look at the Sabrimala Verdict

  • Abhijith S Kumar

Should judges ignore the disaffection caused by decisions? The spirit of the law demands a considered appreciation of the social milieu. The invocation of battle [review petition] metaphors to sanctify a review-worthy judgment is nothing but an apology for judicial absolutism”,[1] opined a civilian in response to the review application against the Sabarimala verdict.[2] However, a large section also maintains that “the decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.[3] Both observations raise cardinal issues on the judicial process and constitutional aspirations, which is sought to be addressed hereafter. Even when the author desires to side with the revolutionary evolution of feministic jurisprudence in this judgment which upholds constitutional morality as against the patriarchy driven ‘public morality’, the glitches in the majority opinion cannot be overlooked and therefore falls in a dilemma.

The judgment rendered by Dipak Mishra, J. opens thus: “The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer explanation or justification to substantiate the substratum of the said rule”. The learned judge goes on to acknowledge the long history of oppression that women had to suffer and traces dualism in religion driven by gender stereotypes as reasons resulting in indignity to women. The rape culture prevalent in India and gender-specific violence and discrimination stems from the factum of gender role attribution. As a social institution, the courts in India also have a socio-moral obligation to interfere in such matters. However, one of the very basic issues that popped up in the judgment was the constitutional authority of courts to comment on religious matters.

Faith and religion are so intertwined with the culture and social fabric of the nation that often more rights are attributed to deities as opposed to the hapless subjects who are ‘living’. The very discussion of celibacy and austerity exposes the vulnerability of Indian society, which sadly doesn’t seem to do anything other than suppressing dissent voices, the protests that followed being proof. Unfortunately, that arguments were raised to extend constitutional rights to the deity beyond the property rights, the extension of which was the reason for conferring a juristic personality.

Placing reliance on the concept of secularism, Indu Malhotra, J. vehemently attacks the interference of courts in religious matters. Whereas, D Y Chandrachud, J. condemns the Bombay High Court decision in Narasu[4] and holds that immunising customs and usages takes away the primacy of the Constitution and thereby exorcises the ‘Ghost of Narasu’. Religion being yet another social institution, leaving it unregulated beyond the purview of the judiciary may open a Pandora’s box. For this reason, the majority opinion holds good.

The court discussed among the above-mentioned issue, the issues pertaining to the right to worship, dimensions of public morality, conceptual clarity of ‘essential religious practice’ doctrine and untouchability. Then remains the initial premise from where we started – the acceptable limits of judicial activism and consideration of public sentiments and practicability of enforcement.

The right to worship stems from Article 25 of the Constitution. The majority opinion places emphatic reliance on the usage ‘all persons’ within the Article to put across that the right is available to everyone irrespective of their gender. This is not denied in the dissenting judgment. However, the reasoning given by each of the judges suffer from clarity or rather are conflicting interpretations of the same premise.

Dipak Mishra, J. explaining the tenets of religious freedom, draw observations from Nar Hari Shastri[5]:

“Once it is admitted that the temple is a public place of worship, the right of entrance into the temple for…. worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need to be asserted or proved.”

The excerpt is a positive statement that negates the need for any evidence of customary practice to acquire the right of entry. But it is noteworthy that the same doesn’t negate the evidentiary value of custom to restrict entry. The challenge is posed in the further paragraph:

“Right of entering the temple…is a legal right in the true sense of expression but it can be exercised subject to restrictions which the temple committee may impose in good faith…for ensuring proper performance of customary worship.”

Section 15A of the Travancore Cochin Hindu Religious Institutions Act, 1950, the provisions of which formed the basis for the finding of the temple in dispute as a public temple limits the functions of the Board “to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly.” Thus, it seems that the learned judge contradicts at this juncture.

But the view on constitutional morality seems to rectify this defect. The limitations under Article 25 include public order, morality and health, and all the judges had limited the discussion to public morality. The discussion on public morality is rather interesting. Deepak Mishra, J. concurred by R F Nariman, J. equated public morality to constitutional morality. Even when doubt exists as to the veracity of this conclusion, from the observations in Manoj Narula,[6] wherein it states that the traditions and conventions have to grow and sustain the value of constitutional morality, it is clear that constitutional morality can form some force reshaping traditions. This idea is further backed by SC’s finding in Navtej Singh[7] wherein SC acknowledges the diversity of thought and aspirations but insists on non-abridgement of others’ rights, upholding the principle of constitutional morality.

D Y Chandrachud J. even goes on to reject the ‘prevailing social conception’ test of evaluating public morality which has been propounded in the context of Article 19. He goes on to develop the concept in terms of justice, liberty, equality, and fraternity. The learned judge purports an exalted value to ‘dignity’ and identifies constitutional morality as the resort to ensure it and hence opined: “The founding faith upon which the Constitution is based in the belief that it is in the dignity of each individual that the pursuit of happiness is founded”.

Also, Chandrachud J.’s analysis of Article 25(2) is pertinent. It is found that though this provision doesn’t place a positive duty on the State to throw open Hindu religious institutions of public nature to all sections of Hindus, analysed with the historical background in which the Constituent Assembly drafted it, it shows that the Assembly intended to protect the State measures in enforcing constitutional mandates from circumscription by Art. 25. Thus, the respected judge explains the tenets of religious freedom in correlation with constitutional morality. It is maintained that the individual right of freedom of religion is subject to the overriding constitutional postulates of equality, liberty and personal freedoms under Part III.     

 Whereas, Indu Malhotra J. maintains that the right to worship is to be predicated based on the affirmation of a belief in the particular manifestation of the deity in the temple. This seems to be an argument formed of the premise of identification of faith as a standard form contract wherein if one does not intend to believe the faith as to how it is, he can’t exercise the claim of his right, which is absurd. An interesting observation would be: “The right to gender equality to offer worship to Lord Ayyappa is protected by permitting woman of all ages, to visit temples where he has not manifested himself in the form of a ‘Naishtik Brahmachari’, and there is no similar restriction in those temples.” The underlying concept behind this proposition is that the right to worship doesn’t include the right to worship at any and every place of worship, as propounded in Ismail Faruqui,[8] though the matter has not been cited or referred. But in this regard, a distinction is to be made as in Ismail Faruqui, such a conclusion was made as it involved acquisition of place of worship effectively denying the opportunity to all persons in a particular religion whereas such a proposition doesn’t stand good when one section of the community is allowed entry while a counterpart is denied the same right.

Even when Indu Malhotra, J. understands constitutional morality as achieving the objects contemplated in the Constitution, observes that notions of rationality cannot be invoked in matters of religion by courts. This seems outwardly contradictory, but a close introspection leads to the conclusion that such a deduction is made on the identification of ‘pluralistic nature’ and ‘secular polity’ as one of the elements intended to be protected by the Constitution. This leaves us in a dilemma of ranking dignity and pluralism based on the importance that the Constitution ascribes to each.

The majority judgment favoured entry of women of the impugned age group on the ground that such a restriction doesn’t qualify as an ‘essential religious practise’. What constitutes an essential religious practice must be determined concerning its doctrines, practices, tenets, historical background, etc.[9] Thus, the taking away of such a practice, if it results in a fundamental change in the character of the religion, then it’s an essential practice.[10] Citing Ratilal Panachand Gandhi,[11] Indu Malhotra J. identifies essential religious practice as those which are claimed to be so. This, the author finds an incorrect proposition of law as later judgments including the latest decision in Shayara Bano[12] allow judicial reasoning in this regard. The learned judge relies on Sheervai’s comment on Shirur Mutt: “what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another.” The author doesn’t dispute this but points out that this along with other authorities cited had discussed this proposition in the light of the rights of religious denominations. However, herein, it cannot be satisfactorily concluded that Indu Malhotra, J. succeeds in establishing Lord Ayyappa worshippers as a separate religious denomination.

In the discussion relating to the question of whether Sabarimala pilgrims form a religious denomination, the author aligns with the majority decision that ruled in negative. The discussion on religious denomination throws up a much interesting question as to whether one can be a part of more than one religious denomination at the same point in time. Going by the minority judgment, the answer should be in affirmative, in which the author finds a dilution of the settled rules on denominations. The very idea of a denomination is the existence of a common faith, the satisfaction of which seems impossible when one simultaneously believes in another faith too.

One of the laudable findings made by Chandrachud J. is on ‘untouchability’. Adhering to usage in Article 17, untouchability of ‘all forms’, the lordship deviated from the previous SC judgments that confined the concept of untouchability to caste-based exclusions. Overthrowing the reasoning made in the precedents limiting the scope of untouchability owing to the factum of the word ‘untouchability’ being put within inverted commas (“ ”), Chandrachud J. identified the notions of “purity and pollution” as the sustaining force of untouchability and found it to be against the tenets of dignity and constitutional morality.

Even when, the majority judgment conforms to the transformative vision of the Constitution, the public sentiment has made it in a way impracticable to enforce. Thus, the question arises as to whether public sentiments and the practicability of enforcement be considered while exercising the judicial process. At times, as Cardozo himself has pointed out, the judges will have to use knowledge other than those relating to law, including those from life to address a social issue. This may be seen as judicial activism as it exists today. However, consideration of public sentiments may gain popularity to the judge but may cause serious damage to the principles of the rule of law. The recent incident of police encounter of rape accused challenges the very sanctity of legal conscience and is nothing less than a move instigated by popular will. Constitutional morality also calls for respect for governmental organs and the democratic process. 

The author is a 4th Year Student currently studying at NUALS, Kochi


[1] https://www.thehindu.com/opinion/letters/sabarimala-verdict/article30110765.ece

[2] Indian Young Lawyers’ Association & Ors. v. State of Kerala & Ors., 2018 SCC OnLine SC 1690.  

[3] https://www.thehindu.com/opinion/editorial/freedom-to-pray/article25074443.ece

[4] Narasu Appa Pattil v. State of Maharashtra, 2004 SCC OnLine Bom 1142.

[5] Nar Hari Shastri v. Shri Badrinath Temple Committee, AIR 1952 SC 245.

[6] Manoj Narula v. Union of India, (2014) 9 SCC 1.

[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[8] Ismail Faruqui v. Union of India, (1994) 6 SCC 360.

[9] Commr., Hindu Religious Endowments v. Shri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282.

[10] Seshammal v. State of Tamil Nadu, AIR 1972 SC 1586.

[11] Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.

[12] Shayara Bano v. Union of India, AIR 2017 SC 4609.

Judicial Evolution of the Right to Privacy and the Aadhar conundrum by Harish Jayakumar, HNLU

The Industrial Revolution picked up steam at the turn of the 19th century and the world underwent a decisive change forever. Almost 200 years later, the world is similarly being transformed by the Technological Revolution. It has been instrumental in propelling us into the Information Age where the proliferation of knowledge has never been greater. However, while the benefits are numerous and immense in their scale, there are equally vital concerns ranging from privacy to data-protection to which a search for an effective solution is still ongoing. One needs to understand the significance of technology because the current and future notions of privacy hinges on how modern society shapes itself to this technological change. Our right to privacy is not the same definition that existed in the ancient era and is constantly evolving and adapting with the times. Previously, the notion of privacy was restricted to the idea of protecting one’s person and property from torts such as trespass[1]. Now, the right to privacy has evolved completely to encapsulate not just privacy in the physical state but also to privacy in the spiritual and intellectual state as well[2].

In India, defining the right to privacy and its extent is more complicated because the Indian Constitution does not guarantee a specific right to privacy. Though the Supreme Court in various judgements has affirmed indeed that a right to privacy is an inherent right and that it flows naturally from the Right to Life and Personal Liberty, it is still a matter of contention. This has created consternation because the right to privacy is an important and inalienable right inherent to every Indian citizen but this is being offset by the State’s need to balance its national security interests. Most recently, the debate around the right to privacy has arisen around the Aadhaar which is a unique 12-digit identity number exclusive to every Indian[3] which is issued by the central government agency known as the Unique Identification Authority of India (henceforth UIDAI). The purpose of the Aadhaar is akin to what the role is of the social security number in the United States. It qualifies as a valid ID for availing various important government services and to receive government subsidies.

The controversy around Aadhaar is because the UIDAI collects the biometric and demographic data of the residents and stores this in a centralized database. This poses a serious risk to the right to privacy of each individual as it is now possible to categorize everyone in society by analyzing their biometric information. This is notwithstanding the fact that this information is in a centralized database which is a major security concern. The safeguards that have been introduced by the government in order to ostensibly protect the information of the citizens are also wholly inadequate and laughable by international standards. The implementation of the project has not taken place smoothly and has been ridden with a slew of controversies which raises questions regarding the efficacy of the government’s methods. The Aadhaar has been introduced by the government to provide many of their most important services and subsidies through the Public Distribution System (PDS). It is directly transferred to the lower strata of society in order to eliminate the middlemen and the constant leakages that plague the system. Also as of May 2016, almost 101 crore Aadhaar cards have been issued and 97% of adults possess an Aadhaar card[4]. So, it is clear that the project is on its way to its completion. Therefore, there are two very important questions that arise from this. Firstly, is the right to privacy a fundamental right guaranteed under the Constitution and is the UIDAI or Aadhaar in violation of an individual’s right to privacy?

 

The Supreme Court’s stance

 

The evolution of the Right to Privacy did not start out positively in India. The first case before the court which addressed the Right to Privacy was in M.P. Sharma & Others vs. Satish Chandra, District Magistrate of Delhi & Others[5]. The case considered whether there were any constitutional limitations to the government’s search and seizure of people’s homes. Here, the headnote reads, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a different fundamental right by some process of strained construction.” The American Fourth Amendment states that it is the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[6] An important point to be noted is that this does not pertain to the entire right to privacy. It only deals with a part of it, namely the protection of people against search and seizure. Following this is Kharak Singh vs State of Uttar Pradesh[7] which dealt with the physical surveillance of ‘history sheeters’. In this case also, the right to privacy was not recognized. The judgement begins stating that “as already pointed out, the right to privacy is not a guaranteed right under our constitution.”[8] Though, the saving grace here is “as already pointed out” which refers to an earlier section of the judgement where the Court quotes the US Fourth Amendment, and then declares that the Constitution does not confer any ‘like constitutional guarantee’[9] following the ratio of the M.P. Sharma Case. It is clear that both these cases don’t refer to right to privacy as a whole. The Attorney General, Mr. Mukul Rohatgi provoked a huge controversy when he stated in the Supreme Court that Right to Privacy is not a right provided by the Constitution while defending the claim that the Aadhaar violated the Right to Privacy on the basis of these 2 cases[10]. This was a technical error on the Attorney General’s part as both of these cases deal with the question of whether the US Fourth Amendment can be read into the Indian Constitution and not about the whole right to privacy. The 2 cases discussed above don’t rule out a broad constitutional right to privacy as the right to privacy is a bundle of rights not limited to only surveillance or search and seizure. Also, in the minority judgement of the Kharak Singh case, Justice Subba Rao recognized the need for a right to privacy under Article 21 and set the foreground for shaping the right to privacy under Article 21.

In subsequent years, small bench judges expanded the position of the right to privacy. In Govind vs State of Madhya Pradesh[11] which also dealt with the surveillance of ‘history sheeters’, the Court held that the surveillance by various means is not violative of Article 21 of the Constitution as it was a regulation according to “procedure established by law.”[12] However, it recognized the right to privacy in a limited context and allowed that it should be developed on a case-by-case basis. The true break for the Right to Privacy came with the celebrated Maneka Gandhi[13] case which greatly expanded the ambit of Article 21. In the judgement, Justice Bhagwati observed, “The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.” Thus, the Court had held Article 21 to be controlled by Article 19 binding the two important rights together. This also meant that the ambit of right to privacy had greatly increased and could now be interpreted in a much more liberal manner. So, following this in R. Rajagopal vs State of Tamil Nadu[14]  the apex court observed, “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.[15]” Therefore, these final cases represented a decisive shift in the court’s ratio towards the right to privacy. Previously, the court took a cautious stance and interpreted the law in a positive manner following the text of the Constitution. With the liberalization of the country during the early 90s, the Court also followed suit as observed in R. Rajagopal and took favorable interpretations of the right to privacy.

The Evolution of the Aadhaar Project

The need for issuing every citizen an identity card and number had started during the Vajpayee years itself. It was then taken up the subsequent UPA government which established the UIDAI as an attached office of the Planning Commission in 2009. As stated above, the purpose of the Aadhaar is to issue a unique 12-digit number to all residents of India in the form of the Aadhaar card which will serve as the primary proof of identity anywhere across India. This card would contain their biographic and demographic information such as photograph, ten fingerprints and two iris scans which would then be stored in a centralized database[16]. In the beginning, the Aadhaar was created in order to weed out illegal aliens but this has changed to focus it as a development initiative[17]. In its current form, Aadhaar is part of the government’s flagship JAM Trinity (Jan Dhan, Aadhaar and Mobile Banking) by which the government seeks to provide its services to the people using these as the medium in a more efficient, effective and economical way. Aadhaar is the lynchpin of this program and some of the government programs which can be availed using the Aadhaar card include procuring an LPG connection, subsidized rations from the PDS, and benefits under NSAP pension schemes, obtaining a SIM card or opening a bank account[18]. The importance of the Aadhaar is therefore clear and India needs such an identity card so that the beneficial schemes that the government implement reaches those that need it the most.

Troubling Concerns

The Aadhaar has gone through a slew of controversies since its inception and this has raised many vital concerns. Until March 2016, the Aadhaar did not even have legislative backing and the entire project continued to run only on the basis of an executive order[19]. It was only on March 11, 2016 that the Parliament passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, benefits and services) Act, 2016. Even this was not without controversy as the Bill was introduced as a money bill in order to bypass the Rajya Sabha where the ruling government did not have a majority.

Another controversy is the so-called “voluntary” nature of the Aadhaar card. In March 2014, the Supreme Court passed an interim order declaring that the Aadhaar is not mandatory and no one should be forced to use it to avail government services[20]. However, the government fosters the illusion that an Aadhaar is absolutely necessary and one must register their bank accounts with their Aadhaar number in order to avail its various facilities. Indeed, it was only after the Supreme Court passed its orders declaring that no one should be denied services for want of an Aadhaar that the government made statements stating that it was voluntary[21]. In fact, some of the government’s most important schemes such as Jan Dhan Yojana, Ration Card & LPG Subsidy and Mobile Numbers don’t even require the use of an Aadhaar. Therefore, it begs the question as to why the government is so focused on promoting it as a mandatory requirement and it raises concerns about their need to profile the citizens.

This leads us to the most important issue regarding Aadhaar which is privacy or the lack of it in the entire Aadhaar project. The main danger is that it opens the door to mass surveillance because Most of the “Aadhaar-enabled” databases will be accessible to the government[22]. This brings to mind the Snowden leaks in 2013 which revealed that the US government was extensively spying on its own citizens in the guise of “protecting national interests”. Another important concern that has been raised is the method and process of data collection. The UIDAI has enlisted the services of several private subcontractors in order to collect the data which greatly increases the possibility of leakages of data occurring[23]. They are also not responsible to Indian law for data collation and this greatly exacerbates the threat to the right to privacy. Lastly, there is the use of the centralized database which keeps the record of all the biometric and demographic information of each citizen. This has been a great concern because of 2 reasons. Firstly, the data is in the hands of the government which can then use it in order to categorize the people in society. Also, there is the possibility that data leaks may arise from this centralized database because there is as yet, no foolproof system in place to guard against breach of data from the private players despite the UIDAI’s claims that it has robust security measures in place[24].

The UIDAI had an opportunity to implement the Aadhaar for the noble purpose of setting up an effective Public Distribution System and also a pan-India identity card for any transaction throughout the length and breadth of the country. While this has ostensibly been done in some respects, it has also come at a great cost. The government has in the background created a big-brother like situation where they are poised to misuse this data for mass surveillance and profile the citizens in the country. In the world’s largest democracy, such a fundamental violation of a natural right is deeply regrettable.

Conclusion

 

Let us be clear that an absolute right to privacy is impossible in this day and age. It is a fact that somehow, somewhere, we are bound to be identified and categorized in some respect. With technology pervading and becoming an intrinsic part of our lives, it is not possible to truly enjoy a complete right to privacy. However, this does not mean that the right to privacy should be made inviolable to allow mass surveillance by a government. There are still certain fundamental tenets about the right to privacy that must be respected and protected at all costs. Therefore, this presents a new question to the social contract: Does a citizen forsake one’s right to privacy in order to safeguard national security interests? The answer is undoubtedly no because this is a right that is an essential constituent of personal liberty and also to enjoy a free and fruitful life. The Supreme Court is currently deliberating over whether the Right to Privacy constitutes a fundamental right and one only hopes that they declare a positive affirmation firmly entrenching it so. This is important because going forward technology is going to play an even more important role in lives of people. Therefore, stringent declarations protecting the rights of people in case of data protection and privacy violations will become all the more important. By setting a precedent right now, it will help the future generations to expand upon the doctrine. Laying ironclad precedents also sends a message to the government to not tamper with the rights of citizens from the start and conduct their policies respecting these principles. It also ensures that projects such as Aadhaar which are in danger of grossly violating an individual’s right to privacy are never again conducted in the manner that they have been. The Aadhaar is currently poised to be one of the government’s most successful initiatives considering the amount the government has saved plugging leakages in the PDS and directly helping the people who are below poverty line. However, the government is the caretaker of the people and they should be providing the best possible safeguards if they are undertaking any measure that may compromise on an individual’s right. It is regrettable that the same cannot be said of the Aadhaar which stands as a threat to the right to privacy of every citizen. So, it is up to the people to put pressure on the courts and the Parliament alike so that they can take cognizance of the needs of the people and the need of the law to adapt to changing times and their responsibility to ensure that it happens in the free and democratic tradition that this country was founded upon.

 

[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4(5) HARVARD LAW REVIEW 193, 193 (1890).

[2] Hinailiyas, Right to Privacy under Article 21 and the Related Conflicts (January 22, 2014), LEGAL SERVICES INDIA, available at http://www.legalservicesindia.com/article/article/right-to-privacy-under-article-21-and-the-related-conflicts-1630-1.html (Last visited on June 2, 2016).

[3] V Nalinakanthi, All you wanted to know about the Aadhaar Bill, THE HINDU BUSINESS LINE (March 21, 2016), available at http://www.thehindubusinessline.com/opinion/columns/all-you-wanted-to-know-about-aadhaar-bill/article8381808.ece (Last visited on June 9, 2016).

[4] UIDAI (2009), Aadhaar Generation Progress in India, Aadhaar by Ages & Gender, and Aadhaar by Trend (Bar Graph) available at https://portal.uidai.gov.in/uidwebportal/dashboard.do (Last visited on April 30, 2016).

[5] M.P Sharma & Others v. Satish Chandra, District Magistrate of Delhi & Others, AIR  1954 SC 300 (Supreme Court of India).

[6] Amendment IV, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787.

[7] Kharak Singh vs State of UP, AIR 1963 SC 1295

[8] Id., at 13.

[9] Chinmayi Arun, A Basic Right is in Danger, THE HINDU (July 31, 2015), available at http://www.thehindu.com/opinion/op-ed/a-basic-right-is-in-danger/article7482874.ece (Last visited on June 9, 2016).

[10] PTI, Right to Privacy cannot be a Fundamental Right: Centre Tells Supreme Court, ECONOMIC TIMES (July 23, 2015), available at http://articles.economictimes.indiatimes.com/2015-07-23/news/64773078_1_fundamental-right-attorney-general-mukul-rohatgi-privacy (Last visited on June 7, 2016).

[11] Govind vs State of Madhya Pradesh, (1975) 2 SCC 148 (Supreme Court of India).

[12] Id., at Para 176.

[13] Maneka Gandhi vs Union of India, (1978) 2 SCR 621 (Supreme Court of India).

[14] R.Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632 (Supreme Court of India).

[15] Id., at 26.

[16] TNN, Learning with the times: What is Aadhaar?, THE TIMES OF INDIA (4th October  2010), available at: http://timesofindia.indiatimes.com/india/Learning-with-the-Times-What-is-Aadhaar/articleshow/6680601.cms (Last visited on June 9, 2016).

[17] Tusha Mittal, Falling between the barcodes, TEHELKA (20th August 2009), available at http://www.tehelka.com/2009/08/falling-between-the-barcodes/?singlepage=1 (Last visited on June 9, 2016).

[18] Seetha, There is a Privacy Issue with the Aadhaar Card, SWARAJAYA (July 29, 2015), available at  http://swarajyamag.com/politics/there-is-a-privacy-issue-with-the-aadhar-card (Last visited on June 9, 2016).

[19] Ruhi Tiwari, Aadhaar legal, valid under Constitution: Centre tells SC, THE INDIAN EXPRESS (February 12, 2015), available at http://indianexpress.com/article/india/india-others/aadhaar-legal-valid-under-constitution-centre-to-tell-sc/ (Last visited on June 9, 2016).

[20] Krishnadas Rajagopal, Don’t insist on Aadhaar, warns SC, THE HINDU (March 16, 2015), available at http://www.thehindu.com/news/national/aadhaar-not-mandatory-sc-reiterates/article6999924.ece (Last visited on June 9, 2016).

[21] Dhananjay Mahapatra, Aadhaar use will be voluntary, says government, THE TIMES OF INDIA (October 15, 2015), available at http://timesofindia.indiatimes.com/india/Aadhaar-use-will-be-voluntary-says-government/articleshow/49366557.cms (Last visited on June 9, 2016).

[22] Jean Dreze, The Aadhaar Coup THE HINDU (March 15, 2016), available at http://www.thehindu.com/opinion/lead/jean-dreze-on-aadhaar-mass-surveillance-data collection/article8352912.ece (Last visited on June 9, 2016).

[23] Rajeev Chandrasekhar, A Shaky Aadhaar INDIAN EXPRESS (October 1, 2015), available at http://indianexpress.com/article/opinion/columns/a-shaky-aadhaar/ (Last visited on June 9, 2016).

[24] Usha Ramanathan, Who Owns the UID Database? MONEYLIFE (April 30, 2013), available at http://www.moneylife.in/article/aadhaar-who-owns-the-uid-database-ndashpart-ii/32440.html (Last visited on June 9, 2016).