• FEATURED: PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW & NEW FACE OF MERCY: COMPARATIVE ANALYSIS BETWEEN NIGERIA & INDIA Olusola Babatunde Adegbite

• FEATURED: CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF CIVIL SERVICES IN INDIA IN CONTEMPORARY WORLD SCENARIO Dr. Niranjan Parida

• FEATURED: NRC IN ASSAM: ANALYZING CONSTITUTIONAL MORALITY & LEGAL RATIONALITY Ambar Kumar Ghosh

AMIT SINGHAL ASWINIKUMAR BAIRAGYA

Indian Constitutional Law Review EDITION VIII | JULY 2019

Dedicated to the Growth & Evolution of Constitutional Law in India

© Publication of Agradoot for July 2019 Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019]

Editorial Board: Advisory Council & Journal Coordinators

Honorary Advisors 1. Remembering Hon‟ble Justice (Dr) A. S. Anand, 29th Chief Justice of India, Former Chairman, NHRC 2. Hon‟ble Justice Arjan Kumar Sikri, Former Judge, Supreme Court of India 3. Hon‟ble Justice K. S. Panicker Radhakrishnan, Former Judge, Supreme Court of India 4. Hon‟ble Justice Prakash Prabhakar Naolekar, Former Judge, Supreme Court of India, Former Lokayukta, Madhya Pradesh 5. Hon‟ble Justice Peter Mohan Peiris, 43rd Chief Justice of the Republic of Sri Lanka 6. Hon‟ble Justice Kalyan Shrestha, 23rd Chief Justice of the Federal Democratic Republic of Nepal 7. Prof. (Dr.) Ranbir Singh, Vice-Chancellor, NLU, Delhi 8. Prof. (Dr.) Mahendral Pal Singh, Chancellor, Central University of Haryana 9. Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR Hyderabad 10. Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU Bengaluru 11. Prof. (Dr.) Shashikala Gurpur, Director, Symbiosis Law School, Pune 12. Prof. (Dr.) A. Lakshminath, Former Vice-Chancellor, CNLU Patna 13. Prof. (Dr.) Sukh Pal Singh, Former Vice-Chancellor, HNLU Raipur 14. Prof. (Dr.) Paramjit Jaswal, Vice-Chancellor, RGNUL Patiala 15. Prof. (Dr.) Rose Varghese, Former Vice-Chancellor, NUALS Kochi 16. Mr. Arvind Datar, Senior Advocate, Supreme Court of India 17. Mrs. Geeta Luthra, Senior Advocate, Supreme Court of India 18. Dr. Adish C Aggarwala, Sr. Advocate & President of International Council of Jurists 19. Ms. Maneka Guruswamy, Senior Advocate, Supreme Court of India 20. Ms. Karuna Nundy, Advocate, Supreme Court of India 21. Prof. S. Sivakumar, Member, 21st Law Commission of India (2016-18) 22. Prof. Michael Keating, Director, Center for Constitutional Change, University of Aberdeen 23. Prof. Richard Albert, Professor, University of Texas 24. Prof. Andrew James Harding, Professor of Law, National University of Singapore 25. Prof. Madabhushi Sridharacharyulu, Former Central Information Commissioner

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Esteemed Members 1. Dr. Satish Gowda, Senior Professor of Law, P.G. Department of Law, Bangalore University, Bengaluru, Honorary Member, Advisory Council 2. Dr. Atmaram Shelke, Assistant Professor, Symbiosis Law School, Pune 3. Mr. Mohd Imran, Asst Prof., School of Law & Constitutional Studies, Shobit University, Meerut 4. Adv. Manjeet Kumar Sahu, Advocate, High Court of Jharkhand 5. Ms. Navtika Singh, Assistant Professor, ICFAI University, Dehradun 6. Adv. S. Basavaraj, Advocate, Karnataka High Court, Daksha Legal Advocates, Bengaluru, Honorary Member, Advisory Council 7. Ms. Sanya Yadav, Assistant Professor, Amity Law School, Jaipur 8. Mr. Niteesh Kumar Upadhyay, Asst. Professor, School of Law, Galgotia University, Founder, Knowledge Steez

Founding Board (Permanent Members) Sameer Avasarala, Founder Editor Shashank Kanoongo, Founding Editor Samiya Zehra, Founding Editor

Core Team Ankita Aseri, Publishing Editor Anubhuti Maithani, Deputy Publishing Editor Amit Singhal, Editor-in-Chief Aswinikumar Bairagya, Deputy EiC Kriti Johri, Senior Editor Sr. Associate Editors Mahvish Shahab Promita Sinha Associate Editors Shreetama Ghosh Velpula Auditya Aditi Duggal Mythili Mishra Ankit Tripathi Mohit Vats Aanchal Pandey Anisha Singh Anushka Sharma Aparajitha Jha Lakshmi Menon Naina Nerli Nipuna Varman Shipra Sayal Sonal Gupta Tanya Arora 4

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Contents

FROM THE DESK OF THE EDITOR-IN-CHIEF ...... 6

PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW, AND THE NEW FACE OF „MERCY‟: AN EXAMINATION OF THE EXERCISE OF PARDONING POWER IN NIGERIA AGAINST THE CONSTITUTIONAL DEVELOPMENT IN INDIA ...... 8

CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF THE CIVIL SERVICES IN INDIA IN CONTEMPORARY WORLD SCENARIO ...... 37

NRC IN ASSAM: ANALYSING THE QUESTION OF CONSTITUTIONAL MORALITY AND LEGAL RATIONALITY ...... 61

FAKE NEWS: A CLEAR LOOK BEYOND THE VAGUENESS ...... 72

THE ESSENTIAL RELIGIOUS PRACTICES DOCTRINE: ITS FALLACY AND FUTURE ...... 86

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES & DILUTION OF SEPARATION OF POWER BY THE SUPREME COURT: A BENEVOLENT HYPOCRISY...... 92

ANALYSING THE PRACTICAL IMPLICATIONS OF A RIGHT TO PRIVACY: STATE SURVEILLANCE AND CONSTITUTION ...... 99

ENFORCEMENT OF UNCONSTITUTIONAL STATUTES ...... 119

BALANCING CONSTITUTIONAL MORALITY AND RELIGIOUS FAITH: THE DISPUTE OVER RIGHTS AROUND SABARIMALA ISSUE ...... 136

VIRTUAL CENSORSHIP IN THE ERA OF ONLINE STREAMING: THE

CHALLENGES AND CONSEQUENCES ...... 150

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PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW, AND THE NEW FACE OF „MERCY‟: AN EXAMINATION OF THE EXERCISE OF PARDONING POWER IN NIGERIA AGAINST THE CONSTITUTIONAL DEVELOPMENT IN INDIA

Authored by Olusola Babatunde Adegbite*

ABSTRACT

The exercise of pardoning power is one of the most misused constitutional privileges today the world over. In the last one hundred years of the development of constitutional practice, the nation‟s Chief Executives have seen this power as a sort of birth-right that can be wielded as their whims and caprices permit. Nigeria‟s nascent constitutional democracy has not been spared of this malaise. Given the delicateness of this power, it becomes important that discussion around its exercise must remain an ongoing debate.

Against this background, this paper examines the exercise of presidential pardoning power under the Nigerian Constitution, balancing the same with what currently obtains in India, after years of rich constitutional development. This paper concludes that Nigeria has a lot to learn from India, particularly with regard to constitutionalising the role of the Judiciary in the pardoning process.

INTRODUCTION

In nearly all jurisdictions of the world, the exercise of the Presidential pardoning power is a key feature of the Constitution, with such powers vested exclusively in the nation‘s Chief Executive often symbolised by the President and Commander-in-Chief1. For instance, in the more than two hundred years of the American constitutional democracy, the exercise of this power has remained the exclusive preserve of the United States‘ (US) President2. In a similar

* LL.B (Hons.) (Ife), LL.M (Ife), LL.M, (Cardozo, Yeshiva University, New York), B.L., Ph. D. Candidate, Faculty of Law, Rhodes University, Grahamstown, Eastern Cape, South Africa, & Lecturer, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. Author can be reached at [email protected]. 1 In some other jurisdictions, the designation of executive powers may be vested in other titular heads such as the Prime-Minister, Premier, or Head of State. These designations notwithstanding, where an Office had been vested with executive powers, the location of the presidential power of pardon is most likely to be found in such an office. 2 Under American law, presidential power of pardon is vested in the US President under the United States Constitution in Section 2, Article II which provides that the President ―shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment‖. Historically, the power has 8

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] fashion, in the more than fifty years of Nigeria‘s post-independence constitutional framework, the presidential power of pardon has remained a major feature of the Executive arm of government. This is however not a strict rule. Nearly all jurisdictions also provide for certain ancillary power of pardon, exercisable by the other arms of government i.e. the Legislature and the Judiciary3. These groups of pardoning powers are however lesser in significance and as such, are less likely to attract controversy.

According to Duker, the exercise of this power is not designed to be a show of might, but a demonstration of benevolence4. Notwithstanding Duker‘s position, the reality is that often when this power is exercised, the politics therein trumps the altruism expected. In every constitutional framework where this power exists, there are well-marked procedures to be fulfilled for any grant to be deemed as valid. Usually, these procedures are not limited to the exercise of presidential powers alone. Many citizens are very much in the dark as to the constitutional role played by other designated statutory bodies in the procedure to procure a presidential pardon, and so are quick to see the President as a hero doing all the good. Even though this misconception does not negate the constitutional place of these bodies, it ends up breeding Chief Executives who misuse and abuse the power of pardon.

Under the Nigerian Constitution, this misconception and serial abuse have remained a recurring decimal. Rather than being used as a tool of restorative justice and a re-induction of erring but remorseful citizens into the society with their full rights and benefits, the use of the power has been more of political rewards where it is granted, and political witch-hunt, where it is withheld. It thus becomes necessary to examine the exercise of this power within the context of the jurisprudential idea of ―what the law ought to be‖, as against, ―what the law

been deployed severally. While President George Washington in 1795 granted pardons to the leaders of the Whiskey Rebellion, President John Adams extended same to those involved in the Pennsylvania uprising. There is also President James Madison‘s pardon of La Titte‘s pirates after the war of 1812, as well as President Andrew Johnson‘s pardon of soldiers who fought for the confederacy during the American Civil War of 1861- 1865. More so, we have President Harry Truman‘s pardon of those who violated the selective service laws during World War II and President Jimmy Carter‘s pardons of same as an aftermath of the bitterly fought Vietnam War. For more extensive overview, see generally P.S. Ruckman, Executive Clemency in the United States: Origins, Development, and Analysis (1900–1993), (1997), 27 (2), Presidential Studies Quarterly, 251 – 271; R. Nida and R. L. Spiro, The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power, (1999), 52, Oklahoma Law Review, 197 – 207. 3 For instance, it is a general practice in Nigeria to see Chief Judges grant pardons to prison inmates and other classes of offenders. The powers so exercised in this regard is derived from both Section 11 of the Police Act, CAP P29 Laws of the Federation of Nigeria (LFN) 2010, and Section 1 (1) of the Criminal Justice (Release from Custody) (Special Provisions) Act, Laws of the Federation of Nigeria (LFN) 2010. 4 W.F. Duker, The President‘s Power to Pardon: A Constitutional History, (1977), 18 (3), William & Mary Law Review, 475. 9

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] is‖, particularly to see if there can be any role for the judiciary to play in the overall shaping of the entire procedure.

THE CHARACTER, NATURE, AND SCOPE OF „PARDON‟

The understanding of the term ‗pardon‘ remains as controversial as other words of legal usage. The term is used interchangeably with other terms like ‗amnesty‘, ‗reprieve‘, and ‗clemency‘. Amnesty is granted to persons who are wanted for criminal charges or subject to trial but have not been convicted, reprieve5 applies to the suspension of the sentence of a court for a short period of time, while clemency simply means a manifestation of mercy6. This definition of clemency establishes the fact that the origin of pardon is to be found in the idea of ‗mercy‘ as a form of penitence, which is historically rooted in Judeo-Christian doctrines7. Additionally, as with many other contested phenomena of the beginning of knowledge, the idea of a pardon was the pre-occupation of early thinkers, jurists, and scholars theorising about the philosophy of law. Philosophising in this regard, Kant had the following to say: ―The right to pardon a criminal, either by mitigating or by entirely remitting the punishment, is certainly the most slippery of all the rights of the sovereign. By exercising it he can demonstrate the splendour of his majesty and yet thereby wreck injustice to a high degree. With respect to a crime of one subject against another, he absolutely cannot exercise this right, for in such cases exemption from punishment constitutes the greatest injustice toward his subjects‖8.

The development of the concept of pardon is credited to the evolution of the doctrine of Royal Prerogative under English monarchical practice, which is founded on the root word ‗prerogative‘, meaning ‗discretionary‘9. In explaining what prerogative meant, Locke defined

5 It is important to state that ‗reprieve‘ comes from the French root word ‗reprendre‟, meaning ‗take back‘. 6 J.N. Jorgensen, Federal Executive Clemency Power: The President's Prerogative to Escape Accountability, (1993), 27 (2), University of Richmond Law Review, 345 – 370, at 347. 7 In the Holy Bible, the idea of mercy is more of a spiritual injunction provided for in a number of passages. Firstly, in Jeremiah 33:8, the conferment of ‗pardon‘ comes up where it said: ―I will cleanse them from all their iniquity by which they have sinned against me, and I will pardon all their iniquities by which they have sinned, and by which they have transgressed against me”. Secondly, pardon can be seen in the account in Luke 23 when our Lord Jesus Christ was brought before Pontius Pilate, to condemn him. Replying Jesus‟ accusers, Pilate said, “You have brought this Man to me, as who misleads the people. And indeed, having examined him in your presence, I have found no fault in this Man concerning those things which you accuse him; No, neither did Herod, for I sent you back to him and nothing deserving of death has been done by him; I will therefore chastise him and release him‖. Luke 23: 14-16, Holy Bible, New King James Version. See also Luke 23:43. 8 I. Kant, The Metaphysical Elements of Justice 144 (2nd ed. John Ladd (trans.), Hackett, 1999). 9 It is important to note that at the beginning of the English tradition of royal prerogatives, its grant had little or nothing to do with mercy. Such prerogatives were either granted in exchange for a payment or as a condition for joining the army. As the centuries went by, English Monarchs reaffirmed the power of royal prerogative, 10

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] it as ―The power to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it‖10. Flowing from this perception, the evolution of pardon has been shaped more by the dominance of the Crown‘s prerogative rights which was later transferred to the Executive branch at the turn of the millennium, and less by the ancient doctrines of mercy11.

One definition that has helped feather the nest of ‗pardon‘ is that proffered in Ex parte Wells12 which says, ―a pardon was a work of mercy whereby the king either before attainder, sentence, or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical‖13. Granting the term judicial ornaments, the Nigerian Court of Appeal14 per Musdapher, J.C.A., (as he then was), in Falae v. Obasanjo (No. 2)15, while examining the issue of whether General Olusegun Obasanjo was indeed granted full presidential pardon by General Abdulsalami Abubakar such that he would be qualified to contest the 1999 Presidential elections, had the following to say:

In Exhibit 11, the Head of State granted Olusegun Obasanjo pardon. The word used under Section 161 (1) and Exhibit 11 is “pardon”, and in this context, a pardon may be with or without any conditions. It is clear from Exhibit 11 that the pardon granted to the 1st Respondent was not made subject to any conditions. In my view, under Nigerian law, a “pardon” and „full pardon‟ have no distinction16.

The Court now went ahead to define the term as follows:

granting the Crown the absolute power to pardon treason, murder, and other felonies committed in the English realm. It was however not until the 17th century that the English Parliament was finally able to limit the Crown‘s power of royal prerogative following the impeachment of Thomas Osborne, Earl of Dandy. The Parliament in 1678 had erroneously impeached Dandy the Lord High Treasurer of England under King Charles II, for conspiring with France only to later discover that it was indeed the King that was cutting corners with the French. The King subsequently pardoned Dandy in order to thwart any attempt by the Parliament to discover his dipping of hands in the cookie jar. The Parliament was infuriated but could do nothing. Finally, by the 1700 Act of Settlement the English Parliament was able to stop the grant of royal prerogatives as a means of curtailing the powers of the Crown to pre-empt impeachments and conceal royal improprieties. See B.C. Kalt, Pardon Me? The Constitutional Case against Presidential Self-Pardons, (1996), 106 (3), Yale Law Journal, 784. 10 J. Locke, Two Treatise of Government, 1 – 174 (Create Space Independent Publishing Platform, 2013). 11 In this regard, some Scholars have posited that any ground other than that of mercy defeats the whole purpose of pardon. See K. D. Moore, Pardons: Justice, Mercy, and the Public Interest 188 (New York: Oxford University Press, 1989). 12 59 US (18 How) 307, 311 (1855). 13 Id. See also E. Coke, The Third Part of the Institutes of the Laws of England 233 (4th ed. London, 1669). 14 It is important to state that the Appeal Court was in this instance sitting as the Presidential Elections Petitions Tribunal pursuant to Section 239(1)(a), Constitution of the Federal Republic of Nigeria, 1999. 15 (1999) 4 N. W. L. R (Pt. 599), Part 599, 476; See J. Ogunye, Legal Implications of Jonathan‘s Pardon, Premium Times Newspaper, (Lagos: March 15, 2013), (Oct. 08, 2018) https://www.premiumtimesng.com/opinion/125017-legal-implications-of-jonathans-pardon-by-jiti-ogunye.html. 16 Id. 11

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A pardon is an act of grace by the appropriate authority which mitigates or obliterates the punishment the law demands the offence and restores the rights and privileges forfeited on account of the offence…The effect of a pardon is to make the offender, a new man (novus homo), to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned. I am of the view, that by virtue of the pardon contained in Exhibit 11, the disqualification the 1st respondent was to suffer because of his conviction, has been wiped out. His full civil rights and liberties are fully restored and accordingly, he has not been caught by the provisions of section 13(1) (h) of the Decree17.

This definition was certainly inspired by the jurisprudence of pardon under American Constitutional Law, which flows from the foundation laid by the US Supreme Court in United States v. Wilson18. This was the first case where the Court will consider the question of ‗pardon‘19. Here the court defined ‗pardon‘, as ―an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he committed‖20. It was following the Wilson decision, that the court in Ex parte Garland21, further reaffirmed the US President‘s power to grant pardons. The US Supreme court has however over the years successfully expanded the perimeters of pardoning powers helping to enrich its exercise22.

17 Id at 495. 18 32 U.S. (7 Pet.) 150 (1833). 19 At the time of writing the American Constitution, the Framer had frowned at any attempt to insert provisions for pardoning power given that the Americans had fought the English Monarchy to get Self-government. However, following the influence of key framers like A Hamilton, the pardon found its way into the early drafts. See A. Hamilton, The Federalist No. 74, (Robert Scigliano ed., 2000) at 475-77; B.C. Kalt, supra 9. 20 Id. at 160. 21 71 U.S. (4 Wall.) 333, 370-71 (1866). The decision in this case, arose from the disagreement that followed President Andrew Johnson‘s alleged abuse of the pardoning power, where he pardoned thousands of former Confederate officials after the American Civil War, and the question that arose was whether the US Congress could limit the President‘s pardoning power. 22 The following cases have been instructive in this regard - United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870); U.S. v. Klein, 80 U.S. 128, 20 L. Ed. 519, 58 S. Ct. 123 (1872); Osborn v. U.S., 91 U.S. 474 (1875); Knote v. United States, 95 U.S. 149, 24 L. Ed. 442, 2143 (1877); and Ex parte Grossman, 267 U.S. 87, 98 (1925). In properly contextualizing the President‘s power of presidential pardon under American law, two divergent opinions of the US Supreme court have helped framed its evolution. First is the opinion of Chief Justice Marshall in United States v. Wilson (supra), where he opined quite profoundly, saying ―A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed?‖ However, in another decision of the same court in Biddle v. Percovich, 274 U.S. 480, 485 (1927), the court per Justice Oliver Wendell Holmes offered a quite different interpretation, contradicting the earlier position stating that the President‘s power of pardon is not a personal act of grace, but rather a constitutional responsibility. In Biddle, the court opined that a pardon is granted when, ―it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed‖. Despite these divergent views on the purpose of the pardoning power, one thing the court has been consistent about is that the power is domiciled in the US President. One may however juxtapose this general understanding with the position of the court in 12

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Pardons are granted for a different reason. It may be granted where a President feels a person is innocent and has only been unjustly punished23, where he feels that though the offender is guilty the punishment is too harsh24, where it is for political considerations, or generally where he exercises the power under the banner of forging national interest and unity. The key thing, however, is that before there can be pardon, there must have been the commission of an offence and a proper conviction. This point was stressed by the US Supreme Court in Young v. U.S.25 where the court stated that ―The pardon is of the offence, and as between the offender and the offended government, shuts out from sight the offending act. But if there is no offence against the laws of the United States, there can be no pardon by the President‖.26 However, Nigerian courts at a time were reluctant to recognise pardon granted to an accused person whose appeal was still before the court. This was the situation in Obidike v. The State27 where the Appeal Court gave an order for the arrest of the Appellant and his execution pursuant to the orders of the High Court28. This unsavoury position however since been discarded following the superior reasoning that prevailed in Isibor v. The State29.

The President also has powers to grant a pardon without a need for approval by the Legislative branch30. Such pardon can be based on certain conditions or granted unconditionally. This is supported by the early thinking that as part of the development of the structure of human society, the provision of ‗pardon‘ must be an integral part towards mitigating justice and advancing the agenda of the State31. Noteworthy is the fact that under American law presidential pardoning powers extends only to federal offences and not state

Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896), where holding that the power of amnesty wasn‘t exclusive to only the Office of the President, it said, ―Although the Constitution vests in the President „power to grant reprieves and pardons for offences against the United States, except in cases of impeachment,‟ this power has never been held to take from Congress the power to pass acts of general amnesty,‖. 23 M. Strasser, The Limits of the Clemency Power on Pardons, Retributivists, and the United States Constitution, (2002), 41, Brandeis Law Journal, 85 – 117; H. J. Krent, Presidential Powers, (New York: New York University Press, 2005); K. D. Moore, supra 12 at 132. 24 S. T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, (2005), 9, Buffalo Criminal Law Review, 1 – 13. 25 97 U.S. 39, 24 L. Ed. 992, 12 S. Ct. 391 (1878). 26 Id. 27 (2001) 17 NWLR (Pt 743) 601 CA. 28 Id. 29 (2002) FWLR (Pt. 98) 843. Here, Ejiwunmi, J.S.C. speaking for the Court had this to say, ―It is clear that the appellant from the above has been made a free man by the fiat of the Head of State (and) Commander-in-Chief of the Armed Forces, General Abdul Salami Abubakar on the 5th March 1999. However, having regard to the verdict of this court in this Appeal, it does now appear that the appellant cannot be punished as provided by law in respect of the offence for which he stands convicted. It is hoped that deliberate effort would be made in the future to avoid situations of this kind when exercises of this nature are carried out‖. 30 See Armstrong v. United States, 80 U.S. (13 Wall.) 154, 156 (1871). 31 J. Dinan, The Pardon Power and the American State Constitutional Tradition, (2003), 35 (3), The Polity, 389 – 418. 13

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] offences32, however, under Nigerian law, such distinction has not been made. It is also important to state that in terms of effect, a position that enjoys wider appeal is that presidential pardon not only wipes out the sentence but also the conviction of the person involved and reinstating him/her to his/her position ab initio as if he/she was never convicted33.

THE DEVELOPMENT OF PRESIDENTIAL PARDONING POWER IN NIGERIA AND INDIA – AN APPRAISAL

In Nigeria, the concept of pardon is constitutionalised under the broad heading of ‗prerogative of mercy‘. Upon the attainment of self-government on October 1, 1960, and the eventual departure of the British colonial powers, the prerogative of mercy immediately became a prominent feature in all of Nigeria‘s Constitutions as an independent nation. Though most of the provisions were from the royal prerogative system under the British Monarchy where the modern legal system was imported into Nigeria, it still took off with the infant nation as a critical part of the country‘s nascent democratic experience. Thus, while Section 101 provided for the doctrine under the 1963 Constitution, the 1979 Constitution located it in Section 161. In the same breath, though the doctrine was supposed to have eventually been a part of Section 173 of the defunct 1989 Constitution which never saw the light of day, it later became a reality under Section 175 and 212 of the 1999 Constitution.

Under these relevant legislations the exercise of presidential pardon exists as an instrument of power used by the government to unconditionally set free prisoners of conscience as well as political detainees. Though Nigeria‘s constitutional history, it can be seen that the doctrine has since evolved as an instrument of power created by the Legislature, but located in the Executive. Though, it may be a consistent argument that the whole idea of the doctrine works great hardship on the concept of justice given notable instances of misuse by the Executive, it

32 W. F. Duker, supra 4. 33 S.A.M. Ekwenze, Presidential Pardon and Prerogative of Mercy: A Necessary National Soothing Balm for Social Justice, (Feb. 11, 2019) https://coou.edu.ng/resources/presidencial-pardon-and-prerogative-of-mercy.pdf. This position was established by Justice Field in Ex parte Garland (supra), where he said, ―a pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt; so that in the eyes of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching. If granted after conviction it removes the penalties and disabilities and restores to him all his civil rights‖. See also United States v. Padelford, 76 U.S. (9 Wall.) 531, 543 (1869), where the court held that that pardon, ―purged the petitioner of whatever offence against the laws of the United States he had committed . . .and relieved him from any penalty which he might have incurred‖. 14

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] still remains a potent tool of restitution and restoration under Nigeria‘s criminal justice system and has today become an abiding phenomenon in the country‘s constitutional set-up.

Any examination of the Nigerian and Indian constitutional frameworks is bound to be deeply unraveling as both countries have a lot in common. Firstly, both are very large democracies accounting for about one-fifth of the population in their different sub-continents; Secondly both have their umbilical cords tied to the English Commonwealth, given that both were colonised by Great Britain; both are complicatedly multi-ethnic, multi-cultural, and multi- religious, with the different component units of their countries fractured along very tendentious and tempestuous lines; both enjoy a shared history of political instability, and constitutional interruptions that has given birth to different republics and political dispensations; both have remarkably huge potential in terms of natural and human resources, through their present-day realities appear poles apart; and lastly, both are leading common law jurisdictions having deep similarities in major aspects of their legal systems, constitutional framework, and judicial architecture. It can, therefore, be seen that comparing both constitutional jurisdictions have tantalising prospects as well as the huge benefit of advancing knowledge in the area concerned.

Nigeria

Presidential pardoning power has always been a feature of all Nigerian Constitutions, inclusive of both the 1963 Constitution34 and 1979 Constitution35. Under the 1999 Nigerian

34 The 1963 Republican Constitution was in all essential respect based on the 1960 Independence constitution. The main difference was only in the fact that Nigeria dropped the Queen of England as the head of her government and assumed the Republican status with a non-executive President as the ceremonial Head of State and consequently, Nigerian no longer owed their allegiance to the Queen of England, but to the Federal Republic of Nigeria. The key challenge however was the continuous struggle for power between these two offices given the very shaky pact between the Prime Minister, Alhaji Sir Tafawa Balewa and Dr. Nnamdi Azikiwe on the one hand, and their political parties i.e. the Northern Peoples‘ Congress (NPC) and National Convention of Nigeria and the Cameroon (NCNC) on the other hand, which eventually saw to the collapse of Nigeria‘s First Republic. See C. Okadigbo, Major Causes of Leadership Failure, in Power and Leadership in Nigeria, (Enugu: Fourth Dimension Publishing Co. Ltd., 1987), 134; J.O. Akande, Introduction to the Constitution of the Federal Republic of Nigeria, 1999, (MIJ Professional Publishers Ltd. 2000), 4. See P.A.O. Oluyede, Constitutional Law in Nigeria 108 (1st ed. Evans Brothers Nig. Publishers Ltd., 1992). Under the 1963 Republican Constitution, Section 101 provided for the grant of prerogative of mercy. In this respect, the President may – “(a) grant to any person concerned in or convicted of any offence created by or under an Act of Parliament a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the state on account of such an offence‖. Section 101(1)(a)(b)(c)&(d), The Constitution of the Federation, 1963, No.20; The Constitution also provides that, ―Subject to the provisions of subsection (3) of this section, the powers of the President under subsection (1) of this section shall be exercised by him in accordance with the advice of such member of the Council of Ministers 15

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Constitution36, presidential pardoning power is exclusively vested in the President. Under this Constitution, presidential pardoning power is unfettered, just as it obtains under the American Constitution37. Section 175 of the Constitution provides that the President may -

(a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;

(b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;

(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence, or

(d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such an offence38.

The powers of the President under sub-section (1) of this section shall be exercised by him after consultation with the Council of State39. The President, acting in accordance with the advice of the Council of State, may exercise his powers under sub-section (1) of this section

as may from time to time be designated in that behalf by the President, acting in accordance with the advice of the Prime-Minister‖. Section 101(2), The Constitution of the Federation, 1963, No.20. 35 The 1979 Constitution was a radical departure from all other Nigerian Constitutions, in the sense that it was the first Constitution under which Nigeria would practice a Presidential system of government. Under this Constitution, the grant of prerogative of mercy is provided for under Section 161 and to this extent, the President may – “ (a) grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;(c) substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such an offence‖. See Section 161 (1) (a) (b) (c) & (d), the Constitution of the Federal Republic of Nigeria, 1979. The Constitution further provides that ―The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State‖. See Section 161(2). 36 This Constitution is cited as, ―Constitution of the Federal Republic of Nigeria (Promulgation) 1999, No.24‖. This Constitution was entirely a creation of the Military government of General Abdulsalami Abubakar and upon being signed into law, was promulgated as ―Constitution of the Federal Republic of Nigeria (Promulgation) Decree No.22, 1999‖, which came into force on the 5th of May, 1999. It is essential a remake of the 1979 Constitution, with very little areas of distinction. 37 The provisions of Article II, Section 2, of the US Constitution which provides that, ―The President shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment, has been a subject of severe criticisms on the grounds that it seeks to take over the powers of the Legislature and Judiciary‖. See S.L. Carter, The Iran-Contra Pardon Mess, (1992), 29, Houston Law Review, 884. 38 Section 175 (1) (a) (b) (c) & (d), Constitution of the Federal Republic of Nigeria (Promulgation) 1999, No.24. It is noteworthy that the same power is donated to the Governor of a State in Section 212 (1) (a) (b) (c) & (d). 39 Section 175(2). 16

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] in relation to persons concerned with offences against the Army, Naval, or Air-force law or convicted or sentenced by a court-martial40.

In furtherance of this power, it provides that the President shall exercise this power in accordance with the advice of the Council of State, Section 153(1)(b) of the Constitution, provides for a body known as the ―Council of State‖, who is to advise the President in the exercise of his powers with respect to prerogative of mercy (amongst other powers), and whenever requested to do so on the maintenance of public order within the Federation or any part thereof and on such other matters as the President may direct41. The quorum of the Council of State meeting shall not be less than one-third of the total number of members of that body at that meeting, and that a member of the body shall be entitled to one vote42. On the part of the Governor of a State, the procedure provides that the power of the Governor under sub-section (1) of this section shall be exercised by him after consultation with such Advisory Council of the state on the prerogative of mercy, as may be established by the law of the state43.

Equally, as a matter of procedure, the pardon granted must be documented in a subsidiary instrument, properly executed by the President, gazetted and published in an Official Public Notice of the Federal Government. The Council of State, under the Third Schedule of the 1999 Constitution comprises of the President, Vice President, all state Governors, former Presidents, and Heads of State, all former Chief Justices of Nigeria, the Senate President, Speaker of the House of Representatives, and the Attorney-General of the Federation. Thus, in line with the procedure under the Constitution, it is clear that the authority that exercises the power of pardon in relation to offences created by an Act of the National Assembly is the President. The Council of State merely advises the President.

It is noteworthy to state that a person convicted of murder must have exhausted his/her right of appeal in the court system before such can be considered for the President‘s or Governor‘s grant of the prerogative of mercy. This has found judicial expression in the Supreme Court case of Monsura Solola & Anr. v. The State44, where the court considered and dismissed the appeal of two convicted murderers. In this case, four people (a father, his two sons and a nephew) had been charged for the 1994 murder of a teenage hunchback, the friend of the

40 Section 175(3). 41 See Paragraph B, Section 6(a) (ii) and (b) of Part I of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 42 See Section 159 (1 & 2), Constitution of the Federal Republic of Nigeria, 1999. 43 Section 212(2), Constitution of the Federal Republic of Nigeria, 1999. 44 (2005) 5 NSCR (Vol. 1). 17

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] younger son. The charges against the younger son were withdrawn and he was used as a state witness. The other three went to trial and were convicted on the evidence presented. All three appealed unsuccessfully to the Court of Appeal and by the time they further appealed to the Supreme Court, the father had been granted the President‘s Prerogative of Mercy in 1999. Edozie, J.S.C while delivering the lead judgment made the following remarks concerning the exercise of the prerogative of mercy:

It needs to be stressed for future guidance that a person convicted for murder and sentenced to death by a high court and whose appeal is dismissed by the court of appeal is deemed to have lodged a further appeal to this court and until that appeal is finally determined, the head of state or the governor of a state cannot, pursuant to sections 175 (sic) or 212 of the 1999 Constitution, as the case may be, exercise his powers of prerogative of mercy in favour of that person. In the same vein, such person cannot be executed before his appeal is disposed of. It is hoped that the prison authorities will be guided by this advice.

India

The Constitution of India vests presidential pardoning power in the President. Specifically, the Constitution provides that:

(1) The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any persons convicted of any offence- (a) in all cases where the punishment or sentence is by a court- martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall after the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.45,

45 Indian Const. art. 72. 18

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Given India‘s robust federal structure, the same power is given to the State Governors, with the Constitution stating that:

The Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends46.

Under the Indian Constitution, the power between the President and Governor appears to have equal potency as a request for pardon can be made to either47. The President does not enjoy any discretion but exercises this power in line with advice from his/her ministers, based on any of the following grounds - (1) Interest of society and the convict; (2) The period of imprisonment undergone and the remaining period; (3) Seriousness and relative recentness of the offence; (4) The age of the prisoner and the reasonable expectation of his longevity; (5) The health of the prisoner; (6) Good prison record; (7) Post conviction conduct, character and reputation; (8) Remorse and atonement; (9) Deference to public opinion.

JUDICIAL REVIEW AND PRESIDENTIAL PARDONING POWER

Judicial review is defined as a court‘s power to review the action of other branches or levels of government, especially the court‘s power to invalidate legislative and executive actions as being unconstitutional48. It is also a court‘s review of a lower court‘s or an administrative body‘s factual or legal findings. Judicial review is also tied to the concept of de novo judicial review, which is the court‘s deferential review of an administrative decision, usually through a review of the administrative record plus any additional evidence the parties present.

The foundation for what is today regarded as the doctrine of judicial review was laid in the US case of Marbury v. Madison49, where the Supreme Court institutionalised its power of

46 Indian Const. art. 161. 47 Indian Const. art. 72(3). 48 Black‘s Law Dictionary 976 (10th ed. Minnesota, US: Thomson Reuters, Bryan A. Garner, 2014). 49 5 US (1 Cranch) 137 (1803). This case is regarded as the most important in US Constitutional Law. Before the Marbury rule, the US Supreme Court had earlier in 1796, had the occasion to examine the constitutionality of the Carriage Act of 1794, a law passed by congress in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). In its judgement, the court held that the Act was constitutional. According to Jack Rakove, ―Hylton v. United States was manifestly a case of judicial review of the constitutionality of legislation, in an area of governance and public policy far more sensitive than that exposed by Marbury, and it was a case whose implications observers seemed to grasp‖. The court in exercise of its power of judicial review, also had occasion to strike down a supremacy legislation in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) and further examined the implication of a state law when considering it against a State Constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800). See J. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49, Stanford Law Review, 19

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] judicial review as derived from Article 6 of the US Constitution by striking down certain relevant portions of the Judiciary Act of 1789, which in the opinion of the court was in direct conflict with the US Constitution50. The US Chief Justice at that time, John Marshall opined that ―it is emphatically the province and duty of the judicial department to say what the law is‖, as well as the court‘s duty to override any legislation passed by Congress that was not in accordance with the provisions of the Constitution51. The court thereby laid a new law in which US Federal courts could refuse to apply any legislation that conflicted with the US Constitution.

In operation, the doctrine operates as a dimension of the principle of checks and balances in which the judicial arm seeks to safeguard public interest whenever it clashes headlong with the private interest of those in power52. It has also been argued to be a necessary defence of

at 1039-1041. Importantly also, in the years preceding Hylton, even though there was yet a Federal Judicial pronouncement on this power of the court, judges in state courts had applied the doctrine in a way by invalidating certain state legislations that were deemed to have violated those State‘s Constitution. See Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 49, (1982), University of Chicago Law Review, 646-656; See S. B. Prakash and J.C. Yoo, The Origins of Judicial Review, (2003), 70 (3), The University of Chicago Law Review, 887-982. 50 The Court struck down Section 13 of the Judiciary Act of 1789 which expanded the scope of its powers of original jurisdiction and which would have empowered it to grant the writ of mandamus sought by Williams Marbury, but with also clashed with Article III, Section 2 of the US Constitution. The Court in reaffirming the Supremacy of the US Constitution over all other laws invalidated this Statute, consequentially stripping itself of the power to grant Marbury‘s prayers. 51 According to Mr. Justice Marshall, the constitutional limitations imposed on the powers of the legislature would be meaningless, unless such is deemed as rendering void any act of the Parliament repugnant to them, and to achieve this goal, it is the province and duty of courts to say what the law is. He further said, that when faced with a conflict between a law and the Constitution, the court must determine which of these conflicting rules governs the case, just as it does in deciding conflicts between earlier and later statutes and judicial precedents, and that since the Constitution is superior to any conflicting act of the legislature, the court in the process of adjudication must apply the former, thus invalidating the latter. Where the reverse is the case, the written constitution would be reduced to nothing. See S.H. Kadish, Judicial Review in the High Court and United States Supreme Court, (1959), 2 (4), Melbourne University Law Review, 1-34. 52 It has been argued that in welcoming the doctrine, its application should not just be a matter of actions in violation of the Constitution, but essentially that of Statutes in general so made to violate the entitlements of the people. In this regard, Hamilton made the following powerful statement, ―But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischief of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of‖. Extending his thoughts, Hamilton further said, ―The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. 20

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] the principle of federalism53. This decision enhanced the early development of the doctrine making its application in the US possible even in several other contexts54. Also, within the two leading legal traditions, i.e. the Civil and Common law jurisdictions, the doctrine has evolved differently while in application, its deployment has also been in a variety of forms. Essentially, it has had a long and chequered history55, but notwithstanding this, it has been beneficial in terms of how power in a democratic society should be organised and managed56.

Even though the Marbury decision directly related to legislation passed by the Parliament, it was the watershed moment in which the US Apex court established its overriding authority

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. Accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. The courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments‖. A. Hamilton, J. Jay, & J. Madison, The Federalist Papers, No. 78, (Modern Library ed. 1937). 53 S. B. Prakash and J.C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, (2001), 79, Texas Law Review, 1459. On deep controversies that have arisen over the justiciability of applying the doctrine in US Federal/State‘s contests and criticisms of the Court‘s Federalism Jurisprudence, see generally H. Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, (1954), 54, Columbia Law Review, 543; J. H. Choper, The Scope of National Power vis-a-vis the States: The Dispensability of Judicial Review, (1977), 86, Yale Law Journal, 1552; C. Fried, Foreword: Revolutions?, (1995), 109, Harvard Law Review, 13; H. P. Monaghan, The Sovereign Immunity Exception, (1996), 110, Harvard Law Review, 122-132; L. D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, (2000), 100, Columbia Law Review, 215; L. A. Baker and E. A. Young, Federalism and the Double Standard of Judicial Review, (2001), 51, Duke Law Journal, 75. 54 Following the powerful decision in Marbury, the position of the court for a number of years on the doctrine was characterized by a sort of ambivalence. For instance, in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), it appeared the court had contradicted its earlier position. However, the doctrine gained further momentum in Fletcher v. Peck, where a State statute was declared unconstitutional10 U.S. (6 Cranch) 87 (1810). The same decision was adopted in Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819), McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). The Court attained a further height in Martin v. Hunter‘s Lessee, 14 U.S. (1 Wheat.) 304 (1816), when it held that US Federal Courts, pursuant to Article III of the Constitution, have the powers to hear all cases arising under the Constitution and laws of the United States, and that following the exercise of their jurisdiction, the Supreme Court has appellate jurisdiction to hear all case, even when earlier began in state or federal courts. This decision established the rule that the Supreme Court can review any decision of state courts involving questions of Federal law. 55 B. Friedman, The History of the Counter-majoritarian Difficulty, Part One: The Road to Judicial Supremacy, (1998), 73, New York University Law Review, 333. 56 There is an avalanche of literature on the historical development and application of the doctrine. For a general reading, see C. Warren, Congress, The Constitution, and The Supreme Court (Boston: Little, Brown & Co. 1925); C. G. Haines, American Doctrine of Judicial Supremacy (2nd ed. Berkeley: University of California Press, 1932); W. W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press,1953); R. Berger, Congress v. The Supreme Court (Cambridge, MA: Harvard University Press, 1969); J. H. Ely, Democracy and Distrust: A Theory of Judicial Review 87-88 (Cambridge, MA: Harvard University Press, 1980); L. W. Levy, Original Intent and the Framers' Constitution (Macmillan Publishers, 1988); S. Snowiss, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990); C. N. Tate, Comparative judicial Review and Public Policy: Concepts and Overview, in D. W. Jackson & C. N. Tate (eds.) Comparative Judicial Review and Public Policy, (1992), 3 - 4; C. Wolfe, The Rise of Modern Judicial Review (Rowman & Littlefield, 1994); E. S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (Piscataway, NJ: Transaction Publishers, 2014). 21

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] over the act of public officials and governmental actions in general57. Specifically speaking, the Marbury rule defined the powers of the court to overturn a Legislative act or Statute as well as any action of the Executive arm deemed a violation of the Constitution58. It means once a legislative or executive act is determined to be unconstitutional, it will be set aside, and may even give rise to a claim for damages59. The whole idea of judicial review is rooted in the concept of a written constitution with limited powers60. In addition to its application to executive and legislative acts, a judicial review is also a tool used in examining the act of administrative agencies especially public institutions established by statutes. The idea is to ensure that such administrative acts are carried out in line which the law prescribing its powers and to determine that even that prescribing law is not in conflict with the Constitution.

Since the Marbury rule, judicial review has not only come to be regarded as a cornerstone of American constitutional jurisprudence61, but it has also influenced quite greatly the development of this doctrine in other jurisdictions, with Nigeria being a major beneficiary. Following the Marbury rule, it has now become settled law that the courts must always a have a role to play when it comes to taking a second look at the acts of those exercising governmental power such as the President. It is, however, instructive to note that unconstitutionality is the acceptable ground for the application of the doctrine,62 where the act in view runs contrary to other legal rules, a different standard would be applied63. It is

57 L. Langer, Judicial Review in State Supreme Courts: A Comparative Study 04 (Albany: State University of New York Press, 2002). 58 See Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804). 59 A.B. Rubin, Judicial Review in the United States, (1979), 40 (2), Louisiana Law Review, 67-88. 60 E.V. Rostow, The Democratic Character of Judicial Review, (1952), 66 (2), Harvard Law Review, 195. 61 In a period spanning over 200 years, the Marbury rule has been applied quite broadly in a large number of United States cases. Top on the list includes New York v. United States, 505 US 144, 177 (1992); United States v. Lopez, 514 US 549, 552 (1995); Seminole Tribe of Florida v. Florida, 517 US 44,76 (1996); Idaho v. Coeur d'Alene Tribe of Idaho, 521 US 261,287-88 (1997); City of Boerne v. Flores, 521 US 507, 536 (1997); Printz v. United States, 521 US 898,935 (1997); Alden v. Maine, 527 US 706,712 (1999); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 US 627,630 (1999); United States v. Morrison, 529 US 598,619 (2000); Kimel v. Florida Board of Regents, 528 US 62, 67 (2000). 62 Satterlee v. Matthewson, 27 U.S. 380 (1829). 63 Ashwander v. Tennessee Valley Authority, 297 U. S. 346-349 (1936). In this case, the court developing the Principle of Judicial Restraint, formulated the following grounds as situations where the court will not apply judicial review, if the act is based on some other legal infraction ―(1).The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act; (2).The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case; (3). The Court will not formulate a rule of constitutional law broader than required by the precise facts it applies to; (4) The Court will not pass upon a constitutional question although properly presented by the record, if there is 22

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] therefore within this breadth that acts such as the exercise of presidential pardoning power come under the floodlight of the judicial arm.

In Nigeria, the doctrine of judicial review has come as an integral part of the constitutional framework. It is both of Common Law origin and also rooted in the Constitution64. Nwabueze refers to judicial review as the powers of the court to declare a government action contrary to the Constitution or any other law as null and void65. This power extends to both the Legislative66 and Executive branches of government. Judicial review is also deemed to be in operation where a court of superior record exercises supervisory jurisdiction over inferior courts, as well as tribunals duly established by law.

It is instructive to state that generally under Nigerian law, the position is that the power of judicial review is one donated to the court to forensically examine the legality or otherwise of governmental action. This means that where the act of a public authority is ultra vires67 the powers given by an enabling law, such an act will be declared null and void68. A major corollary to the exercise of this power is the doctrine of ‗Locus Standi‟69, which states that before the Court will act in this regard, there must have been a legal process instituted before it, in which the party instituting the process has convinced the court that he has either suffered or immediately within the province of suffering a ‗direct injury‘ from the statute or executive action in question. This became the position following the Supreme Court‘s decision in Senator Abraham Adesanya v. President of the Federal Republic of Nigeria &

also present some other ground upon which the case may be disposed of… If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter; (5).The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation; (6).The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits; (7) When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided‖. 64 Section 6, Constitution of the Federal Republic of Nigeria, 1999 provides for the judicial powers of the Federation. 65 B. O. Nwabueze, Judicialism in Commonwealth Africa 229 (London: C. Hurst & Co. Ltd., 1977). 66 Reinforcing this, the Court of Appeal held in Oruobu v. Anekwe & Ors., (1997) 5 NWLR (Pt. 506) 618 at 634-635, that, ―by virtue of Section 4(8) of the 1979 Constitution, the Courts have a supervisory jurisdiction over the exercise of legislative powers by the legislature and the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of the courts‖. 67 This means beyond the scope of powers granted by a Law. 68 See Chief S.L. Akintola v. Sir Adesoji Aderemi & Ors., (1962) WNLR 185; Attorney-General of Ogun-State v. Alhaja Aberuagba & Ors., (1985) 1 NWLR 395; Iwuji v. Federal Commissioner for Establishment, (1985) 1 NWLR, 497. 69 This term denotes the legal capacity to institute legal proceedings in a Court in search of a relief. In other constitutional jurisdictions such as the United States, it is also called the ‗Doctrine of Standing‘ and it is applicable where there is the existence of a ‗case‘ or ‗controversy‘. See Article III, Section 2 of the Constitution of the United States which provides for the judicial powers of the United States to be vested in Court and which extends to ‗cases‘ and ‗controversies. See also Coleman v. Miller, (1939), SC Reporter 307 USP 973. 23

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Anr.70. This position which was considered as rather restrictive remained a bone of contention for years as many litigants were unable to access the courts simply because they had not suffered any direct injury from the action complained of. However, since the Adesanya rule, the Supreme Court in Fawehinmi v. Akilu71 has modified this rather constrictive and narrow interpretation by holding that anyone and everyone could initiate legal proceedings72.

The power in question is strictly limited in its length and breadth. Firstly, under Military rule, the doctrine was severely limited through the introduction of ‗Ouster Clauses‘ that was largely the fad of successive military regimes73. Secondly, the doctrine does not empower the court to examine the merit, morality, ill will, or societal acceptance of the act in question. It is not a voyage of piety but of law. The only business the court has is to determine if the legislative, executive, or administrative power so exercised, has been done in accordance with the enabling law, statute, and the Constitution, and nothing more74. The position is an offshoot of the doctrine of separation of powers in which the borders of powers properly donated to each branch of government is well delineated with each branch forbidden from performing the task of the other branch. The reasoning, therefore, is that the Judiciary in this respect must not be seen as performing the functions of the executive, but merely reviewing them.

This point was judicially expounded on in Military Governor of Imo State v. Nwauwa75, where the then Military Governor had removed the traditional ruler of Izombe from office, but the latter challenged the Governor‘s power to do so. The Court of Appeal agreed with the traditional ruler, based on which the State filed an appeal before the Supreme Court. In delivering judgment, the Supreme Court held that the Appeal Court had exceeded the scope of its powers of judicial review. The Apex court made far-reaching points, stressing the position that the power of judicial review does not take the place of an appeal and the court

70 (1981) 5 SC 112 – 144. 71 (1987) 4 NWLR (Pt. 67) 797 (SC). 72 Id. 73 See Section 5 of Decree No.1 of 1984, which provided that, ―No question as to the validity of this or any other decree or any Edict shall be entertained by any Court in Nigeria‖. See Lakanmi & Ors v. Attorney General (Western State), (1971) 1 KILR 201; Adamolekun v. The Council University of Ibadan, (1968) NMLR 253. 74 This point was stressed by Lionel Brett, J. in Olawoyin v. Commissioner of Police, (1961) 2 All NLR 203 at 215, where he said, ―It is not for this Court to inquire whether the section in question would make for the better administration of justice in Northern Nigeria any more than it can inquire whether the Constitution gives effect to what was agreed at the Conferences which led up to its introduction. The function of the Court is to answer the questions referred to it by interpreting the Constitution as it stands‖. 75 (1997) 2 NWLR (Pt. 490) 675. 24

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] has no power to replace the decision of the exercising body with its own judgment, but only to inquire into the legality of the action and not its merit76.

Interestingly, notwithstanding the age long understanding surrounding the doctrine, it ran into stormy waters in the leading case of Fawehinmi v. Abacha77, the late human rights lawyer, Chief Gani Fawehinmi was on Tuesday, 30th January 1996 in a Gestapo manner arrested without warrant at about 5:15 am, by gun-toting security operatives from the Police and State Security Service (SSS), following which he filed an application at the Federal High Court, for the enforcement of his fundamental rights on the basis that his arrest and detention was illegal. The matter later came before the Court of Appeal, for a consideration of the powers of the Inspector-General of Police pursuant to the State Securities (Detention of Persons) Act78. The Court held that the powers of the IGP were subject to judicial review and it could examine the basis of the exercise of its discretion79. The dissatisfied party later appealed to the Supreme Court.

In a dramatic twist, the Supreme Court delivering its judgement on 28th April, 200080 though agreeing with the Appeal Court on the enforceability of the African Charter on Human and People‘s Rights, however held that the penultimate court could not review the extent of the exercise of the discretionary powers of the Inspector-General of the Police in relation to Chief Fawehinmi‘s arrest and detention. In other words, the court declared that the powers of the IGP were unfettered and not subject to judicial review. The court, in other words, held that the powers of the head of a branch of the Executive i.e. the Nigeria Police were not subject to judicial review. One way of looking at it is to simply say that the Court of Appeal in reaching its decision in this matter, went the extra- mile and considered the merit of the IGP‘s action and not just the legality. Another way is to say that the Supreme Court, in

76 Id. See also Egharevba v. Eribo, (2010) 9 NWLR (pt.1199) 411. 77 (1996) 9 NWLR (Pt. 475) 710. The is otherwise known as Gani Fawehinmi v. Sani Abacha, A-G Federation, State Security Service & Inspector General of Police, (1996) 9 NWLR (pt. 475) 710. 78 CAP 414, Laws of the Federation of Nigeria, (LFN) 1990, as amended by the State Security (Detention of Persons) (Amendment) Decree No. 11 of 1990. 79 The Court per Pats-Acholonu, J.C.A. (as he then was), submitted as follows, ―Another point I wish to discuss is that the Detention of persons State Security to be appreciated by the people on whose behalf it is made, it is to be understood that the done as well as the detaining authority should be able to show how the appellant is a security risk to the State. By this I mean he is accountable to the public whose duty it is to discern whether the detention order was made in good faith. The new trend in this area of law now imposes on the detaining authority the duty he owes to Nigerian citizens to be ready to explain his actions, if not, an order of mandamus might lie. In such a case he should be precluded from taking any protection under the ouster clause if it is found that the detention order is not in compliance with the statute‖. 80 Abacha v. Fawehinmi, (2000) 6 NWLR (Pt.660) 228. This is also otherwise known as Sani Abacha, A-G Federation, State Security Service & Inspector General of Police v. Gani Fawehinmi, (2000) 6 NWLR (Pt. 660) 228. 25

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] refusing to exercise its power of judicial review over the Police boss‘s action did so relying on the earlier decision in Military Governor of Imo State v. Nwauwa81, which forbids the courts from inquiring into the propriety or morality of an executive power legally exercised. One can, therefore, say that the body language of the Apex court was one suggesting that even though the IGP‘s action may have been morally reprehensible, but unarguably its appearance points to the fact that it was exercised in line with the powers so granted.

The decision of the Supreme Court was a major blow to the development of judicial review in Nigeria, as the court preferred to escape into the solitude of technicality while allowing a clear case of abuse of discretionary powers to slide and escape the walls of its eternal duty of vigilance and equanimity. Its position ran contrary to the contemporary and well-accepted position on judicial review, shaking the building on a doctrine that had evolved since the Marbury decision, as the vanguard of promoting substantive justice as against the oasis of technical justice. By way of query, while questions bordering on merit will ask if the action was right, good or bad, issues of legality ignoring the good or evil in an action would simply demand to know if such was done in line with the law granting such powers. It is evident the Supreme Court chose to align with the latter. It must however not be forgotten that drawing from the fine lines of established doctrinal thoughts in social and political philosophy, the law itself though not a product of morality is nonetheless an instrument of doing good and pursuing the survival of any society of men by ensuring that at all times, good trumps evil.

The above notwithstanding, the doctrine of judicial review is today a major pillar of Nigeria‘s constitutional experience, but how much this extends to matters of presidential pardoning power is another matter entirely. Just like the power of the IGP analysed above, presidential pardoning power in Nigeria is a power constitutionally provided for, but one to be exercised discretionarily. The question is - how benevolently or malevolently has this discretion been dispensed in the exercise of this power? The answer to this question makes it all important to examine the exercise of this power in recent times, particularly in respect of its now notorious breach.

ABUSE OF PRESIDENTIAL PARDONING POWER – IS JUDICIAL REVIEW SANCROSANCT OR IS MORAL OPPROBRIUM ENOUGH?

81 Supra 79. 26

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In most constitutional jurisdictions, presidential pardoning power given its executive nature has remained a subject of abuse and Nigeria is not an exception. In many examples, Presidents are known to have deployed the use of this power more as a tool for political rewards and other selfish motivations, than for the ultimate good of the society. One notable jurisdiction is the United States, where American Presidents are known to have run riot with this power in a long list of inglorious episodes82. On the eve of Christmas of 1992, President H.W. Bush granted pardon to Casper W. Weinberger, a leading figure in the ―Iran-Contra scandal‖, a State-sponsored project that threatened to consume the President himself, making Bush the first President to confer pardon to block the trial of someone who had been indicted of a Federal offence83. The list included five other individuals namely Elliott Abrams, Duane R. Clarridge, Alan D. Fiers, Clair George, and Robert C. McFarlane84. Though the President was later to justify his actions by saying the pardons were necessary to heal the nation from a lingering scandal and protect patriotic public servants from an overzealous independent counsel, it did nothing to erase the perception of corrupt use of power on the part of the State85. For President Clinton, it was so bad that he made sure he issued the pardons on his last day in office, where he exercised the singular executive power to grant official pardons to

82 From President Gerald Ford through Jimmy Carter, up to Bill Clinton, American Presidents have remained under the spotlight for their abuse of pardoning power. For instance, in 1971 President Richard Nixon was known to have pardoned labour leader Jimmy Hoffa in the second year of his 12-year prison term, all for Hoffa to subsequently join the chariot of Nixon‘s re-election campaign, in what later snowballed into a major scandal where Hoffa claimed he paid off the Nixon government through the legendary singer, Frank Sinatra. In what would as a repeat of Nixon‘s own misuse of the pardoning power, Nixon himself was to become a recipient of a controversial presidential pardon from his own successor and former Vice-President, President Gerald Ford, following his 1974 resignation over the Watergate scandal. President Ford granted Richard Nixon full presidential pardon on September 8, 1974 and reports has it that the pardon granted the disgraced Nixon by President Ford was a major fact in his presidential election defeat of 1976. Another case in point is that of Armand Hammer who was convicted of making illegal contributions to Richard Nixon‘s presidential campaign, but was later pardoned by President George H.W. Bush. Also, is of Peter Yarrow and G. Gordon Liddy who were equally pardoned by President Jimmy Carter. Not forgetting, Mark Felt and Edward Miller, two former FBI agents convicted of breaking into Vietnam protesters‘ homes and offices without warrants during the Nixon‘s Presidency, who in the midst of their appeals, received pardons from President Ronald Reagan. Aside US Presidents, State Governors are also culpable in this respect. For instance, two state governors i.e. James Ferguson of Texas and J.C. Walton of Oklahoma, were both impeached in 1917 and 1923 respectively, for the offence of selling pardons. See D. T. Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, (1991), 69, Texas Law Review, 569 – 617. 83 The Iran-Contra affair revealed that certain officials in the Ronald Reagan administration had secretly been selling weapons to Iran and using the proceeds thereof including drug money, to fund the Contra rebels who were heavily backed by the US government and fighting to overthrow the Marxist government of Nicaragua. In the investigation that followed, former US Defence Secretary, Casper W. Weinberger was indicted of obstructing congressional investigation and perjury. See L.H. Tribe, Tribe‘s American Constitutional Law, (3rd ed. Cambridge, Massachusetts: Harvard University Press, 2000) 4-10 at 721. 84 B. Cohn and A. McDaniel, Anatomy of a Pardon: Why Weinberger Walked, NewsWeek (January 11, 1993), 22-23; R.L. Jackson and R. J. Ostrow, Bush Pardons Weinberger, 5 Others in Iran-Contra; Act Called Cover- Up, The Los Angeles Times (Los Angeles: December 25, 1992). 85 Id. As a fallout of Bush reckless abuse of the pardoning power in Weinberger‘s case, Scholars have pushed for the exercise of presidential pardoning power in cases of convicted offences only. 27

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] nearly two hundred people, for several of whom there was no basis or justification86. The most controversial was the pardon granted to the President‘s half-brother, Roger Clinton who was accused of peddling his influence with the President in exchange for cash87 and that granted Hugh Rodham, Hillary Clinton‘s brother who had enriched himself by filing clemency applications88. Following in the same tradition, the current US President, Donald Trump in 2017 granted pardon to Joe Arpiao, who had been convicted of criminal contempt89.

In Nigeria, the most notorious case of abuse of presidential pardoning power, happened when ex-President Goodluck Jonathan with the backing of the Council of State, granted pardon to his erstwhile boss and former Governor of Bayelsa state, Chief Diepreye Alamieyeseigha and other ex-convicts90. On the list, Alamieyeseigha‘s case was singled out as the most

86 On January 20, 2001, his last day in office, President Clinton issued on hundred and forty (140) pardons and commuted thirty-six (36) prison sentences. Most of the beneficiaries were persons imprisoned for grave offences such as armed robbery, cocaine distribution, bank fraud, tax evasion, embezzlement, forgery of government cheques, and conspiracy to defraud the government. Top on this infamous list was the now-notorious American billionaire cum fugitive Marc Rich, who fled the country and renounced his American citizenship rather than face charges of tax fraud and illegal trading in oil with Iran, a nation that had seized the United States embassy and held American citizens hostage. Also benefiting from dubious exercises of prerogative of mercy during the waning hours of the Clinton Presidency were: the President‘s brother, Roger Clinton pardoned from his conviction for conspiring to distribute cocaine ; Carlos Vignali, a convicted cocaine trafficker whose father was a prominent Democratic Party contributor ; Susan McDougal, pardoned from her conviction of bank fraud and who had been jailed for contempt for refusing to testify about Clinton‘s alleged participation in financial irregularities in the Whitewater matter; and heiress Patty Hearst, who was kidnapped by and then joined a radical group in committing an armed robbery in the 1970s, to whom Clinton granted clemency . See B. Olson, The Final Days, (2001), 21-23; See M. Weinberg and M. Auerbach, Rewarded for Flouting Justice, The Washington Post (January 31, 2001) at A21. President Clinton later tried to give his reason for the pardons. See W.J. Clinton, My Reasons for the Pardons, New York Times, February, 2001. 87 R.A. Serrano, Snookered Out of Pardon, Convict Says, Los Angeles Times, (Los Angeles: June 22, 2001). 88 M. Lacey and D.V. Natta, Second Clinton In-Law Says He Helped to Obtain Pardon, New York Times, (New York: March 1, 2001). 89 Arpaio was a former Sheriff of the Maricopa Country, in the State of Arizona was found guilty of defying a Judge‘s order for his acts of going after illegal immigrants. See J. Chong, The Arpiao Pardon Dangerously Accelerates Trump‘s Assault on the Rule of Law, The New Yorker, (New York: August 27, 2017), (Feb. 11, 2019) https://www.newyorker.com/tag/joe-arpaio. 90 On Tuesday March 13, 2013, the news broke that President Goodluck Jonathan had granted pardon to his erstwhile boss and former Governor of Bayelsa state, Chief Diepreye Alamieyeseigha. According to the Senior Special Assistant to the President on Public Affairs, Dr. Doyin Okupe, who addressed the media in a Press Conference on the grant of the pardon, he said the President exercised this power, with the backing of the Council of State and in accordance with his powers under Section 175 of the Constitution. Others beneficiaries carefully inserted to legitimise the list include a former Chief of Staff, Supreme Headquarters, the late Major General Shehu Musa Yar‘Adua; former Chief of General Staff, Lt. General Oladipo Diya; the late Major- General Abdulkareem Adisa; former Minister of communications, Major-General Tajudeen Olanrewaju; Major Segun Fadipe; Major Bello Magaji; Mohammed Lima Biu; former Managing Director of the defunct Bank of the North, Shettima Bulama; and Dr. Chiichii Ashwe. The pardon was immediately met with widespread condemnation and ridicule. While the BBC described the action as an ―irresponsible decision‖, the AFP captioned the farce as, ―Nigeria‘s President Pardons corrupt ex-governor‖. The former governor was at a time described by President Jonathan as his ‗political benefactor‘, having been removed from office by the Bayelsa State House of Assembly, through impeachment that eventually led to his arrest, prosecution and eventual conviction. As would be recalled, the United Kingdom (UK) Metropolitan Police allegedly found about £1m in cash in Alamieyeiseigha‘s London home, as he later escaped from prison by disguising as a woman in 28

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] controversial, bringing presidential pardoning power under the most severe criticisms ever seen in Nigeria‘s recent history. In Nigeria, the abuse of presidential pardoning power has done incalculable damage to the rule of law and the power of the court to use conviction as a form of deterrence. The argument is that what is the point in initiating punitive processes against political office holders and public officials, taking them through an endless trial process, wasting insufficient public funds on convicting them in court and eventually sending them to jail is defeated, as they obtain release through a back-door process called ‗presidential pardon‘? Would it not have been better if the government had not started the trial process at all, and not waste public funds in what would end up being double jeopardy to the people? Do such pardons not undermine the criminal justice system and important agencies of the state created to preserve the Constitution?91 Is it not ridicule to the State that someone who had caused so much havoc to the people through his corrupt acts carting away the peoples‘ commonwealth, be made to enjoy pardon on flimsy grounds of pardon

There is also the fact that the Judiciary is the worst hit when presidential pardoning power is abused. Such abuse makes judges who after the sweat and toil of performing their constitutionally mandated duty of trying corrupt public officials, only for them to be set free to become subjects of vituperation, assault and butt of jokes by the same insufferable public official. Such has the tendency of destroying the needed zeal, courage, and determination to try such other cases in the future, thereby ruining the place of the Judiciary as the last hope of the common man.

The grant of presidential pardons is rarely attended by any form of judicial intervention, and this has occasioned widespread abuse. The only intervention available is for such pardon to ultimately become a subject of public opinion, which accounts for why most controversial pardons tend to be issued during presidents‘ last days in office. According to leading American Constitutional Law Scholar, Laurence Tribe there are only three ―limited and rather clumsy checks on the abuse of the pardon power by any president‖.92 Firstly, the President can be impeached and removed from office for corrupt and fraudulent abuse of

December that year and was sentenced to 12 years imprisonment in July 2007, having pleaded guilty in a Federal High Court in Lagos for money laundering and corrupt embezzlement. In fact, the British Broadcasting Corporation (BBC) had infamously dubbed him ―Nigeria‘s Runaway Governor‖. The pardon has been condemned in and out of Nigeria, as an attestation to the fact that the government‘s acclaimed anti-corruption fight, is nothing but a mere ruse. 91 For instance, part of the argument that trailed the controversial Nixon pardon was that the pardon undermined the jurisdiction and powers of the US Special Prosecutor‘s Office. See H. MacGill. The Nixon Pardon: Limits on the Benign Prerogative, (1974), 7 (1), Connecticut Law Review, 90. 92 L.H. Tribe, supra 88. 29

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] pardoning power93. Secondly, if a President is still in office and grants a controversial pardon before Election Day, he/she may be rebuked at the polls, and not returned to office94. Thirdly, where the President is at the end of his or her term, he/she would be escorted out of office and followed everywhere in life by an unfavourable judgment by history or moral opprobrium95.

One can say that Tribe‘s submission may have been borne out of the age-long sentiments expressed by James Iredell of North Carolina, who at the Constitutional Convention of 178796, said that he doubted a man honoured by his country with the office of the President would apply the pardoning power in a corrupt fashion and thereby suffer the ―damnation of his fame to all future ages‖97. Of course, it would not be wrong to say that even Iredell‘s sentiment is itself anchored on the assumption that a person concerned about public reprobation must necessarily have the ability to feel guilt. Thus, what manner of President would ever want to sacrifice a venerable reputation for the immediate gratification of granting pardons to friends and family or the self-indulgent pleasure of wielding uncontrolled political power according to personal whims, only to do irreparable damage to his reputation? Sadly, the necessity for guilt in times like this and the long-cherished value of protecting ―a good name‖, do not appear to be a key consideration of the 21st-century political class. Thus, the expectation of principled and moral leadership from the electorate consistently clashes with the reckless pursuit of power and its attendant goodies by politicians. This is evident in all modern democracies, with Nigeria occupying a leading position.

The testimony of today‘s democracies, is that the desperation to grab power and the relentless quest to further perpetuate it, inevitably overshadows the call to the personal reflections of the cost in terms of shaming, such that once the power sought is captured, all of Iredell‘s 1787 assumption is simply flung out of the window. It would be seen that amongst the three windows of checks and balances supplied by Tribe, the issue of judicial review is absent.

93 Id. 94 Id. This was seen in the aftermath of the pardon granted to President Nixon. President Gerald Ford lost the 1976 presidential election to Jimmy Carter after granting that controversial pardon to his erstwhile boss. In the argument of Prof. Tribe, had the same happened during the time of President Clinton, where he had granted those pardons before the November 2000 elections, Vice President Al Gore undoubtedly would have paid a further price in lost votes by virtue of his being Clinton‘s former deputy, but both Clinton on this occasion and Bush eight years earlier shrewdly delayed the dubitable grants of pardon, until the presidential elections were safely past. 95 Id. 96 J. Iredell, Address at the North Carolina Ratifying Convention July 28, 1788, in 4 The Founders‘ Constitution 17 (Philip B. Kurland & Ralph Lerner eds., 1987). 97 James Iredell in further making his opinion known said, ―This power is naturally vested in the President, because it is his duty to watch over the public safety; and as that may frequently require the evidence of accomplices to bring greater offenders to justice, he ought to be entrusted with the most effectual means of procuring it‖. See W.F. Duker, supra 4. 30

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Nonetheless this tool has been heavily canvassed as the only way in which the ultimate use of the presidential pardoning power can be properly managed, reined in, and judiciously utilised. It was in this light that Harold Krent postulated about conditional grants arguing that the Judiciary operates as a proper check on such grants, submitting that where they are extreme the judges can intervene to review them98. This paper cannot agree less with Krent, and it is on this basis that an inquisition into the jurisprudence of a sister jurisdiction, i.e. India where the doctrine of judicial review has found fertile ground particularly as it applies to the exercise of presidential pardoning power becomes opposite.

JUDICIAL REVIEW OF PRESIDENTIAL PARDONING POWER UNDER THE INDIAN CONSTITUTIONAL FRAMEWORK – WAY FORWARD FOR NIGERIA

The nagging question on the issue of prerogative of mercy, remains whether we are more apologetic of the criminals and the extent of the strings they can pull to be granted pardon, or the agonized and bereaved families that these criminals leave in the wake of their heinous crimes and the society striving for justice erected on far-reaching moral and ethical foundations and the abolition of all forms of criminal enterprise. In the long list of excuses that have been adduced for the unqualified vesting of pardoning power in the Executive, the need to stem the tide of abuse tops. Unfortunately, the same reason why this power is made absolute in one arm of government is now the exact reason why there must be a reconsideration of the matter. Today it has become notorious to see State Governors recklessly abuse the constitutional provisions on the prerogative of mercy99. The reckless use of pardoning power thus far, especially within our immediate case-study, the Nigerian State has come to justify this statement. What then should be the way forward?

It is inevitable that there is a need for a reform of the current provisions of the law governing pardoning power in Nigeria. In canvassing this reform, it is part of the recommendation of this paper that any request for pardon, which would eventually be granted by the President should be subject to final approval by the Judiciary. This argument becomes imperative in light of many cases of reckless uses of power, as has been alluded to earlier. One thing is clear, all of these abuses were because the power in question is absolutely wielded by just one person i.e. the President and in some other instances, the highest ranking official of the State

98 H.J. Krent, Conditioning the President‘s Conditional Pardon Power, (2001), 89 (6), California Law Review, 1666. 99 I. Osakwe, The Abuse of Prerogative of Mercy, The Sun Newspaper, (Lagos: January 13, 2017), (July 19, 2018) http://sunnewsonline.com/the-abuse-of-prerogative-of-mercy. 31

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] charged with ultimate executive powers. This sort of constitutional adornment is no doubt a great aberration within the context of three of the greatest pillars of the modern democratic state i.e. the political concept of rule of law, separation of powers, and checks and balances.

The above position finds support in the arguments of Iluyomade and Eka, who have both argued that the rule of law means the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government100. This means that discretionary power, though lawful however becomes a matter of abuse, when not judiciously used. This assertion has found further judicial protection in the English cases of Stroud v. Bradbury101, Entick v. Carrington102, Liversidge v. Anderson103 and the Nigerian cases of Agbaje v. Commissioner of Police104 and Balla Rabbe & Ors. v. Inspector General of Police & Anr.105. Further, in their argument, the two erudite scholars agree that the secondary meaning of the rule of law is that the government should be conducted within a framework of recognized rules and principles, which restrict discretionary power106. This is understandably so in order not to give the government unrestricted discretionary power which can easily be abused and the issue of grant of pardons is a relevant example107.

It is in recognition of the above that many of the rules of Constitutional Law restrict the wide powers which Acts of Parliament or of State Assemblies may confer very freely on Ministers or Commissioners or other Authorities108. The rule of law, therefore, demands that the Courts should prevent any abuse of discretionary power, especially when such powers are conferred in excessively sweeping language and they are, sometimes exercised in a manner that amounts to abuse by overzealous officials109. For example, the powers given to the Judiciary under Chapter IV of the Constitution have served as a check on the Executive in certain reckless attempts to trespass on the fundamental rights of citizens as was the case in the celebrated case of Shugaba Abdulrahman v. The Federal Minister of Internal Affairs110. It is

100 B.O. Iluyomade, and B.U. Eka, Cases and Materials in Administrative Law in Nigeria 389 - 395 (1st ed. Ile- Ife: Obafemi Awolowo University Press Ltd., 1980). 101 (1952) 2 All E.R.76. 102 (1765) 19St.Tr.1030. 103 (1942) A.C.206. 104 (1969) 1NMLR 137 (1969) 1NMLR 176. 105 (Unreported) Suit No. M/197/69. 106 B.O. Iluyomade, and B.U. Eka, supra 105. 107 Id. 108 Id. 109 Id. 110 (1981) 2 NCLR, 459. 32

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] in light of the huge role of serving as a check on other constitutional powers, that the same is canvassed for pardoning powers.

A careful examination will show that the current constitutional text and structure allows for impunity. Is the President as the head of the executive arm and the Council of States not both offshoots of the same executive arm of government? If this question is answered in the affirmative, how then is such power which is exercised ‗unquestionably‘ by just one arm of government without any form of input from the other two arms of government, expected to be checked? Has the Constitution itself not simply opened a leeway for the highest level of abuse? Without the protection offered by the Courts through the rule of law, all kinds of abuses would be possible and the rule of arbitrary power would have successfully replaced the rule of law.

According to Oluyede, though he agrees on the one hand that instances of abuse of the pardoning power by the President are nothing but an infraction on the independence of the Judiciary, especially if the courts have been allowed to spend energy and time on a case, he however contends on the other hand that it is simply an example of those few instances where the three arms of government must tolerate one another in the act of governance and finally submitted that this has its roots in the legal history of when the King was the lawmaker, exercised or executed the laws through himself or his servants, adjudicated over any of his erring subjects and could grant pardon at will. With respect, this paper disagrees with the second part of Oluyede‘s contention. It may have been a permissible argument under the ancient rule of the British Kings to see such as a way of one arm tolerating the other, but with the advent of the modern state, particularly the modern democratic state, where the people have submitted their mandate to a certain individual through the ballot box, by reason of which he/she assumes certain powers on their behalf, such powers are expected whether in the immediate or the future, to be deployed for the good of those that have donated that power. It cannot be simply explained on the platform of one arm tolerating the other.

This recommendation of subjecting the President‘s pardoning power to a regime of judicial shaping is a position that has gained ample ground in some other jurisdictions, notably those that share a similar colonial history as well as a legal system with Nigeria. In India, the Constitution already provides for a framework of the judicial review of the Indian President‘s pardoning power. This position began to gain ground as early as 1972, when the Indian

33

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Supreme Court in G. Krishna Gouda v. State of Andhra Pradesh111, stated that ―all power, however, majestic the dignitary wielding it, shall be exercised in good faith, with intelligent and informed care and honesty for the public wealth‖112. An interesting case is that of Guru Venkata Reddy v. State of Andhra Pradesh113, involving the pardon granted to an Indian activist by the name Gouru Venkata Reddy, who was sentenced to 10 years imprisonment for killing two people. An appeal filed by the sons of the deceased subsequently came before the Indian Supreme Court and in a landmark ruling, the court overturned the pardon granted by the then Governor of Andhra Pradesh, Sushil Kumar Shinde, paving the way for the entrance of judicial review into the Indian pardoning process114. While delivering its judgment, the court said:

Rule of Law is the basis for evaluation of all decisions (by the court)... That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent.

A member of the Court, Hon. Justice Kapadia, while concurring with the lead judgment delivered by Hon. Justice Pasayat opined thus:

The exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty... the power of executive clemency is not only for the benefit of the convict but while exercising such a power the President or the Governor as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future. An undue exercise of this power is to be deplored.

The place of judicial review finally became settled law in the landmark decision of the Supreme Court of India, in Epuru Sudhakar & Anr. v. Government of Andhra Pradesh & Ors.115, where the court held that ―clemency is subject to judicial review and it cannot be dispensed as a privilege or act of grace‖116. The court further stated that ―the position, therefore, is undeniable that judicial review of the order of the President or the Governor

111 AIR 1974 SC 2192. 112 Id. 113 1985 AIR 724. 114 Id. 115 (2006) 1 NSC 638 SC. 116 Id. 34

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds: (a) that the order has been passed without application of mind; (b)that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (d) that the order suffers from arbitrariness‖.117

Also, in Kuljit Singh v. Lt. Governor of Delhi118, which was an earlier matter it was held that the Indian President‘s power under Article 72 will be examined on the facts and circumstances of each case. The court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive119.

CONCLUSION

The basis of vesting presidential pardoning power in the hands of a sole individual, usually the Executive head is for the purpose of efficiency and accountability with respect to the exercise of the power120. However, it has been established that this notion is grossly misplaced as this privilege has clearly been flagrantly abused. The Nigerian experience is not different from other presidential systems, and it‘s on this basis that India‘s strong will to alter this status quo has become a torchbearer. This paper has critically analyzed the huge potential for abuse in the current framework, while also positioning side by side the wealth of ideas that can be tapped from the Indian constitutional system.

It is sufficient to support the conclusion that the Nigerian State stands to be appreciably harmed by the current constitutional set-up. There is an urgent need for the re-working of the provisions of Section 175 of the Constitution, to mandate that the entire pardoning procedure terminates with a final approval that must be given by the Chief Justice of the Federation,

117 Id. 118 (1982) AIR 774: 1982 SCR (3) 58. 119 Id.; A similar reasoning was applied in Maru Ram v. Union of India, the Supreme Court while delivering judgement on the validity of 433A of the India Code of Criminal Procedure, said, ―Pardon using this expression in the amplest connotation, ordains fair exercise, as we indicated above. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise … For example, if the Chief Minister of State releases everyone in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive‖. See also Kehar Singh v. Union of India, (1989) AIR 1989 SC 653; Nine years later, in Swaran Singh v. State of Uttar Pradesh, (1998) 4 SCC 75, a similar decision was reached when the Indian Supreme Court reversed an order by the Governor of the State of Uttar Pradesh, and in so doing held that; ―We cannot accept the rigid contention of learned counsel for the third respondent that this court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer cannons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it‖. 120 K.H. Fowler, Limiting the Federal Pardon Power, (2008), 83 (4), Indiana Law Journal, 1652 – 1669. 35

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] who after due consultation with members of the National Judicial Council (NJC) must have come to a decision whether to approve the grant or decline its approval. The Chief Justice of Nigeria gives this final approval in his capacity as the head of the Nigerian Judiciary, finding comfort in the concurrence of opinion of members of the NJC, who as the heads of several judicial bodies are likely to be fully acquainted with the facts of the trial of the convict or whoever pardon is to be granted to, so as to appreciate the necessity or otherwise of granting a pardon. This is pre-eminently the time to allow the judiciary the power of review over executive acts of pardon as the last resort where necessary.

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CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF THE CIVIL SERVICES IN INDIA IN CONTEMPORARY WORLD SCENARIO

Authored by Dr. Niranjan Parida Faculty, P.G. Department of Law & Capital Law College, Utkal University, Vani Vihar, Bhubaneswar, Odisha. [email protected]

ABSTRACT

Modern state is a social welfare state. Its functions are multifarious. To discharge all these functions efficiently and effectively, it is of utmost importance that we must have men of vision, initiative and character to man the administrative apparatus of the state and hence the need for civil services. Further, to attract best talent to these services, it is equally essential that their conditions of service and methods of recruitment and training are given due importance. Besides, to enable them to discharge their functions fearlessly, they must also have a feeling of security of tenure. The constitution framers had taken note of this aspect and made special provisions dealing with the Public Service Commissions as well as providing certain safeguards to the civil servants to make them feel contend and secure in their position. The Constitution of India framed with an object of securing justice social, economic and political to its citizens, aims at a welfare state. The Directive Principles of State Policy which it contains are in the nature of directions to the legislature and the executive as to how they have to exercise their authority. The new economic and social policy declared by the state unmistakably shows that the nation is committed to achieve the objectives set forth in the Directive Principles of State Policy. For the achievement of this core objective it is inevitable that the civil service has to play a dominant role as pointed out earlier. It is true that free India inherited a sound system of civil service modelled for the requirement of a colonial power. The main preoccupations of a colonial government were the collection of land revenue and the maintenance of law and order. The increase of functions of the state and their consequent growth of power in the hands of the civil servants began very slowly at first. In India, this might be traced to the advent of railway as a means of transportation in the middle of the nineteenth century. For the purpose of research study, the researcher has followed following constitutional provisions- Articles 308, 309, 310, 311 and 312 that deal with All India Services, which all are the subject matter of our study. It also has

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Key Words: Constitutional and legislative framework/Provision, Civil Service/servant, Removal/Reduction of rank, Dismissal, Reasonable Opportunities, Good Governance, Accountability, Rights, duties and liabilities of Civil Servants, doctrine of pleasure, etc.

INTRODUCTION

The Civil Service in India has been organized on the same lines as the Civil Service of United Kingdom. The Constitutional principle based on the doctrine of pleasure is also incorporated in the Constitution of India in dealing with matters relating to Civil Servants. Another concept of Rule of Law is also incorporated in the Constitution of India in the form of Articles 14, 15 and 16. Another important doctrine viz., natural justice has been incorporated in Article 311 of the Constitution with special reference to services under the Union and the States. The most prominent principles i.e., notice inquiry opportunity (right of hearing) and fair treatment have been enshrined in the Article. Article 309 of the Constitution leaves the matters relating to the Recruitment and Conditions of the Service of the public servants of the Union and of the States to be regulated by Acts of the appropriate Legislatures. Pending such Legislation however, these matters were to be regulated by Rules made by the President or by the Governor in connection with the Services under the Union and the States respectively. The Civil servants in India, like their British counterparts, hold the post under the doctrine of pleasure of the President and Governors. This concept is also embodied in constitution of India under Article 310.

REVIEW OF LITERATURE

A brief review of the literature relating to the present study has been detailed as follows:

Harold J. Laski‟s valuable treatise entitled Parliamentary Govt. in England & The Growth of Administrative Discretion gives a wonderful account of the Home Civil Service of England tracing down its history, its relevance for the day and the impact it has had on the English Society and politics as a whole. Similarly, Herman Finer‟s The British Civil Service 14, 15 (London, 1937) is also a classic source of ―The Role of the Civil Service in the Modern World‖. We also find good research in Herman Finer‟s classic treatise on The Theory and

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Practice of Modern Government, where he has attempted in-depth analysis with comprehension, original research and first-hand observation highlighting the crucial problems of the Civil Service mainly aimed to get, keep, manage, and inspire in the service of the state enough of the best minds and characters of the living generation. This has been reconsidered with novel information and perspective. Constitutional and Administrative Law by John Alder and Constitutional Law by E.C.S. Wade & Godfrey Philips has tremendous impact on Civil Service & Civil Servant. Other books on Indian Constitutional Law like Durgadas Basu‟s Shorter Constitution of India and the Introduction to Constitution of India have a chapter each on the services under the Union and the State, Dr. Basu gives importance to Civil Service and interpretation, recruitment and conditions of Service to be regulated by legislation subject to the provisions of the Constitution. The most respectable book on Constitutional Law of India by H.M. Seervai has given a wonderful account of what the role of Civil Services citing quotations from Sir Warren Fisher, Permanent Head of the British Treasury, Sardar Vallabhbhai Patel and from Shah Commission‘s Report. Seervai‘s treatise gives an excellent account of Articles 309 to 311, 313 and other articles in Part – XIV of the Constitution including Chapter 2 of Part XIV. Another important book that is found to be very close to the subject of the research study is The Civil Servant under the Law and the Constitution by Dr. N. Narayan Nair, casting increasing attention on the roles governing the conduct of the Civil Servant and legislations that control Civil service, aimed at enhancing disciplined efficiency and fair service conditions. It also examines the position of the Civil Servant and the significant features of the problem pertaining to the Civil Servants under the Law and the Constitution. The subject has received a very careful treatment marked by spirit of enquiry, assisted by a close examination of the opinions of jurist and judicial pronouncements. Other books close to my topical area of research study are Prof. Narendra Kumar‟s Law Relating to Government Servants and Management of Disciplinary Proceedings. Prof. Kumar has in a very simple language highlighted Service law pertaining to certain controls like ‗the pleasure doctrine‘ under Article 310, system of Confidential Reports, disciplinary proceedings such as suspension, removal and dismissal from service and reduction in ranks etc. In order that these control mechanisms are not arbitrary and are constitutional and other provisions are enacted for the protection of the Civil Servants which they can enforce through the Courts. Report of the Law Commission of India on various topical legal issues concerning my research has also been studied and their significant findings have been integrated into my research. Research findings of Indian Bar Review have also been studied to integrate important research concerns. Internet Depository on my 39

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] research area is a significant source of legal research and various inputs would necessarily be used in my topical research area. Justice Rama M. Jois in his work Service under the State influences most simple level as a source of overall understanding of civil services law and civil services jurisprudence. It is an authoritative exposition of adjudicative law as well as a critique of it helping its future renovation. The discourse on the rights of Civil Servants is anchored in the text and context of article 311 of the Indian Constitution. This provision is unique in World Constitutionalism. Every act of affirmation of the rights of the Civil Servant is also an act of State Power, strengthening it all the way. Adjudicative law empowers the individual at the same time substantially disempowering the State. It is this inversion which possesses the basic enigma of the Indian judicial process. Similarly, Ejaz Ahmed‟s The All India Services Manual, published by Ashoka Law House New Delhi is a best source of relevant case laws & notes on Government of India resolutions, decisions, circulars and notification including Amendments by Sixth Pay Commission relating to Civil Service law.

OBJECTIVES OF STUDY

 To study the practical implication of the judicial decisions explaining the extent and scope of judicial control in Government‘s relation to civil service matters.

 To study the role of administrative system for promoting transparency and people‘s participation.

 To study the decision making, implementation and evaluation of projects programmers and public policies for good governance.

 To identify the strategy that could be formulated for maintaining balance between the interest of the civil servants and that of the fundamental interest of the society that conflict with each other.

 To suggest the necessary legislative and reforming parameters needed in this regard.

HYPOTHESIS

1. In India, the Civil Servants are responsive, transparent, accountable, ethical, public friendly and corruption free and deliver good governance.

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2. In India, Civil Servants unlike their counterparts in developed countries act as public masters as an inherited legacy of British Colonialism in India and they don‘t think and behave as real public servants paid by the tax payers. 3. Article 311 of the Constitution of India has created an environment of excessive security and made civil servants largely immune from imposition of penalties for their non- performance and commission of crime. Article 311 of the Constitution of India is over protective and promotes arbitrary action. 4. All India Services Act, 1951 and the concerned rules such as Central Civil Services Conduct Rules, 1964 need suitable amendment to cater to the present situation and to be in conformity with Article 309.

RESEARCH METHODOLOGY

The methodology adopted in this study is a doctrinal and empirical one. Case study method and statistical data analysis are the basis of the empirical part of this research. Data collected from both primary and secondary sources which are based on Constitution of India, official reports of Law Commissions, Reports of the findings of various GoI committees, All India Reporter on service matters etc. and leading legal bulletins. Besides a detailed survey and analysis of plethora of judicial decisions rendered in this regard by the Supreme Court and a number of High Courts are to be made. Reports as available in the form of Books, Journals, Manuals Periodicals Articles and public opinion on instances of corruption constitute the pool of Secondary Sources used.

CONCEPT OF THE CIVIL SERVICE IN INDIA

In India, the concept of civil service as it is presently understood was first introduced by the East India Company.121 In the early mercantile stage, the civil service was known by the title "Honorable Company's Civil Service''.122 Appointments to the civil service were by patronage enjoyed by the Directors of the Company. The candidates had to sign a 'covenant' before appointment. The terms included in the covenants governed the conditions of service, rights and obligations of these servants of the Company. These employees, thus, came to be known

121 1, A. C. Banerjee, Indian Constitutional Documents: 1757-1858 Introduction p. XVI (Calcutta, 1945). 122 See Dwarkadas, op. cit. p. 2. 41

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] as covenanted servants.123 By the efflux of time and owing to historic compulsions, the trading operations of the Company began to be supplemented by territorial dominion. As a result of this process, the civil servants of the Company were slowly transformed from traders into administrators.124 But the origin of the system of civil services as it exists in India today may be traced from the year 1772 when Warren Hastings appointed the servants of the East India Company as collectors in charge for the collection of revenue in each district, which was the basic territorial unit for the administration of the Company's territory. The Regulating Act, 1773 was the first legislative attempt to check corruption125 that was rampant among the servants of the Company. This was followed by the Act of 1784.

The regime of Lord Cornwallis constituted a landmark in the history of the civil service in India. Lord Cornwallis was the first statesman to be appointed Governor-General and he, for the first time, freed the Company's civil service from the tradition of its commercial origin and in order to check corruption increased the salary of officers. The Charter Act of 1793 restricted promotion in services only according to seniority and this did away with nepotism shown in cases of promotions. The next important stage reached in the history of the civil service was that of the regime of Lord Wellesley. He was mainly responsible for establishing colleges for training126 of civil servants, which contributed considerably to the growth of an efficient public service. He tried to evolve a stable civil service suitable for a growing empire. The passing of the Charter Act of 1833 transformed the character of the Company from a quasi-commercial body and made it an administrative body in the full sense of the term. The Act also abolished the system of nomination to service and the service was thereupon thrown open to public competition of all British subjects without distinction of religion, place of birth, descent and color.127

LEGISLATIVE PROVISIONS & EVOLUTION OF THE CIVIL SERVICE IN INDIA

The next important milestone in the evolution of the civil service in India was the assumption of the governance of the country by the Crown in 1858. The transfer of power did not materially affect the organization of the civil service to any appreciable extent. The

123 Imperial, Provincial and Subordinate. 124 A. K. Ghosal, Civil Service in India under the East India Company 75 (Calcutta, 1944). 125 Documents op. cit. p. 4 and Burke's speech in the Impeachment of Warren Hastings in 1788. Id. at 94. 126 Haileybury College in England and the Fort William College in India. The former was to be closed down in 1855 as per an Act of 1855. 127 Section 87 of the Act of 1833. 42

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Government of India Act, 1858 was followed by the Indian Civil Service Act, 1861. This Act reaffirmed the rights of determination of the rank and promotion in the Company's civil service on the basis of seniority granted to the civil servants by the Charter Act of 1793. Thus, the conditions of service of the civil servants were placed on a statutory footing for the first time by the Indian Civil Service Act, 1861.

In 1886, the first Public Service Commission was constituted with Sir Charles Atchinson as Chairman to consider the claims of Indians to higher civil service.128 But it was only in 1925 that a permanent public service commission was established in India.129

The Decentralization Commission of 1907 recommended many reforms for decentralization and simplification of the administrative process. The Government of India Act, 1919 which introduced diarchy in the provinces provided for elected ministers and some of the civil servants had to work under such ministers. Difficulties were created in some quarters where the members of the superior service did not fully co-operate with the popular ministers. Under the Government of India Act, 1935 the limited provincial autonomy was enlarged and it was thought better to give certain safeguards to the civil service. In order to protect British members of superior service from Indian ministers, the matter was treated as one of special responsibility of Governors of Provinces and the Governor-General. The fear of popular ministries was short-lived as all ministries resigned in 1939 during the Second World War. On August 15, 1947 India became independent.

Thus, it could be seen that but for a short span where elected representatives of people were, in a very narrow sense, in power, the civil servants in India prior to independence was really the master of the country. This supremacy had in fact started from the late eighties of the eighteenth century when Lord Cornwallis was sent as the Governor-General. Not being an administrator possessed of knowledge of local conditions, he and his successors in office had to rely much on the advice of their officers. It is this role of expert advisers played by the Indian Civil Service that helped it to survive after Independence even after severe criticism. The Indian leaders, conscious of the role played by the bureaucracy during the final stage of British rule, were not happy to retain the services of many top-ranking officers but it was indisputable that their wisdom and experience could not also be dispensed with wholly.130

128 The Royal Commission on Public Services in India (1017) recommended reservation of 25 per cent, of vacancies to Indians. 129 This was as per the recommendations in the Report of the Royal Commission on Superior Services in India (1925). 130 See Article 314 of the Constitution of India which gave protection to members of the I.C.S. 43

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CONSTITUTIONAL DOCTRINE: DOCTRINE OF PLEASURE IN INDIA

The Common Law ―doctrine of pleasure‖ was borrowed in India under the Government of India Act, 1858. Section 16 of this Act provided that all the servants and officers of the Government of India shall hold their office subject to the Royal Pleasure. Section 96-B of the Government of India Act, 1919 also incorporated this rule of pleasure. The rule was retained under the Government of India Act, 1935.131

In India also under the Republican Constitution, the doctrine of pleasure under the English Common Law is imported but with sufficient changes to suit the Indian conditions. In Article 310 of the Constitution, it is provided that:

―(1) Except as expressly provided by this Constitution every person who is a member of a defence service or of a civil service of the Union or of an all- India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President and every person who is a member of civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or as the case may be of the Governor of the State any contract under which a person not being a member of a defence service or of an all-India service or of a civil service of the Union or a State is appointed under this Constitution to hold such a post may if the President or the Governor as the case may be deems it necessary in order to secure the services of a person having special qualifications provide for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is for reasons not connected with any misconduct on his part required to vacate that post.‖

DELEGATION OF PLEASURE BY THE PRESIDENT OR THE GOVERNOR

In State of Uttar Pradesh v. Babe Ram Upadhya,132 the majority held that the power to dismiss a public servant subject to the provisions of Article 311 was not an executive power

131 Section 240 of the Government of India Act, 1935. 132 State of Uttar Pradesh v. Babe Ram Upadhya, AIR 1961 SC 751. 44

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] under Article 154 but a constitutional power and was not capable of being delegated to officers subordinate to the Governor. However, in Moti Ram Deka v. N.E.F. Rly133 the Court overruled the majority view in Babu Ram Upadhya case.

The question was considered in Union of India v. Tulsiram Patel134 and the Court held that the pleasure of the President or the Governor was not required to be exercised by either of them personally. It being an executive power within the meaning of Articles 53(1), 74(1), 77(1), 154(1), 163(1), 166(1) may be exercised by the President or the Governor acting on the aid and advice of the Council of Ministers.

CONSTITUTIONAL SAFEGUARDS FOR CIVIL SERVANTS

Article 311 of the Constitution secures to the civil servants of the government two procedural safeguards in relation to their tenure of office. These are –

A. No removal or dismissal by an authority subordinate to the appointing authority. B. No removal or dismissal or reduction in rank, except after an inquiry affording reasonable opportunity of hearing.

SAFEGUARDS

A. NO REMOVAL OR DISMISSAL BY AN AUTHORITY SUBORDINATE TO THE APPOINTING AUTHORITY [ARTICLE 311(1)]

Clause (1) of Article 311 provides that the aforesaid persons i.e. the civil servants of the Union or a State cannot be removed or dismissed by any authority subordinate to the appointing authority.

REMOVAL OR DISMISSAL BY AUTHORITY EQUAL IN RANK OR SUPERIOR TO APPOINTING AUTHORITY

Article 311(1) prohibits removal or dismissal by any authority subordinate to the appointing authority. It, however, does not mean that the removal or dismissal must be by the very same

133 Moti Ram Deka v. N.E.F. Rly, AIR 1964 SC 600. 134 Union of India v. Tulsiram Patel, AIR 1985 SC 1416. See also Shamsher Singh v. Punjab, AIR 1974 SC 2192 for a similar view and Sardari Lal v. U.O.I., AIR 1971 SC 1547 for an opposite view overruled in Shamsher Singh case. 45

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] authority who made the appointment or by his direct superior. It is enough that the removing authority is of the same rank or grade as the appointing authority.135 By necessary implication, the removing authority may be higher in rank to the appointing authority.136

B. NOT DISMISSAL, REMOVAL OR REDUCTION IN RANK EXCEPT AFTER INQUIRY

Clause (2) of Article 311 secures the second safeguard to the civil servants of the Union or a State. It provides:

―No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him, and given a reasonable opportunity of being heard in respect of those charges.‖

The safeguard contained in Article 311(2) is the reasonable opportunity of being heard in the cases of - (a) Dismissal form, (b) Removal from service, and (c) Reduction in rank.

DISMISSAL OR REMOVAL OR REDUCTION IN RANK

The terms ―dismissal”, “removal‖ and ―reduction‖ in rank‖ have not been defined in the Constitution. They carry the same meaning as they have under the Civil Service (Classification, Control and Appeal) Rules, which mention seven penalties to which the members of the civil services may be subjected to for misconduct.137

HIGHER RANK OR POST HELD IN OFFICIATING CAPACITY

A person working in a higher post, not substantively, but purely on an officiating basis may for valid reasons, be reverted to his substantive post. That would not, by itself, be a reduction in rank within Article 311(2) unless circumstances disclose a punitive element. In Devesh Chandra v. Union of India,138 the appellant was the Chief Secretary of Assam and a member of the Indian Civil Service attached to the State Cadre. He was appointed a Secretary in the

135 Mahesh Prasad v. State of U.P., AIR 1955 SC 70; A. K. Sen v. Union of India, AIR 1986 SC 335; Ikramuddin Ahmed Borah v. Superintendent of Police, Darrang, AIR 1988 SC 2245; State of U.P. v. Ram Naresh Lal, AIR 1970 SC 1263. 136 Sompura Singh v. State of Punjab, AIR 1982 SC 1407. 137 Satish Chandra v. Union of India, AIR 1953 SC 250; P.L. Dhingra v. Union of India, AIR 1958 SC 36; Mohd. A. S. Khan v. Sarfaraz, AIR 1975 SC 1604. 138 Devesh Chandra v. Union of India, AIR 1970 SC 77. 46

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Central Government on a tenure post which was to expire in July, 1969. The appointment of the appellant was subsequently approved by the Union Cabinet.

REVERSION FROM A PROLONGED AND CONTINUOUS AD HOC OFFICIATION

In State of Orissa v. Pyari Mohan Misra,139 the Supreme Court ruled that mere prolonged and continuous ad hoc service does not ripen into a regular service to claim permanent or substantive status. In this case, the respondent who was appointed as Director Fisheries on ad hoc basis was directed to continue temporarily till further orders. Subsequently, because of the policy decision of the Government to appoint an IAS Officer to man the post of Director Fisheries, the respondent was reverted to the post of Joint Director without any inquiry. The Supreme Court held the reversion perfectly legal and valid and not in violation of Article 311(2).140

DISMISSAL AND REMOVAL

It is now settled that termination of service of a civil servant of the government to constitute ―dismissal‖ or ―removal‖ under Article 311(2) must have been done by way of punishment.141 In Baikuntha Nath Das v. Chief District Medical Officer, Baripada142 the Supreme Court reviewed a series of decisions on compulsory retirement of government servants ordered in the public interest. In S. Ramachandra Raju v. State of Orissa143 the appellant, a Reader in a Government College, was compulsorily retired from service on the basis of the solitary adverse report for one year. The Supreme Court set aside the order of compulsory retirement of the appellant.

REASONABLE OPPORTUNITY OF BEING HEARD

139 Ganga Ram Bhatia v. Union of India, AIR 1959 Punj 643; Surjit Singh Sher Gill v. Dic. Suptt. N. R. Allahabad, AIR 1967 All 112. 140 State of Orissa v. Pyari Mohan Misra, AIR 1995 SC 974. 141 P.L. Dhingra v. Union of India, AIR 1958 SC 36. 142 Baikuntha Nath Das v. Chief District Medical Officer, Baripada, AIR 1992 SC 1020. See also State of U.P. v. Lalsa Ram, JT 2001 (3) SC 242; State of U.P. v. Bihari Lal, AIR 1995 SC 1161. 143 S. Ramachandra Raju v. State of Orissa, AIR 1995 SC 111. 47

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Article 311(2) secures to a civil servant a ―reasonable opportunity‖ of being heard before he is dismissed or removed or reduced in rank. It has been observed that Article 311(2) incorporates the principles of natural justice that ―no man can be condemned unheard‖ (Audi alteram partem). It should be an effective opportunity of hearing. However, it is settled that the provisions of the Evidence Act, Criminal Procedure Code or Civil Procedure Code, do not apply to the departmental inquiries held under Article 311(2).

EXCLUSION OF INQUIRY AND OPPORTUNITY OF BEING HEARD: EXCEPTIONS

Second Proviso to Clause (2) of Article 311 contains the following three exceptions to the rule of holding inquiry. It provides that where a civil servant is dismissed or removed or reduced in rank, there shall be no need of holding any inquiry –

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge, or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, or (c) where the President or the Governor as the case may be is satisfied that in the interest of the security of State, it is not expedient to hold such inquiry.

(a) Exception I: Conviction on a criminal charge Clause (a) of second Proviso to Article 311(2) provides that where a civil servant is convicted on a criminal charge, he/she may be dismissed or removed or reduced in rank without giving him/her an opportunity of hearing before he/she is so punished. Conviction for the purpose of this exception must be under any law which provides for punishment for a criminal offence, whether involving moral turpitude or other crimes. However, conviction must be one which has been imposed upon the delinquent servant during the course of and not prior to the appointment in question.144

Conviction, for this purpose means final conviction, i.e. conviction by the final court of appeal. However, the passing of order of dismissal, removal or reduction in rank, is not barred on the ground that sentence was suspended by appellate court or accused was released

144 Durga Singh v. State of Punjab, AIR 1957 Punj 97; In Re Nagabhushan, AIR 1966 AP 72; Jagadindra v. I.G., AIR 1959 Assam 134; Sunil Kumar v. State of W.B., AIR 1970 Cal. 384; Gopal v. Tripura, AIR 1960 Tr. 31. 48

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] on bail pending appeal. Again, it is not necessary for the disciplinary authority to wait until the disposal of appeal or revision presented against the conviction. But if the conviction is subsequently set aside, the order of dismissal or removal made against the delinquent would cease to have effect and he would be entitled to be reinstated along with salary and allowances for the back period.

The Supreme Court in Union of India v. Tulsiram Patel145 has laid down that the charges in the criminal case must relate to misconduct of such magnitude as would have deserved the penalty of dismissal, removal or reduction in rank. It has further been held that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. The Supreme Court has emphasized that where the disciplinary authority came to know that the government servant had been convicted on a criminal charge, it must consider whether his conduct which led to his conviction was such as that warranted for the imposition of a penalty and if so, what the penalty should be.

(b) Exception II: Where inquiry is not reasonably practicable Clause (b) of the second proviso to Article 311(2) provides that no inquiry needs to be held for the dismissal, removal or reduction in rank of a civil servant if the disciplinary authority records in writing that it is not reasonably practicable to hold such inquiry.

In Union of India v. Tulsiram Patel,146 the Supreme Court laid down the following guidelines for the application of Clause (b) of the second Proviso to Article 311(2):

(a) It is the satisfaction of the disciplinary authority that ―it is not reasonably practicable to hold the inquiry contemplated in Article 311(2).

(b) It is not a total or absolute impracticability which is required by Clause (b). What is required is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the presenting situation.

(c) The disciplinary authority must not dispense with the inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department‘s case against the government servant, is weak and must fail.

(d) A situation which makes the holding of inquiry not reasonably practicable may be existing at the initial stage or can also come into existence subsequently during the course of inquiry. In such a case also, the authority would be entitled to apply Clause

145 Union of India v. Tulsiram Patel, AIR 1985 SC 1416. 146 Id. 49

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(b) of the second Proviso because the word ―inquiry‖ in that Clause includes part of an inquiry.

(e) The disciplinary authority is required to record reasons in writing for dispensing with the inquiry. There is no obligation to communicate the reasons to the government servant. It would, however, be better to do so, because such communication of reasons would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or in a fit case, the Supreme Court under Article 32.

(f) The reasons for dispensing with the inquiry need not contain detailed particulars but the reasons must not be vague or just a repetition of the language of Clause (b) of second Proviso.

(g) The decision of the disciplinary authority is given finality by Article 311(3).147 However, it is not binding upon the court so far as its power of judicial review is concerned.

(c) Exception III: Holding of inquiry not expedient in the interest of security of state Clause (c) of second Proviso to Article 311(2) provides that no inquiry needs to be held before a civil servant of the government is dismissed, removed or reduced in rank, where the President or the Governor, as the case may be is satisfied that in the interest of the security of State it is not expedient to give to the civil servant such opportunity as contemplated in Article 311(2).

It is now established that the satisfaction contemplated under clause (c) of second Proviso to Article 311(2) of the President or the Governor, as the case may be is not his personal satisfaction but with the aid and advice of the Council of Ministers. It is because the power to take disciplinary action against a government servant is the ―executive power‖ of the ―Union or the State‖ as the case may be.148

147 Clause (3) of Article 311 contains finality clause which declares that ―if a question arises whether it is reasonably practicable to hold such inquiry referred to in clause (2), the decisions of the disciplinary authority shall be final‖. 148 Bakshi Sardari Lal v. Union of India, AIR 1987 SC 2106; Union of India v. Tulsiram Patel, AIR 1985 SC 1416; Shamsher Singh v. State of Punjab, AIR 1974 SC 2192; See Sardari Lal v. Union of India, AIR 1971 SC 1547 for an opposite view which stands overruled. 50

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In the fourth appeal decided along with Union of India v. Tulsiram Patel‘s case149, the petitioners belonging either to the Madhya Pradesh District Police Force or the Madhya Pradesh Special Armed Force, were dismissed from service by applying Clause (c) of the second Proviso to Article 311(2). It was shown that the petitioners indulged in violent demonstrations and riotous activities attacked the police station at a Mela ground, ransacked it and forced the release of their colleagues who were arrested for an incident in which one man was burnt alive in the Mela held at Gwalior. The petitioners also carried on active propaganda against the Government by holding secret meetings distributing leaflets and inciting the constabulary to rise against the administration. After considering these material facts, the Supreme Court held the order of dismissals justified. The Court observed that the facts left no doubt that the situation was such that prompt and urgent action was necessary and the holding of an inquiry into the conduct of each of the petitioners, would not have been expedient in the interest of the Security of the State.

The Supreme Court in Challappan case150 opined that under the three clauses of second proviso to Article 311 (2) dispensing with the inquiry, a limited inquiry ought to be held on the question of nature and extent of the penalty to be imposed and that before taking the final action in the matter the delinquent employee should be heard and the circumstances of the case should be objectively considered. The Challappan case also raised the possibility of service Rules conferring a right of hearing on a delinquent employee. In these respects, the Supreme Court has overruled Challappan.

In Union of India v. Balbir Singh151 the Supreme Court held that the Court could examine the circumstances on which the satisfaction of the President or the Governor was based and if it was found that the said circumstances had no bearing whatsoever on the Security of the State, the Court could hold that the satisfaction of the President or the Governor which was required for passing such an order, had been vitiated by wholly extraneous or irrelevant considerations. The Court, however, held that the fact that the accused was subsequently acquitted in a criminal trial would not make any difference to order which was passed on the totality of material which was before the authorities long prior to the conclusion of the criminal trial.

149 Union of India v. Tulsiram Patel, AIR 1985 SC 1416. 150 Divisional Personal Officer, Southern Railway v. T. R. Challappan, AIR 1975 SC 2216. 151 Union of India v. Balbir Singh, AIR 1998 SC 2043. 51

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OPPORTUNITY OF HEARING AT PUNISHING STAGE [PROVISO I TO ART. 311(2)]

Prior to the Constitution (Forty-second Amendment) Act, 1976 opportunity to be heard had to be offered to the delinquent servant at two stages i.e., at the inquiry stage and at the punishing stage.

Thus, Article 311(2) as it stood prior to 1976, enabled the delinquent servant to make his representation as to why the proposed punishment should not be inflicted on him. This second opportunity enabled the delinquent to plead that no case had been made out against him or that the conclusions drawn from the evidence taken at the inquiry were not correct or that the punishment proposed to be imposed was excessive.152 There was a plethora of case- law around this second opportunity of hearing and punishment was liable to be quashed for the non-compliance with this requirement. Article 311(2), thus, required elaborate procedural formalities before a government servant could be punished. It was felt that these formalities were consuming too much time and causing delay in taking decision in the matter without affording any additional benefit to the delinquent servant. With a view to expedite the disciplinary proceedings, the Constitution (42nd Amendment) Act, 1976 cut down the procedural formalities, by abolishing the second stage opportunity. It is now expressly provided that153- Where it is proposed after such inquiry, to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced.

RIGHTS AND LIABILITIES OF CIVIL SERVANTS

Several cases relating to the fundamental rights and other constitutional and statutory rights of civil servants and their liability for misconduct have come up before the Supreme Court and various high courts and the law governing recruitment and conditions of service is fairly settled on most of the matters. The powers and limitations on the exercise of powers by the state and other appointing and disciplinary authorities as well as the rights and liabilities of civil servants are well settled by the various decisions. The knowledge of the principles of law so settled is necessary both on the part of the authorities exercising power under the law relating to services as also on the part of the civil servants who are governed by the said law. The following

152 Khem Chand v. Union of India, AIR 1958 SC 300; Union of India v. H. C. Goel, AIR 1964 SC 364. 153 Proviso I to Clause (2) of Article 311. 52

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FUNDAMENTAL RIGHTS OF CIVIL SERVANTS

I. Subject to the power of Parliament, under Article 33, to modify the fundamental rights in their application to members of the Armed Forces and the Police Forces, the fundamental rights guaranteed by the constitution are in favour of all 'citizens', which obviously include public servants.

II. It follows, therefore, that a civil employee of the Government is entitled to the protection of a fundamental right such as Articles 14, 15, 16, 19, 20 in the same manner as a private citizen. Thus if two sets of rules relating to disciplinary proceedings were in operation at the time when the inquiry was directed against a Government servant, and the inquiry was directed under the set of Rules which was more drastic and prejudicial to the interests of such Government servant, the proceedings against him are liable to be struck off as infringing Article 14.

In other words, if two public servants are working / operating in similar circumstances, enquiries may be directed against them according to procedures that are substantially different, at the discretion of the Executive authority, exercise whereof is not governed by any principles having any rational relation to the purpose to be achieved by the inquiry, the order selecting a prejudicial procedure, out of the two open for selection, is hit by Article 14.

III. Restrictions upon the rights of the public servants under Article 19 can, therefore, be imposed only on the grounds specified in Clause (2w)-(6), and to the extent the restriction is reasonable.

But while a public servant possesses the fundamental rights as a citizen, the State also possesses, under the Proviso to Article 309, the power to regulate their 'conditions of service'. Now, the interests of service under the State require efficiency, honesty, impartiality and discipline and like qualities on the part of the public servant. The State has, thus, the constitutional power to ensure that every public servant possesses these qualities and to prevent any person who lacks these qualities from being in the public service. It seems, therefore, that State regulation of the conditions of service of public servants so as to restrict their fundamental rights will be valid only to the extent that such restrictions are reasonably

154 Justice Rama M. Jois, Services under the State, 2007 Chapter-iv, page-24 (Indian Law Institute, New Delhi). 53

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CIVIL SERVANTS OWE A DUTY TO THE PEOPLE

Constitution reposes great trust and confidence in the services and gives them security of tenure and conditions of service and in turn expects an honest and sincere service from the members of the services for providing to the people of India an efficient polite and incorruptible administration and to achieve and to fulfil the aims and objectives of the Constitution. It is the duty of every person appointed to any post under the union or states, high or low to discharge his duties and responsibilities according to the expectations of the Constitution and befitting the trust and confidence reposed in him by the Constitution. Therefore, while the civil servants are undoubtedly entitled to enforce their rights when they are wronged they must be equally conscious of their duties and should discharge their duties with honesty, discipline and sense of devotion as the rights are conferred on them only with the expectation that they would discharge the duties entrusted to them in the required manner.155

MANAGING POOR PERFORMANCE

In India, we do not have a tradition of penalizing civil servants for poor performance. India is one of the few front-ranking countries in the world that does not distinguish between performers and non-performers and allows both the categories to progress in their career without any reference to performance. In fact, Rule 56(j) of the Fundamental Rules can be utilized for dealing with poor performance but it is rarely invoked. So rarely is it invoked that when the provision was finally used on a campaign mode to get rid of the deadwood in the civil service at the time of the Emergency, it was met with universal approbation in the country and people hailed it as an important administrative innovation. Provision 56(j) has not been in use ever since.

155 Id. 54

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ARTICLE 311

The civil servant has remained largely immune from imposition of penalties due to the complicated procedures and processes that have grown out of the constitutional guarantee against arbitrary action. The enquiry proceedings against a civil servant are subject to Article 311 of the Constitution which provides that no civil servant can be punished except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Because of the safeguards in Article 311, most cases go in favor of the delinquent civil servants. Article 311 was amended in 1976, permitting a penalty to be imposed on the basis of evidence. But, even in its amended form the safeguards are so exacting that they tend to protract the proceedings indefinitely.

This constitutional safeguard has shielded the non-performing civil servant from punishment and a major corollary has been erosion of accountability. In any case, the protection given to the civil servant in Article 311 of the Constitution is rather excessive. No other constitution in the world contains the kind of protection and guarantee that Article 311 provides. When Sardar Patel argued before the Constituent Assembly for providing protection to civil servants, his intention was to enable the civil servants to render impartial and honest advice to the political executive without retribution. But the way it has worked Article 311 has created an environment of excessive security without fear of penalty for non-performance.156

THE CHALLENGING ISSUES

There are certain problems with the existing system of safeguards and protection given to the civil servants. First, the safeguards and protection are spelt out in great detail in rules, precedents and practice. That being the case the employer – the government is exposed to litigation on the ground that the rules were not followed. The reduction of prescription will help in reducing unnecessary and costly litigation. Second, the existence of an elaborate system of appeal, revision, and review in areas such as discipline and imposition of penalties has led to a defensive, process-oriented style of personnel management that works to minimize the risk of decisions being reversed on appeal or as a result of litigation. There is a need to reduce the level of defensiveness and legalism in the personnel management of the civil service while at the same time reassessing the appropriateness and effectiveness of the

156 S.K. Das, Building A World- Class Civil Service for Twenty first Century India Chapter 7, pp. 115, 116 (Oxford University Press, New Delhi, 2010). 55

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] array of appeals, reviews and revisions. Third, the civil service in India carries the cultural baggage of the past. Its special protection and safeguards derive from a legislative and procedural framework which is based on a number of unrealistic assumptions: that the civil service is a uniform labor marker, that equity necessitates identical treatment of individual civil servants and situations and that there is an underlying commitment to the universal and detailed prescription of the rights of government employees. The arrangements in this framework have led to a grievance mentality which has focused on the rights of individual civil servants rather than systemic issues. This has resulted in conservative and cautious personnel management in government departments which have been reluctant to punish poor performance. Related to these three problems and deriving from them is the important issue of an imbalance between rights and safeguards given to civil servants and the need for organizational efficiency. It is unexceptionable that organizational efficiency should take precedence over the individual rights of civil servants. In case of an imbalance the range of protection, safeguards and special rights that are peculiar to the civil service need to be examined very carefully to see if there is any reason for their preservation.157

PRESENT SITUATION

As has been discussed, the existing employment framework of the civil service with its protection and safeguards given to the civil servants constitutes a major barrier to improving the performance of the government department. The obvious solution, as the experience of reforms implemented by the Australian and UK governments shows, is to eliminate the range of protection, safeguards and the special rights given to civil servants and ensure that the civil service is subject to the same conditions of service, disciplinary procedures and termination of employment provisions as the rest of the community. In other words, the civil service should operate in a framework which ensures that the conditions of service of civil servants broadly mirror those in other sectors in the wider community.158 What does that mean in actual terms? First, Article 311 should be deleted from the Indian Constitution. The Second Administrative Reforms Commission has already made a recommendation to this effect. In its Fourth Report, the Commission, said, the challenge before the nation now is to confront the exaggerated notion of lifetime security (of the civil service) irrespective of performance and to create a climate conducive to effective delivery of services and accountability with

157 Id. at 119, 120. 158 Id. at 122. 56

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] reasonable security of tenure. The Commission believes that the right of a civil servant under the Constitution should be subordinate to the overall requirement of public interest and the contractual right of the state. It cannot be an argument that a civil servant‘s rights are more important than the need to ensure an honest, efficient and corruption-free administration. Ultimately the public servant, an agent of the state, cannot be superior to the State and it is his fundamental duty to serve the State with integrity, devotion, honesty, impartiality, objectivity, transparency and accountability. Taking into account these considerations and a fairly common perception that explicit articulation of protection in the Constitution itself gives an impression of inordinate protection; the Commission is of the view that on balance Article 311 need not continue to be a part of the Constitution.159 The Commission‘s logic is irrefutable and its plea for the deletion of Article 311 equally forceful. In fact, putting Article 311 in the Constitution was a huge mistake.

It has made India one of the very few countries where a civil servant, who is only an agent of the government, has been given the authority to invoke constitutional rights against the government his employer. In any case, the continuation of Article 311 has given rise to a plethora of judicial pronouncements that have resulted in endless confusion and uncertainties in interpretation. These pronouncements should not continue to have validity on the strength of the continued existence of Article 311. If this article is deleted, these judicial pronouncements would no longer be in force and binding. Article 311 needs to be deleted from the Constitution at once. Second, the civil service law that is proposed to be enacted under the provision of Article 309 of the Constitution should provide the minimum statutory and disciplinary procedures as laid down in the Employment Act and Regulations in the UK. The civil service law could also provide that disciplinary proceedings should be conducted and resolved in-house within the department or the executive agency. On the whole, the idea should be that the proceedings should be decentralized, quick and decisive. Only those civil servants who are dismissed from government employment should be given a right to appeal to the proposed Civil Services Authority. Third, we could then disband the chain of administrative tribunals that have been set up all over the country since 1985. Central Administrative Tribunals were set up for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. An elaborate procedure duly prescribed by the Central Administrative Tribunal (Procedure) Rules, 1987 is followed by these tribunals and cases take years to resolve. Similar tribunals

159 Id. at 123. Second Administrative Reforms Commission (2007), see paragraphs 3, 10, 19, 20, and 3, 1, 23. 57

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] have been established by the state governments in respect of their employees. It will be a good day in the administrative history of the country when this expensive system is disbanded. On the whole, we have to create an enabling environment in the country in which performance is rewarded and poor performance is punished. This is particularly important for the sake of the department or the organization in meeting its collective performance target. It is also important that each department or organization should put in place procedures for handling poor performance these procedures should be an effective part of the culture of active performance be based on principles of procedural fairness and balance the needs of the department or organization and the interest of the civil servant.160

LIMITATIONS IMPOSED BY ARTICLE 311(2) ON LEGISLATIVE POWER OF STATE

The legislative power under article 309 cannot validly be exercised so as to curtail or affect the rights guaranteed to public servants under article 311(2) of the Constitution. Article 311(2) is intended to afford a sense of security to public servants who are substantively appointed to permanent posts and one of the principal rights is to continue in service till the age of retirement fixed generally for such class of government servants and thereafter to the benefit of pension as prescribed by the rules. It is not legitimate for the state to trespass on the rights guaranteed under article 311 while exercising its legislative power. Provisions which have been tested with reference to article 311(2) are discussed below. Rules authorizing compulsory retirement without fixing any reasonable period or fixing unreasonable period after which it can be exercised (a) Any rule which permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service would be invalid and the so-called retirement order under the said rule would amount to removal of a civil servant within the meaning of article 311(2). Therefore, a rule like 148(3) or 149(3) of Railway Establishment Code which permits the termination of a permanent government servant by giving three months‘ notice at any time before he reaches the age of superannuation is invalid because the termination of service which the said rule authorizes amounts to removal of civil servant and it contravenes the constitutional safeguard provided by article 311(2).

160 Id. at 122, 123. 58

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CONCLUSION

The civil servants today works within the parameters of a full-fledged democracy, which means a vigilant press, an alert public and a watchful legislature while those in pre- Independence days worked in a relatively protected atmosphere. They were responsible to executives who in most cases were themselves senior civil servants and with whom they shared a common work culture. On the other hand, today‘s civil servants work under politicians who are accountable to the people who elect them. The civil servant today is really a servant of the people while his/her predecessors in service represented the authority of the colonial power. The people who were subjects of the British rulers of the past are masters today and any comparison between the working of civil servants in pre-Independence days and now will not be fair if basic differences in the environment and nature of work are overlooked. The functions were discharged by the civil service of India which slowly emerged as an all-powerful bureaucracy and a close, irresponsible corporation. But the civil servant of India today has to discharge functions of much greater magnitude and social significance than those undertaken by the traditional civil servant, from the point of view of overcoming the evils of poverty, ill-health, idleness and illiteracy. That is, the civil service of India has to adjust itself to the political concept of democracy and has to serve as a very pliable instrument which will assure to the poverty-stricken masses of India the fruits of economic democracy. The civil service though confronted with serious difficulties in readjusting itself in a new political context, did not fare very badly. The very institution which was serving as a machinery of oppression and which was hampering and countering the freedom movement was being used by independent India for purposes of building a new India.

REFERENCES & RECOMMENDED AUTHORS

1. H. M. Seervai, Constitutional Law of India, Vol.-3, Universal Law Publishing Co. Pvt. Ltd. New Delhi, 2008 Chapter – XXVII. 2. Kettl Donald, Civil Service Reform Building a Government that works Brooking Institutions. 3. N. Narayanan Nair, 1973 The Civil Servant under the Law and the Constitution – The Academy of Legal Publications, Trivandrum, Kerala.

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4. Das, S. K. Civil Service Reforms and Structural Adjustment, Oxford University Press, 1998. 5. The Indian Journal of Public Administration, New Delhi. 6. Govt. of India report on Administrative Reform Commission chaired by Sri P. C. Hota 2004. 7. Second Administrative Reform Commission Report by V. Moily, New Delhi, 2007. 8. R. B. Jain, Public Administration in India, 21 Century Challenges for Good Governance, 2004 Deep & Deep Publications Pvt. Ltd. New Delhi. 9. Goel S.L. Good Governance an Integral Approach, 2007 Deep & Deep Publication Pvt. Ltd. New Delhi. 10. S. K. Das, Building a World Class Civil Service for Twenty first Century India, Oxford University Press, New Delhi, 2010. 11. Bidyut Chakrabarty, Mohit Bhattacharya, The Governance Discourse, A Reader, Oxford University Press, New Delhi, 2008. 12. World Bank, Governance and Development, 1992 and World Bank Civil Services Rationalization in India, Washington, 2001. 13. Mamadou Dia - A Governance Approach to Civil Service Reform in Sub Saharan Africa World Bank Technical Paper, World Bank – 1993. 14. Faraz and Ali, Administrative Reform in Developing Nations Praeger Publishers, 2001. 15. Different editorial articles from The Hindu, The Telegraph, Times of India, Indian Express & relevant Articles from Internet. 16. Justice Rama M. Jois, Services under the State, 2007, Indian Law Institute, New Delhi.

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NRC IN ASSAM: ANALYSING THE QUESTION OF CONSTITUTIONAL MORALITY AND LEGAL RATIONALITY

Authored by Ambar Kumar Ghosh Doctoral Candidate, Department of International Relations, Jadavpur University, Kolkata. [email protected]

ABSTRACT

The article intends to delve into the issue of constitutionality of the procedure of formulating the National Register of Citizens (NRC) in the Indian state of Assam which is being conducted under the auspices of the highest judicial authority of India, the Supreme Court. The NRC exercise attempts to document the names of original citizens of Assam and concomitantly intends to trace the list of illegal migrants from Bangladesh who have illegitimately settled in Assam. The process has been initiated by the Supreme Court in conformity with the Assam Accord signed in 1985. The article intends to delineate the instrumental factors that have fundamentally diluted and mishandled the process of NRC and reduced it to a tool for bureaucratic capriciousness and political polarization. The article broadly addresses the danger of such fallacious project by elucidating how the NRC formulation in its present form is a blatant contravention of the constitutional morality as well as legal rationality. Lastly, the article concludes by delineating the process as a mere fillip for insidious political rhetoric aimed at advancing divisive propaganda articulation and convenient electoral mobilization. The central argument of the paper is premised upon the proposition that the NRC process needs an urgent reconsideration so that it is not done it violation of the letter and spirit of the Constitution.

THE METHODOLOGY OF THE STUDY

The paper seeks to assess how the entire procedure of drafting the National Register of Citizens (NRC) in Assam is violating the legal as well as moral sanctity of the Constitution. The paper attempts to trace the loopholes of the NRC process by taking a nuanced view of how some of the pivotal constitutional principles are being compromised or are on the brink of being compromised. This has been done by analyzing some of the indispensable constitutional provisions like right of equality (particularly, Articles 14 and 15), right to

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THE BACKGROUND

The protracted and much-vaunted endeavor of formulating a register of citizens for the state of Assam dates back to 1951 when the first NRC was drafted. The menace of illegal migration in the eastern and North-eastern parts of India from the erstwhile East Pakistan (present Bangladesh) has been a long-drawn phenomenon. Such a massive exodus of people gradually created suspicion, anxiety and anger amongst the indigenous people of Assam. Subsequently, the humongous influx of East Pakistani migrants into Assam in order to escape the brutal persecution in the hands of the West Pakistani forces and in the run up to the Bangladesh Liberation War of 1971, led to a perceptible change in the demographic character of Assam.161

The magnitude of the mass inflow was demonstrably noticed particularly during the 1978 Assam State elections. There was a precipitous increase in the population of Assam in the post-1971 era which further reiterated the threat of fundamentally marginalizing the indigenous population of Assam. This paved the way to a powerful protest movement in Assam by the indigenous groups to immediately detect and deport the illegal migrants from Assam.162 This protest movement against the foreigner migrants gained considerable momentum in between 1979 to 1985 led by All Assam Students Union (AASU).

It was a phase which saw substantial violence and bloodshed in Assam in the light of unrestricted antagonism against illegal migrants of Assam which, due to political opportunism, took a communal colour. The decision to hold elections before detecting and deporting the Bangladeshi migrants in 1983 gave further spark to the already exacerbating imbroglio. One of the most violent and atrocious fallout of the Assam crisis was the Nellie massacre of 1983. The Nellie riots witnessed the genocidal slaughter of over 3000 people, mostly Muslims, in the district of Nagoan in Assam.163 The culmination to the stints of inhuman violence was the signing of Assam Accord in 1985 under the Prime Ministership of

161 Sibani Basumatari, Pattern and Process of Population Migration in Assam, 19 IOSR-JHSS, pp. 25-31(2014). 162 Ipsita Chakravarty, How the fear of migrants became the driving force of the politics of Assam, Scroll.in (Feb. 19, 2016, 09:00 AM), https://scroll.in/article/802983/from-votebank-to-spectre-how-political-parties- imagine-the-outsider-in-assam. 163 Ratnadeep Choudhury, Nellie Massacre and Citizenship: When 1800 Muslims were Killed in Assam in 6 Hours, The Print (Feb. 18, 2019 11:45 AM), https://theprint.in/governance/nellie-massacre-and-citizenship- when-1800-muslims-were-killed-in-assam-in-just-6-hours/193694/. 62

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Rajiv Gandhi. The Assam Accord emphasized upon the drafting of a NRC for detecting the illegal migrants of Assam who came to the state after 24th March, 1971 and deporting them back to Bangladesh.164 This Accord was given legal sanctity by adding an additional clause in the Citizenship law as Article 6A that mandates the specific formulation of NRC in the state of Assam.165 However, administrative lacuna coupled with political vacillation emanating from electoral pragmatism kept the process of NRC deferred lackadaisically for almost three decades. It got a fillip in 2005 when UPA I revived the process. But again it was kept in the cold due to political impediments. It took the Supreme Court to authoritatively intervene in the matter and the court gave strict directive in 2013 to initiate the process of framing the NRC draft; therefore, reacting sincerely and immediately to the issue.

After decades of vacillation, the first draft of the NRC in Assam was finally published in July 2018. It was found that out of 3.3 crores people of Assam, 2.9 crores found their names successfully registered for NRC. Remaining 40 Lakhs people were found out of the first draft of NRC. Out of the 40.07 lakh applicants who have been left out of the final draft NRC released, 2.48 lakh applicants have been kept on hold including the D-Voters (doubtful voters who have been disenfranchised on account of failure to prove citizenship), descendants of D- voters and persons whose cases are pending before the foreigners tribunal.166 The state, however, has not revealed the reason for keeping others on hold. The process of validating one‘s identity as an Indian citizen before the NRC administrators required a slew of vintage government documents that would substantiate their claims of being Indian citizens before the cut-off date i.e. 24th March, 1971.167

After the first draft was out, measures were ensured for filing appeals by the people whose names were missing in the list. As the deadline for filing the appeal expired on 31st December, 2018, 31 lakh people were reported to file their claims once again through the appeal. The remaining process of the NRC is yet to unfold. The fate of the people whose names are not included in the register is shrouded in fathomless uncertainty. The government

164 Adrija Chowdhury, NRC Row: What the Assam Accord Said About the Immigrants, The Indian Express (Aug. 02, 2018, 12:37 AM), https://indianexpress.com/article/research/nrc-what-the-assam-accord-of-1985-said- about-immigrants-in-assam-5287009/. 165 Rahul Tripathi, Clause 6, Assam Accord: Fine Line Between Indian Citizen and Assamese, The Indian Express (Jan. 04, 2019, 12:26:14 AM), https://indianexpress.com/article/explained/clause-6-assam-accord-fine- line-between-indian-citizen-and-assamese-5522438/. 166 S. Naqvi, Assam releases NRC: All you need to know about National Register of Citizens, Hindustan Times (July 30, 2018, 10:24 AM), https://www.hindustantimes.com/india-news/assam-releases-nrc-today-all-you- need-to-know-about-national-register-of-citizens/story-KjPnEQ6fJTkwDJKqJonVJK.html. 167 Harsh Mander, A National Register of Exclusion, The Hindu (Feb. 05, 2019, 01:23 AM), https://www.thehindu.com/opinion/lead/a-national-register-of-exclusion/article26177621.ece. 63

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] of India as well as the Supreme Court has been conspicuously nonchalant about the consequence of the NRC exercise. The ominous speculations are ripe all around. The fear of disenfranchisement, detention and deportation looms large on a huge mass of people who would be rendered stateless and stripped off their national identity. Any of these possibilities can pave the way towards a greater humanitarian crisis which might escalate into a nefarious social discord not only in Assam but across the length and breadth of the country.

Though, the exercise of briefly rehearsing the crucial developments around NRC in Assam might appear gratuitous, it‘s crucial to put the discussion on the viability of NRC process in an appropriate context of constitutional morality and legal viability. India has established itself as a stable democracy of secular and egalitarian bonafide that has evolved under the sacred auspices of a magnanimous constitution. The Indian Constitution is an empathetic and compassionate edifice which not only guarantees fundamental rights to its own citizens but also accords a slew of basic yet crucial rights to all its residents.168 The Supreme Court of India is posited as the sole protector and upholder of the Constitutional sanctity in India. History is replete with instances when the Supreme Court rose repeatedly to such occasions in which attempts were made to violate or jeopardize the Constitutional supremacy by the politically motivated legislature or the executive. Despite all its records of institutional uprightness, there are emerging vocal critics who argue, with conviction and reason that the custodian of our virtuous and benevolent Constitution has failed to protect its sanctity in regard to the NRC question is Assam.169 The author believes that, the Supreme Court‘s monitoring and administering of the NRC exercise in Assam in the current form is legally untenable, politically sinister and morally degrading to say the least. There are three fundamental distortions in the NRC procedure held by Supreme Court that are in blatant contravention to constitutional morality and thus, needs to be addressed on war footing.

CONSTITUTIONAL MORALITY AND LEGAL RATIONALITY OF NRC

The NRC procedure contravenes the standards of constitutional propriety in three pivotal ways. It falters in the idea of conducting the NRC, in its procedure as well as in the outcome of NRC.

168 Faizan Mustafa, Who Is a Citizen In Assam- India?, The Indian Express (June 06, 2018, 7:31 AM), https://indianexpress.com/article/explained/who-is-a-citizen-in-assam-india-citizenship-act-nrc-5205603/. 169 Mohsin Alam Bhat, On the NRC, even the Supreme Court is helpless, The Wire, (Jan. 07, 2019) https://thewire.in/law/nrc-supreme-court-crisis. 64

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019]

(a) A flawed foundation First, the constitutional validity of the entire NRC is under suspicion as the Supreme Court is yet to judge the merit of Section 6A of the Citizenship Act, which mandates the conduction of the NRC in Assam. In the Sarbananda Sonowal Case of 2005, the court raised doubts on the constitutionality of this particular Article.170 The most irresponsible contradiction in the conduct of the Supreme Court is that it has initiated the mammoth exercise of drafting the NRC in Assam without examining the merit of the clause that mandates such exercise in the first place.171 Now, in the recent future if the Section itself is found constitutionally untenable, then the entire process of NRC initiated till date would be rendered unconstitutional as well, hence it would be nullifying as a futile endeavor.

Along with an appendage to the first fallacy, is another foundational discrepancy which, if proved true, renders the entire exercise and the very cause of NRC formulation unwarranted. The data and information that the Supreme Court referred to as an evidence of large-scale illegal migration in Assam from Bangladesh is allegedly a highly conflated one with limited evidentiary authenticity to prove its veracity. The reports of humongous influx of foreign migrants in Assam which involves a gigantic figure of a few millions has proved to be a spur for the Supreme Court to hastily impose the NRC process for immediate redressal of the crisis. The Court, reading from the figures obtained from such unreliable and allegedly politically motivated sources, came to the conclusion that Assam is in the midst of a colossal demographic and cultural transformation due to the massive illegal influx.172 And, the revered court hurriedly concluded that it will have a detrimental impact, economically, culturally and politically, on the indigenous population of the state. Under this impression based on unverified sources, the court expedited the process of detecting the supposedly huge numbers of illegal infiltrators and deporting them back to their original country.

Now, it is both astonishing as well as intriguing to find that the Supreme Court of India, which enjoys almost unquestioning authority and undaunting credibility in the Indian public

170 Sarbananda Sonowal v. Union of India, (2005) A.I.R. S.C. 2920 (India). 171 Gaurav Bhatia, The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer, Indian Constitutional Law and Philosophy (May 07, 2017), https://indconlawphil.wordpress.com/2017/05/07/the-constitutional-challenge-to-s-6a-of-the-citizenship-act- assam-accord-a-primer/comment-page-1/. 172 Sanjay Hegde & Pranjal Kishore, NRC: Why the Supreme Court ruling could be a preclude to ethnic cleansing, Business Standard (August 06, 2018), https://www.business-standard.com/article/economy- policy/nrc-why-the-supreme-court-ruling-could-be-a-prelude-to-ethnic-cleansing-118080600363_1.html; Debarshi Das & Prasenjit Bose, Assam NRC: Govt Clueless about how many illegal migrants actually live in India, RTI shows, The Huffington Post (January 31, 2019), https://www.huffingtonpost.in/2018/11/16/assam- nrc-govt-clueless-on-how-many-illegal-immigrants-actually-live-in-india-rti-shows_a_23591448/. 65

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] discourse, has undertaken an exercise as serious as NRC without ascertaining the merit of the information that demanded such an exercise. The Supreme Court of India is the institutional safeguard that is expected to work as a bulwark against all acts that are politically motivated and directly or indirectly contravenes the ideals of the Constitution. Even, more importantly, the Apex Court is always viewed as the foremost guarantor of rights and well-being of all its citizens. By hurriedly initiating the process of NRC without properly accessed the rationale behind the exercise, the court made an irreparable damage to its image as the epitome of constitutional righteousness and institutional reliability.

(b) A dubious process Second, a discussion on the procedure or conduct of NRC is an immediate imperative. The Court monitored NRC formulation has issued a list of documents as evidentiary proof that the people of Assam have to furnish in order to prove that they have been residing there from before the cut-off date, i.e. 24th March, 1971.

This process of establishing a question as critical as citizenship, through some old documents, is not only implausible but also unimaginably dangerous. Firstly, given the fact that the documents belong to a distant past, the people might have found preservation of those papers as unimportant or impossible across generations. Now, only because certain documents of residence have been misplaced, is it a justifiable ground of disenfranchising a citizen and declaring him stateless? Moreover, there have been intriguing reports suggesting that the poor strata of the society is more unlikely to preserve and furnish such documents and hence more likely to be at the receiving end (oppressed and effected end) in the NRC process. There are also reports indicative of the fact that the complicated nature of the forms with technical language might have deterred the lesser literate sections from making an appeal against the exclusion of their names from the NRC first draft.

Secondly, the entire exercise is premised almost wholly upon bureaucratic arbitrariness and highhandedness. The Supreme Court appointed NRC administrators are solely responsible for establishing the veracity of such documents submitted by the people; hence they are the ultimate arbiters of the people‘s citizenship. The idea of snatching away the citizenship of a person solely on the capricious discretion of a bureaucrat is downright degrading and betrays all standards of fair play and constitutional conformity.

Such unrestricted power handed over to the NRC administrators paves the way of rampant corruption in the NRC process which might have led to exploitation and discrimination of the

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Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] already marginalized and weak. News of innumerable instances is doing the rounds which suggest that people are being stroked off from the list on frivolous grounds like names with incorrect spellings. There have been reports of ethnic biases in the verification and identification process of NRC. Certain reports have surfaced regarding more rigorous standards of verification is being applied to the Bengali speaking population as well as the Muslims than the rest that hints at an ethnic and regional and religious prejudices on the part of the NRC administrators. Such blatant discrimination and institutionalized marginalization of such a large number of people is a flagrant violation of Article 14 and Article 15.

The tampering with the basic fundamental rights of these hapless emaciated people, under the aegis of the Supreme Court, is constitutionally, legally and morally untenable. All such apprehensions and uncertainties of irregular procedures and practices in the citizenship verification process hints at a major loophole that imperils the entire process. It suggests that despite Supreme Court‘s directions, there is a lack of standardised procedure and competent yardstick to conduct the documents verification in a reliable manner.

Even, the provisions of making appeals against the exclusion from the register before the Foreigner‘s Tribunal (FT) are fraught with glaring bureaucratic and procedural irregularities. The Tribunal, which should be comprised of judicial officers with records of high legal competency, is now largely dominated by officers with non-legal background, who are allegedly planted in the forum by nepotistic patronage networks.

Moreover, police enjoy unfettered power to label an individual as a D-Voter on the basis of unsubstantiated assumptions, which leaves a large room for exploitative practices to flourish. The most intriguing part of the problem lies in the fact that people who would have to bear the brunt of these exploitative bureaucratic excesses are the most impoverished, mostly rural and poorly lettered sections of people who have nothing but ceaseless helplessness at their disposal.

Reducing a vexed issue of citizenship and national identity to the question of mere documentary verification in an arbitrary fashion is a gross violation of not only constitutional ethos but also humanitarian sensitivity. When a substantial section of the population is suddenly placed under the suspicious gaze of the state and their identity is questioned and

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Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] quashed on the basis of certain identification papers or lack of them, the humane attributes of history and the circumstances of history is lost or forcibly obliterated.173

Such a situation puts the identity and life prospects of these innocent people in perpetual jeopardy, despite not being clearly proved as illegal immigrants. This threats the indispensable right to life and dignity (Article 21) for this vulnerable populace who are standing on the precipice of disenfranchisement. Before verification of certain documents on the basis of a cut-off date, the highly revered and trusted Court should have pondered about the multi-dimensional nature of the very concept of citizenship. Especially, such a necessity bears more credence on any question on demography, territory and citizenship in the subcontinent because of the highly crosscutting, overlapping and complicated historical circumstances of violence and rupture and the casualties that such circumstances produce. Such helpless victims of history might have survived partition violence, East Pakistani genocide or the Sri Lankan majoritarian persecution. Such sufferings cannot be verified by formal documental evidences of a specific cut-off date. Any such attempt to do so becomes a violation of human consciousness and dehumanization of history.

Unfortunately, the multi-faceted nature of citizenship has missed the attention of the Supreme Court. Is citizenship about birth or about cultural roots? Is it about period of residence or land or language or ethnicity? Reducing the question of citizenship to a mere clerical endorsement which can be stroked off with a pen not only defies the essence of constitutional morality but also constitutional rationality and compassion of humanity.

(c) Paranoia of costly consequences That brings us to the third point. As already reiterated, there is an utter lack of clarity regarding the consequence of the NRC demarcation. Whether the people who will be excluded from the list are to be detained in perpetuity or deported back to Bangladesh, are the crucial questions in hand. While the former is more despicable than the latter, the question of deportation is shrouded in mystery.

Despite the Supreme Court‘s repeated directive to the Government of India (GOI) to enter into a credible repatriation treaty with Bangladesh to conduct the deportation process with ease, any indication of such development between the two neighbours are completely absent as of now. And the comments of the Bangladesh Government official that the entire NRC exercise and its consequences are ―internal matters of India‖ is emblematic of the fact that

173 Shiv Visvanathan, Citizenship and Compassion, The Hindu (Aug. 06, 2018), https://www.thehindu.com/opinion/lead/citizenship-and-compassion/article24609480.ece. 68

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] any such agreement with Bangladesh won‘t be a smooth accomplishment and might involve hectic diplomatic parleys and negotiations which might span across several months.

Hence, such a possibility entails that those out of the NRC list would be disenfranchised and might be huddled up in concentration camps or detention centers as stateless entities. Needless to say, this would amount to a state-sponsored massive humanitarian crisis in India, where discrimination and marginalization of the disenfranchised would be normalized and justified. This would pave the way of the violation of Article 20, according to which any person cannot be illegally detained. Hence, the entire exercise of NRC which was based on unsubstantiated ground, carried out in an arbitrary manner and now is about to give rise to a massive humanitarian challenge in India by declaring a large mass of people as stateless within its own territory.174

THE POLITICS OF POLARISATION

These conditions which violate the basic tenets of constitutional morality that stand as the hallmark of the conscience of Indian democracy only give rise to a vicious politics of paranoia and suspicion in India. The NRC imbroglio in Assam has led to the rise of a vicious political propaganda which has only benefitted the political parties with variegated agendas. The local parties like Assam Gana Parishad and All Assam Students Union (AASU) have used the rhetoric of protecting the indigenous culture and the political and economic interests of the native people from the encroachments from outsiders.

On the other hand, the Hindu right wing forces have twisted the debate from indigenous ethnic identity to the question of religious identity. The clear and vitriolic insinuation of the ruling Bharatiya Janata Party (BJP) is broadly premised upon the argument that the influx of Bengali Muslim population from Bangladesh would steadily make the local Hindu Assamese population a minority in their own state.175

This xenophobic politics of hatred and paranoia based on ethnicity and religion has witnessed considerable spates of unceasing violence in Assam since the end of 1970s. The recently

174 Ishita Kumar & Hamsa Vijayaraghavan, NRC Assam: India Is Obligated to Ensure That People Are Not Rendered Stateless, The Wire (Aug. 27, 2018), https://thewire.in/rights/nrc-assam-india-is-obligated-to-ensure- that-people-are-not-rendered-stateless. 175 Angshuman Choudhury, NRC Assam: Sarbananda Sonowal, Hilmanta Biswa Sharma warn ‗illegal foreigners‘ but overlook constitutional obligation, The Firstpost (Jan. 27, 2019), https://www.firstpost.com/india/nrc-assam-sarbananda-sonowal-himanta-biswa-sarma-warn-illegal-foreigners- but-overlook-constitutional-obligaton-4455561.html. 69

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] conducted NRC only led a free hand to such venomous and polarizing politics whose repercussions are not only felt within Assam but has percolated beyond. The issue of NRC draft has attracted attention and furore of a tremendous magnitude due to the sensitivity of the issue which is given a new dimension due to the political rhetoric of national security. The drive for disenfranchising and deporting millions of people is being projected as a sine qua non for ascertaining security of Assam and the rest of the country. The tactful ploy of equating migration with national security very effectively injects fear and suspicion in the minds of the people. This helps in creating the internal frontier within the state, as it happened in Assam. There is a perceptible anger and insecurity in the local Assamese residents towards the alleged immigrants or potential infiltrators which is craftily utilized and augmented by the opportunistic political class.

While, the BJP president and other prominent leaders have made the clarion call of cleansing and disenfranchising the ‗illegal migrants‘, once detected, West Bengal Chief Minister Mamata Banerjee cautioned about a potential civil war due to the politicised NRC exercise.176 Thus, the cynical political practice of manufacturing mythical enemies and raking unwarranted ominous consequences, are the kind of political rhetoric that the NRC exercise brought into play. Such insidious and polarising environment has the potential of creating destabilizing effect on the Assam‘s as well as entire country‘s political landscape.

Thus, the political rhetoric of ―otherisation‖ is the most prominent consequence of the NRC exercise that the Supreme Court has mandated. Such divisive rhetoric can have a deeper and more long lasting ramification on the social fabric of Assam which is premised upon a very delicate foundation of complex demographic diversity. Therefore, the NRC exercise, in its present form, not only encroaches upon the basic rights of the people and demeans the constitutional sanctity, but it has also opened the Pandora‘s Box for opportunistic politics of polarization.

A CALL FOR RECONSIDERATION AND RECTIFICATION

Therefore, the exercise of NRC that has been initiated under the oversight of the Supreme Court is replete with glaring loopholes and shortcomings. The spirit as well as the paraphernalia of the entire process defies the foundational principles of constitutional

176 Express Web Desk, Mamata Banerjee: ‗With NRC they‘re trying to divide people, there‘ll be bloodbath in the country‘, The Indian Express (July 31, 2019), https://indianexpress.com/agency/express-web-desk/. 70

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] morality as well as legal rationality. Thus, the entire phenomenon of drafting the register of Indian citizens is premised on questionable grounds. The costs that this painful process involves are immeasurable and the damages it is capable of inflicting is irreparable.

As the Supreme Court is the indisputable vanguard of constitutional propriety and the ultimate safeguard against any kind of encroachment of the rights of the people, such inconsiderate conduct of the highest echelon of the judiciary is unfortunate. The situation turns complex in an unprecedented manner, as the institution which usually mitigates the excesses or errors of other institutions is itself accused of unbecoming conduct in its dealing of the NRC matter. Hence, to assuage or rectify the discrepancies of the Supreme Court led process becomes increasingly untenable.

When the non-political oversight institution in the democracy, in our case which is the Supreme Court, fails or overlooks the need of adhering to the foundational pillars of constitutional morality in a case as serious as citizenship, the ethos of constitutional integrity and liberal democracy comes under threat. And, subsequently, the situation becomes volatile and polarized, which is exploited by the political dispensation for effective electoral mobilization of different constituencies. Thus, the rampant and undisguised use of political rhetoric of parochial and vitriolic politics begins to thrive in full sway under such antagonistic environment. How far, the NRC imbroglio will be damaging for peace, stability and integrity of the Indian democracy, is a matter of the future. But, as the crisis unfolds, the lesson that we as a democracy must learn is that, we must not compromise on constitutional morality. Once, it is compromised, democracy gets degenerated in the dehumanizing pursuit of opportunistic politics armed with venomous rhetoric and hyperbole.

Therefore, the Supreme Court, as the repository of justice and fair play, must immediately take stock of the situation in Assam in order to rectify the loopholes. Only then, the constitutional promise of safeguarding the life and well-being of millions of vulnerable people can be safeguarded.

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FAKE NEWS: A CLEAR LOOK BEYOND THE VAGUENESS

“A lie can travel halfway around the world while the truth is putting its shoes on”

Authored by Astha Sharma & Shantanu Sharma Students of Rajiv Gandhi National University of Law, Patiala. [email protected]; [email protected]

ABSTRACT

Through this paper, the author attempts to venture into the undefined and unmarked territory of fake news which is expanding at an unregulated and unprecedented rate. It discusses the threat that fake news poses to free and fair political discourse and the social set up. Recent events like the US Presidential election have brought this menace of fake news circulation to the notice of the world. The study of fake news is undertaken in the constitutional background of India and America in order to check the effectiveness of the constitutional machinery to counteract these newly emerging problems that are the result of technological advancements in multimedia. These multimedia platforms have turned into the essential wellspring of getting data for dominant part of the populace and are used rampantly. These sites expose their users to unreliable and inauthentic data, making them susceptible to influence and flawed decision making. So, effective tools to combat these not so constitutional elements are needed. It suggests structural and institutional changes so as to counteract against the creators and perpetrators of fake news. Not just significant changes in the Constitution but other existing legislations relating to the matter also need to see the sun of a new day and are demanding amendments to adjust this problem so as to find a reasonable solution to it. A proactive part on legislature‟s behalf may help to address this problem rightly. Establishment of bodies which monitor the social networking trends in vogue and regulate factually incorrect data would definitely help in managing the mess created by fake news.

INTRODUCTION

We live in an era where one can send plethora of data quicker than the blink of an eye. When there‘s no one to talk to or spend time with, one can talk to A.I. technologies like Alexa and Siri, you can send the information of your wedding to a person who is a 1000 miles away from you just with a touch of your smartphone, watch endless TV shows and dramas without

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Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] having to stand in line for your tickets. And the one thing that has made all of this possible is the Internet.

One of the best things that the internet has provided the world with is the ease of transferring information. You can transfer information of any sort to whosoever you want to if you have the right tools and the knowledge. This is where the dark truth about the internet and its use comes out i.e. the transfer of news.

―News has been defined in a number of ways, ranging from being an account of a recent, interesting, and significant event, an account of events that significantly affect people, to a dramatic account of something novel or deviant.‖177 The more interested the readers, the more popular the news and the source (TV channel, website, social media account, press, etc.) promoting it. This race of keeping the audiences engaged has given way to utter dilution in the veracity and quality of the news delivered to the extent that now media houses and social media platforms are being used as propaganda machines.

One of the biggest threats to the dissemination of true information in this era is Fake News. Fake News has been one of the most widely discussed topics in the recent years and its effects in controlling world politics have been seen as a threat to peace and good governance. Fake news can be anything, right from newspaper articles, websites, and propaganda pamphlets to memes of social media sites, doctored/fake videos, audio or pictures. This paper aims at defining the utterly vague concept of fake news with the help of varied sources and tries to look at the constitutional perspective and validity of Fake News in the light of the Constitution of India and the Constitution of the U.S.A. This paper also aims at providing suggestions for regulating the menace of Fake Information through content regulation.

(a) Fake News Defined With the advent of the Internet and the empowerment of millions of voices to be heard universally at the click of a button, the possibilities of reshaping narratives through distorted/misinterpreted facts are endless.178 Unfiltered and open platforms like Facebook, WhatsApp and Twitter have made distribution of misinformation all the more easy. The Collins Dictionary, which has also named Fake news as Collins‘ word of the Year 2017, defines Fake News as ‗false, often sensational, information disseminated under the guise of

177 Edson Tandoc et al., Defining ―Fake News‖: A typology of scholarly definitions, 6 DJ, 137, 137-153, (2017). 178 Nakul Nayak, Fighting fake news in India, Policy Forum, (Mar. 04, 2019, 2:37 PM), https://www.policyforum.net/fighting-fake-news-india/. 73

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] news reporting‘.179 Malaysia‘s controversial Anti-Fake News Bill 2018 defines fake news as ‗news, information, data and reports which is or are wholly or partly false.‘180 The cornerstone of a fake news publication is its falsity— the basic statements of facts disseminated in fake news articles are fabricated and false.181 The terminology which is common in each definition here is falsity, partially or wholly. This is the main aim of Fake News; delivering made up, half true or wrong news to the people. The purpose could be anything, swaying the opinion of voters, hiding or fabricating facts from the voters, promoting a particular propaganda, or for frivolous purposes like click baiting to promote or sell certain products.

―At its core, 'fake news' is misinformation, which is defined as "false or inaccurate information, especially which is deliberately intended to deceive".‖182 The main idea behind fake news is the intention as that is what separates the intentional distribution of misinformation from bad journalism which is result of modern journalism tactics.183

Fake News came to be acknowledged globally as a threat to ‗Right to Information‘ after the 2016 US presidential elections and the alleged involvement of Fake News to influence the outcome of the elections. ―In the midst of the 2016 U.S. presidential election, Americans took to social media to debate any number of political issues, as well as to inform themselves about the candidates. Sometime around October 2016, anonymous Twitter accounts began posting, falsely, that former democratic politician Anthony Weiner's laptop was recovered by the FBI, and that it contained proof of his involvement in child sexual abuse. The online rumors spread further to engulf Hillary Clinton, as well as her campaign manager John Podesta.‖184 This largely impacted her political reputation and election results making her subject to severe public scrutiny.

Fake news can become a national security issue especially when it undermines the foundations (e.g., social cohesion, public institutions, peace and order) of the nation state. In addition to this, fake news serves as a tool for disinformation campaigns: the intentional

179 Julia Hunt, 'Fake news' named Collins Dictionary's official Word of the Year for 2017, Independent, (February 26, 2019, 2:00 AM), https://www.independent.co.uk/news/uk/home-news/fake-news-word-of-the- year-2017-collins-dictionary-donald-trump-kellyanne-conway-antifa-corbynmania-a8032751.html. 180 Grant Gross, Countries Consider Penalties for Spreading ‗Fake News‘, Internet Society, (February 26, 2019, 2:00 AM), https://www.internetsociety.org/blog/2018/04/countries-consider-penalties-spreading-fake-news/. 181 David O. Klein and Joshua R. Wueller, Fake News: A Legal Perspective, 20 Journal of Internet Law, 6 (2017). 182 Chloe Francis, Trial of Truth: Law and Fake News, 3 Edinburgh Student Law Review 113 (2018). 183 Id. 184 Ryan Kraski, Combating Fake News in Social Media: U.S. and German Legal Approaches, 91 St. John's Law Review 923 (2017). 74

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] dissemination of false information to meddle with the opinions of the receiving audience.185 The prime example of this is the Basirhat Communal Riot 2017.186

(b) Fake News not a Modern Concept Even though the terms ‗fake news‘, misinformation, disinformation seem to have come in vogue in the recent years, they have a long history behind them. Fake news is often regarded as old as journalism itself. The manipulation of facts as per the whims and fancies of those circulating the news or those in power for temporal political and social advancements is not something that we are witnessing recently as a result of technological accessibility. It has its roots in the past, right from the ancient Roman Republic to the spread of Gutenberg‘s press in the 15th century there have been numerous instances of fact manipulation and misinformation to achieve political objectives.

―It has been a feature of human communication since at least the Roman times when Antony met Cleopatra. Octavian waged a propaganda campaign against Antony that was designed to smear his reputation. This took the form of “short, sharp slogans written upon coins in the style of archaic Tweets. These slogans painted Antony as a womaniser and a drunk, implying he had become Cleopatra‟s puppet, having been corrupted by his affair with her. Octavian became Augustus, the first Roman Emperor and “fake news had allowed Octavian to hack the republican system once and for all.‖187 This fits well with the saying that history repeats itself if the US Presidential elections of 2016 are taken into account.

Further as journalism started budding, journey of fake news also proceeded with the invention of Gutenberg‘s printing press which accelerated the process of amplification of propaganda and hoaxes and dissemination of fake news. During this time a popular genre of fake news made its appearance ―the canard‖ which was printed broadsides with stories of monsters engraved on it.188 In addition to this, the socialisation of the people at coffeehouses also invoked circulation of speculation, uncertified facts, and gossips in and around England. No part of the world remained isolated from this phenomenon.

―Even Jonathan Swift made derogatory comments regarding fake news, at least about political fake news, in his essay entitled: Falsehood flies and truth comes limping after it, so

185 Gulizar Haciyakupoglu et. al., Countering fake news: A survey of recent global initiatives, 2 Rajaratnam School of International Studies (2018). 186 Dr. Sushree Panigrahi and Jeet Singh, Deadly Combination of Fake News and Social Media, 3 Rajiv Gandhi Institute for Contemporary Studies (2015). 187 Ferenc, Titus, Fake news in the United Kingdom and the United States: a historical-conceptual sketch, Com. press 4 (1) (2018). 188 Id. 75

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] that when men come to be undeceived, it is too late, the jest is over, and the tale hath had its effect‖189

India, in this case too, is no exception to what the world went through regarding the reliability of content disseminated and published. Plethora of instances of fake news dissemination can be cited right from the beginning of the Epic Ramayana where a false rumour and speculation regarding the integrity of Sita‘s character was spread by the people of Ayodhaya which lead to Ram deserting Sita.190

The only change that has occurred now is that much advanced forces are employed in the favour of this process of fake news circulation. With the development of journalism, it was expected that information would reach the masses and an empowered and au courant public would come as a result; but maybe the expectations were not so rightly placed, as just being provided with the news was not the agenda but the quality and reliability of content that reached is what would have helped in realisation of the set expectations. It tends to be properly reasoned that fabricated news is nothing but media that is specially crafted to trick you.

FAKE NEWS IN THE LIGHT OF CONSTITUTIONAL LAW

(a) Indian Perspective Jawaharlal Nehru, the first Prime Minister of India, said ―I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.‖191 And the same ideas were incorporated while drafting the Constitution of India, making way for a free press for the free and non-hindered flow of news and information. The freedom of press was a demand of the freedom fighters during the British Raj and freedom of press was said to be implicit in the Freedom of Speech and Expression192, though the freedom of press has not been expressly mentioned193. Freedom of the press by interpretation has been accorded constitutional status even though there is no specific provision for it. Though Freedom of the Press should be a mandatory privilege in a

189 Id. 190 Devdutt Pattanaik, Fake News: Was Sita the first victim?, Economic Times (Dec 29, 2018, 11:03 AM) https://economictimes.indiatimes.com/magazines/panache/fake-news-was-sita-the-first- victim/articleshow/67292970.cms. 191 Speech at the Newspaper Editor‘s Conference, 3/12/1950. 192 Dr. Manoj Kumar Sadaul, Freedom of Press in Indian Constitution: A Brief Analysis, International Journal of Applied Research, 194, 195(2015). 193 Indian Const. art 19, cl. 1. 76

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] democracy, letting the press work without any reasonable restrictions, especially in this area of high speed internet and social media platforms like Facebook, WhatsApp and Twitter can prove to be fatal to a nation state. Fake news has been many a times defended by the proponents who say that transmission of news can never be curbed as putting any kind of restrictions would be putting a ban on different kinds of perspectives too.

Freedom of speech and expression has certain reasonable restrictions provided in Article 19(2) of the Indian Constitution which curb the freedom of the press if it is against the National Interest or the interest of the society. But in this era of unchecked and unrestricted social media platforms and millions of news websites mushrooming every year, can the reasonable restrictions provided in the Constitution of India really stand the test of the time or do they need some brushing up?

According to Telecom Regulatory Authority of India (TRAI) there are more than one billion cell phone users in India.194 According to a report of market research firm IMRB International, India has become the second largest smart phone market in the world as smart phone users in India grew over 300 million by December 2016.195 With this humongous population and with the number of smartphone users actively accessing the internet, it becomes one of the hardest tasks for the authorities to check the inflow of deceiving or propaganda carrying news. Social Media platforms like Facebook and WhatsApp have been the primary sources through which fake news has been spread throughout the country. And though the promise of restricting, regulating and filtering misinformation has been made, nothing of significance has still been done by these social media giants. While WhatsApp has been the primary intermediary through which Fake News distributed has resulted in lynchings, Facebook came into scrutiny of the FBI and other American authorities after reports emerged claiming that the social media giant had allegedly influenced the outcome of the 2016 U.S. presidential elections by publishing fake news about Hillary Clinton‘s involvement in despicable crimes.

A report from research firm IMRB says that there are about 163 million active internet users in rural India and their basic medium of information and internet consumption is entertainment in the form of video and audio content.196 Fake news is distributed, especially

194 Supra 186. 195 Supra 186. 196 Arushi Chopra, Number of Internet users in India could cross 450 million by June: report, Livemint, (Mar. 03, 2019, 6:40 PM), https://www.livemint.com/Industry/QWzIOYEsfQJknXhC3HiuVI/Number-of-Internet- users-in-India-could-cross-450-million-by.html. 77

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] in the rural regions in the form of images, videos and audios. One of the primary examples of this claim would be the Muzaffarnagar Riot of 2013. The Muzaffarnagar riot allegedly got triggered after a video of two boys of a particular community getting lynched by the members of another community surfaced on social media platforms. This video, which was also shared by an MLA of a political party, was falsely distributed to be the video of two boys who had been murdered few days back. Clashes followed and nearly 40 lives were lost and thousands of people were forced to live in relief camps. On further investigation, the police found out that the video due to which the violence was instigated throughout Muzaffarnagar was actually two years old, recorded in Pakistan.197 Fake News was also involved in Akhlakh Lynching incident of 2015.198

The freedom of press, like every other freedom, is not absolute and is confined by reasonable restrictions that are imposed by the Constitution. One might ask about why we even need a separate legislation or regulation to curb Fake news when we already have an endless number of restrictions provided in the Article 19(2) of the Constitution. The answer to this question is multifaceted. The first and foremost argument in relation to this question is the absence of a proper definition of the term ‗Fake News‘. There is no statute or legislation in India which carries a proper definition of the term Fake News. The reasonable restrictions don‘t find their applicability in curbing this menace as one cannot distinguish original news from misinformation. Even the authorities in other countries have not managed to come to a conclusion about a clear and precise meaning of the term. The now repealed Anti Fake News Bill, 2018 of Malaysia government had a very vague definition of Fake News, which could not cover everything due to its lack of definitions of the mentioned terms. While the legislation against fake news of the Egypt Government didn‘t have any definition of the term ‗Fake news‘ at all.199 The term as a whole shouldn‘t just cover the misinformation but the intermediaries (WhatsApp, Facebook, Online News Handles and other media platforms) and the individuals or organizations spreading or generating the fake news.

Secondly, Our Constitution has not provided for any specific provisions against Fake news or misinformation. “Our Constitution does not permit legal regulation of false information as

197 Supra 186. 198 Supra 186. 199 Ruth Michaelson, 'Fake news' becomes tool of repression after Egypt passes new law, The Guardian, (Mar. 04, 2019, 5:23 PM), https://www.theguardian.com/global-development/2018/jul/27/fake-news-becomes-tool-of- repression-after-egypt-passes-new-law. 78

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] false information. Neither does it permit vaguely-worded restrictions on speech.”200 Until and unless there is a regulated law which deals specifically with curbing misinformation, constitutional law in India will have little or no say in regulating fake news.

As far as other legislations are concerned they also don‘t help much in providing a rigid safeguard against fake news either. The Information Technology Act, 2000 can be considered as the leading legislation which contains provisions against misinformation and objectionable content on the cyberspace, still it doesn‘t hit the problem where it is required. There are three stages through which fake news is transmitted, (I) the content is created, (II) the content is spread/forwarded (III) the content reaches the desired internet platform. The IT Act does not contain any provision which can target the content forwarder or an individual content creator.201 While social media platforms like Facebook, WhatsApp and Instagram are protected under the IT Act, 2000 as they come within the ambit of the definition of an intermediary but the Information Technology (Intermediaries Guidelines) Rules 2011, issued under Sections 78 & 79 of the IT Act say that just being an intermediary doesn‘t absolve them of all liabilities. According to the Intermediaries Guidelines, these intermediaries have to remove any objectionable content from their platforms within 36 hours from the time the content has been made known to them. Even these rules have a lacuna as they haven‘t provided the location of the appointment of the Grievance Redressal Officer.202

The Indian Penal Code is another statute which criminalizes cyber activities which harm the society and its elements. Sections 499 and 500 of the IPC deal with Defamation and can be invoked to penalize the dissemination of misinformation and defamatory remarks against an individual. Section 505 is one of the many sections of the IPC which can be invoked to curb false and mischievous news intended to upset the public tranquillity. There are other sections of the IPC namely, 124A, 153A, 153B, 295A that deal with penalizing the dissemination of false or objectionable information.203

In addition to these statutes, The Press Council of India, created under the Press Council Act, the News Broadcasters Association (NBA) and the Broadcasting Content Complaint Council (BCCC) regulate the dissemination of misinformation by TV channels, Newspapers and Broadcasters.

200 Shrutanjaya Bhardwaj, Does The Constitution Protect Fake News?, Livelaw, (Mar. 04, 2019, 6:51 PM), https://www.livelaw.in/columns/does-the-constitution-protect-fake-news-142596. 201 Krishna Kumar Panda, Fake News and the Indian Law – IT Act, IPC – What you need to know, Gizmo Times, (Mar. 04, 2019, 11:34 PM), https://www.gizmotimes.com/what-how/fake-news-law-india/32124. 202 Id. 203 Indian Penal Code 1860, No. 45 Acts of Parliament (India). 79

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(b) American Perspective United States of America, one of the biggest consumer of data, information and news present on the online platforms is home to these tech-giants like Google, Facebook and Twitter who have caught widespread media attention due to the increasing instances of circulation of fabricated news on these widely accessible platforms, to which these platforms have responsibly reacted by introducing self-regulatory and a range of algorithmic changes to detect and curb the circulation of fake content. The incident which essentially brought this fake news fiasco into limelight was the 2016 Presidential election in America which was allegedly influenced by fabricated news that was circulated before the elections. ―Recent revelations indicate widespread use on social media of targeted false information by Russian interests attempting to influence American politics during the 2016 election season.‖204 There are also revelations about the exposure of voters to fake news relatively more than their exposure to accurate political data during the time of elections.

The accessibility of social media platforms to a large set of public not only materialised the right to freedom of speech and expression for many by providing a wider platform for expression, but also brought with it the disadvantage of circulation of inauthentic news with the emergence of these platforms it is not just the press, (who initially was empowered to publish news) that published information but news creation and circulation was done by other anonymous agencies and individuals as well. And these individuals and agencies are utilising technology to sway public opinion and influence their behaviour. The fabricated news content appeals to its readers emotionally and mentally. And due to lack of effective tools to check the authenticity of such news it is most likely that the readers get influenced by it. The use of fabricated news to extend propaganda and political agenda is facilitated and harboured by the current information ecosystem more as the data transmission from one part to another rests on just a press of button. This has proved detrimental to the basic edifice of democracy by influencing its machinery and functioning. Since free political debates and discourses are the limbs of democracy, so content which shapes these discourses and deliberations must be trustworthy and reliable. If the subject matter of such debates is based on a factually incorrect data or is influenced by it then the entire purpose would be defeated and democracy would be robbed off its true meaning. Such events infringe the voter‘s ability to be adequately and rightly informed. ―According to a recent study conducted by Pew Research Centre, 64% of

204 Lili Levi, Real ‗Fake News‘ and Fake ‗Fake News‘, 16 First Amendment Law Review 232 (2017). 80

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] the US citizens believe that fabricated news stories cause a great deal of confusion about the basic facts of current issues and events.‖205

There has been widespread discussion over the constitutional validity of fake news and the measures that could be adopted by the policy makers under the light of American Constitution to curb such malpractices.

The First amendment provides for the right to freedom of speech and freedom of press so as to have an empowered and well informed citizenry, it reiterates the vision of the founders of America. The idea of restricting government‘s control over free speech and press was central to this amendment. The intention of the founders was pretty clear for they wanted to protect speech and hence, fake news as such is considered as constitutionally protected speech, as whether the consequence of any news is good or bad was not the primary concern of the founders. There was an assumption that the citizens and institutions like press are in a disadvantaged position in comparison to the state so their protection with extra cushioned legislations was needed. So protection of content was done to keep a check on government‘s power but with an assumption that the citizens would not misuse the first amendment that was made to favour them irresponsibly.

This perspective of looking at fake news for analysing its impact puts the onus on the citizens who are seen by many as the real victims of this whole fake news fiasco. But at the same time, their involvement in circulating and creating fake news behind the anonymity of the Internet cannot be ignored. So to solve this deep rooted and interconnected problem, what constitutional measures can be adopted by the policy makers and the legislators is a relevant point of discussion. First amendment seems to guard fake news and its perpetrator in good faith and ―…under First Amendment jurisprudence, government regulation of any kind is not likely possible, and attempts to regulate would likely fail judicial review.‖206 The judicial pronouncements made it quite clear that punishing a news based on its falsity is not the reasonable restriction that can be placed upon the free speech. In a 2012 judgement of Supreme Court United States v. Alvarez207 this stance was made quite clear. In reaching its decision, the majority clarified that "falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood."208 All this

205 Jessica Stone-Erdman, Just the (Alternative) Facts, Ma'am: The Status of Fake News under the First Amendment, 16 First Amendment Law Review 410 (2017). 206 Id. 207 United States v. Alvarez, 567 U.S. 709, 717 (2012). 208 Id. 81

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] boils down to one observation that just the falsity of a particular information alone cannot be brought under legal scrutiny but its impact and intention of the speaker are also to be studied carefully. So for legislators to make a successful legislation in this regard it would be a tricky task because of the protection provided by the first amendment. A well thought of legislation that strikes ―a reasonable balance between speech restricting and speech-enhancing benefits within a narrowly-applied political context‖209 would be a potential solution to this problem.

Other than this, it can be expected from the other organs of state like judiciary to take cognizance of such malpractices by a limited application of the first amendment clause in such cases and bring the defaulters under legal scrutiny. To realize the vision of founders of America granting unlimited liberty in its nascent sense would not be enough, proper caps on liberty with regards to the changing condition is pivotal. The existing time calls for appropriate and effective measures against fake news. And if freedom is what we are actually seeking then ―Cass Sunstein reminds us, if people are unaware of the consequences of their choices, they are, to that extent, less free.‖210 And this right stakes it all on the truthful nature and content of information so as to have constructive political deliberations.

CONCLUSION AND SUGGESTIONS

This paper makes a juvenile attempt at talking about the challenges awaiting in the journey of development of political discourses and a well-informed citizenry in the light of the recent occurrences affecting the social and political status of our surroundings. In the era of digital journalism and news being reported and disseminated at the press of a button, the constitutional machinery seems not to be at par with the technological achievements of humankind and its impact on the arrangement of the society. Accessibility of social platforms with enormous consumer base and digital illiteracy are both diligently working together towards a common goal of creating a post-truth era which would lack an objective outlook.

The paper addresses the issue of fake news in the light of the Constitution. On viewing this issue under the lenses of Constitution and other legislations, a battle against far more advanced rivals ready to be fought can be seen. The road ahead is definitely bumpy and will require effective and well-designed shock absorbers to make the journey smooth. Impact of fake news circulation is not just on the political setup but on the social setup as well.

209 Michael K. Park, Separating Fact from Fiction: The First Amendment Case for Addressing Fake News On Social Media, 46 Hastings Constitutional Law Quarterly 1 (2018). 210 Id. 82

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Incidents of mob lynching as a result of misinformation circulated on the social platforms like WhatsApp and Facebook are significantly being reported. This brings us to realisation that there are technologically equipped forces acting against a not so developed and traditional coping mechanism. This calls for equipping our machinery with the right arms and ammunition.

One of the most important things that is often overlooked while we use these platforms for gathering information is the anonymity of the publisher. The unaccountable data present on these tech platforms with little or no knowledge about the publisher makes it difficult to identify the perpetrators of misinformation or factually incorrect data. This puts a bar on fixing liability and curbing such unauthorised sources who act with the intention to deceive and create menace in the society. There is a need for a statutory measure to bring this data and such sites to scrutiny on both national and international level. Some guidelines should be laid down for these multimedia giants to follow and abide by, so that instances of fake news can be reduced. This would also bring a significant shift in the legal recognition provided to these social media websites. Under India's data innovation laws, web based sites are arranged as "go-betweens", which enables them to exploit safe-harbor arrangements that exclude them from risk for substance they didn‘t create or modify. So mandating these websites would not be an easy task and it must not include any kind of suppression of free speech beyond reasonable restrictions‖211 Also the sites like Facebook and Twitter receive protection under the IT Act as they are treated as intermediaries and not the essential news producing sources. But it is high time that these institutions should be brought under legal scrutiny. Legislations or guidelines for their compliance should be enacted which mandate these websites to regulate the data that is posted on them and check the factual correctness of data.

A legislative body should be created which is proactive on these social networking sites and which acts as a quick response team and would use social media platforms to spread awareness regarding digital literacy and would respond to the queries of general public about social media. This team should also monitor the hash tags and the general social media trend that is in vogue and try to create heat maps to locate the sensitive areas from which information is generated and to which areas is it most impactful.

211 Supra 178. 83

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These platforms themselves should be used to create awareness and increase digital literacy about the likeliness of less credible information on these platforms and how to identify such bogus content.

Another serious concern regarding fake news is its impact on the political machinery and elections. There have been numerous instances in the recent times where this can be seen, be it US Elections 2016, or the Brexit controversy. So concern hovers over the legislative and executive authority of the largest democracy as well. According to a recent study conducted by Oxford based on systematic analysis of local news article reporting on cyber-troop activity ―the weaponization of social media platforms like WhatsApp to spread fake news will gather momentum as India enters an election year.‖212 This issue also demands immediate attention of the government.

It is rightly said that any snippet of data which interacts with the web ends up everlasting until the end of time. And there is no such right as the right to be forgotten which makes such content and its impact everlasting and raises serious concerns regarding the machinery for the disposal of such content. A more effective mechanism to deal with this issue must be devised with the help of these tech-giants. So the road ahead might seem like the road less taken but to reach the most desired result it needs to be taken.

After looking into the various aspects of fake news and the problems thereto, this paper does not attempt on suggesting any single conclusive solution to this multi-layered problem because combatting it through single machinery such as the Constitution might prove ineffective. It suggests various structural and institutional changes to tackle this problem without any suppression of the right to speech and expression. Even before making an attempt to regulate the content published it is essential that well thought of definition of fake news should be adopted to reduce vagueness and clear the air regarding this highly controversial issue. Just as discourse related law was changed following the creation of the printing press and radio and TV. Essentially, the on-going internet-based life insurgency will likewise require a reasonable legitimate advancement. Large scale public involvement and increased digital literacy might prove fruitful in checking and reporting the credibility of content so published on various multimedia platforms. Our attempts of utilising the machinery must be so effective that the thin line between the credible and incredible should not smudge under the impression of subjectivity of ideas and perspective. The good part is

212 Ananya Bhattacharya, Oxford Researchers warn India of a fake-news epidemic as Elections Approach, Quarts Owner (Jul. 25, 2018, 10:00 AM), https://qz.com/india/1335161. 84

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] that the circumstance is still levelled out so imperative advances are probably going to prove productive.

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THE ESSENTIAL RELIGIOUS PRACTICES DOCTRINE: ITS FALLACY AND FUTURE

Authored by Kaumudi Srivastava Student of Government Law College, Mumbai. [email protected]

ABSTRACT

The mélange of any religion has been meticulously sieved through the infinite contours of law. The philosophies of religion are abstractions, drawn out into the chime of social reality and churned through mechanics of law and order. Although both religion and law fundamentally profess a humane code of conduct, the nuances when viewed from a more nationalistic perspective, conform to almost contradictory and exclusive ideologies. While religion serves a deeper, more personal interest, law is a tool of the society that compels compliance of its citizens with principles of justice and good conscience. It is noteworthy that a lucrative quantification of religious rights and other rights derivative of the Preamble into pigeonholes of rather adjudicatory morality is not only a humongous task, but also an oversimplification of the intertwined complexity of religion and law. The tussle between practices of religions and processes of law swings dangerously on an uneven terrain of dynamic public interest and inconsistent judicial approach. In order to effectuate reconciliation of religious freedoms to notions of liberalism and egalitarianism, the Courts in India have adopted an Essential Religious Practice doctrine. The paper traces the advent of this doctrine and emphasizes upon its relevance in the current time.

THE INCEPTION OF THE DOCTRINE

The post-independence struggle of India was manifold with radical concerns. The Constituent Assembly was faced with the predicament of incorporating modern notions of civilian freedom in a socio-political structure that was decaying within ancient holds of religion. In an attempt to dissolve shackles of caste-based discrimination and classist repression, the Constituent Assembly aspired for massive liberation of the suppressed and a parallel dilution of religious ideologies that had for long, essentially corroborated the tools of oppression. Consequently, the Assembly structured the Constitution on tremoring remnants of rigorous grinding of the devout with legal duties. In upholding its commitment to unhindered religiosity and curbing the former‘s coincidental communalism, the Constitution drafted the 86

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Chapter on Fundamental rights, branching the rights into paradoxical freedoms of religious diversity and public equality.

Furthermore, the Constitution so formulated, lent an elemental nuance to the definition of secularism. The Indian stance on secularism encompasses State neutrality towards religions and State intervention in matters decimating social integration or against public interest.213 Similar to the U.S non-establishment clause, there is a total absence of references to an established Church or to a majoritarian religion in the Indian Constitution.

THE BIRTH OF ESSENTIAL RELIGIOUS PRACTICE DOCTRINE

Article 25(2)(a) of the Indian Constitution allows the State to make legislation ―regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.‖

The Essential Religious Practice doctrine is prominently derived from the aforementioned provision. Although Article 25 substantially corroborates the State‘s authority to intervene in matters of religion, it makes such intervention contingent upon the nature of the practice that is the extent of secularity of any religious practice. Simply, the test was evolved over a course of time, which enables the judiciary to evaluate whether any practice is essentially secular or essentially religious and the latter is exempt from constitutional scrutiny.

The doctrine was first used by the Bombay High Court in the case of State of Bombay v. Narasu Appa214. Later it was authoritatively approved in The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt215 popularly known as Shirur Matt case wherein the Court propounded the following principle:

―what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day… all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a

213 Rajeev Bhargava, Indian Secularism: An Alternative, Trans-Cultural Ideal In Political Ideas In Modern India: Thematic Explorations 285, 297 (2006). 214 State of Bombay v. Narasu Appa, AIR Bom 84, 96 (1952). 215 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, SCR 1005 (1954). 87

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commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”

Although, initially the doctrine was enacted singularly to facilitate adjudication in grey areas of law and religion and focused on ascertaining the secular quotient of any religious practice, a major shift occurred in its application in the judgment of Ram Prasad Seth v. State of Uttar Pradesh216. The Court used the expression ‗essential part of the Hindu religion‘, thereby birthing an analytical drift from its emphasis on what is ―essentially religious‖ to what is ―essential to the religion.‖ The particular judgment encumbered the Court with a duty to not gauze the religiosity of a practice but the essentiality of the practice to the religion.

In 1964, in the case of Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan and Others217, the Court unprecedentedly combined the two interpretations and adopted a novel approach. It was held that ‗the court may have to enquire whether the practice in question is religious in character, and if it is, whether it can be regarded as essential to the religion‟.

THE FALLACY OF THE TEST

The doctrine of essential religious practices self-depreciates in its emphasis on the element of essentiality while determining the constitutionality of any religious practice. Not only does it place the adjudicatory body at a theological mantle, it grapples with deep-rooted, perpetuated spiritual beliefs with the inefficient hands of a few collective individual minds. Firstly, the doctrine is judge-centric and flares judicial activism in spheres that even the legislature affords hesitant codification and executive treads with restrained implementation. Secondly, the undetermined scope of the doctrine fails to distinguish legitimate interference from undue pressure in many cases. Furthermore, the doctrine can spiral into an easy political tool, purposively molded to befit the whims of existing governments that intend to exercise unwarranted judicial-control. Although the doctrine aims at expansion of equality law, it has contributed to a sense among religious traditionalists that there has been an inversion that has reduced them to minorities writhing to require protection from an overwhelming liberal orthodoxy.

(a) Judges as pivotal players

216 Ram Prasad Seth v. State of Uttar Pradesh, AIR All 411, 444 (1957). 217 Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan and others, 1 SCR 561 (1964). 88

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The role of judiciary in contemporary democratic reality is of utmost importance. The judicial processes are not only utilized by social activists, but also by secular and religious groups who place reliance on favorable litigation to mold societal norms in accordance with their moral and political preferences. The said setup continually evidences the sheer omniscience of law that offers the mechanism for effectuating changes and remedying conflicts.218 The judiciary is no more an extraneous authority on law, rather an exponent of progressive ideals, which strongly influences interpretations of fundamental rights to align them with the goals of an egalitarian, pluralistic society. Given its overreaching ambit, judicial discretion is a contentious blessing, the bittersweet consequence of which makes judges pivotal players in a democracy.

Although judicial activism guarantees a strong judicial review, in the light of the ERP doctrine, emphasis is often drawn towards the excessive power conferred upon the judges. The rise of judicial activism coincides with a divergence in strictly democratic practices, as a body of unelected and unaccountable individuals can veto the popular statutory or executive choice.219

In the recent judgment of Sabarimala Temple220, Justice Indu Malhotra has attempted to delimit the all-embracing determinative power of the Court under the doctrine. Justice Malhotra‘s dissent underscores the practical necessity of restrained exercise of the essential religious practice test. The ERP doctrine allows judges to periscope into matters of religions through lenses of morality and rationality. The imposition of an assimilationist approach on religious denominations by the Courts under the guise of overarching public interest deprives the former from practicing and professing their religion freely, thereby reducing the provisions on religious freedom to hollow declarations.

(b) Element of essentiality A major determinant of the Essential Religious Practice doctrine is its element of essentiality. Although during the Constitutional debates the aim was to segregate essentially religious practices from essentially secular practices, the doctrine underwent varying judicial interpretations that emphasized not upon the secularity of a religious practice but upon its essential or integral nature in context of the religion. In another case, the doctrine was applied to distinguish mere superstitions from religious beliefs.

218 F. James Davis, Society and the Law: New Meanings for an Old Profession, 39 (1962). 219 Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1363 (2006). 220 Indian Young Lawyers Association and Others v. The State of Kerala and Others, SCC OnLine SC 1690 (2018) [Hereinafter referred to as ‗Sabarimala temple entry judgment‘]. 89

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The debate around the element of essentiality manifests two approaches. The liberal methodology (as adopted in Sabarimala temple entry judgment) is often characterized by its pliability to accommodate shifting social dynamics. The aforementioned approach expounds, “the test of essentiality is infused with … necessary limitations…, limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom.”

On the contrary, the traditionalist methodology propagates a more cohesive analysis. The test of essentiality, according to this approach, is based on internal dissent within religious denominations, obliterating any requirement of constitutional conformity. It strictly propounds that only in-group dissenters can question the essential nature of a practice irrespective of whether or not the practice meets constitutional values.

(c) Conflict between right to equality and right to freedom of religion The fundamental rights enshrined in Part III of the Indian Constitution appeal to the quintessence of humanity. These rights form a part of the basic structure of the Constitution. Article 14 and Article 25 of the Constitution enshrine the right to equality and right to freely practice and profess religion, respectively. The Constitution‘s emphasis on non- discriminatory existence is reinforced by way of a fundamental guarantee in Article 14 that precariously interferes with the boundaries of Article 25. The core of Article 14 fixates at legitimizing pervasive equitability and lack of any discriminatory or prejudicial act among masses, irrespective of caste, creed or sex; quite contrastingly, Article 25 promotes group autonomy, reflecting constitution‘s commitment to pluralism and diversity.

(d) Whimsical nature of the doctrine The essential religious practice finds no explicit mention in the Constitution of India. The doctrine is largely derived from repository of case laws. The characteristic irregularity of the doctrine can be attributed to its misplaced focus on the contentious element of essentiality and judge-centralism. As a result of extensive judicial scrutiny based on ambiguous considerations, the doctrine has failed to enact a consistent approach. Firstly, the Courts due to lack of a simplified principle switched from one adaption to another in the initial years of its application. Whilst in Ram Prasad Seth v. State of Uttar Pradesh, the Court analyzed whether practice is ―essential to the religion‖, in the judgment of Durgah Committee, Ajmer v. Syed Hussain Ali and Others221, the Court ran the two tests of ―essentially religious‖ and ―essential to the religion‖ together, attempting to distinguish between religious and

221 Durgah Committee, Ajmer v. Syed Hussain Ali, 1 SCR 383 (1962). 90

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] superstitious. In the judgment of Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan and Others, the Court went ahead from equating the two tests to separating them as distinct steps in one unified test.

The legal sanity of subjecting fundamental rights issue of a population of billions to such a whimsical doctrine is questionable. The rampant use of ERP test portends a disorderly regime, crippled in undefined haze of state and religion.

CONCLUSION

The Indian Constitution does not recognize one religion as a state religion. State and religion in modern times are in a state of pitiable contradistinction to each other. A moderate antidote for these conflicts has been to separate the spheres of political and religious affairs. However, even as the state embraces strict neutrality between various faiths, elimination of discrimination cannot be guaranteed. Every religion entails a distinct plethora of essential rites. To adopt a uniform law or a law selectively prohibitive of acts of one religion infuses a new version of disparity. The State‘s interference in matters of religion has to be minimalistic which can be achieved only through a restrained exercise of the Essential Religious Practice doctrine. The dissenting judgment in Sabarimala Temple issue exemplifies a realist adaptation of essential religious practice test as opposed to the utopian model founded on ambiguous constitutional directives. The Essential Religious Practice test should only be limited to matters of religion that are pernicious, oppressive and evil. For striking a just balance, the Court‘s discretion should always be available as an inherent power for protection of guarantees under Article 25 and 26 but the use of this power should be cautiously refrained.

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CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES & DILUTION OF SEPARATION OF POWER BY THE SUPREME COURT: A BENEVOLENT HYPOCRISY

Authored by Shivam Sharan Student of NALSAR University of Law, Hyderabad. [email protected]

INTRODUCTION

International Law uses to have a huge impact on the framing of domestic law in India. Especially, when there is no legislation in place which can govern the action(s) which are in contravention to the rights provided by Part III of the Constitution222. Treaties are one such source of international law. They are basically a covenant between two or more nations agreeing to certain terms. In this age of globalization, the numbers of bi-national and multi- national treaties are increasing.

In order to incorporate the laws evolved through treaties and other international covenants, India follows the dualist approach. This is a concept explaining the relationship between treaties and domestic law. In the dualist approach, the international law and the domestic law are treated differently and domestic law is given preference in the internal legal system of a country. However, this does not mean that domestic law is treated as superior to international law.

The constitution also provides for honoring the treaties and international law under various articles. Many times, due to the exigency of defending an individual‘s right, the court uses the treaties and other international law to interpret the domestic law, provided they do not go in contravention to the domestic law.

This practice of the court has been the topic of a contemporary debate as allegations are usually made that the court, by means of such practice, dilutes the division of power and overacts. Due to this, though formally India seems to be a follower of dualism approach, practically seem to be adhering to monism.

This essay will deal with the same situation, in a narrower way. The author will be dealing with United Nations Convention on the Rights of Persons with Disabilities (hereinafter,

222 Indian Const. Part III. 92

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CRPD), which is an international human rights instrument and how it led to the judicial internalization and dilution in the separation of power.

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND SUPREME COURT

India ratified the Convention on Rights of Persons with a Disability back in the year 2007223. This proved to be a step of paramount importance for the development of laws related to disability. The convention was fundamentally different from the then existing legislation, known as the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995224, as CRPD was solely based on the model of rights of an individual, as against the medical model which was the sole basis of latter. The ratification by India expedited the need for legislation which could cater to the need of the disables and could help them claim their rights.

Since there was a gap between the ratified convention and the principle usage of the same along with the absence of any proper legislation, the courts used the convention as a sole basis in certain cases to grant the parties their rights. This act of filling the gap can be done in one of the following ways225:

1. In case the international law has been incorporated in domestic law but is ambiguous, then the interpretation of the same can be done by the court in a way which is harmonious to the ratified international source.

2. In case the incorporation has not been done, the court can direct the state to honor such law and give effect to the same.

3. In an addendum to the aforementioned, the court can also ―judicially incorporate‖ such international law.

The court thus duly honored the wordings of Article 2 of the CRPD in order to accommodate the people suffering from disability and appreciate the difference,

223 Convention on the Rights of Persons with Disability, available at http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf. 224 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, available at https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/51207/109498/F-1012820868/IND51207.pdf. 225 Lavanya Rajamani, International Law and the Constitutional Schema 143-159 (The Oxford Handbook of the Indian Constitution). 93

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―Reasonable accommodation means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms‖226

This act of the apex court which could be identified as an act of judicial activism certainly instigated the parliament to bring legislation for the people suffering from a disability which is on the rights-based model in consonance with the CRPD.

SUPREME COURT RULINGS BASED UPON THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Supreme Court has played a major role in the internalization of many international law instruments, and in absence of proper legislation resorted to these sources which could be regarded as law, for the deliverance of justice. Some of those cases where the Supreme Court relied upon the provisions of CRPD, along with other authorities, to reach a conclusive decision are:

(a) Suchita Srivastava & Ors. v. Chandigarh Administration227: The case dealt with the legal capacity of a woman with mental retardation to take decisions regarding her pregnancy. The plaintiff was raped in a government institution where she was being treated, by a staff member. This led to pregnancy. The institution filed a petition in the high court where it pleaded for the termination of the pregnancy through which the plaintiff was going. This was granted by the high court on the grounds of the fact that due to mental retardation, the woman will not be capable of taking care of the newborn. However, this was overturned in the subsequent appeal which was made to the apex court.

The apex court took note of two things in this case:

1. A provision in the Medical Termination of Pregnancy Act, 1971228, which necessitated the consent of the pregnant woman before terminating her pregnancy. This affirmed the reproductive rights of the plaintiff in this case.

2. Principles in the international arena to safeguard the right of the person suffering from any kind of disability. CRPD was referred to in this case.

226 Supra 223, art. 2. 227 Suchita Srivastava & Ors .v. Chandigarh Administration, AIR 2010 SC 235. 228 The Medical Termination of Pregnancy Act, 1971, Sec. 3(4)(b), available at http://tcw.nic.in/Acts/MTP-Act- 1971.pdf. 94

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(b) Sambhavana v. University of Delhi229: The case here was filed by an organization, where it appealed to the court to direct the respondent University for bringing changes in its curriculum, methods of imparting education and conducting examinations, along with fulfillment of other necessities which a differently abled person (primarily, a visually impaired person) would need. Supreme Court looked at this case through the lens of Article 24230 of the CRPD and asked the University to bring changes which could address the grievances raised by the organization.

(c) Jeeja Ghosh and Ors. v. Union of India231: This case is one of the recent judgments by the apex court which affirmed the right of the people with disabilities to live their life with dignity. The case involved a forced de-boarding of a passenger (Jeeja Ghosh), from the flight due to her disability. The court relied on the CRPD while upholding the right and dignity of the plaintiff and also referred to the VCLT in order to establish the same as an authoritative source.

The three case laws mentioned above has been a breakthrough in forming a foundation of laws related to disability and for providing the rights to the needy faction of the society.

ANALYSIS OF THE USE OF CONVENTION OF RIGHTS OF PERSONS WITH DISABILITIES BY THE SUPREME COURT

The Supreme Court from time to time by incorporating the provisions of CRPD insinuated that the existing domestic legislation was not accommodative enough to impart justice to the people who were denied the right to live with dignity. Additionally, it also helped in internalizing this international law which was ratified by India in the manner that it established CRPD as a legitimate authority to be followed.

Article 51(c) of the constitution states that:

―the state shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another‖232

Numerous pronouncements of the courts over the years have honored this provision to the extent where it does not contravene to the existing domestic law. In the case of Suchita

229 Sambhavana v. University of Delhi, AIR 2013 SC 3825. 230 Supra 223, art. 24. 231 Jeeja Ghosh and Ors. v. Union of India, AIR 2016 SC 2393. 232 Indian Const. art. 51(c). 95

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Srivastava,233 the court relied largely on two international human rights instrument. One, the United Nation Declaration on Rights of Mentally Retarded Person; and two, Convention on the Rights of the Persons with Disabilities.

―50. Our conclusions in the present case are strengthened by some norms developed in the realm of international law. For instance, one can refer to the principles contained in the United Nations Declaration on the Rights of Mentally Retarded Persons, 1971

51. In respecting the personal autonomy of mentally retarded persons with regard to the reproductive choice of continuing or terminating a pregnancy, the MTP Act lays down such a procedure. We must also bear in mind that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on 1-10-2007 and the contents of the same are binding on our legal system.‖234

Judicial activism in such cases emerges in an obvious manner as the court knowingly or unknowingly in this manner hints towards making the ratified covenants and conventions binding on the Indian mass. The mandate provided by virtue of Article 253235 to the other pillars of democracy that is the legislature and the executive to make, implement and internalize the laws, is curtailed by the judiciary itself. However, such actions do not come with threats to the system, but also brings in beneficial actions for the public at large. The courts are bestowed with the responsibility of looking after the rights of the minority which are denied. It would be unfair if, in order to maintain the structure of the governance, the rights of the individualare curtailed. Further, it is the executives who ratify the treaties with or without caveats for certain articles of any international instruments. Considering this, it would be only unfair to say that the executive does not get a say in this matter. Thus, this case could be said to be an ice breaker for the incorporation of the CRPD rule in the Indian scenario, while the then existing PWD Act236 was failing miserably unaccommodating the grievances of the individuals.

In Sambhavna v. University of Delhi237, though the court relied on the then PWD act, it had to stress upon the viability of the international instrument too for better enforcement of the directives. The court mentioned here as well about the binding effect that the CRPD now has post the ratification by India.

233 Supra 227. 234 Id. 235 Indian Const. art. 253. 236 Supra 224. 237 Supra 229. 96

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―12. The grievance that has been accentuated by Mr. Sinha with real concern is that there has been no redressal of the grievances pertaining to modification in the examination system and restructuring of the curriculum. Be it noted, India has ratified the United Nations Convention on the Rights of Persons with Disabilities. It has become operative from May 2008. Article 24 of the said Convention deals with the education of persons with disabilities. It gives emphasis on the development of human potential, sense of dignity, self-worth, and strengthening of respect for human rights and creativity.

13. We are absolutely conscious that there is an enactment but India has shown its concern by ratifying the said Convention and, therefore, we have reproduced the same.‖

The court here emphasized the manner in which the University is mandatorily expected to cater to the need of the visually impaired students and have to be as accommodative as possible.

Jeeja Ghosh238 case is another one of those cases which could be said to be the one which expedited the passing of the Rights of Persons with Disabilities Act, 2016239. The judgment heavily relied upon two international instruments. One being the VCLT240 and the other is the CRPD.

This judgment had some confusion though. Firstly, the court relied upon the VCLT of 1963. However, the point worth taking note is that the law of treaties concluded in the year 1969. Alternatively, it was enforced in the year 1980. In light of this, the nexus to the 1963‘s VCLT cannot be traced. Secondly, the court cited Article 27 of the VCLT, whereas the correct provision should have been Article 26 of the same. On connecting the dots, it is only coherent if the court is trying to bring forth the issue of pacta sunt servanda at this juncture in order to establish the binding effect of the CRPD. Article 27 deals with the negation of the excuse of domestic law for the actions which goes in contravention to the international law, whereas, Article 26 deals with the binding nature of treaties which are entered by the countries. Thus, it is uncertain as to how viable is Article 27 in this regard.

These cases set the foundational stone for the new PWD act which was drafted in consonance with the CRPD. Further, the cases which emerged subsequent to these cases incidentally brought in the use of the CRPD but majorly relied upon the Disability Act of 2016. This

238 Supra 231. 239 The Rights of Persons with Disabilities Act, 2016, available at http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/RPWD%20ACT%202016.pdf. 240 Vienna Convention on Law of Treaties, 1969, available at https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf. 97

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] signifies the role of the Supreme Court to an extent in delivering justice and enforcing international law instrument but also strengthen the conjecture that the same guardian of civil and political rights is responsible for diluting the separation of power, which seems to be a case of benevolent hypocrisy.

CONCLUSION

The mentioned case laws reviews signify that the Indian Courts are developing their jurisprudence in tandem to the international law instruments. It is also seen that India is in a fix regarding its approach towards international law and its application. The Court is making India more inclusive and bringing a paradigm shift on disability rights. It is imperative that this policy is welcomed with some caveats. Firstly, international law comes in all shapes, sizes, and colors. There could be several branches of international law which might not be wholly fit for India, and the courts need to be vigilant about it when they incorporate it. Secondly, there is a need to identify the relevant international law for the Indian scenario. Thirdly, the courts need to take into account the fact that the executive and the legislature also have their own responsibilities of tailoring international law according to the domestic situation and needs. The courts cannot overlook the separation of power and need to respect it as well.

India still requires a lot of clarity on the usage of international law. Judiciary needs to understand the fact that Article 51(c) talks about making an effort to incorporate international law and not achieving the results by bringing into action the practice of judicial activism.

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ANALYSING THE PRACTICAL IMPLICATIONS OF A RIGHT TO PRIVACY: STATE SURVEILLANCE AND CONSTITUTION

Authored by Anubhav Khamroi & Anujay Shrivastava*

ABSTRACT

Privacy is the most revered right in our society, integral to human existence, however, always the greatest bugaboo for the State. State Courts, across jurisdictions, have been extremely impetuous in adopting privacy as their go-to justification, without adequately clarifying the import and scope of “privacy” as a right. Such “incoherence” in judicial decision-making significantly impacts doctrinal clarity and conceptual consistency. Furthermore, the varying theories on privacy have also contributed to its theoretical indeterminacy. In this Paper, we shall evaluate and critique the existing ideas and notions of privacy, while also attempting to draw out an alternate theoretical framework, in order to address the demands of contemporary digital world. We believe at a time when there is increasing surveillance by both State and Non-state actors, it is imperative to rethink the contours of “Privacy”. Further, we have addressed the contemporary privacy concerns by evaluating the risks of potential breach by social-media forums, such as Facebook and Google, and argued that “threat on privacy” is not necessarily akin to “loss or breach of privacy”. We have also attempted to deal with the issue of right to privacy over “documented personal information”, in light of the recent Aadhar judgement. On that note, we have inquired into the proportionality test adopted by the Indian Supreme Court in the landmark Puttaswamy decision, and then compared it with similar tests used in foreign jurisdictions to adjudicate the legality of State surveillance programmes.

Key Words: Aadhaar, Control, External Interference, Informational Privacy, Internal Reservation, Limitation, Personal Information, Privacy, Social-Media.

INTRODUCTION

―Privacy‖ is one of the most cherished right in human society. Yet, unfortunately, privacy has historically been a nebulous concept, constantly evading the ‗trap‘ of a singular definition.241

* Students of Jindal Global Law School, O.P. Jindal Global University. The authors are immensely grateful to Mr. Pritam Baruah, Associate Professor of Law and Executive Director - Centre on Public Law and Jurisprudence, at Jindal Global Law School, Mr. Sachin Dhawan Esq., Assistant Professor of Law and Assistant Director, Centre for Environment and Climate Change Studies, at Jindal Global Law School and Mr. Amartya 99

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However, philosophers and legal scholars have also been equally adamant and have constantly made efforts to create a linear narrative of ―Privacy‖. Today, while there exists a structured discourse on privacy, in both philosophical and legal terms, we are yet to formulate a practical definition of privacy which can meet the demands of the fast-evolving digital world.

Unfortunately, in recent times, the judicial trend has predominantly been to apply ―privacy‖ to a wide range of cases, without sufficiently clarifying the scope and contours of such a right. This regrettably adds an ad-hoc flavour to adjudication and departs from the longstanding principle of ―coherence‖ in judicial decision making.242 The final decision or outcome of a case is important indeed, but the means or reasons underlying that final outcome are equally significant.

Recalling the words of Prof. Pritam Baruah (in an article discussing core principles of adjudication) –

―Answers to the theoretical questions are the basis for decisions on specific issues before a court. Answering the theoretical question demands an explanation of the concepts that a court employ. This must be an explanation in terms of reasons, which explain why courts take a particular view of the concepts involved and not another. Courts need to establish a connection between what they take the concepts to be, the specific rights that are being debated, and what is required by the application of those concepts. Here one might object that courts often do not fully explain the reasons for a decision….‖ [emphasis added].243

Sharan, Judicial Clerk to Hon‘ble Mr. Justice L. Nageswara Rao, Supreme Court of India, for their feedback and guidance. An earlier version of this Article was presented in a seminar by Mr. Khamroi for the Elective Course titled ―Constitutional Values in Courts: Dignity and Liberty‖ taught by Prof. Baruah from February to May 2018, at O.P. Jindal Global University, Sonipat. This Article is a follow-up to an earlier Article published by the authors in: Anubhav Khamroi & Anujay Shrivastava, The curious case of Right to Privacy in India, 2(12) Indian Constitutional Law Review 1-2 (2017), and focuses on ―Informational‖ aspect of Privacy. Mr. Shrivastava had subsequently published a follow-up Article to the preceding Article on ―Decisional‖ aspect of Privacy in: Anujay Shrivastava, Reconstructing the Decisional Paradigm of Privacy: Crafting a new Anti-Manifesto Grounded on Shadows of The Enabling School, 6 Indian Constitutional Law Review 7-23 (2018). The authors recommend these Articles for a further read on Privacy. However, responsibility for the ideas expressed or/and any mistakes in the present Article are entirely theirs. Authors can be reached at [email protected] and [email protected]. 241 Anubhav Khamroi & Anujay Shrivastava, The curious case of Right to Privacy in India, 2(12) Indian Constitutional Law Review 1-2 (2017). 242 Pritam Baruah, Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy and Dignity, 2 NUJS Law Review 505 (2009). 243 Pritam Baruah, Human Dignity in Adjudication: The Limits of Placeholding and Essential Contestability Accounts, Canadian Journal of Law and Jurisprudence, 27 Can. J.L. & Juris. 329-356 (2014) at ¶ 15. 100

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In our opinion, such decisions play a lead role in creating an undesired haziness in the discourse and jurisprudence on privacy. Further, this ―situation of conceptual bankruptcy‖,244 wherein we understand privacy as a ―bundle of rights‖ leads to juxtaposition of the specific roles of one onto the other.

In this paper, we shall set out to evaluate and analyse the existing formulations of ―Privacy‖ and subsequently propose an alternate structure to the discourse on Privacy, suitable to the contemporary needs. Therefore, in Part I, we shall analyse and critique the existing theories of Privacy, primarily - Thomson‘s and traditional notions of privacy, Control-based theory, Accessibility-based theory, and W. A. Parent‘s ―New Definition‖.

Further, in Part II, we shall attempt to draw out a conceptual framework by providing an alternative definition of Privacy, in light of contemporary technological advancements. Our definition shall try to address the drawbacks of the existing theories, and will apply to both ―documented‖ and ―undocumented‖ personal information.245 According to W.A. Parent, ―documented personal information‖ includes publicly available information, such as police records, court proceedings and judgements, government archives, public inspection reports etc.246 According to him, ―documented personal information‖ is not protected by Privacy and argues that its inclusion within the Privacy framework would ―needlessly blur the fundamental distinction between the private and the public.‖247 We shall put forth our disagreements with such a restrictive understanding of Privacy in the latter sections of our Paper.

In Part III, we attempt to take the proposed definition forward and inquire into the scope and effects of such a right in protecting ―undocumented personal information‖ available on social media sites or stored in an electronic database. We shall rely on the ideas of ―legitimate expectation of privacy‖ and ―threatened loss counterexample‖ to address the risks of potential breach vis-à-vis the right to privacy. We shall conclude this section by arguing that mere ―threat on privacy‖ is not necessarily akin to ―loss or breach of privacy‖. In Part IV, the Paper shall address the operation of right to privacy over ―documented personal information‖, in the context of the recent Aadhar judgement

244 The use of the phrase is inspired by W.A. Parent. See, W.A. Parent, Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly 341-355 (1983). 245 Id. 246 Id. 247 Id., at p. 347. 101

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In Part V, we shall analyse the scope of limitations on Privacy in Indian constitutional jurisprudence and consequently, consider situations wherein State surveillance ‗may‘ pass constitutional muster. Finally, in Part VI, we shall attempt a comparative analysis (or a tour d‟ horizon study) of several foreign decisions, which had considered the legality and constitutionality of State surveillance programmes. This is to understand how different courts have articulated the confines or limits of right to privacy and tests adopted to evaluate the legality of legislative actions.

Part I. ADDRESSING THE SITUATION OF “CONCEPTUAL BANKRUPTCY”: CRITIQUE OF THE EXISTING THEORIES ON PRIVACY

Privacy must be understood as a right which prevents unwanted access to ―personal information‖ and impede any non-consensual/wrongful attempts at acquiring such information [explained in Part II]. However, there are several theories on Privacy which confuses its application with that of other concepts like Liberty, Autonomy, Dignity, Solitude, and has therefore transformed Privacy into an indeterminate concept. It shall be our endeavour to evaluate the major theories on Privacy and point out the flaws in them.

(a) Privacy as a “bundle of rights”: Traditional Understanding At the outset, we strongly disagree with the idea, advocated by Thomson and other ‗traditional‘ privacy theorists, that privacy has no single meaning. According to this traditional account, privacy stems from a diverse set of rights, such as ―right to freedom from disclosure of personal information‖, ―independence in making fundamental decisions without coercion‖, ―right to make bodily decisions‖, etc.248 All cases involving the aforementioned questions of law can be resolved by an appeal to various other constitutional values, such as ―Liberty and Self-Determination‖, ―Autonomy or Freedom of Choice‖, ―Right against trespass‖, ―Tort of Nuisance‖ etc.

Posner rightly opined - ―we already have perfectly good words - liberty, autonomy, freedom to describe the interest in being allowed to do what one wants (or chooses) without interference. We should not define privacy to mean the same thing and thereby obscure its

248 Judith Jarvis Thomson, The Right to Privacy, 4 Philosophy and Public Affairs 295-315 (1975); See Ernest Van Den Haag, On Privacy, in Privacy, Nomos Xiii: Yearbook Of The American Society For Political And Legal Philosophy 149 (J. Roland and J.W. Chapman ed., Atherton Press 1971). 102

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] other meanings‖.249 Thus, there is no need to unnecessarily expand and obscure the meaning of Privacy.

In our opinion, legal scholars and courts across the world are equally responsible for creating the unnecessary haziness in the discourse on Privacy. Over the years, courts have used Privacy to justify their judgements in several cases, where they could have simply used other, and much more contextually appropriate, constitutional values and principles. We would like to put forth three decisions of the US Supreme Court as appropriate illustrations of our claim:

Illustration I: In Griswold v. Connecticut (1965),250 the US Supreme Court was hearing a challenge to a law forbidding the use of contraceptives. The Supreme Court struck it down on the ground of violation of right to privacy. However, in our opinion, the Supreme Court could have easily used more suitable constitutional values such as Liberty, Autonomy or even Right to Life.

Illustration II: In Loving v. Virginia (1967),251 the US Supreme Court was adjudicating a challenge to a statute that prohibited certain marriages solely on the basis of racial classification. The Supreme Court struck down the statute and subsequent decisions have read this decision as establishing ―a right to privacy in marriage-related choices‖. However, in our opinion, the Courts would do better to use other principles such as Right against discrimination and Personal Liberty.

Illustration III: In Stanley v. Georgia (1969),252 the US Supreme Court was deciding the challenge to a Georgia statute that made mere private possession of obscene material an offence. The Supreme Court struck down the statute on the basis of a right to privacy vis-à- vis right to control one‘s thoughts violation. Alternatively, the Supreme Court could have simply used Freedom of Speech and Expression, Liberty, Autonomy as grounds to strike down the law.

(b) Control-based theory of privacy Control-based theories of Privacy state that one should have absolute control over one‘s personal information and be able to share it at its own will.253 ―Control‖ would include the ―ability to prevent disclosure of personal information to individuals, other than those to

249 Richard Posner, The Economics Of Justice, 274-5 (Reprint ed., Harvard University Press 1981). 250 Griswold v. Connecticut, 381 U.S. 479 (1965). 251 Loving v. Virginia, 388 U.S. 1 (1967). 252 Stanley v. Georgia, 394 U.S. 557 (1969). 253 Alan Westin, Privacy And Freedom 1-22 (1st ed., 1967). 103

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] whom we have voluntarily revealed it‖.254 However, the ability to exercise ―control‖, which is synonymous to the absence of coercion, is not always a necessary pre-condition to the enjoyment of Privacy.

For example, in cases of disabled persons, comatose patients and patients suffering from acute paralysis, the privacy of those individuals is protected at all times, through their family members and doctors [sharing a “privileged relationship”], even though those individuals lack the ability to exercise ―effective control‖ over their own acts. In this context, Vincent J. Samar255 presents an illustrative contrary example by noting that – while prisoners have the absolute ability to exercise ―control‖, they may not be free from the gaze of the guards and thus, does not effectively enjoy Privacy.

(c) Accessibility-based theory of privacy Accessibility-based theories conceptualize Privacy as one‘s right to take away the ability of others to access or acquire their personal information.256 According to such theorists, the mere possibility that others could acquire personal information constitutes a violation, even when there is no actual attempt to acquire it.257 Such an account of privacy would render all forms of surveillance, state welfare & census programs, a doctor-patient, a lawyer-client relationship illegal and purposeless.

(d) W.A. Parent‟s “new definition” of privacy W. A. Parent defines Privacy as ―not having undocumented personal information about himself known by others‖.258 We strongly disagree with his idea of acquisition of ―undocumented personal information‖ as the only ground for invoking right to privacy. Parent‘s own account could lead to undesirable results when tested against the counterexamples he himself used to attack other theories. If we follow his definition, then an attempt to acquire personal information, which is already available in public records, by an unknown person/entity from private spaces of an individual by using X-ray devices would

254 Id. 255 Vincent Joseph Samar, The Right To Privacy: Gays, Lesbians, And The Constitution, 254 (1991); Arthur Miller, The Assault On Privacy (1971); Robert Gerstein, California's Constitutional Right to Privacy: The Development of the Protection of Private Life, 9 Hastings Constitutional Law Quarterly 385-427 (1982); Geoffrey Stone, The Scope of the Fourth Amendment: Privacy and the Police Case of Spies, Secret Agents, and Informers, American Bar Foundation Research Journal 1191 (1976). 256 Roger Ingham, Privacy And Psychology, 35 (1978); Richard Parker, A Definition of Privacy, 27 Rutgers Law Review, 275-296 (1974). 257 Irwin Altman, Privacy? A Conceptual Analysis, 8 Environment and Behavior 7-29 (1976); W.A. Parent, Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly 341-355 (1983). 258 W.A. Parent, Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly, 346 (1983). 104

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] not constitute a violation of Privacy.259 Thus, the definition partly fails due to this erroneous classification.

Part II. RETHINKING THE CONTOURS OF “PRIVACY”

We endeavour to provide an alternate structure to the discourse on privacy. Accordingly, Vincent had opined -

―a judicially useful definition of privacy must take into account the effect that one's actions may have on society, so that the concept is not broader than the ultimate value under which action will be allowed‖ [emphasis added].260

We believe a useful and substantive definition of Privacy shall possess the ability to answer the following two questions:

1. Why do we need Privacy as a separate and distinct right? 2. What would be the exact scope and limits of such a right?

(a) Why do we need privacy as a separate and distinct right? We shall commence by outlining the purpose of having a separate right to Privacy (subject to the specificities of the jurisdiction in question), which has been commonly referred to as an ―empty vessel‖ or a ―hypothetical right‖.261 It is imperative to note that other constitutional values, such as liberty, autonomy, dignity provide agency to an individual to perform certain private acts, without any “external interference”. However, these values do not affect the psychological aspects of the acts committed by a person. Privacy plays an important role in allowing an individual to shape their ―personality‖ in a manner they desire, which is a necessary pre-condition to the performance of a private act without any “internal reservation”.

We propose to draw this distinction between ―external interference‖ and ―internal reservations‖, in an attempt to better explain the import and scope of Privacy. While we generally tend to focus on ―external interferences‖ in our private lives, we often fail to give much attention to the ―internal reservations‖ we hold due to the fear of making our ―personal information‖ publicly available. In this context, it is of utmost importance to explain the meaning of ―internal reservations‖ with great care.

259 Samuel C. Rickless, The Right to Privacy Unveiled, 44(1) San Diego Law Review 7-22, 39-40 (2007). 260 Vincent Joseph Samar, The Right To Privacy: Gays, Lesbians, And The Constitution, 59 (1991). 261 Mary D. Fan, Constitutionalizing Informational Privacy by Assumption, 14 University of Pennsylvania Journal of Constitutional Law 953 (2012). 105

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We use the term ―internal reservation‖ in context of a person who has both the intention and the ability to partake in a private act but is dissuaded due to an unknown fear of divulging ―personal information‖ integral or incidental to that act. Thus, it has a subconscious effect on our minds, which creates a disparity between ―what we desire‖ and ―what we actually end up doing‖. It is imperative to understand that protecting any information integral or incidental to a private act is equally important for the successful performance and future continuance of such an act, and thus, ought to be protected at a level equal to the act itself.

―Internal reservations‖ come into the picture even before the person has performed the private act, and causes greater damage to the person‘s personality, than interferences from third parties. We submit that - Privacy is the value that addresses the issue of ―internal reservations‖, by protecting all information integral and incidental to the private acts of a person, which are done in exercise of their liberty or autonomy. Furthermore, Privacy also precludes all means of collecting such private information.

(b) What would be the exact scope and limits of such a right? In our opinion, the Right to Privacy can be defined as the ―right to prevent others from wrongfully, non-consensually or illegally accessing and/or misappropriating personal information, notwithstanding the public availability of such information.‖ Here, it is imperative to subject every word of the above definition to careful scrutiny and thus, can be broken down into 3 parts:

i. Wrongful, non-consensual or illegal: right to impede others from accessing one‘s personal information and consequently using it in a manner that was never consented to by the person, whose personal information is in question, or obtaining such information by violating the law or breaching an existing contract. The value of ―consent‖ plays a significant role in our account of Privacy. ii. Personal information: Information that one does not want to be out in public, due to various reasons, including the fear of being misrepresented to prospective employers, spouses, colleagues etc.262 It would also include information available in public records. Moreover, the nature of the information is of no consequence i.e. sensitive or mundane in cases of breach of privacy, as has also been held in several judicial.263

262 Roland Garrett, The Nature of Privacy, 18 Philosophy Today 263-84 (1974); Raymond Wacks, The Poverty of Privacy, 96 The Law Quarterly Review 73-90 (1980). 263 Digital Rights Ireland Ltd. v. Minister of Communications, [2015] QB 127 (Court of Justice of the European Union); S. and Marper v. United Kingdom, [2008] ECHR 1581. 106

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iii. Private: It would include any private space, including ―virtual spaces‖ of individuals on social media interfaces. iv. Access and/or misappropriate: Both are independent violations and are neither inter-linked nor inter-dependent.

For Point (iv), it is necessary to clarify that, according to this definition, a privacy violation shall occur as soon as there is any ―wrongful‖ access/acquisition of personal information, and there is no need to wait till the acquired information is misappropriated or a private act is hindered on the basis of such information. We would like to use a few examples to explain the operation of above definition:

Example I [wrongfully/non-consensually accessing personal information]: A and B want to partake in consensual sex and do so without informing anyone i.e. a third party. Their intimate act is protected from any external intrusion by values such as Liberty or Right to lead a meaningful Life or Autonomy. But any information integral or incidental to the act, such as place and time of the act; whether they used contraceptives; whether the act was hetro-sexual or homo-sexual in nature; is to be protected by Right to Privacy. Such personal information is integral to the act and if C [a third party] is attempting to collect such information by peeping through the window or by using an X-ray machine to look through the walls, then that would constitute a Privacy violation.

Example II [misappropriation of consensually acquired personal information]: A and B get involved in a consensual sexual relationship and after a few days B informs her/his sister. Now, even after acquiring such information, B‘s sister cannot interfere as their private acts are protected under guarantees of Liberty or Autonomy. Moreover, she also cannot divulge such ―personal information‖ to any third party without the consent of A and B [Not A OR B, consent of both the parties is required], as that would constitute ―misappropriation of personal information‖.

Example III [notwithstanding the public availability]: X is a famous Bollywood celebrity and his pictures are all over the internet, newspapers, magazines etc. However, if Y tries to use an X-ray Camera to look through the walls of his bedroom and click his pictures, that would constitute a major privacy violation. Therefore, the definition protected ―personal information‖, even if they are already available in the Public.

107

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Part III. RIGHT TO PRIVACY VIS-À-VIS “UNDOCUMENTED PERSONAL INFORMATION”: CONTROL VS. PRIVACY DEBATE

In cases of social media sites/platforms, there exists a notion that we lose ―control‖ over our personal information and the owners of those sites gain ―access‖ to them, once the information has been shared them using their interface. However, we shall argue that –

i. First, it is not necessary to provide any ―personal information‖ to avail their services, other than very basic information like name, age, country etc., which is necessary to verify that one is a bonafide user; ii. Second, once we have availed their services, it is our own decision to share any ―personal information‖ using their interface, which in itself involves a genuine exercise of ―control‖; and iii. Third, even if there is a subsequent ―loss of control‖, that does not necessarily entail a ―loss of privacy‖ over personal information.

No matter what, every individual retains their right to privacy over personal information, even though that information exists only on a virtual space.264 There undoubtedly exists a right to prevent the owners of those sites from ―wrongfully, non-consensually or illegally accessing and/or misappropriating‖ whatever information was shared using their interface or was stored in their database. An act of voluntarily sharing personal information over virtual public interfaces does not automatically extinguish the ―Legitimate Expectation of Privacy‖ of the person disclosing such information.265 This is even more true in the contemporary age as people disclose tons of personal information to third parties, while doing the most monotonous activities.

It is certainly admitted and acknowledged that Facebook, WhatsApp, Gmail and all other social media platforms, have the ―hypothetical ability‖ to access our personal information, which is being shared using their interface. However, the possibility of such a breach actually happening is extremely low, subject to certain exceptional cases. This is even more true in light of the recent EU General Data Protection Regulations266 [hereinafter, ―GDPR‖] and similar Telecom Regulatory Authority of India guidelines with regard to Data Privacy, Data Protection and Cyber Security.

264 Katz v. United States, 389 U.S. 347 (1967). 265 United States v. Jones, 565 US 400 (2012); Riley v. California, 573 US (2014). 266 Intersoft Consulting – EU Information Portal, General Data Protection Regulation Final text neatly arranged, EU Information Portal (May. 23, 2018), ( Dec. 04, 2018) https://gdpr-info.eu. 108

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These regulations strengthen the philosophy underlying our definition of Privacy, which helps in shaping one‘s personality and enables the person to freely exercise liberty or autonomy without any ―internal reservation‖. Therefore, as per our definition, if the operators of Facebook/Google attempt to access the user‘s private data, their acts would fall foul as being ―non-consensually or illegally accessing personal information‖. Funnily enough, ―Calm‖ – a meditation and sleep assistant software, has recently added the full text of GDPR to its collection of sleep stories and apparently ―a brief listen to it will be enough to cure even the most wide-eyed of insomniacs‖.267

In any event, it is not to be forgotten that it is a result of our own ―choice‖ to – firstly, use their interface and avail their services; secondly, voluntarily share personal information which we would not have otherwise shared in a public space; and thirdly, to do so with the knowledge of their ―hypothetical ability‖ to cause a potential breach. Moreover, the standard of ―hypothetical ability‖ is too vague to make a strong allegation of privacy violation against the owners of the social media sites.268

Moreover, their ―hypothetical ability‖ to access and misappropriate one‘s personal information does not necessarily mean that one no longer enjoys the right to privacy over that information.269 While the loss or lack of control undoubtedly ―threatens‖ privacy and creates a risk of potential breach, it does not necessarily involve a ―breach of privacy‖. Thus, a mere ―threat to privacy‖ is not necessarily akin to ―loss or breach of privacy‖.270

The above argument can be better explained by employing the idea of a ―threatened loss counterexample‖. One such illustration of a ―threatened loss counterexample‖, could be found in Parent‘s271 work –

―Suppose A invents a fantastic X-ray device that enables him to look right through walls. A then focuses the device on my home but refuses to use it. Since he certainly has the power to find out everything that I am doing in my home it cannot be said that I any longer enjoy control over personal information about myself vis-a-vis A…. Still

267 Trevor Mogg, EU‘s new data protection law being used as bedtime story by meditation app, Digital Trends (Apr. 06, 2018, 12:50 AM), (Dec. 04, 2018) https://www.digitaltrends.com/mobile/gdpr-law-bedtime-story- calm-app/. 268 American Civil Liberties Union (―ACLU‖), PRIVACY RIGHTS IN THE DIGITAL AGE: A Proposal for a New General Comment on the Right to Privacy under Article 17 of the International Covenant on Civil and Political Rights: A Draft Report and General Comment by the American Civil Liberties Union, ACLU (Mar. 01, 2014), (Dec. 04, 2018) https://www.aclu.org/sites/default/files/assets/jus14-report-iccpr-web-rel1.pdf. 269 Adam D. Moore, Toward Informational Privacy Rights, 44 San Diego Law Review 809-46 (2007). 270 Judith Jarvis Thomson, The Right to Privacy, 4 Philosophy and Public Affairs 295-315 (1975). 271 W.A. Parent, Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly 344 (1983). 109

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A has not invaded my privacy. He doesn't do that until he actually looks through his device. So, while the lack of control certainly threatens privacy it does not necessarily involve its loss. I will henceforth refer to this as the threatened loss counterexample‖ [emphasis added].

Finally, the operators of those social-media websites cannot access or misappropriate one‘s personal information, as that would be a major violation of various existing data privacy laws, such as EU GDPR, Telecom Regulatory Authority of India (TRAI) guidelines and might also constitute a breach of contract.272 Therefore, ―loss of control‖ over personal information cannot be equated to ―loss of privacy‖, unless there is proof that they accessed our personal information from their database, without our consent.

Part IV. DOES RIGHT TO PRIVACY EXIST OVER “DOCUMENTED PERSONAL INFORMATON”?

We shall answer the aforementioned question in the affirmative and therefore, explicitly depart from Parent‘s ―new definition‖ of Privacy. There does exist a similar right to privacy over ―documented personal information‖ or in other words, information stored in public records or government archives. This right imposes a duty on the State to use all personal information/data collected under a law for legitimate purposes, and not ―wrongfully‖ misappropriate or disseminate them to third-parties without our prior consent.273

There is no difference in the duties imposed by the Right to Privacy on a private entity and the Government, with regard to unauthorized use of collected information for extraneous purposes.274 However, the right to privacy is not absolute in its operation against the State.275 In the Sections below (infra), we shall be discussing the scope of limitations that can be imposed on the right to privacy by the State.

272 Asuncion Esteve, The business of personal data: Google, Facebook, and privacy issues in the EU and the USA, 7 International Data Privacy Law (2017). 273 Whalen v. Roe, 429 U.S. 589 (1977); Francis S. Chilapowski, The Constitutional Protection of Informational Privacy, 71 Boston University Law Review 133 (1991). 274 NASA v. Nelson, 562 US 134 (2011); Nixon v. Administrator of General Services, 433 U.S. 425 (1977). 275 Christina P. Moniodis, Moving from Nixon to NASA: Privacy‗s Second Strand- A Right to Informational Privacy, 15 YALE J.L. & TECH. 142-43, 154-60 (2012); Richard A. Posner, Privacy, Surveillance, and Law, 75 University Of Chicago Law Review 245 (2008); Daniel J. Solove, ‗I've Got Nothing to Hide‘ and Other Misunderstandings of Privacy, 44 San Diego Law Review 745 (2007). 110

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Part V. SCOPE OF LIMITATIONS ON PRIVACY IN INDIA

The 9-judge bench of the Indian Supreme Court in Puttaswamy (2017) unanimously held that right to privacy is a fundamental right, by virtue of being an ―intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution‖.276

There were varying opinions regarding what would be the most befitting test to examine the legality of State intrusions into Privacy. However, the test laid down by Justice Chandrachud277 at page 264, also supported by Justice Kaul278 at para 71 of his judgement, should be considered as the majority opinion. In the subsequent Aadhaar judgement, the majority opinion affirmed the above conclusion at para 89.279 Therefore, the test is as follows:280

i. The action of the State must be empowered by a Law ii. The proposed action must be necessary and also pass the test of legitimate aim iii. The extent of interference with individual‘s privacy must be proportionate to the need for such interference iv. The law in question must also provide procedural guarantees against abuse of such interference.

Kaul J. had suggested that Indian Government could consider data privacy laws of the European Union,281 in order to facilitate safeguards against data infringement. The judges have also recognized ―legitimate aims‖ of the State to include- National Security, identifying and prosecuting criminal activities, situations that require Privacy to be balanced with other fundamental rights.282 Moreover, the above exposition had a significant impact on two aspects- first, the idea of ―coerced consent‖ covered under the pretence of providing social and monetary benefits and second, State Surveillance.

276 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, at Pg. 546 [Operative Order]. 277 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, Conclusion 3(H) of Chandrachud J. 278 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶ 71 of S.K. Kaul J. 279 K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, ¶ 89 of Sikri J. 280 K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, ¶ 89 of Sikri J. 281 EU Publications Office, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance), Publications Office Of The European Union, (Apr. 27, 2016), (Dec. 04, 2018) https://publications.europa.eu/en/publication-detail/-/publication/3e485e15-11bd-11e6-ba9a- 01aa75ed71a1/language-en. 282 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶ 13, 14, 72, 73 of S.K. Kaul J.; ¶¶ 180, 181 and Conclusion (5) of Chandrachud J. 111

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A. COERCED CONSENT The right to informational privacy has been explicitly recognized by Puttaswamy. This right inheres the liberty of individuals to not be coerced into giving consent for a State welfare program. In other words, individuals possess the right of ―informed consent‖ and can willingly give up their personal data, if they want to avail the benefits under a social welfare scheme.

This point has been immaculately articulated by Justice Kaul at para 70, wherein he held that the ―State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed.‖283 In order to provide an illustration, he gave an example of posts on social media and observed that personal data revealed via such posts ―is meant only for a certain audience, which is possible as per tools available, then it cannot be said that all and sundry in public have a right to somehow access that information and make use of it.‖284

Finally, if an individual has willingly parted with his/her personal data in exchange of social and monetary benefits, then according to Chandrachud J., the State must utilise the collected data solely for ―legitimate purposes of the state‖ and refrain from any unauthorised use of such data for ―extraneous purposes‖.285

B. SURVEILLANCE A close reading of the Puttaswamy judgement shall reveal that the Indian Supreme Court has not brought down the curtain on State surveillance, but only limited the circumstances warranting collection and analysis of personal data.

The Supreme Court, via the above proportionality test, laid down a framework within which every State policy intruding into individual privacy must be ―narrowly tailored‖. The chances of mass surveillance policies passing constitutional muster have been significantly diminished, however, the possibility of State conducting targeted surveillance is still alive. In any event, the State is under an obligation to ensure that every such policy provides for sufficient safeguards and surveillance is used as a measure of last resort.

According to the judgement, Data collection, data analysis and data mining by the State may pass muster in the following instances:

283 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶ 70 of S.K. Kaul J. 284 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶ 70 of S.K. Kaul J. 285 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶ 181 of Chandrachud J. 112

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i. National Security [Justices Chandrachud and Kaul];286 ii. Legitimate State interest, such as preventing and investigating criminal activities [Justices Chandrachud and Kaul];287 iii. Social welfare schemes, “with the object of ensuring that resources are properly deployed to legitimate beneficiaries” [Justice Chandrachud].288

Therefore, while the Indian Supreme Court has explicitly recognised Privacy as a fundamental guarantee under the Constitution, it has also recognized the legitimate interests of the State in infringing individual privacy in certain exceptional circumstances.

Part VI. STATE SURVEILLANCE VS. INDIVIDUAL‟S RIGHT TO PRIVACY: A TOUR D'HORIZON

(a) American Jurisprudence The US Supreme Court in Whalen v. Roe289 adjudicated on whether a State information collection and data bank storage scheme violated individual privacy interests. Furthermore, the Court considered a hypothetical right to informational privacy, but did not declare informational privacy as a right.

The standard used by the US Supreme Court in Whalen for testing the constitutionality of the legislative action is similar to the three-fold proportionality test laid down by the Indian Supreme Court in Puttaswamy. The Court in Whalen observed that due to statutory limitations, sufficient safeguards were present against the abuse of this data. However, to differentiate Whalen from the Aadhaar in India, it has been observed that there is a lack of criminal procedural safeguards to protect infringement of the information collected under Aadhaar.

Many decades after the Whalen v. Roe decision, the court in NASA v. Nelson290 got an opportunity to adjudicate on questions of law concerning right to informational privacy. The Court was adjudicating on whether a governmental background check violated a right to informational privacy by compelling employees to disclose past use of illegal drugs.

286 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶ 13, 14, 72-3 of S.K. Kaul J.; ¶¶180-1 and Conclusion (5) of Chandrachud J. 287 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶ 13, 14, 72-3 of S.K. Kaul J.; ¶¶180-1 and Conclusion (5) of Chandrachud J. 288 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶180-1 and Conclusion (5) of Chandrachud J. 289 Whalen v. Roe, 429 U.S. 589 (1977), ¶¶ 596-597, 600-603, 605-606. 290 NASA v. Nelson, 131 S. Ct. 746, 751 (2011), ¶ 753. 113

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However, the Court in the case answered the question in negative, holding that no such right was violated.

In United States v. Jones291, Sotomayor J. in her separate opinion had observed that right to privacy can be violated via the use of GPS system, without even causing trespass. However, the majority went on the lines of trespass as the justification for finding an unconstitutional encroachment of private information rather than on the lines of informational privacy. Therefore, with regard to the US Jurisprudence, it appears that right to informational privacy is yet to be recognized expressly as being protected under the US Constitution. Although, the parameters on which it could be tested is well grounded in the Whalen decision.

(b) UK Jurisprudence The famous Calcutt Committee Report had defined ―privacy‖ as ―The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication.‖292 United Kingdom being a signatory to the European Convention on Human Rights had ratified and incorporated the Convention in its domestic legislation i.e. Human Rights Act 1998. Schedule I of the Act contains the Convention which is to be interpreted with other provisions of the Act293. Article 8 of the Convention provides that ―Everyone has the right to respect for his private and family life, his home and his correspondence‖. While this recognizes the existence of privacy, a direct claim for violation of privacy under Article 8 of the Convention cannot be raised in UK. However, various judicial decisions such as the House of Lords in Campbell294 decision and the England and Wales Court of Appeal in Vidal-Hall v. Google295 decision, have held that a tortious claim for misuse of private information can still be brought to the courts.

The UK Supreme Court in PJS v. News Group Newspapers296 had held that there are two primary components which are covered by misuse of private information. The two components are (i) The confidentiality component (protecting the secrecy of private information); and (ii) The intrusion component (preventing intrusion into an individual's

291 United States v. Jones, 132 S. Ct. 945 (2012). (Sotomayor J.) 292 David Calcutt, Report of the Committee on Privacy and Related Matters, (1990) CMND 1102, at paras. 12.12 - 12.17. 293 The Human Rights Act 1998, Schedule I (United Kingdom). 294 Campbell v. MGN Ltd., [2004] UKHL 22 (2004). 295 Vidal-Hall v. Google, [2015] EWCA Civ 311 (2015). 296 PJS v. News Group Newspapers Ltd., [2016] UKSC 26 (2016). 114

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The Data Protection Act, 1998, serves as another legislation which can be used for protection of private information in the UK. The England and Wales Court of Appeal in PJS v. News Group Newspapers298 held that an individual could claim compensation if use of their private or personal information contravenes the Data Protection Act provisions and this is not merely limited to financial claims; it can cover compensation for distress.

While the UK did not utilize the proportionality test in reference to informational privacy or any constitutional claims of violation of right to privacy, we can rely on the Privy Council decision in Elloy de Freitas299 which laid down a three-step proportionality test for legislative encroachments upon fundamental rights. The Privy Council held that the following parameters must be considered while deciding the legality of a legislative action: (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) whether the measures designed to meet the legislative objective are rationally connected to it; and (iii) whether the means used to impair the right or freedom are no more than is necessary to accomplish the objective300. Furthermore, the House of Lords in Huang301 had added a fourth requirement to those laid down in Elloy de Frietas, which stated that ―the need to balance the interests of society with those of individuals and groups‖ must be considered.

The third parameter of the test laid down by UK courts is similar to the one accepted by the Indian Supreme Court in Puttaswamy, which states that the means used by the State must be proportional to the object and purpose sought to be achieved by the law under consideration. However, if we were to attempt a comparative evaluation of the type of proportionality test accepted by the Supreme Court of India as compared to the House of Lords in UK, it would be much easier for UK Parliament to create surveillance programmes. This is due to the fourth parameter stated in Huang302, which allows the interests of individuals and groups to be balanced and potentially be superseded by the interests of the society.

297 PJS v. News Group Newspapers Ltd., [2016] UKSC 26 (2016). 298 Google Inc. v. Judith Vidal-Hall and Others, [2015] EWCA Civ 311 (England and Wales Court of Appeal). 299 Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, [1999] 1 AC 69. 300 Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, [1999] 1 AC 69. 301 The House of Lords in Huang v. Secretary of State for the Home Department, [2007] UKHL 11 (2007). 302 The House of Lords in Huang v. Secretary of State for the Home Department, [2007] UKHL 11 (2007). 115

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(c) Canadian Jurisprudence The Supreme Court of Canada in R. v. Edwards Books303 had laid down three-fold standard while evaluating legislations encroaching upon fundamental rights - (i) the limiting measures must be carefully designed, or rationally connected, to the objective; (ii) the limiting measures must impair the right as little as possible; and (iii) their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.

The Canadian Supreme Court in Andrews304 relied on the R. v. Edwards Books decision to espouse a proportionality test while analysing the rights and freedoms guaranteed by The Constitution Act, 1982, of Canada. The Court held that it must consider (i) the nature of the right, (ii) the extent of its infringement, and (iii) the degree to which the limitation furthers the attainment of the legitimate goal reflected in the legislation. This is also famously known as the Andrews standard.

In Canada, the Privacy Act provides the confines within which the State can encroach upon the privacy of individuals via legislative action. The Privacy Act has been subjected to several judicial interpretations, such as the interpretation of the term ―personal information‖, as provided under Section 3 of the Privacy Act305, by the Supreme Court of Canada in Canada (Information Commissioner)306. Therefore, in Canadian jurisprudence any encroachment on the privacy of an individual will have to be understood in light of the Andrews standard and the Canadian Privacy Act 1985, as privacy has not been guaranteed as a fundamental right under the Canadian Constitution307.

(d) South African Jurisprudence South Africa is one of the few countries which explicitly recognizes the right to privacy of individuals in its Constitution. Section 14 of the South African Constitution308 protects the right to privacy of individuals. It states that:

―Everyone has the right to privacy, which includes the right not to have:

(a) Their person or home searched;

303 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (Supreme Court of Canada), p. 768. 304 Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 (Supreme Court of Canada), ¶ 15. 305 Privacy Act §. 3, RSC 1985, c P-21 (Canada). 306 Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 (Supreme Court of Canada). 307 The Constitution Act, 1982 (Canada). 308 Constitution of the Republic of South Africa, 1996, §. 14 (South Africa). 116

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(b) Their property searched;

(c) Their possessions seized; or

(d) The privacy of their communications infringed.‖

Therefore, the South African Constitution has explicitly set out the confines of a constitutional right to privacy. The right to privacy in South Africa, much like other countries is not absolute309. Justice Ackermann in Bernstein310 decision of the Constitutional Court of South Africa held that ―the scope of a person's privacy extends „a fortiori‟ only to these aspects in regard to which a legitimate expectation of privacy can be harboured.‖

The South African Supreme Court of Appeal in the S. v. Nkabinde decision311 held that the monitoring of conversations between the accused and his legal representatives by the police violated the right to privacy protected under the South African Constitution. This can be justified under Section 14(d) of the South African Constitution. However, other private acts which must be protected under informational privacy, could potentially be protected by adopting an expansive reading of Clauses (a), (b) and (d) of Section 14.

CONCLUSION

In light of the aforesaid discussion, the following points can be agreed upon – (1) The current discourse on Privacy lacks the necessary clarity; (2) There is a need to redefine the contours of Privacy or a ‗right to privacy‘ in order to avoid confusion with other constitutional values such as, liberty, autonomy, dignity etc.; (3) Whenever there is a question of State Surveillance, there are multiple competing interests at play – State (Government) interest, Public interest, Individual interest, and the Courts must adopt a fine adjudication strategy to be able to balance all three in a manner that the equilibrium remains undisturbed; (4) The boundaries of right to privacy must be made amply clear to the Public, so that they can accordingly tweak their conduct.

For point (2), we have proposed a fresh definition of Privacy [Refer Part II], which we believe might be able to plug the existing gaps in the existing framework. In conclusion, let

309 C.M. van der Bank, The Right To Privacy – South African and Comparative Perspectives, 1(6) European Journal of Business and Social Sciences 77-86 (2012). 310 Bernstein and others v. Bester and Others, NNO 1996 (2) SA 751 (CC) (Constitutional Court of South Africa), ¶ 75. 311 S v. Nkabinde, 1998 8 BCLR 996 (N) (South African Supreme Court of Appeal). 117

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] us end with the words of Justice Sanjay Kishan Kaul312 - ―Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new‖

312 Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶83 of S.K. Kaul J. 118

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ENFORCEMENT OF UNCONSTITUTIONAL STATUTES

Authored by Vidhusha G V Dr. Ambedkar Govt. Law College, The Tamilnadu Dr. Ambedkar Law University, Chennai. [email protected]

ABSTRACT

The power of judicial review is akin to a veto, wherein the Court can ―strike down‖ or render ―void‖ a duly enacted statute. Due to the lack of communication between the organs of the government and the absence of information, violation of court rulings has become the norm of the day. Even after removal of impugned provisions by virtue of them being declared unconstitutional by the Courts, they are still alive in the statute book. Independence of judiciary implies that other organs of the government must not, in any way, hinder the judiciary from awarding justice. Judiciary, being a prominent part of the democratic political process in a country, is indeed accountable under the Constitution for preserving the democratic traditions and the rights of people of the country. Any executive order or legislative enactment of the state interfering with the adjudicatory process would be ultra vires of the Constitution. Such an act would be a manifestation of a desire on the part of the state to be a judge in its own cause and to defy the decisions of judicial authority. It would sound the death knell of the rule of law by making it meaningless as it would be open to the Executive to defy the judgments and get away with it.

“Judicial review is enunciated by the theory that the Constitution, which is the fundamental law of the land, is the will of the people, while a statute is only the creation of the elected representatives of the people, when, therefore, the will of the legislature as declared in the statute, stands in opposition to that of the people as declared in the constitution- the will of the people must prevail”. It is emphatically the province and duty of the Judiciary to say what the law is.

With this aim and background, the researcher through this research paper aims to analyze the consequences of an unconstitutional statute and its continued employment by the authorities in its post unconstitutionality stage.

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INTRODUCTION

A statute void for unconstitutionality is dead and cannot be revitalized by a subsequent amendment of the constitution removing the constitutional objection but must be re-enacted.

- Prof. Cooley

An unconstitutional statute under every circumstance lacks the force of law. An unconstitutional statute is fatally smitten at its birth and the decision of unconstitutionality was a mere judicial declaration of a pre-existing fact313.To maintain the spirit of democracy, it is essential to have an independent and impartial body like judiciary to determine the constitutionality of any legislation rather by the matter of legislation itself. Judicial review, in its broadest context, is the self-assured right of the court to pass upon the constitutionality of the legislative act. Justice Goldberg, "judicial review is not a usurped power but a part of the grand design to ensure the supremacy of the constitution".314 The question is not of parliamentary supremacy or judicial supremacy, rather the issue is about striking the balance between the two to have a democratic setup where the public interests are not violated. The argument that the statute is discriminatory and unconstitutional should have been met with counter arguments about why such a statue is not discriminatory and unconstitutional. Democracy is said to be enhanced by judicial review because constituent power makes rules on the basis of the special majority. Certainly, all those who have framed written constitution contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution is void.

In the words of Marshall315, ‗any law contrary to the constitution is void such that the judge merely finds and declares such nullity‘. Kelsen while contradicting the view of Marshall, establishes that it is not void but can only be established as void by the courts. A norm is valid if and because it was created in a certain way, which in turn is determined by another norm: thus, the latter norm constitutes the immediate basis of the validity of the former. To express the relationship in question, we can use the special image of a hierarchy, the relationship of superiority to subordination: the norm that governs the act of creation is the superior norm.

313 Ex parte Bockhorn, (1911) 62 Tex. Cr. 651. 314 Rostkerv v. Goldberg, [453 U.S 57 1981]. 315 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 120

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Hence, the constitution is supreme to the law because it governs the drafting of laws. It is supreme, simply, because there is no other positive rule of law from which it could find the basis for its own validity. The concept of supremacy is not indispensable for justifying judicial review because the superior nature of the constitution will suffice.

RESEARCH METHODOLOGY

The methodology employed in this study is Doctrinaire and includes the review of literature available from law journals, case law references, periodicals, library researches, books, and internet.

RESEARCH QUESTIONS

 What will be the consequences of an Act when declared unconstitutional by the judiciary?  Can an unconstitutional law be enforced?  Can the parliament re-enact a law already held unconstitutional by the Supreme Court?  Can the Supreme Court order the parliament to frame a law for creating enforcement machinery?  Whether the power of judicial review includes an absolute power to declare a statute as unconstitutional?

DEFINITION AND PURPOSE OF JUDICIAL REVIEW

Judicial review, as defined by Smith and Zurcher, ―The examination or review by the courts; in cases actually before them, of legislative statutes and executive or administrative acts to determine whether or not they are prohibited by a written constitution or are in excess of powers granted by it and if so, to declare them void and of no effect‖316.

Edward S. Corwin, ―Judicial review is the power and duty of the courts to disallow all legislative or executive acts of either the central or the state governments which in the court's opinion transgresses the constitution‖317. In Hamdard Dawakhana v. Union of India318, the

316 Edward Conard Smith & Arnold John Zurcher, Dictionary of American Politics 212 (Barnes & Noble, New York, 1959). 317 Edward S. Corwin's Constitution And What It Means Today (1978 ed.). 318 1960 SCR (2) 671. 121

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Supreme Court for the first time struck down as unconstitutional an Act made by union parliament on the ground of excessive delegation.

In the words of Madison, ―A Constitution can be preserved in practice in no other way than through the medium of the courts of justice‖319. Montesquieu, in his Separation of Powers theory, greatly emphasizes restriction on uncontrollable authority in any one organ of the government. Thus, the doctrine of judicial review is aimed at establishing a limited government to promote constitutionalism and to maintain rule of law.

In Deoman Upadhyay v. State320, the learned judge observed that it is not open to the legislature to contravene and flout the provisions by taking shelter behind the plea that the enforcement was accidental and not deliberate.

Charles Grove Haines and Foster H Sherwood321 explain by expressing the views on the constitutionality of legislation, that the court gives inspiration to the legislature and arouses alertness and caution to rectify mistakes it creates.

Alexander Hamilton in his Federalist No.78 held, ―The interpretation of the law is the proper and peculiar province of the courts. A constitution is in fact and must be regarded by the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If these should happen to be an irreconcilable variance between the two that which has the superior obligation and validity ought, of course, to be preferred to the statute the intention of the people to the intention of their agents‖322. Judicial review propounded by Chief Justice Marshall in Marbury v. Madison323 by adopting the view of Alexander Hamilton in the Federalist explains that the legislature has no authority to make laws repugnant to the constitution, and in the case of constitutional violation, the court has absolute and inherent right to declare the legislative act void. There are many instances where in which the Indian Parliament had overturned the verdicts of Supreme Court by making amendments in the impugned legislations. For instance in 2018, Indian Parliament introduced section 18A to overturn the safeguards introduced by the Supreme Court in Kashinath Mahajan case324 and had undone all necessary safeguards established by the Supreme Court to prevent the people

319 Marbury v. Maddison, 5 U.S. (1 Cranch) 137. 320 AIR 1960 All 1. 321 Richard Pacelle, The Role Of The Supreme Court In American Politics: The Least Dangerous Branch?, Perseus (October 18, 2001). 322 The Judiciary Department, Federalist No. 78, New York, May 28, 1788. 323 Id. 324 Dr. Subash Kashinath Mahajan v. State of Maharashtra, dtd. 20th March 2018 [Cr. Appeal No. 416 of 2018]. 122

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] from abusing the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. Thus in order to satisfy the populist response Parliament had circumvented the court‘s verdict which is not a healthy constitutional procedure since it tries to disregard the purpose of judicial review.

The Indian Supreme Court enjoys enforcement powers implicitly provided under Article 142 of the Indian constitution. The notion of complete justice mentioned under Article 142 can be attained only by creating a piece of strong enforcement machinery to execute the rulings of the court. But, the constitutional makers have left the power of enforcing the decrees with the parliament. A law enacted by the parliament is required to enforce decrees and orders of the Supreme Court. Till now, no such legislation was made in this regard.

But the presidential order was issued in 1954 titled, „THE SUPREME COURT DECREES AND ORDERED ENFORCEMENT ORDER, 1954‟325 provides for two circumstances

 Where any decree or order was passed or made in exercise of the Supreme Court's appellate jurisdiction, it shall be enforceable in accordance with the provisions of law relating to the enforcement of decrees or orders of the court or tribunal from which the appeal to the Supreme Court was preferred.  In any other case, the enforcement will be in accordance with the provisions of law relating to the decrees or orders of such court, tribunal or other authority as the Supreme Court may specify in its decree or order or in a subsequent order made by it on the application of any party to the proceeding.

After analyzing the above order, it is clear that the ultimate authority and power to enforce the orders and decrees of the Supreme Court has become more complicated. Normally, the Supreme Court resorted to contempt proceedings for enforcing its judgments. To sustain democracy and galvanize rule of law, it is pertinent to ensure proper constitutional safeguards to provide enforcement powers for the judiciary. Enforcement of judicial decisions still requires the mercy of parliament or executive to keep it alive and functioning. Section 66A of the IT Act 2000 was held unconstitutional by the Supreme Court in the case of Shreya Singhal v. UOI326. But the police authorities in Muzaffarnagar, U.P arrested and detained 18- year-old Zakir Ali Tyagi under Section 66A on October 2017 for posting some comments on

325 C.O. 47, Dated 14th January, 1954. 326 (2013) 12 S.C.C. 73. 123

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Facebook327. Media outlets have reported some other cases where constitutionally invalid Section 66A has been invoked by the police which reinforce the importance of creating a piece of enforcement machinery for judicial orders. Umpteen numbers of laws were held unconstitutional and invalid by the judiciary, but it stills holds relevance and prominence in various departments of the government. Lack of communication and absence of review system for updating the constitutional status of the legislation makes it impossible to repeal the impugned statutes from the law books. Regarding the fundamental rights, judiciary has been awarded the role of a sentinel on the qui vive under Article 13 of the Indian Constitution. While the court gives immense weight to the legislative judgment, it still cannot deviate from its own duties to determine the constitutionality of the impugned statute. Every law has to pass through the test of constitutionality which is indeed a formal test of rationality. Power of judicial review was explained by the nine-judge bench in the case of Supreme Court Advocates on Record Association and Others v. Union of India328 in the following way:

GROUNDS OF UNCONSTITUTIONALITY – a law generally can be held unconstitutional on the following grounds:

- Contravention of any fundamental right, specified in Part III of the constitution. - Legislating on a subject which is not assigned to the relevant legislature by the distribution of powers made by the 7th Schedule read with relevant powers guaranteed by the Constitution. It follows from the premise that a law made in derogation or in excess of that power would be void ab initio, wholly or to the extent of the contravention, as the case may be. - Contravention of any of the mandatory provisions of the constitution which imposes limitations upon the powers of the legislature329. The test in determining the constitutionality for determining the want of legislative power is either about positively affirming to legislate in the respective field to make laws or negatively prohibiting the authority form infringing the constitution - In the case of a law legislated by any state legislature, it will be invalid if it seeks to operate beyond the boundaries of the State.330

327 40 Days‘ Jail for FB Posts: Zakir Tyagi on ―Dictatorial‖ UP Govt, The Quint (June 18, 2019, 01:23 PM), https://www.thequint.com/videos/news-videos/zakir-ali-tyagi-jailed-for-facebook-post-up-cm-yogi-adityanath. 328 W. P. (Civil) No. 13 of 2015. 329 AIR 1961 SC 232. 330 1957 SCR 874. 124

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- That the legislature concerned with the impugned legislation has either abdicated its essential legislative function as assigned to it by the constitution or has made an excessive delegation of that power to some other organ of the state331.

American constitution, while establishing the legal system, asserted that there needs to be a law superior to the legislature itself and that it was the restraints of this paramount written law that could only save them from the faces of absolutism and autocracy, which are ingrained in human nature itself.332 Thus, relying on the above constitutional norm, the principle of judicial review was embedded in the Indian constitution. It is the judiciary that safeguards the interest of citizens by not allowing the other organs to go beyond their assigned role in the constitution. Thus, the Indian judiciary is the final authority in interpreting legal issues and constitutional arrangements. The nature of democracy and the development of the state depend upon how the legal system conducts itself to sustain the overall socio-economic and political environment. Judiciary, having the power of judicial review, connotes that every piece of legislation passed by the parliament is subject to judicial scrutiny by the supreme court of India to safeguard constitutional supremacy. The Supreme Court has concurrent jurisdiction with the high court to issue directions, orders, and writs for enforcement of fundamental rights and has the power to declare a law passed by the legislature as null and void if it encroaches upon the basic features of the constitution.

PRESENCE OF UNCONSTITUTIONAL STATUTES IN THE STATUTE BOOK

Every post-constitutional law infringing a fundamental right and thereby, falling within the scope of article 13(2) will not make the statute to be unconstitutional from the statute book. Any declaration of unconstitutionality of a statute by the judiciary, made subsequent to the enactment of such statute cannot completely remove such statute from the statute book of the legislative body. As Das G.I., observes in Deepchand v. State of U.P., ―A post constitution law may infringe either a fundamental right conferred on citizens only or a Fundamental Right conferred on any person, citizen or noncitizen. In the first case, the law will not stand in the way of the exercise by the citizens of that FR and therefore will not have any operation on the rights of citizens, but it will be quite effective as regards noncitizens. In second case law will be on the statute book as a valid law binding on non-citizens and if any discrepancy

331 1960 AIR 554. 332 Rottschaefer in his work on CONSTITUTIONAL LAW, Pg. no. 34. 125

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] is removed by any constitutional amendment then the law will immediately be applicable even to the citizens without being re-enacted‖333.

When legislation intends to violate the basic features of the constitution, it calls on the judicial power to resist legislative or executive action from offending the grund norm of the nation. In Keshava Madhava Menon v. State of Bombay, Mahajan J. held that ―the provisions of the constitution affect legislative competence and that any law made after 26th January 1950, which was repugnant to such provisions was null and void from its very birth, either wholly or to the extent of the contravention, as the case may be, that anything was done under it, whether closed, completed or inchoate will be wholly illegal, that such law must be deemed obliterated from the statute book and that relief in one shape or other has to be given to the person affected by such an unconstitutional law by resort to the exercise of powers given to the supreme court by the constitution‖334.

AFTERMATH OF UNCONSTITUTIONALITY OF A STATUTE

To understand the legal nature of an unconstitutional statute, it is important to analyze the infringed provisions of the constitution. The unconstitutional status of a law can be waived by restoring its constitutionality without re-enactment. But if it is proved that a statute was passed by the legislature which had no power to pass the legislation, then such statute cannot acquire validity.

In Chintaman Rao v. State of M.P., Mahajan J. held ―When the provisions of the statute are of wide amplitude when the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action, affecting the rights of the persons for whose benefit the action was legislated. So long as the possibility of it being applied for the purposes not sanctioned by the constitution cannot be ruled out and be held unconstitutional and void‖335.

In Behram Khurshed Pesikaka v. The State of Bombay336, the learned judge observed that ―We are not able to endorse the opinion that a declaration of unconstitutionality brought about by lack of legislative power stands on a different footing from a declaration of unconstitutionality brought about by reason of abridgment of fundamental rights. We think

333 1959 AIR 648. 334 1951 SCR 228. 335 1950 SCR 759. 336 AIR 1955 SC 123. 126

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] that it is not a correct proposition, that the constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative powers. It is axiomatic that when the law-making power of a State is restricted by the written fundamental law, then, any law enacted is opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. Articles 245 and 246 of the Constitution stand curtailed by the fundamental rights chapter of the Constitution. A mere reference to the provisions of Article 13(2) and Articles 245 and 246 is sufficient to indicate that there is no competence in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution after the coming into force of the-Constitution. The authority, thus, conferred by Articles 245 and 246 to make laws subject wise in the different Legislatures is qualified by the declaration made in Article 13(2). That power can only be exercised subject to the prohibition contained in Article 13(2).‖

In Namit Sharma v. Union of India337, the learned judge while referring American jurisprudence held that a statute declared as unconstitutional can neither create rights nor destroy existing ones by making amendments because it is an empty legislative declaration without force or vitality. Normally, an unconstitutional statute is to be considered as though it had never been enacted by the legislature. In Norton v. Shelby County338, Justice Field observed, ―an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed‖339. Courts will regard the statute as unconstitutional if its unconstitutionality is demonstrated beyond a reasonable doubt.

Cooley explains the nature of the consequences of a void statute in the following words, ―when a statute is adjudged to be unconstitutional, it is as if it had never been and what is true of an act void in toto is true, also, as to any part of an act which is found to be unconstitutional and which consequently is to be regarded as having never, at any time. Rights cannot be built up under it; contracts which depend upon it for their consideration are

337 No. 2309 of 2012. 338 118 U.S. 425 (1886). 339 Id. 127

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] void. It constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made‖340.

Normally, if any state authority fails to follow the order of judiciary, then proper action can be taken against them because the power to punish for contempt is an inherent power of the higher forums of Indian judiciary. But if any agency of the central government refuses to follow the Supreme Court order, it would certainly lead to constitutional crisis. The absence of a proper enforcement machinery to proceed with the contempt proceedings would lead to a standoff between executive and judiciary. The test of constitutionality is the means by which the judiciary can check whether the impugned legislation or order is proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right are not disproportionate to the purpose of the law. In lower judicial forums, essential powers of enforcement were vested with them under CPC. In Century Flour Mills v. Suppiah341, it was held that if something has been done in disobedience, then it is the duty of the court as a matter of judicial policy to undo the wrong done in disobedience of court's order. In Bhagat Singh Dugga v. Devan Jagbir342, the learned judge of Calcutta HC observed that ―law cannot make express provisions against all inconveniences and that the court had, therefore, in many cases where the circumstances warranted it, and the necessities of the case required it, acted upon the assumption of the possession of an inherent power to act ex debito justiae and to do that real and substantial justice for the administration of which alone it exists‖.

In the words of Rottschaefer on unconstitutional statutes343 ―the legal status of a legislative provision, in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provisions never had legal force as applied to cases within that clause.‖

340 Cooley's Constitutional Limitations 114, 750, 832 (8th ed., Boston: Little, Brown, And Co., 1927). 341 AIR 1975 Mad 270. 342 1962 SCR Supl. (1) 450. 343 In Behram Kurshed Pesikaka v. State of Bombay, Supreme Court of India quoted Rottschaefer in his work on Constitutional Law. 128

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In Saghir Ahmed v. State of U.P.344, the learned judges were considering a question as to whether a post-constitution enactment, which infringed the fundamental rights guaranteed under the part III on the date when it was passed, can be saved by subsequent amendment of the constitution, particularly with reference to fundamental rights. The Supreme Court was of the view that the validity of the act will have to be judged by considering as to whether it violates the Fundamental Rights guaranteed to the party therein under constitution on the date when the act was passed.

In the words of Justice Mukherjee, the amendment of the constitution, which came later, cannot be invoked to validate earlier legislation which must be regarded as unconstitutional when it was passed. Prof. Cooley, in his constitutional limitations, explains that a statute void for unconstitutionality is dead and cannot be revitalized by a subsequent amendment of the constitution removing the constitutional objection but must be re-enacted.

The Supreme Court in Chembakave Vadakkekkara Lakshmi v. Nelliseri Gramam Narayanaswami345 held that the Supreme Court hereby approves the statement of Prof. Cooley that the statute which is void for unconstitutionality is a dead statute. There is no distinction between the unconstitutionality declaration, either for lack of legislative power or for abridging fundamental rights. The above classification merely represents the dual aspects of want of legislative paper.

There is no scope for introducing terms like ‗relatively void' coined by American judges in construing a constitutional interpretation because such is not applicable in the Indian scenario. Once a statute is declared void under article 13(1) or 13(2), then such declaration has the force of law and the statute so declared void is no longer law and persons whose Fundamental Rights are thus infringed and the accused need not prove that the law has been already held unconstitutional.

In Behram Khurshad Pesikaka v. State of Bombay346, the following propositions were made-

 When the law-making power of a state is restricted by written fundamental law(art.13), then any law opposed to the fundamental law is in excess of legislative authority and is thus a nullity.  The unconstitutional part of the statute declared void should be notionally taken to be obliterated from the statute for all intents and purposes.

344 1955 SCR 707. 345 AIR 1963 Ker 330. 346 Id. 129

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 On the construction of Art. 13(2) the law made in contravention of that clause is a nullity from its inception.

American jurisprudential law holds that a statute repugnant to the Constitution would be void from its birth and the same was applied in many cases while determining the constitutional status of post-constitution legislation. In Bhikaji Narain Dakras and Others v. State of M.P.347, Das C.J. held that post-constitution laws which are inconsistent with the provisions of the constitution are laws which never came to life but were stillborn as it were. Execution of judgments would be a fallacy in the absence of any enforcement machinery when the case is about determining the constitutionality of a statute.

In lieu of Article 142, every judgment of the Supreme Court related to the constitutional interpretation will attain finality because of its binding nature throughout the Indian Territory, which is indeed guaranteed under the aforementioned provision. Power under Art.142 cannot be used even to nullify the court's previous judgment because such would amount to perpetuating illegality. In the words of Justice Ahmadi, ―If the executive is honest in working the constitution then the executive is bound to obey the legislature without any kind of compulsion as laid down in the constitution and to act in accordance with the judicial decisions of the Supreme Court is an implicit obligation in the Constitution itself‖348. The rise of populism challenges the power of authorities from enforcing the law. Thus, it warrants the judiciary to intervene to provide a remedy when required. Hence, to overcome the rift between populism and sound regulatory policy, it is important to create politically insulated regulatory agencies. Normally, many laws which were opposed in populist sphere would be crucial in proper development because judiciary aims at promoting rule of law rather satiating the political vote bank. In spite of many discrepancies, the organs of the judiciary are not bending to the sustained campaign against its enforcement authorities.

Recently, many contentious regulations were addressed by the judiciary including mining and construction regulations in Delhi and Goa. This measure reciprocates the U.S. Federal Judiciary's role in enforcing school desegregation. But these activities are often considered as an example of an activist approach by the judiciary. Stepping out from its traditional role of interpreting the law and intervening in regulatory process cannot be considered as judicial activism; rather the judiciary is trying to fill up the vacuum in the law since the court cannot condone any flagrant violations by the organs of the government.

347 1955 SCR (2) 589. 348 State of Madras v. V.G. Row, 1952 AIR 196. 130

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In the words of Sabharwal Y.K CJI, ‗From an unconstitutional statute, no rights whatsoever could have flown and cannot operate under any circumstances. The judiciary can scrutinize the validity of legislative action where transgression of the fundamental rights is concerned‘. Any legislation intending to create a conflict and of rudimentary in nature needs to be scrapped under the aegis of judicial review. The duty of the judiciary is to simply give effect to the legislative policy of a statute in the light of the policy of the constitution349. Courts cannot create rights where none exists nor can they make orders which are incapable of enforcement if such created rights violated legal principles of separation of powers.

PRESUMPTION OF CONSTITUTIONALITY

Normally in India, the Supreme Court will not examine the constitutionality of law except when there is a litigable dispute between the parties. The court even adjudges on the constitutionality of a statute when such is sought under the advisory opinion provided under Article 143 of the Constitution. Political aspirations were contemplated by enforcing the statutes which are conditioned as unconstitutional by the judiciary. The theory of separation of powers created the doctrine of political question by which it clarifies that the three organs of the government are independent of each other. Any question exclusively in the domain of executive or parliament cannot be entertained by the judiciary unless such need to be interpreted in the light of the constitution. The doctrine of non-justiciability states that the issues of political nature could be resolved only by the political forums since they are not suitable for judicial scrutiny. These allegations started creeping in due to the absence of any judicially recognizable standard in assessing the claim of unconstitutionality350.

In Medical Council of India v. State of Kerala351, the court held that the ordinance which aimed at circumventing the order of the court by nullifying the effect of the judgment of the court, the impugned ordinance by the executive is encroaching upon the power of judicial review of the Supreme Court. Any ordinance aimed at nullifying the order of the court under the pretext of removing the defects in the existing law is said to be unconstitutional.

349 Dr. A. S. Anand, Judicial Review-Its Content & Its Reach, AIR 2000, J&A p.161. 350 Alice Jacob & Rajeev Dhawan, The Dissolution Case: Policies as the base of The Supreme Court, (1978) N.M. Tripathi, p. 125. 351 Writ Petition C. NO.231 OF 2018. 131

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In Janapada Sabha Chinwara v. The Central Provinces Syndicate Ltd.,352 the constitution bench of the Supreme Court held that it is not open to frame any law thereby rendering any judgment to become ineffective. It is open to the legislature with certain limits to amend the provisions of an act retrospectively and to declare what the law shall be deemed to have been but it is not open to the legislature to say that the interpretation of the law shall be otherwise than as declared by the court. The constitution bench in Cauvery water disputes tribunal case353 observed that the principle which emerges from these authorities is that generally, the legislature can change the law, which may affect a class of persons and events at large. But it cannot, however, set aside an individual decision inter parties thereby affecting their rights and liabilities alone. Such an act, on the part of the legislature, amounts to exercising the power judicial review, thereby functioning as an appellate court.

The doctrine of separation of powers even applies to the final judgments of the courts. Thus, the legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending act to remedy the defects pointed out by a court of law. In other words, the court's decision must always have binding nature unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Because such an attempt cannot be said to be a permissible legislative exercise because the function of the legislature consists in making law and not in declaring what the law shall be.

If the legislature were at liberty to annul the judgments of the court, the ghost bills of attainder will revisit thereby enabling the legislatures to pass legislative judgments on matters which are of bilateral in nature. In U.S jurisprudence, provision was made clear to outlaw the bills of attainder. It is essential that every court's decision need to have binding nature so as to prevent the authorities from fundamentally changing the circumstances, thereby negating the purpose for which it was made.

In the State of H.P. v. Narain Singh354, the Court held that when there is a competent legislative provision which retrospectively removes the substratum of the foundation of a judgment, then such exercise is a valid legislative exercise, provided it does not transgress any other constitutional limitations. This does not amount to statutory overruling on the part

352 1970 SCR (3) 745. 353 In the Matter of Cauvery Water Disputes Tribunal, [1991] INSC 303 (22 November 1991) 1992 AIR 522. 354 Civil Appeal No. 1678 OF 2002. 132

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] of the legislature. Thus in this manner, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation.

A judicial pronouncement, either declaratory or conferring rights on the citizens, cannot be set at naught by executive or legislature because such would amount to an encroachment on judicial powers.

POSITION IN U.K

The British view is that in the interpretation of a completely self- governing constitution, founded on a written instrument, if the text is explicit the test is conclusive alike in what it directs and in what it forbids355. The same view more or less was taken by the judicial committee in Queen v. Burah356 wherein it was established that the courts of justice, when a question arises regarding whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking at the terms of the instrument by which, affirmatively, the legislative powers were created and by which negatively they are restricted. These judgments have heavily influenced the provisions of the constitution. It is well settled that a law, which is beyond the power of the enacting body, is not a law at all and such a law cannot acquire validity by the mere passage of time. Thus, the presence of unconstitutional statutes in the statute book does not prove its validity. To be in concurrence with the constitution is the ultimate test to prove the validity of the legislation.

POSITION IN U.S.A.

Judicial supremacy under the U.S. Constitution is an excelling example to understand the healthy relations between the executive and Judiciary. Rulings of judicial forums are properly executed by the executive without any assistance from separate enforcement machinery. As per the U.S. Constitution, the ultimate touchstone of constitutionality is the Constitution itself and not what the judiciary explains. In, Mc Leynolds J.357, observed: an after-acquired power cannot ex proprio vigore validate a statute, void when enacted. This was considered important because legislation at that time was protected in the form of amendments. Stressing

355 Attorney General of Ontario v. Attorney General for Canada, [1937] A.C. 355. 356 (1878) 5 I.A. 178. 357 New Berry v. The U.S., 256 U.S. 232 (1921). 133

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There are instances in which the judiciary concludes that the status of unconstitutionality of statute does not amount to repealing the statute but registering the judicial reservations against the statute in that particular case. Thus in Shepherd v. Wheeling, the Court of West Virginia358 observed: The court does not annul or repeal the statute if it finds it is a conflict with the constitution, it simply refuses to recognize it and determines the right of the parties just as if such statute had no application. The court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinions or reasons of the court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does not repeal the statute.

CONCLUSION

An action which is ultra vires is without jurisdiction, null and void and of no legal effect whatsoever. It has no leg to stand on359. There is no question of estoppels against an ultra vires act. A plea of ultra vires cannot be defeated by a rule of estoppel as it would entirely destroy the whole doctrine of ultra vires but it is possible only when the donee of a statutory power extend his power by creating estoppels360.No question of approbation or reprobation. No question of acquiescence or waiver can be raised against an ultra vires act.

In Lohia Machines Ltd. v. Union of India361, the Supreme Court held that if a rule made by a rulemaking authority is outside the scope of its power, it is void and it is not at all relevant that its validity has been questioned for a long period of time. There are instances which exemplify the wanton abuse by the authorities in applying unconstitutional laws. The primary reason for the poor enforcement of judicial declarations of unconstitutionality is signal failures between different branches of government. Normally, post-decision court cannot maintain the follow-up and needs assistance from the legislature and executive to enforce decisions.

358 84 S.E.2d 140 (1954). 359 Judicial Review and the Constitution (University Of Cambridge. Centre For Public Law, Hart Publishing 2000). 360 AIR 1985 SC 421. 361 1985 AIR 421. 134

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Alexander Hamilton considers ‗Judiciary as the Least Dangerous Branch‘. Publicized acts of defiance and non-compliance of courts order undermine the work of courts.

In the words of Mitchell, in his work Writ of Erasure, fallacy states that the fallacy that equates judicial review with a veto-like power to ―strike down‖ legislation or delay its effective start date. The judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its enforcement, the disapproved law is described as having been ―struck down‖ or rendered ―void‖—as if the judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political branches carry on as though the court‘s decision has erased the statute from the law books. Judicial review is not a power to suspend or ―strike down‖ legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute‘s enforcement. The essence of the judicial duty is a fallacy because it equates judicial review with a veto-like power which it cannot be established in a proper way. The impossibility of violating the constitution is not a test but the very definition of its superiority. The famous approach of Louis Fauroeu in his Switchman Theory while analyzing French laws holds that the constitutional court does not really issue a decision on the merits of legislation, but confines itself to pointing out that the measures under consideration must be enacted in constitutional rather than legislative form. Thus, enforcing an unconstitutional statute amounts to the violation of the constitution.

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BALANCING CONSTITUTIONAL MORALITY AND RELIGIOUS

FAITH: THE DISPUTE OVER RIGHTS AROUND SABARIMALA ISSUE

Authored by Pragya Gupta & Anunay Shrivastava Students of SVKM‘S NMIMS Kirit P. Mehta School of Law, Mumbai. [email protected]; [email protected]

ABSTRACT

The relation of humans with religious faiths, beliefs and customs has always been a part of evolving human endeavours. Religious beliefs form an essential part of our society, and to ensure that such beliefs are in consonance with basic and equal human rights, there is the Constitution which checks and balances the religious practices and human rights. The present article is an analysis of the recent controversy surrounding Sabarimala temple‟s practice of discriminating women age group of 10 to 50 years and gender equality in contemporary times. The temple holds a distinct identity of having a celibate idol of Lord Ayyappa, and its devotees who consider restricting the entry of women on the notion that it is against the wishes of Lord Ayyappa and women are not capable of following the rituals because of their physiological identities, customs which constitutes their essential practices.

In lieu of this ban, the matter was placed before the five-judge constitutional bench in Supreme Court, where the court analysed the basis of such a ban on principles of constitutional morality and harmonious interpretation of Part III of the constitution. The majority judgement placed women‟s rights over exclusionary and discriminatory practices of the temple‟s governing board in name of essential religious practices. The only woman judge Justice Indu Malhotra gave a dissenting opinion and held “that notions of rationality should not be applied to matters of deep religious faith”.

The article also analyses the consequences which have taken place after the historical judgement was passed by the Supreme Court. It tries to understand the reasons for destabilisation in the society after such reformative judgements are passed and how there is incitement of sentiments especially of the devotees by political parties to gain their political ambitions through such stages. It is surprising to have violent agitations happening around this issue despite Kerala being the most literate society in the country. Whatever the outcome is intended after a fresh filing of review petition before the Supreme Court, the same should happen with a participative and healthy dialogue amongst all the possible stakeholders.

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Keywords: Sabarimala Temple, Constitutional Morality, Societal challenges, Gender equality.

INTRODUCTION

All religions are manifestation of different paths to reach the Universal One. Religion is basically a way of life to realise one‟s identity with the Divinity and Spirituality.

- Dipak Misra, Former Chief Justice of Supreme Court of India

Religion in India is recognised by a diversity of religious beliefs and practices followed by the people of the country. India is a secular state with no state religion, it is only in India people professes all the major religions of the world. The present article analyses the case of Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.362 (Hereinafter ―IYLA‖), and how the pillars of the Indian Constitution are upholding the balance between the concept of constitutional morality and the religious faith in the process of dispensing justice.

The debate with regards to restricting the entry of women of age 10 to 50 years in the 800- year-old shrine as its presiding deity, Lord Ayyappa is considered to be a celibate, has involved the Central government, successive state governments, priestly class, socio-religious organisations and the devotees of all the ages and genders around the country. India‘s religious diversity not being homogenous, the parties to the debate do not constitute one class and hold diverse viewpoints on the issue. These differences between the viewpoints have widened the political involvement of parties in power and ruined the concept of free propagation and practice of religion as a whole.

Since 1982s, the entry of women has been seen as a violation of ―traditional practice‖ followed in the temple.363 In the case of S. Mahendran v. The Secretary, Travancore364 (Hereinafter ―Mahendran‖), the High Court of Kerala banned the women‘s entry in the temple. The Supreme Court in September 2018, overturned this 1991 decision and ruled in the 4:1 ratio that preventing menstruating women from visiting the shrine violated the

362 Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC OnLine Ker 5802 (India). 363 Judith G. Martin, Why Women Need a Feminist Spirituality, 21(1/2) Women‘s Studies Quarterly Jstor, 106, (1998). 364 S Mahendran v. The Secretary, Travancore, AIR 1993 Ker 42 (India). 137

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] country‘s Constitution and was similar to the ostracism faced by India‘s lowest castes, known as ―untouchables‖.

This majority decision of a five-judge bench consisting of CJI (the then) Dipak Misra and, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra has rewritten the manifestation of constitutional dispensation on gender equality, freedom of religion and untouchability. Hon‟ble Chief Justice (the then) Dipak Misra said that ―patriarchy in religion cannot be allowed to trump the right to pray‖.365 The judgement prioritizes Article 14 over Article 25 of the Indian Constitution and provoked a great deal of opposition.

Removing the restriction on entry of women and benefitting them with the equal rights as that of man to enter and worship at the Sabarimala temple, has led to massive agitation all over the state of Kerala and has caused anxiety amongst Hindus all over the country. The unrest saw a large number of women devotees, significantly enough to force the communist-led State government of Kerala to water down attempts to allow some women who turned out to be activists, rather than devotees to enter the temple under police protection. This has become the latest battleground in a long-running conflict between India‘s modern, liberal court system and deeply conservative elements of its ancient culture.

There were around 49 review petitions filed against the verdict of Supreme Court. These review petitions relied heavily on the dissenting judgement of Justice Malhotra, the only female judge on the bench, who had contended that constitutional parameters of rationality cannot be applied blindly to matters of religion and faith. Recently on February 15th 2019, the Kerala government said in a written submission submitted to the Supreme Court that "Attaching impurity to a woman during menstrual period is an abrasion to entire humanity and abhorrent to civilised society as menstruation is a natural process and is essential for procreation‖.366

These issues involving faith, religion, rationality and constitutional morality have far-fetching ramifications and consequences, not only for the Sabarimala Temple but for all the places of religious worship in this country, which have their own beliefs, customs, traditional practices and usages, which may be considered to be exclusionary in contemporary society.

365 Supra 362. 366 Press Trust of India, Menstruation Is Natural: Kerala Government to top Court on Sabarimala, NDTV, February15, 2019. 138

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DIGNITY AND EQUAL GENDER RIGHTS

The evolution of women rights in the current Indian scenario has witnessed a major struggle in society to get their true meaning in consonance with the Indian constitution. The Indian Constitution was drafted with an intention to be a conscious keeper of its citizens and society; moreover, it ensured establishing institution such as Supreme Court which would interpret the moral conscience of the statutes in times of interest clashes. The present issue of not allowing women of particular age of 10 to 50 years in the Sabarimala Temple is a blatant mockery of the heart and soul of the Indian constitution. The ban specifically targets the natural physiological creation of women in the name of the menstrual cycle to protect their customs and religious rights.

Pluralism is defined as ―the existence of different kinds of people who have different beliefs and opinions within the same society‖367 along with the inter-religious, secular understanding. This has been a part of the Sabarimala temple‘s fabric,368 despite having such a vibrant aura of the temple‘s history the temple authority supports restricting of women. The focal point of class struggles in India has majorly revolved around the temple. It is considered to be a matter of pride, faith and affects the sentiments of masses. The perpetrators of discrimination understood this and took this as their vantage point in discriminating the weaker sections of the Indian society.369

The framers of the Indian Constitution were aware of these indifferences in the society, that‘s why they considered untouchability to be the part of Fundamental rights under Article 17 of the Indian constitution. It is perhaps the only Constitution which makes untouchability as an offence.370 The recent outcry for equal rights should be seen historically and should be compared with the Dalit struggle and their reformation. The tussle is not just for rights of worshipping the Sabarimala deity, it is also a symbol of registering their protest to age-old dogmatic customs,371 for denying women the entry because of their biological menstrual cycle.

Recently the controversy caught the ire of whole country when the Former Travancore Desam Board (Hereinafter ―TDB‖) President fuelled the debate of gender quality and untouchability with comments like, “There will be a day when a machine is invented to scan

367 Cambridge Dictionary, 2019. Available at https://dictionary.cambridge.org/license.html. 368 OB Roopesh, Sabarimala Protest, 53(49), Economic and Political Weekly (2018). 369 Arijeet Ghosh, The Sabarimala Temple Ban: An Untouchable Rule, Oxford Human Right hub (2018). 370 Upendra Baxi, Jurisprudence of inverted commas, The Hindu, September 03, 2018. 371 Supra 368. 139

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] if it is the „right time‟ (not menstruating) for a woman to enter the temple. When that machine is invented, we will talk about letting women inside‖.

Such comments are the normalised mentality of the patriarchal society which India sadly suffers even after so many decades of independence. For decades reformers like Mahatma Gandhi, E.V Ramaswami etc., formed the genesis of vehement opposition to such practices. These names are endless, mere mentioning few will be insulting to others, still, we can keep their fight alive by questioning the narrow patriarchal thinking and breaking the chains of such ailing mentality in present society.

The nation needs to stand together and support movements like ―Happy to Bleed campaign‖372 which have caught the attention of the whole world on social media. Justice D.Y. Chandrachud bends towards the principles of equality, dignity and privacy by observing, ―I would love to see a time when every temple, every mosque, every church and every gurudwara provides women an equal access, as well as equal opportunities in the clerical hierarchies‖,373 therefore our every step and struggle should be encouraged by such an imagination to set our thoughts free, until then we all legitimise caged ideology of patriarchy and inequality.

FAITH AND ITS ESSENTIAL BELIEFS

A Supreme Court judgment forms an instrument of the state as it involves the use of guiding force and coercive actions through the executive. The argument here which is of utmost concern is that the use of such force or actions to change people‘s faith and beliefs is fundamentally wrong. The excessive intervention of the state threatens freedom of religion, a fundamental right in every liberal Constitution including India‘s.

Religion is the antithesis of reason and must be treated as a separate zone of human contemplation.374 The question that arises is whether the traditional system of any faith and religion practiced by the people of this country, enshrined under Article 25 of the Constitution of India, can be put under the shackles of administration. In the judgement of

372 Victoria Richards, Indian Women Launch ‗Happy to Bleed‘ to protest against ‗sexist‘ religious rule, Independent, November 25, 2015. 373 Girish Sahane, Sabarimala: Courts didn‘t act when they should have- and overstepped the boundaries when they did, Scroll, October 24, 2018. 374 Sanjeev Sabhlok, Sabarimala: A serious case of judicial over-reach, The Times of India, December 1, 2018. 140

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The State of Bombay v. Narasu Appa Mali375 High Court held that uncodified personal laws do not fall within the jurisdiction of the courts and matters of cultural and personal beliefs are not laws. As per the centuries-old custom of Sabarimala temple, women of the age group of 10 to 50 years are not allowed to enter this temple. This is primarily attributable to the presence of the deity Lord Ayyappa as it is in the form of a ‗Naishtik Bramhachari‘ meaning, an eternal celibate who is said to practice strict and the severest form of celibacy.

Justice Indu Malhotra, is ironically the only judge who favoured the Sabarimala Temple‘s male-dominated demand to not allow the women in the temple was a woman. On dealing with the question of entertaining writ under Article 32 challenging religious practice, in her judgement she said, ―In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practices followed by any group, sect or denomination, could cause serious damage to the constitutional and secular fabric of this country.”376

The judgement also laid emphasis on the word ―custom‖ in consonance with ―law‖. The practice restricting women is continued throughout generations without interruption, and thus regarded as a custom and an ―essential religious practice‖. The reliance has been placed by the judge on Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors.377 and Bhimashya & Ors. v. Janabi (Smt.) Alia Janawwa378 to reiterate the fact that restricting the entry of the women in Sabarimala is pre-constitutional. Article 13(3)(a) of the Constitution states that the word ―law‖ includes custom or practices, and these would have an equal force of law.

The exclusion of women from the temple is not a universal practice. It pertains to the particular age of 10 to 50 years in one particular temple, with the view to preserve the character of the deity. The dissenting opinion enlightens the fact that there are around 1000 temples of Lord Ayyappa, where the deity is not in the form of a ‗Naishtik Brahmachari‟ and there are no similar restrictions on the entry of the women from entering the temple.

The emphasis is also laid on the essential practice of 41 days ―Vruthum‖ that is a condition precedent for the devotees which has been an age old custom and anyone who does not fulfil the said Vruthum are not allowed to enter the temple. Those women who have not attained puberty and those who are in menopause alone can fulfil this pilgrimage at Sabarimala as

375 The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 (India). 376 Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC OnLine Ker 5802 (India). 377 Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors., (2006) 4 SCC 748 [5] (India). 378 Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, (2006) 13 SCC 627 (India). 141

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] their menstruation period will eventually fall within those 41 days and it‘s a custom amongst all Hindu that women do not go to temple or perform any religious activities during periods (menstruation).379

On the question with respect to the practice that this practice is violative of women‘s right to gender equality and against fundamental right enshrined under Article 14, it has been stated by Mr. V. Giri, Senior Advocate in the present case, that ―if women as a class were prohibited from participation, it would amount to social discrimination‖.380 However, in the present case, girls below the age of 10 years and women above the age of 50 years can freely enter the temple and offer worship. Also, Justice Malhotra held that ―Equality in matters of religion must be viewed in the context of the worshippers of the same faith‖.381

In lieu of Article 25(1) of the Indian constitution, it was submitted that the devotees of Lord Ayyappa are entitled to the ―freedom of conscience, and the right to profess, practice and propagate their religion‖. The right to profess the faith of the devotees is preserved only when the character of the deity as a „Naishtik Brahmachari‟ is preserved. Also, the right of devotees under Article 25(1) cannot be subjected to the claims made by petitioners as to enter the temple under Article 14 and 15, since they do not profess religious beliefs in the deity; instead they are merely social activist and not true holders of faith. One of the devotees, in the recent interview by BBC, told that ―we have been coming to temple for the last 30 years. But we may not come back because women entering the temple will spoil our belief system and sacred rituals.‖382

To address the issue of ‗untouchability‘, Justice Indu Malhotra cleared the fact that this practice of restricting women is not against the principle disseminated by Article 17 of the Indian constitution. The customs and practices constituting temple‘s rituals are not associated with any practice involving ‗caste‘ in the Hindu religion as no such caste-based or religion- based untouchability is observed at the temple.

The reliance has also been placed on Rule 3(b) of Kerala Hindu Places of Public Worship (authorisation of Entry) Rules 1965, which prohibits entry of women in Sabarimala. It is declared that the rule is not ultra vires Section 3 of the 1965 Act since the proviso is an exception i.e. to ―manage its own affairs in matters of religion‖ in case of public worship for

379 Thantric text of temple worshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II refer supra 362. 380 Supra 362. 381 Id. 382 Sabarimala: The Indian god who bars women from his temple, BBC News (India), October 19, 2018. 142

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―Notions of rationality cannot be invoked in matters of religion‖, said Justice Indu Malhotra. India is a diverse country. Constitutional morality would allow all to practice their beliefs. The court should not interfere unless if there is any aggrieved person from that section or religion. In the landmark case, Shayara Bano v. Union of India & Ors.,383 with respect to the role of Courts in matters concerning religious faiths, customs and beliefs, it is mentioned that ―it is not for a court to determine whether religious practices were prudent or progressive or regressive‖. Religion and Personal Law must be perceived, as it is accepted by the followers of the faith.

THE SUPREME COURT‟S VERDICT

The Supreme Court acts as a soul of Indian Constitution as it brings in the human emotion and calls for constitutional evolution with time, just as the Canadian Constitution theorises the “living tree” concept to make sure that constitutional enriched values do not get stagnant with time.384 The present matter was placed as a writ under Article 32 of the Indian Constitution which analysed the Judgement given by Kerala High Court in Mahendran385 where the Kerala High court upheld the restriction of entry of women in the Sabarimala Temple.

The SC in a historical case of IYLA386 placed constitutional morality along with gender equality at high regards than the temple‘s age-old customs and practices which made women a mute spectator.387 Interestingly the only woman judge in the constitutional bench, Hon‟ble J. Indu Malhotra gave the lone dissenting judgement.388

The former CJI Dipak Misra along with Justices A.M Khanwilkar, R. F Nariman, and D.Y Chandrachud supported the view of lifting up the ban. It was in common consensus held by majority bench that TDB is a not private trust as its members are selected from state examination (Kerala Service Commission).389 The bench was of the view that the temple is

383 Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1(India). 384 Supra 370. 385 Supra 364. 386 Supra 362. 387 Supra 368. 388 Tangle of Temple Entry and ‗Pragmatic Politics, 3(41) Economic and Political Weekly (2018). 389 The Travancore Cochin Hindu Religious Institution Act, § 29A (India. 1950). 143

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] public place as it takes funding from the state government;390 therefore TDB functions as a state, making it responsible and accountable for implementing the fundamental rights enshrined in Part III of the Constitution.

The Supreme Court reiterated that any gender inequality in the name of essential practices and customs under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 which sustains its authority from Section 4 of the Kerala Hindu Places of Public worship (Authorisation of Entry) Act was in clear violation of Article 14, 15, 25 and, 51A (e) of the Constitution,391 without which rights of an individual and society will be paralysed.

The SC in a very clear note held that any exclusion or unequal treatment to a particular gender invokes the sanctity of Article 14 along with Article 15(1) of the constitution.392 There is no discriminating ethos amongst the gender on the basis of their physiological characteristic.393 Any law or statute which tends to discriminate its subject must have the element of intelligible differentia and the same must have a reasonable nexus to the object it caters to achieve, but in the present matter, there is no intelligible differentia or reasonable nexus behind the ban.394

It is interesting to observe how the constitutional document remained the same throughout, but its spirit of interpretation evolved with time. It is in contextual understanding that how Kerala High Court in Mahendran case (supra) sustained the ban on women, but with the passage of time, the apex court harmoniously interpreted the true meaning of statutes. Justice D.Y. Chandrachud emphasised on the historical evolution and interpretation of Article 17 of the Constitution which in no manner compromises with the struggle of elimination of untouchability from the society. Prohibition of untouchability was not framed just to restrict itself to caste protection; it was framed in a manner of prohibiting ―untouchability in any manner‖. Imagine the gravity of insensitivity when physiological terms like menstruation are attached with ‗impure‘ and ‗polluted‘, as it leaves a deep psychological imprint in the minds of people, which is nothing but torture to women of this country.

390 India Const. art. 290A. 391 Supra 362. 392 Deepak Sibal v. Punjab University and Another, (1989) 2 SCC 145 (India). 393 Anuj Garg and Ors. v. Hotel Association of India, (2008) 3 SCC 1; Charu Khurana and Ors. v. Union of India, (2015) 1 SCC 192 (India). 394 Shyara Bano v. U.O.I and Ors., (2017) 9 SCC 1(India). 144

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There is another issue which is contended i.e., ―Right time to enter the temple‖ under the paradigm of ‗invention of such machine‟395 is aberrant from the idea of fundamental rights to our citizens. Similarly, there is a concern related to question of privacy, menstruation is a private affair of an individual as it impacts the ovulating and menstruating women to have a normal social day to day life.396 Along with privacy such comments also annihilates the concept of the dignity of women as such practices coerces women to disclose something which constitutes the most essential part of human existence, therefore such a ban is clear violation of ‗Right to live with dignity and privacy‟397 enshrined under Article 21 of Indian Constitution.

The majority of bench inclined towards what was held in the case of Shirur Mutt398 and S.P Mittal399 in employing the rationality that Lord Ayyappa devotees doesn‘t come under the umbrella definition of religious denomination, as they do not have ―uniform religious tenet‖400 under Article 26 of the constitution. The majority of the bench scripted the interpretation of Article 26 in lieu of Article 25(1) of the constitution. Rule 3(b) of 1965 act is in clear violation of Article 25(1), which inculcates the values of ―all person” which supports the vision of having a society where every person, irrespective of gender, caste, class and religion have right to ―freely profess, practice and propagate religion‖.401

The apex court was consistent in the view that essential practices should be an intersection with the principles of constitutional morality. The ―essence of religion”402 is a friend of the court in such instances where the court has to carve out what constitutes an essential custom. The essentialities should be in conformity with the Hindu religion, and Hindu religion never seeks to such practices of excluding women, rather it keeps alive the idea that women are at a higher position than men. Therefore Rule 3(b) of 1965 Act cannot be considered an inherent belief of Hindu religion, understanding the weight of argument placed by senior counsel Indira Jaisingh that ―Women worshippers used to visit the temple and actively participated in religious offerings in every month for the first rice feeding ceremony of their children‖.

395 Supra 367. 396 National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438 (India). 397 Justice K.S Puttaswamy v. Union of India, (2017) 10 SCC 1(India). 398 The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, (1954) AIR 1954 SC 282 (India). 399 S.P. Mittal v. Union of India (1983) 1 SCC 51(India). 400 Supra 362. 401 India Const. art. 25(1). 402 India Const. art. 26(b). 145

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It was indeed a historical ruling from male dominated bench who were in vehement opposition of restricting the entry of women to Sabarimala temple. In principle the majority ruling became the basis of the judgement, cementing the spirit of constitutional morality and restoring faith in dignity, liberty and equality in our vibrant society through means of constitutional values.

CHALLENGES OF SOCIETY‟S POWER STRUCTURE AND ITS STATUS QUO

Let us consider our society as a mechanical machine, when all the spares of the machine are in their best shape the end result is desirable, but what happens when all the spares working together are not compatible with each other, sadly this results in disequilibrium in the society. The former analogy is just a mere attempt to understand the reasons why despite SC‘s clear directions on lifting up of the ban, the Sabarimala issue is at crossroads. Challenging a reform in a rigid society is normally the first step of history, be it abolishing the ‗Zamindari system‘, the abolition of ‗Sati‘ or elimination of caste or marginalised sections entry to the temple.

Gandhi states, ―That those who believe religion and politics aren‟t connected don‟t understand it either‖. Religion, discrimination and rights have always been an epicentre of Indian political stage. In Sabarimala context, the states have failed to implement the directions of SC. Respective parties have made their reservations in consonance with their vote bank politics. While some have till now opposed the ban others have supported the struggle to lift the ban. Fringe elements have throughout attempted to incite the sentiments of masses in view of luring the upper caste organisations like Nair Service Society along with 41 other organisations who are is stakeholders in the protest. Political parties have a tendency to woo their voters by supporting their bigot cause; lack of political will along with appeasement policies has inflicted enough harm than any other thing.403

It is quite astonishing that Kerala is the most literate society, with the highest male to female sex ratio is witnessing comments like, ―the beliefs and customs of the devotees cannot be changed through a judicial process and that the opinion of the priest is final‖.404 The inference from Justice Malhotra‟s dissenting judgement can be taken in a manner that judicial activism should not touch the age old customs of religious matters. Similarly, there is an existence of grey area when it comes to interpreting what integrates an ―essential religious

403 Rajeev Dhavan, Religious freedom in India, 35(1), Oxford University Press, 208 (1987). 404 Supra 362. 146

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] practice‖, like any other reformative interpretation by courts results into rewriting of their faith.

It is quite ironical that the vehement opposition by TDB saw an altogether different shade of arguments when the matter was placed before the bench for a review petition. The TDB was seen as an active supporter of lifting up the ban and supported the stance of IYLA in harmony with constitutional morality and its principles of just and better society.405 The altering stance of Kerala government also raises suspicion about their intention through their two different affidavits filed before the SC. Therefore this creates a problematic situation for other stakeholders at cost of opposition to lift the ban, as a historical judgement is being celebrated by society as a whole, but the native population of tribal women have taken their way to streets to register their dissent against the judgement.406 It is the inherent duty of the state to provide and to create a positive atmosphere so the women can be encouraged to visit Sabarimala temple. In recent times Kanaka Durga, Bindu Ammini were socially ostracised by the local markets for visiting the temple. Similarly, journalist Kavitha Jagdal and social activist Rehana Fathima were protected by more than 100 policemen through their journey to temple.

The state should ensure that there is proper protection to women devotees, a positive dialogue should be established with all the stakeholders in lieu of recent SC judgement to avoid any resort to violent measures. Every practice which discourages women to enter temple should have refrained amidst instances of ―purification temple premises” after two women devotee entered the temple to worship Lord Ayyappa.407 There should be serious attempts by the state to implement the guidelines under the Directive Principle of State Policies, ―to renounce practice derogatory to the dignity of women‖408along with international conventions,409 otherwise, the historical judgement will become a dead letter.

405 TDB changes stance, now backs entry of all women to Sabarimala Temple, Business Standard, February 6, 2019. 406 Radhakrishnan Kuttor, Local tribal deeply hurt against Kerala govt.‘s decision on Sabarimala, The Hindu, October 17, 2018. 407 ETB Sivapriyan, Two women entered Sabarimala temple; ‗Temple Purified‘, Deccan Herald, January 02, 2019. 408 India Const. art. 51-A(e). 409 Convention on the Elimination of all Forms of Discrimination against Women, Chapter IV, (1981). 147

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CONCLUSION AND WAYFORWARD

Customs, faith and religion followed by Hindus involve a chaotic combination of traditions and practices which cannot be put into the straightjacket formula of codification. India‘s diversity gave birth to unique beliefs and customs that may seem eccentric on the face but are real, and more importantly, forms a part of the belief followed by the people of the society. Applying the uniform criteria on all the religions and how it should and should not be practised may seem like viewing the Hindu way of life through a Semitic prism that can lead to troubling outcomes.

The Indian Constitution provides with the provisions to curb the instances of social exploitation and promotes a genderless society where both men and women should be given equal footing in every aspect of life. The Sabarimala temple ban is not just 800-year-old restriction on the women in the age group of 10 to 50 years from practising their individual right to freedom of religion, but also is reflective of all the social ostracism, oppression and stigma around the natural phenomenon of menstruation that it makes the women ‗impure‘ and ‗untouchable‘.

Determining whether arguable beliefs, practices, and organizations are religious by seeing how closely they resemble, what is undeniably religious is a method that has been used by courts in difficult questionable cases. The present Sabarimala Judgement will not be limited only to this particular issue but it will have wider ramifications. The courts should see this case as an opportunity to reform the historical shortcomings and should look beyond the ―essential practice doctrine‖ to improve the existing condition of women in society.

It is often said that law is an evolving concept and it should grow as the society grows. The Sabarimala judgement is a positive step towards the far-reaching goals towards gender equality and that can help in setting the tone for a liberal revisiting of the constitution. It is the duty of the Supreme Court to act as a balancing wheel between constitutional morality and religious faith subject to social control. Underlying the concept of co-existence in harmony with the exercise of Fundamental Rights of others enshrined under our constitution, there are number of values, which helps us to guarantee liberty and freedom. All important values, therefore, must aim to strike this balance to achieve greater justice.

To continue the existence of a growing society, it has to experience a perceptual shift from being the disseminator of dominated patriarchal notions of obliging more rigorous standards of purity from women to be the pacifier of equality and freedom where women are in no way

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VIRTUAL CENSORSHIP IN THE ERA OF ONLINE STREAMING:

THE CHALLENGES AND CONSEQUENCES

Authored by Shreshtha Mathur Student of National Law University, Jodhpur. [email protected]

ABSTRACT

With the advent of online streaming services like Netflix, Hotstar, Amazon Prime Video and others, content accessibility for viewers has reached unprecedented heights. The gap between an interested viewer and a content provider has been reduced to a mere online transaction. In a very small amount of time, online content providers have proved their mettle by establishing a humongous viewership which could, potentially, turn the concept of going to the movies obsolete. Recently, a Code of Best Practices for Online Curated Content Providers was signed by several online streaming services which explores the concept of voluntary censorship as opposed to the conventional method of pre-censorship employed for movies.

In light of the emergence of this new culture of online streaming, this paper seeks to analyse the constitutional limits of the censorship of its content under Article 19(1)(a), Article 19(2) and Article 14. The author seeks to establish that the internet cannot be censored in the same way as movies. The object is to establish that the distinction drawn between the internet and other mediums is based on an intelligible differentia which is a requirement under Article 14. Most of the online streaming services have agreed to voluntary censorship recently and the author justifies it as a reasonable step as the Government cannot censor them like movies. However, the Government does have some power to regulate their content owing to their status of an intermediary under the Information Technology Act.

INTRODUCTION: The prevalent legal position of censorship and the new challenges posed by live streaming in India

Different mediums have different laws of censorship to govern them. For the examination and certification of films, the Central Board of Film Certification [“CBFC”] was constituted under the Cinematograph Act.410 The CBFC accords U, UA, A and S certificates to movies

410 Cinematograph Act, 1952, Section 3. 150

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] before their public exhibition in accordance with their content.411 The constitutionality of such pre-censorship has been upheld by the Supreme Court.412 The exhibition of content on television is regulated by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994. Programmes broadcasted on television must not contain anything offensive to good taste or decency, an attack on religions or communities, anything obscene, defamatory, deliberate, suggestive innuendos, half-truths etc.413

Until recently, Bollywood movies released in the theatres after getting certified and approved would then be uploaded on the internet to reach a larger audience. Similarly, television shows which got televised would then be made available on sites like YouTube.

It was declared by the Information and Broadcasting Ministry in 2016 that it has no control over films appearing online and was not pursuing to create a regulatory framework for censorship of content appearing on the internet.414 But, this scenario has now changed in light of TV series and movies being exclusively released on websites like Netflix and Amazon Prime. It begs the question of censorship as it is fresh and unregulated content directly reaching the masses without any certificate or formality.

The Code of Best Practices for Online Curated Content Providers [“Code”] has been drafted by the Internet and Mobile Association of India [“IAMAI”].415 The IAMAI is a registered non-profit body and its mandate is to expand and enhance the online and mobile value added services sectors.416 Netflix, Hotstar, Jio, Voot, ALT Balaji and others signed this code that prohibits the Online Curated Content [“OCC”] platforms from displaying certain content.417 Amazon Prime, on the other hand, opposed this idea of censorship and did not sign the code. Such prohibited content, according to the Code includes content which violates the Information Technology Act, Indian Penal Code, Emblems and Names (Prevention of Improper Use) Act and Indecent Representation of Women (Prohibition) Act among others.

411 Cinematograph Act, 1952, Section 5A. 412 K. A. Abbas v. The Union of India, 1971 AIR 481. 413 The Cable Television Networks Rules, 1994, Rule 6. 414 Aroon Deep, I & B Ministry: We are not considering censorship of Hotstar and Netflix, Medianama, December 13, 2016, (June 18, 2019, 06:53 PM) https://www.medianama.com/2016/12/223-ib-ministry-not- considering-censorship-hotstar-netflix/. 415 Code of Best Practices for Online Curated Content Providers, Medianama, January 14, 2019, (June 18, 2019, 06:53 PM) https://www.medianama.com/wp-content/uploads/Consolidated-Draft-14012019.pdf. 416 About us, Internet and Mobile Association of India, (June 18, 2019, 06:56 PM) https://www.iamai.in/AboutUs. 417 Netflix, Hotstar, Jio, others sign self- censorship code, The Economic Times, January 18, 2019, (June 18, 2019, 06:57 PM) https://economictimes.indiatimes.com/industry/media/entertainment/netflix-hotstar-jio-others- sign-self-censorship-code/articleshow/67581405.cms. 151

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These OCC platforms have agreed to voluntary censorship under political pressures and criticisms over explicit content.418

The objectives of this Code are to empower consumers to make informed choices on age- appropriate content, protect the interests of consumers in accessing the content they want to watch and respect creative freedom of content creators and artists. It also provides for the redressal of complaints made by any viewer with respect to the content featured on these OCC platforms.

THE OBSTRUCTIONS FACED IN THE CENSORSHIP OF CYBERSPACE

Films and television shows are created and broadcasted in the country. As a corollary, they are regulated under the Indian law quite conveniently and have a clear nexus. However, in the case of online content, there are certain fundamental issues attached with censoring it. It is a grey area as there is a lack of clarity with respect to it due to the following reasons: -

. Cyberspace does not lie within the borders of any country. The Declaration of the Independence of Cyberspace states that the governments of the world have no sovereignty over cyberspace.419 Not falling within the borders of India makes it technically difficult to regulate because it is content that is not necessarily the product of the creativity of Indian citizens. . The quest for parity between offline and online regulation is undeniably attractive.420 A goal aligned to a focus on achieving the same outcome in offline and online contexts is to avoid inefficient discrimination between technologies.421 If two technologies can deliver similar outcomes, the government should draft laws in ways that make only relevant distinctions.422 Online content requires a holistic legal response that recognises the extent to which existing rules will apply to them.423 The objection to the aspiration of achieving a similar level of content regulation online as well as offline is the

418 Complaint Against Nawazuddin for "Abusing" Rajiv Gandhi On Netflix Show "Sacred Games", NDTV, July 10, 2018, (June 18, 2019, 06:51 PM) https://www.ndtv.com/india-news/complaint-against-nawazuddin-for-abusing-rajiv-gandhi-on- netflix-show-sacred-games-1880837. 419 John Perry Barlow, A Declaration of the Independence of Cyberspace, Electronic Frontier Foundation (June 18, 2019, 06:51 PM) https://www.eff.org/cyberspace-independence. 420 Maurice Schellekens, 'What Holds Offline, Also Holds Online?' in Starting Points for ICT Regulation, Deconstructing Prevalent Policy One-Liners, Vol. 9 (TMC Asser Press: IT & Law Series, 2006) 51. 421 Lyria Bennett Moses, Creating Parallels in the Regulation of Content: Moving from Offline to Online, 33 UNSWLJ 592 (2010). 422 Id. 423 Supra 421 at 582. 152

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argument that the internet extends beyond national boundaries and hence cannot be regulated. . As evidenced by continued use of websites such as torrentz and songs.pk, there are ways that users have successfully explored to circumvent restrictions placed on access to websites. In addition to that, online content cannot be regulated in the way to censor prohibited content shared on a peer to peer network. . Control over online content cannot be absolute, as it cannot prevent access to all prohibited material; this regulation needs to be effective at limiting access to certain categories of material.424 The internet, as a platform, is far more approachable than the content displayed in theatres and on television. It provides an opportunity to the common man to express his ideas and opinions through various ways like blog posts, tweets etc. Multimedia display is also possible as they have the freedom to post pictures, videos, audio-clips etc. The internet does not require the common man to have a big budget and power in order to share his ideas and talents with the world. Restricting such a crucial freedom in the contemporary context could have dangerous repercussions on the right to freedom of speech and expression, which is a fundamental right of the citizen.

While it is difficult to regulate the internet, it is not impossible. Ultimately, if the government were to commit itself to content regulation, it could ensure a robust content regulation regime. For instance, the Government can restrict internet access, have extensive surveillance or formulate severe penalties for those caught disseminating or possessing illegal material.425 These options are distasteful, especially in a democracy like India but the objective to achieve parity in offline and online content regulation needs to be based on it being undesirable, rather than its impossibility. Therefore, it is concluded that virtual censorship is possible but undesirable.

CONSTITUTIONALITY OF VIRTUAL CENSORSHIP IN THE CONTEXT OF THE FREEDOM OF SPEECH AND EXPRESSION

Recently, the Delhi High Court dismissed a plea which sought framing of guidelines to regulate online streaming platforms, after the Ministry of Information and Broadcasting

424 Lawrence Lessig, Surveying Law and Borders: The Zones of Cyberspace, (1996) 48 Stanford Law Review 1405. 425 Supra 421 at 595. 153

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] stated that they do not require a licence from the ministry.426 A notice was issued by the Bombay High Court to various union ministries in a PIL which sought action against all web streaming platforms like Netflix for exhibiting programs containing nude content and vulgar language.427 Another petition was filed which contended that soft pornography is being permitted on ‗hotstar.com‘ and the court made directions to look into the issue.428 All these petitions have led to the questioning of the vagueness surrounding the constitutionality of such censorship. This shall be analysed by the author in the context of the freedom of speech and expression on the basis of Articles 19(1)(a), 19(2) and 14.

(a) Article 19(1)(a): Freedom of Speech and Expression Article 19(1)(a) of the Constitution of India lays down that every citizen shall have the right to freedom of speech and expression.429 It has also been affirmed in the Universal Declaration of Human Rights that everyone has the right to freedom of opinion and expression.430

Freedom of expression must not merely protect accepted ideas but those that offend or shock any sector of the population as there is no democratic society without pluralism and tolerance.431 Home to various religions, nationalities, caste groups, cultures and schools of thought, India is a relatively more conservative and sensitive country. Irrespective of this, the judiciary has always attempted to keep an open mind with respect to artistic freedom to express above the sentiments of hyper-sensitive fringe groups. The "reasonable man test" has been actively employed for the same.432 In the Bandit Queen case, an attempt was made to restrain the exhibition of the movies due to a molestation scene but the court held that the object of the scenes was not to titillate the cinemagoer‘s lust but to arouse sympathy for the victim.433 In another case, it was held that the question of obscenity must be seen in the context in which a photograph appears and the message it wants to convey.434

426 HC dismisses PIL to regulate Netflix, Amazon Prime Video content, Times of India, February 8, 2019, (June 18, 2019, 06:48 PM) https://timesofindia.indiatimes.com/business/india-business/hc-dismisses-pil-to-regulate- netflix-amazon-prime-video-content/articleshow/67903720.cms. 427 Law Clerk From Bombay HC Files PIL Seeking Regulation Of Online Content, Cites ‗Sacred Games‘; HC Issues Notice, Live Law, October 6, 2018, (June 18, 2019, 06:47 PM) https://www.livelaw.in/law-clerk-from- bombay-hc-files-pil-seeking-regulation-of-online-content-cites-sacred-games-hc-issues-notice-read-order/. 428 Delhi HC Order W.P.(C) 10724/2016, Un-Canned Media Pvt. Ltd. v. Ministry of Information & Broadcasting, available at http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=217255&yr=2016 (June 18, 2019, 06:44 PM). 429 India Const. art. 19, cl. 1, sub cl. a. 430 Article 19, Universal Declaration of Human Rights. 431 Union of India v. KM Shankarappa, 2001 (127) ELT 8. 432 N.K. Bajpai v. Union of India, (2012) 4 SCC 653. 433 Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846. 434 Aveek Sarkar v. State of West Bengal, 2015 Cri LJ 2503. 154

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Freedom of speech and expression is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments.435 Former Chief Justice of India, M.H. Beg noted that this freedom is the arc of the covenant of democracy because public criticism is essential to the working of its institutions.436 In fact, it lies at the foundation of all democratic organizations.437 It cannot be an absolute freedom as it is necessary to tolerate unpopular views.438

In conclusion, it is important to protect the freedom of speech and expression.

(b) Article 19(2): Reasonable Restrictions The concept of censorship arises from Article 19(2) which states that the State can impose reasonable restrictions on the exercise of the right in the interests of the sovereignty of India, the security of the state, friendly relations with foreign states, public order, morality or in relation to contempt of court, defamation or incitement to an offence.439 If any limitation on the exercise of the fundamental right under Article 19(1)(a) does not fall within the four corners of Article 19(2), it cannot be upheld.440 The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.441

There have been concerns with respect to the exposure of children to the OCC services. In the United States, it has been argued that the Constitution was not drafted with children in mind and protection of the freedom of expression often collides with safeguarding the welfare of children.442 In terms of access to internet sites, the issue is that when materials are restricted for children, the spill over effect burdens adult access to lawful materials and is a setback for the First Amendment.443

Fear of serious injury cannot alone justify suppression of free speech and there must be reasonable ground to justify such suppression. In order to determine the effect of an act on the law and order situation in the society, it is important to see the disturbance of the current

435 Sakal Papers Ltd. v. Union of India, [1962] 3 SCR 866. 436 Bennett Coleman v. Union of India, [1973] 2 SCR 829. 437 Romesh Thappar v. State of Madras, [1950] SCR 602. 438 S. Khushboo v. Kanniamal, (2010) 5 SCC 600. 439 India Const. art. 19, cl. 2. 440 Express Newspapers (Private) Ltd. v. Union of India, AIR 1958 SC 578. 441 Chintaman Rao v. State of Madhya Pradesh, [1950] SCR 759. 442 Martha McCarthy, The Continuing Saga of Internet Censorship: The Child Online Protection Act, 2005, BYU Educ. & LJ 83 (2005) 93. 443 Id. 155

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] life of the community which leads to the disturbance in the public order.444 In the contemporary context, electronic media has become a powerful influencing tool because of its audio-visual impact and its wide range covering almost all the sections of the society.445

Online content has always been subjected to some amount of censorship as it is being catered to Indian audience in the territory of India and it was always supposed to be in consonance with the Indian law. It is asserted that the authority given to the government to employ reasonable restrictions under Article 19(2) to restrict the freedom under Article 19(1)(a) must be used in a very sparse manner in order to protect the right. In light of its reach, it must be censored in a reasonable manner and the threshold must be more than that of television and films.

NEED FOR A REASONABLE CLASSIFICATION BETWEEN OCC PLATFORMS AND OTHER MEDIUMS: Analysis of the constitutionality in the context of Article 14

Article 14 embodies the principle of equality before the law and the equal protection of the laws.446 The purpose is to protect persons who are similarly placed against discriminatory treatment and it does not operate against rational classification.447 The author argues that there exists a reasonable classification between the treatment of OCC services and motion pictures. So, they must be treated differently. Since, Article 19(2) allows for reasonable restrictions, Article 14 must not be violated.

Article 14 does not mandate that un-equals are to be treated as equals.448 The law has been well settled for many years that members of one homogenous group have to be treated equally. Where an act is arbitrary, it is implicit in it that it is unequal according to political logic and constitutional law and is therefore, violative of Article 14.449 The classic nexus test is that the classification must be founded on an intelligible differentia and the differentia must have a rational relation to the objects sought to be achieved by the act.450

444 Kanu Biswas v. State of West Bengal, [1972] 3 SCR 831. 445 Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161. 446 India Const. art. 14. 447 MP Jain, Indian Constitutional Law 880 (7th ed., LexisNexis, 2016). 448 M. Jagdish Vyas v. Union of India, AIR 2010 SC 1603. 449 E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 38. 450 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. 156

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It is universally recognized that the treatment of motion pictures must be different from that of other forms of art and expression.451 Motion pictures are able to stir up emotions more deeply than any other product of art due to their versatility, realism and coordination of the visual and aural senses.452 Cinematograph Act cannot be applied to the online streaming platforms as they carry out private exhibition of content, instead of a public exhibition. By the very nature of the medium, the width and reach of internet is manifold as against newspaper and films and its use is solely based upon individualistic approach of each individual without any check, balance or regulatory ethical norms for exercising freedom of speech.453 It has been held in the Shreya Singhal case that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation.454

Therefore, it is concluded that there is an intelligible differentia between the treatment of films and OCC services in terms of censorship as the two mediums are very different and it is important to make a distinction between them to ensure better protection of Article 19(1)(a). Also, the code achieves the objective of such distinction as it seeks to treat OCC content differently. In conclusion, the code satisfies the test and cannot be called arbitrary as it treats unlike mediums in an unlike way.

ANALYSIS OF OCC SERVICE PROVIDES AS INTERMEDIARIES

Service providing platforms like YouTube, Netflix, Google, etc. are intermediaries under the Indian law. Intermediary (with respect to any particular electronic records) means any person who on behalf of another person receives, stores, transmits or provides such records and it includes internet service providers, web-hosting service providers, search engines etc.455 As a general principle, intermediaries are entitled to safe harbour protection.456 Intermediaries are not held liable for any third party information or data made available by it if it proves that the contravention was committed without its knowledge or that he had exercised all due diligence to prevent it.457 With the introduction of movies and series exclusively introduced by the OCC services, it is important to make a distinction with respect to content that is produced by

451 K. A. Abbas v. The Union of India, 1971 AIR 790. 452 Id. 453 Shreya Singhal v. Union of India, (2015) 5 SCC 173. 454 Id. 455 Information Technology Act, 2000, Section 2(1)(w). 456 My Space Inc. v. Super Cassettes Industries Ltd., 236 (2017) DLT 478. 457 Information Technology Act, 2000, Section 79. 157

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OCC and content with respect to which it acts as an intermediary. There are certain issues with the law regulating intermediaries which have been laid down in the following points:

. Intermediaries are supposed to observe due diligence, i.e. they must inform the users not to host, display, upload, modify, publish, transmit, update or share any information that is grossly harmful, harassing, blasphemous, obscene, pornographic etc.458 Upon receiving knowledge or on being notified by the Government that such information, data or communication link of the intermediary is being used to commit the unlawful act, the intermediary must expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.459 This is a highly ambiguous and drastic provision as it is a unilateral attack on the suitability of content. . The Information Technology [“IT”] (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking.460 The process of blocking is undisclosed and fails to meet constitutional safeguards of natural justice. There must be a proper mechanism for looking into such issues and not an arbitrary one. Instead of a unilateral decision, a committee must be constituted to look into such matters and decide accordingly. The person aggrieved by the decision of such a committee must also be empowered to appeal against the same. . The Intermediaries Rules are ambiguous and require private intermediaries to subjectively assess objectionable content which actively waters down the exemptions from liability granted to intermediaries by Section 79 of the IT Act.461 . When required by lawful order, the intermediary is supposed to provide information or any such assistance to lawfully authorised Government agencies on a request in writing stating the purpose of seeking such information or assistance.462 In the KS Puttaswamy case, the right to privacy was held to be a fundamental right.463 Information provided by intermediaries on a written request will result in wire-tapping of the internet without any legal safeguards which was held unconstitutional.464 Such surveillance of the

458 Information Technology (Intermediaries Guidelines) Rules, 2011, Rule 3(2). 459 Information Technology Act, 2000, Section 79(3)(b). 460 Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, Rule 9; Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, Rule 10. 461 Supra 453 at 42. 462 Information Technology (Intermediaries Guidelines) Rules, 2011, Rule 3(7). 463 KS Puttaswamy v. Union of India, (2018) 1 SCC 809. 464 People's Union of Civil Liberties v. Union of India, (1997) 1 SCC 301. 158

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internet must be done in a sparse manner. This power must only be exploited only in cases of threat to national security.

Therefore, the role of OCC services as intermediaries clarify that they are currently not completely unregulated and do face some amount of regulation. This regulation is also objectionable in its character. By virtue of catering content to the Indian audience and seeking to make money out of it, it is obvious that the Government of India expects to have control over online content but this control must be constitutional in nature.

CONCLUSION

A Madras High Court bench directed the Central Government to take expeditious steps to bring all the OCC services into a legal framework.465 The online phenomena such as blue whale game bring out the negative side of the internet and the courts cannot remain mute spectators when faced with such a social menace.466

Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the right of an individual to listen, read and receive the said speech.467 The freedom of speech and expression of not only the owners but the viewers of OCC services cannot be unnecessarily curtailed in the name of restrictions. The Government cannot apply the same threshold that it applies to other mediums as it is no way a public exhibition of content and it is actually a private activity of an individual. A counter argument might be presented that when people watch a motion picture on YouTube after its release, it can be called a private activity by this logic which makes it flawed. However, this argument cannot stand as such content has already been censored before its actual public exhibition but online content does not require any exhibiting in public.

It must be borne in mind that every element that might offend or be unacceptable to a section of the society cannot be prohibited as per law. For example, a gay love making scene might offend a lot of persons but it might be a form of artistic freedom which seeks to liberate minds. The question whether a man has committed a breach of law and order is a question of degree and the extent of the reach of the act upon the society which must be answered on the

465 Judicial Registrar, Madurai Bench of Madras High Court v. Secretary to Government, Union Ministry of Communications, (2017) 8 Mad LJ 712. 466 Id. 467 Tata Press Ltd. v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139. 159

Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] basis of facts.468 Where the consequences of taking an activity online are qualitatively different from its offline equivalent, it seems likely that an attempt to achieve equivalence by applying the existing offline principles is doomed to be a failure.469

The content made available by OCC services cannot and should not be put at par with the content available on other mediums as it would be an unreasonable restriction of the Article 19(1)(a) and a violation of Article 14. Online content deserves to be treated in a lenient way as the publication of content on these services is a private activity and not a public one. The right of a film maker to make and exhibit his film must also be respected as it is a part of his fundamental right under Article 19(1)(a) and may be intended for public exhibition or purely for private use.470

In conclusion, high thresholds of censorship cannot be employed in the case of OCC services content as it usually caters to a liberal audience which is not hyper sensitive. The voluntary censorship code is a reasonable way to make a distinction between OCC services and other mediums. It is a sincere hope that the judiciary will also treat them distinctively along with different thresholds.

468 Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288. 469 Jacob Werrett, Aligning Cyber-World Censorship with Real-World Censorship, 9 Conn. Pub. Int. LJ 385 (2010). 470 Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737. 160

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