Uniform Civil Code

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Table of Contents

Introduction
Development of Uniform Civil Code in Colonial Times
Post-colonial era
Uniform civil code through Constituent assembly debates
Article 44
HINDU CODE Bill
Shah Bano Case
Personal laws and Article 13
UCC and Gender Equality
UCC in Goa
Conclusion

Introduction

India is a diverse country. From north to south and east to west the diversity is very prevalent. With 6 major religions and a number of castes and sub-casts. Ours is the most diverse country on the planet. Each religion stems from different roots and ancient scriptures. These customs and usages have been ever evolving and, in the process, have taken form of laws. These laws are termed as personal laws. The Hindus, the Mohammedans, the Christians, the Parsis all possessing their own personal laws dealing with the issues arising within their communities. Apart from the broader religious distinctions in personal laws the laws also differ from caste to caste and even from one geographical territory to another. There is no one set of rules governing all even though all live in one country. That’s the Unity in Diversity Nehru talked about in his book. ^[[1]]

Talking about preserving the Diversity in India the Supreme court of India in Navtej Singh Johar v. UOI ^[[2]] said ‘vision is to accommodate all differences of culture, ideology and orientation’.

Even when we talk about protecting this diversity, the Uniform civil code has always been a point of contention right from the constitution of this nation, in fact even before that. The Uniform Civil Code seeks to bring all personal laws under one common framework governing all these diverse religious and cultural communities. Hence creating “one rule for all”. It was the vision of the Framers of the constitution to eventually establish a common code for all in the pursuit of achieving oneness and integrity ^[[3]]. But it’s been 75 years since the inception of this Republic and the Uniform Civil Code (hereinafter referred to as UCC) still remains a vision to be sought. With the election manifesto of the current government promising the implementation of UCC across India and many state Chief ministers too talking about working towards the same the discussion on this topic cannot be any more relevant.

But before we come to the current scenario lets look into the history and development of UCC in this country.

Development of Uniform Civil Code in Colonial Times

The debate over the UCC dates back to the 19^th Century when India was a British colony and the administration legal, legislative and executive was managed by the colonizers. The Lex Loci report of 1840 though talked about the unification and codification of Indian laws relating to crimes, evidence and contracts, it deliberately kept out of its realm the personal laws. Some attribute this to the British policy of Divide and rule. Some attribute it to the fear of backlash from the orthodox religious communities taking lessons from the Mutiny of 1857. The Queens Proclamation of 1858 declared nonintervention in matters of religious beliefs in British India.

Still the Crown did not completely abstain itself from legislating on religious matters. As stated earlier there were discrepancies even within the religious laws for example the Shudras allowed widow remarriage contrary to Hindu law. There was conflict in customs governing communities like Jats and Dravidians. The Hindu Widow Remarriage Act 1856, The Married Women’s Property Act 1923 and the Hindu Inheritance (removal of disabilities) Act 1937 may be seen as some of the instances where the British Raj tried to bring reforms in the personal laws.

Even the sharia law was enforced for Muslims across the country as there were differences as to the local laws as many of the converts still continued to abide by their local customs and usages. All of this created a lot of issues in delivering justice. In 1866 the Judicial committee of the Privy Council placed the Shariat over all the local customary laws. In the following years the High courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customs. However, the Judicial Committee of 1913 decided that customary laws play an important role in Muslim law and hence allowed them.

It also needs to be noted that only the Hindu and more so the Muslim communities were feared in the sense of legislating on them. The Indian Christian Marriage Act 1872 brought major reforms and procedural changes in regard to Christian marriages.

Post-colonial era

As seen above even after a number of legislations there still existed large scale discrepancies in personal laws. The B.N Rau committee which was set up to study the need for common Hindu laws concluded that it was time to move towards a Uniform Civil Code in order to get past the discrepancies and unequal treatment of women. This committee only focused on Hindu laws.

Implementation of common code was also the intention of the constitutional framers and thus Article 44 was inserted in the Constitution.

Uniform civil code through Constituent assembly debates ^[[4]]

There was a lot of contention over the UCC in the constituent assembly. There was a division over whether or not to include UCC in the Fundamental Rights Chapter. There was backlash pre-dominantly from the Muslim members.

Kazi Kamaruddin argued that local laws and customs are very significant part of Muslim personal law and there was not a single Muslim who wanted change in the personal laws. So, the state should not interfere.

Hasrat Mohani contended that the Muslims derived their personal laws from the holy Quran and they are interpreted therein. No human agency has ever interfered in these personal laws. Any interference will lead to a significant backlash from the Muslim community.

Naziruddin Ahmed was of the view that there was no doubt that there would be a common civil code in this country. But the state should not be in a hurry. What the Britishers couldn’t do in 175 years what even the Muslim rules did not do over 500 years the state should not at once. That the state should work with caution and all the communities that are to effected by any such legislation should be comprehensively consulted. Another member called the article tyrannous to the minorities.

In support of the article KM Munshi (Bombay General) argued that the submission that it would be tyrannous to the minorities is farfetched and unreasonable. He also stated that many modern Islamic nations do not recognize the local customs of minorities. He also submitted that “When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts, they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then?”

He also said that if there is no Civil code it would be disadvantageous not only to the minority but also to the majority. Hindus have different schools of thoughts Mitakshara,, Dayabhaga etc all with different sets of rules. How come in a unified nation a same religion be governed by different laws. Addressing the opposition of Hindus to the Civil Code Munshi said “They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India”.

DR. B. R. Ambedkar while addressing the issue whether it was desirable or possible to have a common code stated that there was already a uniform criminal code in Indian Penal Code, there is Transfer of Property Act and Indian Contract act for certain civil matters and various other examples proving that there is a Uniform Code in the country except for the matters of marriage and succession. That only a little corner was left untouched and Article 35 [ UCC was Article 35 in the original draft] was intended to bring about that change. He too like Munshi reiterated that many Muslim communities were already governed by Hindu derived laws due to their conversion and it was only recently after Shariat was made mandatory that they came to be governed by it. He stated that “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

But Ambedkar also clarified that the article was not a compulsion on the state to enact a Uniform Code as soon as the constituent comes into being, rather it was more of an advisory. So, the citizens should not be apprehensive that the parliament will immediately proceed to implement a code found objectionable by them.

B.N. Rau the advisor to the Constituent Assembly stated that the Directive Principles were intended as moral precepts for the authorities of the state and that they have at least an educative value.

The issue whether to include UCC in Fundamental rights was settled by a 5:4 majority. The fundamental rights sub- committee led by Sardar Vallabhai Patel held it to be of less importance than freedom of religion and outside the scope of Fundamental Rights.

Article 44

Article 44 included in Part 4 of the Constitution states that – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

The very fact that it was included under Directive Principles of state policy and not under Fundamental Rights highlights its advisory nature and lack of enforceability. Article 37 makes it very clear that none of the directive principles will be enforceable by any court, but the principles are fundamental in governance of the country and it shall be the duty of the state to apply these in making laws.

DATA REGULATION IN INDIA

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INTRODUCTION:

There isn’t a single facet of life that the pandemic hasn’t impacted. Be it healthcare, education, food, research and development, art, societal standards, or other fields. Data regulation is one of them. With everyone at home, digitalization spread like a wildfire all over the world, especially in India. From youngsters to elderly citizens, the consumption of social media platforms swelled for entrainment, education, business, e-commerce, information, etc. thus a handy exposure of themselves and their personal data to various governments- not just Indian, various institutions and organizations- also not just Indian. Ever wondered how a Google search and speech recognition access to various applications results in similar adverts appearing on numerous other platforms, applications and websites? Ever wondered why most social media platforms are free? Conceivably, they aren’t. The users and their data are the products. Hence the question- how crucial is data protection? To answer this, the amendments made in the IT Act in 2008 were not sufficient. India needs a more classified, integrated, thorough regulation to protect and regulate data and hence the birth of the Data Protection Bill(PDP), 2019.

DEFINITIONS AND MEANING:

What is data?

A compilation of all facts and statistics used either for reference or analysis. Data can be classified into various kinds. For the purpose of our topic, the area of concern is around personal data, Sensitive Personal Data Information(SPDI), Anonymity and Pseudonymity. Personal data relates directly or indirectly or in combination with other ordinary data that shows a connection with/to a natural person. SPDI is a person’s personal information relating to passwords, biometric information, financial information like bank accounts, credit cards, debit cards, and other payment instrument details, physical, physiological, physical and mental health conditions, sexual orientation, and medical information. Information readily accessible through the Right to Information Act, 2005 does not fall under SDPI ambit.

What is data protection?

Any law, set of laws, statute, rule, code of practice that legalizes control over personal data, SPDI, and any data relating to a person thus ensuring privacy of personal data. The General Data Protection Regulation(GDPR)[1] in its recitals mentions the applicability of such protection only to natural persons and not include legal persons like organizations, companies, undertakings, etc.

Data protection is often overlapped with data security, information security and cyber security. Data security is the process through which theft, unauthorized access, leak, or corruption is paralysed. With Information security, there are two basic points of difference. Data protection has narrower approach and includes only personal data and SDPI whereas information security protects all kinds of data whether physical or digital and rules for data are stringent because threat has significant gravity. Cyber security protects only digital data. Section 403, Indian Penal Code[2] includes cybercrime as theft. Surprisingly cyberattacks are controlled by “ethical hacking”(white-hat hacking) and in identifying the systemic flaws that unethical hackers(black- hat hackers) may exploit.

What is data privacy?

Ability to determine when and an individual’s personal data is to be collected, processed, and shared is called data privacy. The consent is the determining factor of data privacy and must of such activities should be given expressly(Rules 5(1) and 6(1), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (Privacy Rules))[3]. In India, such consent of minors is absent.

What is a data breach? Who can do it?

Release of personal or confidential data in an unsecured environment without permission, accidentally or deliberately, is data breach. Accidental breaches may attract lesser punishments, a deliberate data breach(cyber-attack) is a high-grade crime. When platforms seek consent to collect, process and share your personal information but fail to provide adequate safeguards to protect it, the probability of data breach increases.

Data Minimization, Data Redundancy, Data Storage and Data Retention.

To ensure data security, personal data is only accessed and processed for as long as it is required for the scope and purpose and this is called data minimization. This usually helps to keep a track record of employees of a company or students of a university. When such data is retained while abiding to the law of practice, it is called data retention. The software or hardware used to store data is called data storage. Repetitive storage of data that occupy unnecessary space is called data redundancy. Data redundancy poses threat to data security as unprotected data storage can be easily attacked.

Data Outsourcing and Data Sharing.

Data can be outsourced and shared. In sharing data, all the parties are personal information controllers. Whereas in outsourcing data, one party is a controller and one is a processor. This is often done to save financial costs. To combat the threat of the data breach in outsourcing data, data localization is encouraged where data is stored within the geographical boundaries of that country. Information giants and social media platforms such as Facebook, Goggle, Microsoft have data storage facilities all over the world that provide storage at cheap costs with maximum analytical and processing power. Data driven companies like Uber Alibaba, Airbnb possess no real property. All their business I run by analyzing customer patterns and interest. These companies rea seen with double standards as only regulate information in certain countries.

INTERNATIONAL PROVISIONS:

GDPR:

GDPR has its roots in Article 8(1)[4], EU Charter of Fundamental Rights. The law aims to simplify international business in EU while enhancing individuals’ right to control personal data. It provides room for flexibility to the member states albeit its binding nature and sets a benchmark of principles for other nations. Being a set of the most comprehensive data regulations provisions, it is mostly subject-centric and enumerated under Chapter 3. The principles of the lawful regulation as authorized by data fiduciaries only through express consent including minor, categorization of personal data, and identification privacy are mentioned in Chapter 2, data transfer to third countries in Chapter 5 and Independent supervisory authorities to protect an individual’s right in Chapter 6.

The USA:

There is no one, comprehensive federal legislation governing the acquisition and use of personal data in the United States. It is governed by a system of federal and state laws and regulations that occasionally overlap.

Self-regulatory rules and frameworks are regarded “best practices” by government agencies and industry associations.

The UK:

The already existing Data Protection Act(DPA), 1998 was updated to comply with the GDPR principles and named DPA, 2018, after Brexit to facilitate the free flow of business and information in Europe. Its provisions too are subject-centric and impose restrictions and penalties on infringing subjects’ rights, mandates registration with the Information Commissioner and emphasizes on accountability. The significant differences between the DPA, 2018 and the 1998:

Identification of right to erasure arising from an individual’s right to privacy and increased exemptions.
1. Implementation of and adherence GDPR audit principles.
Russia:

Similar provisions to those in GDPR and the Data Protection Directive can be found in the Russian Federal Law “On Personal Data(OPD).”

The OPD Law was amended in July 2014 by the Russian Federal law “On revisions to relevant legislative acts of the Russian Federation for clarification of personal data processing information and telecommunication networks”(the “Data Localization Law”) and approved in 2015 that gave people the right to be delisted from search engines(the “Delisting Law”).

China:

There is no one comprehensive data protection law. Personal information protection and data security requirements, instead are part of a complex framework that are found in various laws and regulations. The Personal Information Protection Law(PIPL), the Cybersecurity Law(CSL), and the Data Security Law(DSL) are the three primary pillars of the PRC’s personal data protection framework.

The PIPL covers public and private sector and has extraterritorial application for:processing of PRC residents’ data within the PRC;

and processing of PRC residents’ data outside the PRC for the following reasons: delivering products or services to PRC residents, analytics or evaluation of PRC residents’ behavior or any other reason as required by law or regulation.

CONSTITUTIONAL PROVISIONS IN INDIA:

The Information Technology Act, 2000:

The Original IT Act did not have provisions relating to data regulation. As amended by the Information Technology (Amendment) Act 2008, it applies to companies in and outside of India that process personal data in India or a computer, computer system, or computer network based in India. If the computer, computer system, or computer network implicated in the offense or contravention is located in India, the IT Act applies to offenses or contraventions committed outside of India as stated under Section 1(2) and Section 75 of the said act. Section 72A provides for punishments on data breach applicable to body Corporate.

Article 21, Constitution on India:

Article 21 of the Indian Constitution recognizes the “Right to Privacy” as a fundamental right. In the historic case of Justice K.S. Puttaswamy(Retd) vs. Union of India, 2017, a constitutional bench of the Supreme Court declared “privacy” to be a basic right. The establishment of the PDP Bill and the upholding of the Basic National Regime were inspired by the necessity to preserve Indians’ privacy.

Justice B.N. Srikrishna Committee 2017:

As the result of the Committee’s report. PDP Bill, 2018 was proposed legislation. In 2019, Parliament significantly updated the Bill and was called PDP Bill, 2019. The suggestions were:

Technology agnosticism- Must be adaptable in order to keep up with evolving technology and compliance standards.
1. Holistic application – Must apply to both commercial and public sector companies with differentiating requirements carved out for governmental aspirations.
2. Informed consent – To be real, such expression must be well-informed and meaningful.
3. Data minimization – Processed data should be minimum and essential for the purposes for which it is sought, as well as for additional complementary objectives.
4. Controller accountability – The data controller is responsible for any data processing, whether carried out by itself or by third companies.
5. Structured enforcement- Enforcement by a high-powered statutory authority with acceptable decentralized enforcement measures.
6. Deterrent penalties- Penalties for unlawful processing must be sufficiently severe.
Personal Data Protection Bill, 2019:

The objective of this Bill is to protect individuals’ privacy to their Personal Data and to establish a National Data Protection Authority of India for the said purposes. Prior, was the Draft Data Bill, 2017 concentrated on the consent, two separate categories of data intermediaries- data controller and data processor, and appeal for Data Privacy and Protection Authority. In 2013, Privacy (Protection Bill), 2013 was proposed which highlighted the difference between Personal Data and SDPI, Privacy Commissioner, the establishment of self-regulating authorities by industries, protection of all types of data including bodily information and surveillance, based on the recommendations of A. P. Shah Committee.

IT Rules 2021:

Issued under Section 43A of the IT Amendment Act, 2008 regulates:

Collecting, receiving, possessing, storing, dealing, retaining, using, transferring, and disclosing SPDI.
1. SPDI handling security practices and procedures (Section 8, Privacy Rules).
2. Data subjects’ rights of evaluation and updating SPDI and withdrawal of consent for SPDI processing (Privacy Rules, Sections 5(6) and 5(7)).
CERT-IN:

Computer Emergency Response Team is a designated national nodal agency by the IT Amendment Act, 2008 that responds to and records cyber security incidents, forecasts alerts, and warnings, issues guidelines relating to information security practice, etc.

Digital India Initiative:

A Government of India initiative to make government services available to residents electronically by improving online infrastructure and increasing internet connectivity. And to empower the country digitally in the field of technology. The Digital India Mission is primarily concerned with three issues providing digital infrastructure as a useful resource for all citizens, on-demand governance and services, to ensure that every citizen has access to the internet.

CRITICAL ANALYSIS: PERSONAL DATA PROTECTION BILL, 2019

Principles: Follows the recommendations of the Justice B.N. Srikrishna. Committee, 2017.
Provisions:
1. Promote consent framework, purpose limitation, storage limitation, and data minimization.
2. Impose obligations on data fiduciaries to collect only that data that is required for a specific purpose and with the express consent of the data principal.
3. Grant individuals rights to obtain personal data, correct inaccurate data, erase data, update data, and port data to other fiduciaries.
4. Impose obligations on data fiduciaries to collect only that data that is required. to specify a provision relating to “social media intermediary” whose actions have significant impact on electoral democracy, state security, public order, or India’s sovereignty and integrity, and empower the Central Government to protect the interests of data principals, prevent any misuse of personal data, ensure compliance with the provisions of the proposed legislation, and promote awareness about data protection;
5. Empower the Authority to specify the “code of practice” to promote good data protection practices and facilitate compliance with the obligations under this legislation.
6. Empower the Central Government to exempt any government agency from the proposed Legislation’s application.
7. Empower the Authority to exempt any government agency from the proposed Legislation’s application; to empower the Authority to exempt any government agency from the proposed Legislations.
8. Designate an “Adjudicating Officer” to decide on the penalties and the compensation under its provisions;
9. Create an “Appellate Tribunal” to hear and decide any appeals from the Authority’s and Adjudicating Officer’s orders under paragraphs 54, 63 and 64.
10. Levy “fines and punishments” for violating of its clauses.

Application of its provision:
- Body corporate- A body corporate is defined under Section 43A of the Act as a company, partnership firm, sole proprietorship or other association of individuals engaged in commercial or professional activities.
- Government- the government and its institutions though regulated. Have certain exemptions.
  - Aadhar Card- The Unique Identification Authority of India (UIDAI) has launched Virtual ID, which intends to protect Aadhaar privacy by removing the need to share and maintain Aadhaar numbers. At the time of authentication, an Aadhaar bearer may use Virtual ID instead of his or her Aadhaar number.

The UIDAI has asked for a blanket exemption under the PDP Bill claiming that its functions under the Aadhar Act and duplicity of law. It was Aadhar that first stimulated the debate of Data Protection as it is mandated in various key services. Following similar path, many other authorities may seek such exemption.

Aadhaar Data Breach Cases:

Three Gujarat-based websites were discovered to be exposing the beneficiaries’ Aadhaar numbers on their websites.
1. Due to a technical malfunction, the Jharkhand Directorate of Social Security’s website released Aadhaar information for 1.6 million people in the state.
2. Pegasus: Pegasus spyware is thought to have affected people from approximately 45 countries, including Indian officials, journalists, and activists. It can access all of a user’s saved data, and once Pegasus has infiltrated a user’s mobile device or personal data server, it will have complete control over the device’s functionality and can remotely control the user’s whole system. The Union government declined the Supreme Court information citing “national security” as the cause which the SC denied and stated that “The state cannot withhold a secret from the court merely on the basis of ‘national security,’ and expect the judiciary to remain a “silent spectator,[5]” The Supreme Court agreed to appoint an impartial investigation team to look into the allegations.
Exemption to Privacy:

Clause 35 of the law makes it easier for the government to employ surveillance authorities. The ramifications of the criteria indicated like “public order” and “state security” in the clauses are ambiguous. The country’s national security jurisprudence has yet to evolve, and the word “public order” has such a broad meaning that it might be applied to any purpose the government sees appropriate. This section also allows for widespread surveillance of persons in order to “prevent any cognizable offence.”

Furthermore, unlike Section 42 of 2018, the new law does not include any conditions of necessity or proportionality in terms of government access to data, effectively circumventing the Supreme Court order.

The Pegasus spyware has prompted concerns about the Indian government’s ability to withhold material in the interest of national security. As a result, the Pegasus violations are an example of illegal and unconstitutional spying.

Sectorial application:

Data regulation and protection finds its traces in many other central enactments. Such sectorial division in the proposed bill will help reduce repugnancy and make functioning of authorities efficient. Some are:

BANKING- In October 2018, the Reserve Bank issued a set of basic cyber security rules for principal(Urban) cooperative banks(UCBs), as well as the establishment of a Security Operations Center(SOC). It has even laid down rules for online transaction application and setting guidelines for protection of both, personal as well as sensitive personal data.
1. INSURANCE- In addition to the general framework under the IT Act, the Insurance Regulatory and Development Authority of India(IRDAI)[6] has prescribed an additional framework for the protection of policyholder information and data. Inter alia, Insurance intermediaries, such as brokers, individual agents, corporate agents, third party administrators(TPAs), surveyors, loss assessors, and web aggregators are required to (i)treat all information provided clients as absolutely confidential to themselves and the insurer(s) to whom the business is being offered; and (ii)take appropriate steps to maintain the security of confidential documents in their possession, such as limiting access to such information, executing confidentiality undertakings, and so on.
2. HEALTH- The 2018 draft of the Digital Information Security in Healthcare Act(DISHA)[7] aims to protect information about a person’s physical, physiological, and mental health, sexual orientation, medical records and history, and biometric data. The Central Government announced the National Digital Health Mission(“NDHM”)[8], and the Ministry of Health and Family Welfare(“MOHFW”)[9] published a blueprint in late 2019 recommending the creation of a National Digital Health Ecosystem(“Ecosystem”) that allows for digital health system interoperability at the patient, hospital, and ancillary healthcare provider level.
3. ELECTIONS- With rise of social media, the Umesh Sinha Committee[10] proposed revising Section 126, Representatives of People’s Act(RPA), 1951 to impose ‘campaign silence period’ on all media, urged star campaigners to refrain from evaluating press conferences or giving interviews on election issues during this time, ban display of any election matter television or similar mean 48 hours preceding the conclusion of ballet, intermediaries such as social media corporations, commit to processes to ensure that their platforms are not used to sabotage free and fair polls, communication system through which the EC could alert the platform to potential infractions and should report to the Commission on the steps they’ve taken to avoid misuse of their platforms, including producing publicly accessible action taken reports.
4. E-COMMERCE AND MARKETING- A comprehensive examination of the two recently adopted laws, the Consumer Protection Act of 2019[11] and the Consumer Protection(E-commerce) Rules of 2020[12], as well as a literature review, support the analysis of 290 online customers who answered the research questions and met the research goals. The new rules are ostensibly strong enough to defend and safeguard online customers’ rights while also boosting India’s e-commerce development. Customers’ trust is influenced by laws controlling consumer rights protection in e-commerce, in addition to elements such as security, privacy, warranty, customer service, and website information. With a strong legal framework and consumer protection measures in place, the future of e-commerce is bright. The established Email Marketing Compliance guidelines prohibit the sharing of user information(SPDI) with other businesses without the explicit consent of the user.
5. TELECOMMUNICATION – The Telegraph Act and Rules[13], which contain measures prohibiting and punishing illegal communication interception. Furthermore, licences issued under this Act oblige telecom service providers(TSPs) to take steps to protect their customers’ privacy and the confidentiality of their communications.

The Telecom Regulatory Authority of India(TRAI)[14] has issued a number of privacy-related directives to TSPs. Customers have a right to redress under the Consumer Protection Act if their privacy is violated.

AUTOMOBILE – Navigation and speech recognition capabilities are now available in automobiles thanks to technological advancements. The data is stored by the vehicle businesses, which allows them to analyse consumer demand based on behavioural patterns. Though no such specific mention is made in any statutes, given the dynamic and ever-growing breadth of data dependency of data-driven businesses, it would be prudent to include automobile industry in the ambit of the proposed bill.
- ARTIFICIAL INTELLIGENCE- The use of artificial intelligence has improved the accuracy of consumer focus. While industry has become more intrusive, governments have begun to provision rules that set some boundaries. The electorate cares about privacy, therefore many industries consider how to use data to obtain information while staying inside regulatory guidelines. In AI, the medical industry is the most vulnerable to data breaches.
- DIGITALISATION OF CENSUS- Digitalisation of census is now inevitable. However, adequate safeguards need to be taken in order to protect personal data. Exposure of one’s financial data and health records is an infringement of the basic fundamental right of life. Formation data regulator for census and data processing will not only benefit the public at large but also help the government to study demography and constitute policies while securing personal data.
Criticism and shortcoming–

“35. Where the Central Government is satisfied that it is necessary or expedient,— (i) in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order; or (ii) for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, it may, by order, for reasons to be recorded in writing, direct that all or any of the provisions of this Act shall not apply to any agency of the Government in respect of processing of such personal data, as may be specified in the order subject to such procedure, safeguards and oversight mechanism to be followed by the agency, as may be prescribed. Explanation.—For the purposes of this section,— (i) the term “cognizable offence” means the offence as defined in clause (c) of section 2 of the Code of Criminal Procedure, 1973; (ii) the expression “processing of such personal data” includes sharing by or sharing with such agency of the Government by any data fiduciary, data processor or data principal.”[15]

Section 35 of the PDP Bill 2019 is contentious as it invokes the “sovereignty and integrity of India,” “public order,” “friendly relations with foreign states,” and “security of the state” to give the Central government the power to suspend any or all of the provisions for government agencies. Reasonable restriction to be imposed on Right to Privacy should not Deprive one from enjoying it due to state intervention. While it protects Indians’ personal data by providing them data primary rights, it also gives the central government exemptions that are in violation of the norms of personal data processing. Without the explicit consent of the data principals, the government can process even sensitive personal data when necessary. The rules referring to “data localisation” are one of the more contentious concerns in the law Bill. The phrase, which can apply to any constraints on cross-border data transmission has mostly come to relate to the need to physically locate data within the country.

COMPARATIVE STUDY:

Having comprehensively articulated the GDPR, in the world of globalization and cloud computing, the restriction, financial burden for updating, regulation, compensation by companies has made 66% of the 366 Global IT Companies reconsider their business strategies in Europe[16]. Not only does it impose a cost compliance burden on the companies but also deprives states to attract global market for data processing. The right to be forgotten carries a high risk of abuse.

In US, the lack of a comprehensive data protection regulation in the US laws has been a major point of contention. Recent events have painted a bleak picture of data protection: the Cambridge Analytica case[17] which entailed the capture of up to 87 million Facebook users’ personally identifying information. The information was reportedly utilized to try to sway voter sentiment, electronic spying charges, and so on. Personal information can be collected and used in the United States as long as the subject is informed of the collection and use. However, it has been deemed insufficient in crucial regulatory areas. It has been criticized for being overly strict and imposing several requirements on data processing organizations.

In the United Kingdom, the training or expert guidance required for the dynamic nature of technology-driven companies may be required to ensure compliance.

In India, data protection is crucial because of the large number of consumers. According to the Internet and Mobile Association of India (IAMAI)‘s Digital in India report 2019, India has nearly 504 million active web users and its online market is second to China. Learning with the stringent and uninviting GDPR provisions, the liberalization of a rule imposing provision like help attract Information Giants to set up company headquarters in India and promote data localization, generate revenue and employment. India has the ability to analyze these pitfalls of various acts and formulate a comprehensive and acceptable global approach.

WAY FORWARD:

Set up Tribunal- to adjudicate cases relating data breach, breach of rights of data subject as guaranteed in the act, and conflict among various competitive organizations.
1. DRAI- the Data Regulation Authority of India has numerous functions that includes setting guidelines, regulating rules governing intermediaries, duties and rights of data subjects, supervision on the data intermediaries, and enforcement of the provisions of the act.
2. Privacy Commission- to enforce data subjects’ right on their infringement and to recommend changes in provisions along which are in line with the dynamic nature of society, rights and technology.
3. Social media intermediary- to include a provision relating to “social media intermediaries” whose actions have a significant impact on electoral democracy, state security, public order, or India’s sovereignty and integrity, and to empower the Central Government to designate the said intermediary as a significant data fiduciary in consultation with the Authority;
4. Reforming surveillance through CCTV and drones related laws, entering into more detailed and up-to-date mutual legal assistance treaties,
5. Enabling development of digital infrastructure, promoting entrepreneurship and formation of Indian cloud such as ESDS[18] that provide data security and localisation, revenue and employment.
6. Creating appropriate data-sharing policies that preserve privacy and other third- party rights, while enabling data to be used for socially useful purposes.
7. Minor consent- in line with GDPR, minors’ consent is of grave importance in the world of digitalization.
8. Blockchain technology- The GDPR fails the recognize the features of Blockchain technology and its financial importance in the coming future. GDPR’s centralized security system does not include a blockchain decentralized security system. The anonymity and pseudonymity of data storage in blockchain provide for higher privacy by using public-private encryption keys. Having introduced a tax on cryptocurrency in Budget 2022, India should focus on including provisions in the proposed PDP Bill.
9. Cookies- Provisions for cookies as they are used to study user behaviour. Tracking cookies trace activities without authorization and threaten privacy. Marketing cookies too keep a track of your likes, dislikes, searches without authorization, and hence the relevant adverts while using other websites or social media platforms.

Data is a crucial asset in the digital era that should not be left unregulated. In this scenario, India’s time for a strong data protection regime has arrived. The Personal Data Protection Bill, 2019, needs to be amended as soon as possible. It has to be rewritten to ensure that it emphasizes user privacy while focusing on user rights. To enforce these rights, a privacy commission would need to be established. The government would also have to protect citizens’ privacy while bolstering their access to information. Furthermore, technical advancements in the recent two to three years must be addressed, since they have the potential to render the law obsolete.

CONCLUSION:

The Personal Data Protection Bill, 2019 has certain reservations which on correction has the ability set up a precedent for upcoming data regulation in other countries. India’s ability to lead the world into the digital economy by leveraging its existing capabilities in information technology, demographic dividend, and need for empowerment through data-driven access to services and advantages. Data regulation is the need of the hour and the in the era of the globalization to protect one’s data exposure and privacy. This can be done so by learning from the mistakes of the already enforced data Regulation act in various technology driven countries. With Right to Privacy being a Fundamental Right, the need of Personal Data Protection Act becomes even more vital much as it is inevitable.

[1] General Data Protection Regulation (GDPR) – Official Legal Text (gdpr-info.eu)

[2] Section 403- Dishonest misappropriation of property, India Penal Code 1860.

[3] Government of India (meity.gov.in)

[4] text_en.pdf (europa.eu)

[5] Manohar Lal Sharma v. Union of India, 2021 SCC, SC 985

[6] IRDAI Welcomes You

[7] R_4179_1521627488625_0.pdf (nhp.gov.in)

[8] National Digital Health Mission: NHDM Objectives, Features, Eligibility & Application (godigit.com)

[9] MoHFW | Home

[10] Report of the Committee on Section 126 of the Representation of the People Act, 1951. – Press Releases 2019 – Election Commission of India (eci.gov.in)

[11] AA2019__35consumer.pdf (indiacode.nic.in)

[12] Consumer Protection (E-Commerce) Rules, 2020 | Department of Consumer Affairs | Ministry of Consumer Affairs Food and Public Distribution | Government of India

[13] Microsoft Word – Vol.1 Part-1 _3_ _31-52_.doc (wb.gov.in)

[14] Home | Telecom Regulatory Authority of India | Government of India (trai.gov.in)

[15] Personal Data Protection Bill, 2019, s. 35

[16] Ovum Research Report, 2019

[17] Cambridge Analytica case, [2019] EWHC 954 (Ch)

[18] ESDS – Managed Cloud Data Center in India

Author: Ruchika Jain, D.E.S. Navalmal Firodia Law College, Pune

Editor: Kanishka Vaish, Senior Editor, LexLife India

SEXUAL HARASSMENT AT THE WORKPLACE WITH SPECIAL REFERENCE TO VISHAKHA GUIDELINES

Reading time : 5 minutes

ABSTRACT

With time, opportunities for women in both educational and employment sector have increased. Now, thousands of women strive to work and earn for themselves without being dependent on their family or husbands. However, do these women also get a safe and secure environment to work? It is still a question at many places. One of the main reason due to which females choose not to work is sexual harassment that takes place on daily basis with them at the corporations by other employees or the employer himself. It is very important that as a nation, we work towards providing a secured workplace to the females so that they do not have to compromise over their skills and their future because of such reasons. Protection of women would also help in boosting the gender equality in the country and would also help in development of the nation.

Sexual harassment at workplace is addition to the violence meted out on women in day-to-day life. It is discriminatory and violative actions that abrogates the rights of women, given to them by the Constitution. Women are given right to equality that is enshrined under Article 14 and 15 of the Constitution. Also, they have been provided with right to live with dignity under article 21 of the Indian Constitution. India signed CEDAW (Convention on the Elimination of Discrimination Against Women) on July 9, 1993 to help in prevention of violence against the women. After the brutal gangrape of Bhanwari Devi, a social worker from Rajasthan in 1997, a petition was filed in the apex court of India for the first time, to enforce the fundamental rights of the working women. After the landmark case, Vishaka and Ors. Vs. State of Rajasthan, Vishaka Guidelines was enacted. Apart from this there were other acts such as- Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as POSH Act) which were enacted by the Indian law. This paper critically analysis the sexual harassment that takes place with women at the workplace and the vishaka guidelines that were setup to prevent the same.

KEYWORDS

Sexual harassment, vishaka guidelines, women rights, workplace

INTRODUCTION

Almost around fifty percent of the population of the India comprises of the women which are now visible in various sectors. The professions which were earlier considered to be only for men also witnesses the rising number of women in the same profession. This positive change in the country also faced certain horrifying and unwanted cases too relation to assault and sexual harassment usually carried by men against women. Women were considered to be an object over which mental and physical torture was done not only at home but at their workplace too. It is a problem happening worldwide, be it a developed or a developing state. The issue causes a negative impact on both men and women however, it is more prevalent in females.

Many law reforms, prohibition and prevention acts have come across the globe and various enactments have been done even by the United Nations, still the problem exists to prevail. Women, since ages, are considered to be most vulnerable group and that is why they go through various types of crimes including human trafficking, female foeticide, sexual harassment, stalking and also one of the most heinous crimes known as rape.

Sexual harassment is an unwelcome behaviour. It is not an involuntary act and sometimes occur when a consent is given to certain offensive and objectionable behaviours. It depends upon the victim subjected to the behaviour of the other person and how she perceives the same. For example- sex-oriented comment or some kind of derogatory joke. [2]

WHAT CONSTITUTES SEXUAL HARASSMENT?

There are two broad categories under which sexual harassment at workplace falls in. These categories are as follow-

Hostile work environment- it defines a workplace where the actions and behaviour of other employee disrupts the work of the victim or due to which the victim is not comfortable enough to carry out the work. The subjected person does not feel like coming to work and sometimes they eventually leave the place due to the actions of the other person.

Quid pro quo- the literal meaning of the term quid pro quo is “a favour or advantage in return something”. If a supervisor or an employer asks for a sexual favour in return of a job offer or refuses to increase the salary or denies to give it on refusal of the sexual favour, these circumstances are said to be quid pro quo.

Inappropriate physical or verbal conduct- unwanted physical touches such as, unwanted massages, squeezes etc, that makes the other person uncomfortable or verbally passing any intrusive comment about one or making sensual noises upon one’s clothes falls under inappropriate conduct which could also account to be sexual harassment.

Inappropriate digital conduct- sending explicit videos or link to such content over the social media or any other digital platform, explicit photographs of oneself to an unwilling recipient also constitutes to be a sexual harassment which takes place through the networks of the internet and is one of the major issues prevailing in today’s time. [3]

HISTORICAL BACKGROUND OF VISHAKA GUIDELINES

THE BHANWARI DEVI CASE

FACTS OF THE CASE

Bhanwari Devi, a Dalit government employee, used to spread awareness regarding hygiene and education and she also used to run campaigns relating to dowry and child marriage. During the course of her employment, she was trying to stop a child marriage taking place and was trying to save the young girl who was being forced to get married by her parents. The marriage involved certain politicians and influential people due to which Bhanwari Devi failed to stop the occurrence of the marriage. She tried to resist and also carried out a rally regarding the child marriage that was taking place.

A group of people gangraped Bhanwari Devi while she was with her husband. They attacked her out of revenge of the campaigns and rallies she organized to stop the child marriage. She tried to file criminal suit against the attackers but her complaint firstly was lodged by the police after fifty-two hours and was not taken seriously as it was against influential people.

JUDGEMENT AND AFTERMATH

As the case proceeded to Rajasthan High Court, the court acquitted all the attackers on the various grounds one of which was that a women cannot be raped in front of her husband and that a head of the panchayat cannot be indulged in such actions. Later on, the Rajasthan High Court convicted the attackers for assault and awarded them the punishment way lesser in comparison to the punishment give to a rapist.

This judgement gave a start to various rallies and protest by the general people and women safety organisations. These protestors were beaten by the police and many attempts were made to stop the people from protesting. On the other hand, people were not ready to stop and were determined to pressurize the government and other authorities to give justice to Bhanwari Devi.[4]

Vishaka and Ors. v. State of Rajasthan[5]

FACTS OF THE CASE

A collection of non-profit organisations dedicated to women’s protection filed a plea before India’s Supreme Court, asking for justice for Bhanwari Devi and, as a result, the proper penalty for the men involved in gang rape. They filed a public interest lawsuit called Vishaka, alleging that Bhanwari Devi’s fundamental rights had been infringed. They also wanted a new set of guidelines for women’s safety.

The NGOs also brought up the issue of women’s safety at work in their PIL, citing the fact that Bhanwari Devi’s employer refused to accept responsibility, despite the fact that the reason she was raped was related to the work she was obliged to do as part of her job. As a result, the PIL set out to create a new set of recommendations for women’s workplace safety.

JUDGEMENT

Sexual harassment violates the fundamental rights guaranteed by Article 14, Article 15, Article 19(1)(g), and Article 21 of the Indian Constitution, according to a three-judge bench.

The Vishaka guidelines were established by the court to protect women at work and to provide a safer working environment for women.

THE VISHAKA GUIDELINES[6]

Duty of the Employer or other responsible persons in workplaces and other institutions

It essentially defines the responsibility of the employer or other responsible persons in the workplace or other institutions to prevent or deter the commission of acts of sexual harassment and to provide procedures for the resolution, settlement, or prosecution of such acts by taking all the necessary steps.

Definitions

Sexual harassment is defined as any unwelcome sexually determined behaviour (whether directly or indirectly) that includes:

a) physical contact and advances

b) a demand or request for sexual favours

c) sexually coloured remarks

d) showing pornography

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature

Preventive Steps

Sexual harassment should be avoided by all employers or those in charge of work places, whether in the public or private sector. They should take the following steps, without regard to the generality of this obligation:

A clear prohibition of sexual harassment at work, as stated above, should be announced, publicised, and widely distributed.
Government and public sector organisations should incorporate laws preventing sexual harassment in their conduct and discipline policies, as well as suitable consequences for the perpetrator.
In the case of private employers, steps should be taken to include the aforementioned prohibitions in the industrial employment (standing orders) act of 1946’s standing orders.
Appropriate work circumstances in terms of work, leisure, health, and cleanliness shall be given to ensure that there is no hostile environment toward women at work and that no employee woman has reasonable grounds to believe she is disadvantaged in her job.

Also read: CONTROL MECHANISM IN ADMINISTRATIVE LAW. AN ANALYTICAL AND THEORETICAL OVERVIEW CONCERNING EPIDEMIC DISEASE ACT OF 1897.

Criminal Proceedings

If the behaviour amounts to a specified offence under the IPC or any other law, the employer must take proper legal action by filing a complaint with the appropriate authority. It should, in particular, ensure that victims or witnesses are not traumatised or discriminated against when dealing with sexual harassment accusations.

Disciplinary Actions

Workplaces where such behaviours, as defined above, are considered to be a misconduct and does not receive support from other people at the same place, the employer should take appropriate disciplinary action in line with those rules.[7]

Complaint Mechanism

Whether or not such conduct is illegal or in violation of the employer’s service rules, an appropriate complaint procedure should be established in the employer’s organisation to address the victim’s complaint.[8]

Complaint Committee

Whether these conducts are considered to be illegal under the law or rules of the company, some type of complaint mechanism should be established in every organisation to provide both men and women a safe working environment. These committee should be headed by a woman or some NGO or any other authority which is familiar with this issue.

Worker’s Initiative

Workers should be given the freedom to raise their voice and bring up the matter of sexual harassment in work meetings and in employer-employee meetings. Following this, some serious actions should be taken by the organisation to prevent the same and help the victim too.

Awareness

Working women should be made aware of their rights and also about these guidelines made by the government for their protection.[9]

POST-VISHAKA SCENARIO IN INDIA

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was the most significant step following the Vishaka decision. This legislation was passed in April 2013 as India’s first law addressing the protection of women at work from sexual harassment. The following are some of the act’s key features:

This Act aims to provide a safe and secure working environment for all women, regardless of their age or job status.
In India, this Act applied to both the organised and unorganised industries. All government bodies, private and public sector organisations, non-governmental organisations, commercial, vocational, educational, entertainment, industrial, financial, and other organisations, as well as hospitals, were covered by the Act.
The term “sexual harassment” was defined in this Act in accordance with the Supreme Court’s definition in the Vishaka case.
This act also included, “Presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about current or future employment, interference with work or creating an intimidating, offensive, or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment”, in the definition of sexual harassment.
Since sexual harassment might not often occur in the primary place of employment, the Act also established the concept of a “extended workplace.” As a result, the Act defined “workplace” as any location visited by an employee as a result of or in the course of employment, including transportation supplied by the employer for the purpose of commuting to and from the workplace.
The Act mandated the formation of an Internal Complaints Committee (ICC) at each and every office or branch of a company with ten or more employees in order to offer a place for filing allegations and expedite the resolution of sexual harassment complaints.
It also called for the government to set up a local complaints committee (LCC) at the district level to examine and remedy sexual harassment accusations from the unorganised sector or from establishments where the ICC has not been formed because they have fewer than ten employees.

Apart from the above act, the Criminal Law Amendment Act, 2013 amended several provisions of the Indian Penal Code, 1860 to include several offences such as outraging a woman’s modesty, assault or use of criminal force with intent to disrobe, stalking, and voyeurism, thus creating an exclusive disclaimer to deal with the issue of sexual harassment.[10]

CONCLUSION

“A murder usually destroys the physical aspect of a human being, while harassing a woman degrades her deteriorates her reputation in a society like India.” India has developed since ages and have accommodated its female population at various sectors of the society. Be it education or workplaces, the ratio of women as to men have increased and women have started to participate actively in various fields of occupation. With this development, one more issue that needs to be attended by the lawmakers is of sexual harassment that takes place at various workplaces which not only decreases the number of working women but also affects the reputation of company and the women too. Providing a safe and secured working environment to women helps in upgrading their basic human rights of equality and living a dignified life. For this, various workshops, seminars and other awareness activities should take place in workplaces as well as in general too so that women are made aware of their rights and the remedies available to them. Also, employers as well as employees should also be made aware of the guidelines established in organizations to prevent any kind of misconduct and the punishment it could attract. The committees already working at several companies should be evaluated and regulated regularly to upgrade the working and preventing any mishap. Hence, the companies and the government should work hand in hand to combat this issue and eradicating it from the society.

[1] Calculation of Remuneration, available at https://accountlearning.blogspot.com/2011/10/calculation-of-liquidators-remuneration.html ( Visited on March 20, 2022 03.04pm)

[2] Sexual Harassment of Women at Workplace available at

http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)

[3] What Constitutes Workplace Sexual Harassment? Available at

https://leadgrowdevelop.com/what-constitutes-workplace-sexual-harassment/#:~:text=%20The%20EEOC%20outlines%20two%20main%20categories%20of,job%20advances%20or%20opportunities%3F%20Do%20they…%20More%20 ( visited on March 20, 2022)

[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)

[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)

[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)

[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html  ( visited on March 20, 2022)

[9] Vishaka v. State of Rajsthan available at

https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=%E2%80%9CVishakha%20guidelines%E2%80%9D%201%20Duty%20of%20the%20Emplo yer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at

https://www.gktoday.in/topic/sexual-harassment-at-workplace-developments-post-vishaka-judgement/ ( visited on March 20, 2022)

Author:KASHISH BANSAL, SYMBIOSIS LAW SCHOOL, NOIDA

Editor: Kanishka Vaish, Senior Editor, LexLife India

Reservation in India

Reading time: 8 minutes

Contents-

What is the meaning of reservation
Purpose of reservation
The extent of reservation in India
SC/ST Reservation
OBC Reservation
EWS Reservation
History of Reservation in India
Does India need reservation now (discussion)
Is reservation the only solution?
Will reservation compromise the merit system?

What is meant by reservation or affirmative action?

Reservation is the action of reserving something.

Reservation in India is all about reserving access to seats in government jobs, educational institutions, and even legislatures to certain sections of the population.

Reservation has been backed by the Indian Constitution by means of various amendments, as affirmative action, it can be seen as positive discrimination. The above-stated reservation in India is backed by the government of India.

Purpose of reservation in India

The following are the 2 main purposes of Reservation of India

Advancement of backward classes like Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any other social backward or educationally backward classes of citizens of India (Eg: OBC) OR economically weaker sections (EWS) – Article 15 (4), Article 15 (5), and Article 15 (6) of the Indian Constitution

Adequate representation of any backward class of citizens OR economically weaker sections (EWS) in the services under the State. – Article 16 (4) and Article 16 (6)

The extent of Reservation in India

In India, reservation is provided in:

1) Government Educational Institutions (like IITs, IIMs etc.) – as per Article 15 – (4), (5), and (6) of the Indian Constitution

2) Government Posts (like Indian Administration Services, Indian Police Services etc.) – as per Article 16 – (4) and (6) of the Indian Constitution

3) Legislatures (Parliaments and Stae Legislatures) – as per Article 334 of the Indian Constitution

Before 2019, the reservation was provided mainly on the basis of social and educational backwardness (caste). However, after the 103rd constitutional amendment in 2019, economic backwardness is also considered.

Apart from the reservation quota, additional relaxations like upper-age relaxations, additional attempts, and lower cut-off marks are also provided for various reservation categories

Reservation quota in India for Government Jobs

A vacancy reserved for SCs or STs or OBCs cannot be filled by a candidate other than an SC or ST or OBC candidate, as the case may be.

As seen from the above table, about 60% of seats are reserved in India – for various sections like ST, SC, OBC, and EWS – with respect to Government jobs and Higher Education Institutions. 3% of seats are also reserved for differently-abled persons across all categories.

This also means that only 40% of seats are available under merit. The seats that can be gained in the basis of merit does not only belong to general category candidates but the other categories who already have seats reserved for them like the SC, ST, OBC and EWS can also compete in that category for the respective seat.

SC/ST Reservation

The objective of providing reservations to the Scheduled Castes (SCs), Scheduled Tribes (STs) in services is not only to give jobs to some persons belonging to these communities. It basically aims at empowering them and making sure that they are also involved in the decision-making process of the state.

Besides, the state is also keen to end practices such as untouchability.

Scheduled Castes (SC) are given 15% quota in jobs/higher educational institutions while Schedule Tribes (ST) are given 7.5% quota in jobs/higher educational institutions.

Reservation is provided not only with respect to direct recruitment but also with respect to promotions for SC/ST category (Article 16(4A)). As the reading of Article 16 (4A) suggests, the State Government is required to collect quantifiable data to check the adequacy of representation of the SCs/STs in public services in their state, and it is then upon this data that the government decides whether reservation is required to be given or not.

There is no concept of ‘creamy layer’ with respect to SC/ST reservation. This means that irrespective of the income status or the government posts held by the parents, children of SC/ST parents will get SC/ST Reservation.

OBC Reservation

Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). The quota for OBCs is 27% in government jobs and higher educational institutions.

However, there is a concept of ‘creamy layer’ with respect to the OBC reservation. Only those from OBC who comes under Non-Creamy Layer would get OBC reservation.

The creamy layer concept brings income and social status as parameters to exclude some of the privileged members of OBC from the extent of reservation. This concept also keeps a check to ensure that the benefits of reservation do not get extended to subsequent generations.

Do you belong to Other Backward Classes (OBC)? What is the OBC reservation eligibility?

Non-Creamy Layer candidates from OBC are entitled to reservations in jobs as well as educational institutions. However, many candidates (and even some bureaucrats) are ignorant about the provisions of the OBC reservation.

If you are a deserving candidate belonging to the OBC category, you should not miss the benefits of an OBC reservation (due to ignorance). In this post, we shall see the criteria for determining whether you fall under OBC Creamy Layer or OBC Non-Creamy Layer.

Other Backward Classes (OBC)

Other Backward Classes (OBC) are socially and educationally backward classes in India. OBCs are distinct from Scheduled Classes (SC) or Scheduled Tribes (ST).

The Central Government of India maintains a list of castes/communities to be considered as OBC.

Benefits of being included in the OBC list:

To uplift Other Backward Classes (OBC), both the Central Government and State Governments are running a lot of programs and schemes. Some benefits include:

27% Reservation Quota with respect to the seats in Government Jobs (like IAS, IPS etc) and Government institutes (like the IIMs and IITs).
There is relaxation with respect to the upper age limit for various examinations like UPSC Civil Services Exam.
There is relaxation with respect to the number of attempts for exams.
There is relaxation with respect to cut-off marks (only lower cut-off marks are usually needed to clear exams).

Will all OBCs get the reservation benefit?

No.

Only if you belong to Non-Creamy Layer OBC, you will get the reservation in jobs as well as in educational institutions. If you fall under the Creamy Layer of OBC, you will not get the benefit of an OBC reservation.

Origin of Creamy Layer concept with respect to OBC

Due to the recommendations of the Mandal Commission, the Central Government issued an Office Memorandum to reserve 27% posts in central government services. The order was challenged by Indra Sawhney (Indra Sawhney and Others Vs Government of India) in Supreme Court (1992).

The constitutional bench of the apex court upheld the decision to reserve 27% reservation for OBC’s in Central Government service. But in the verdict, Honorable Supreme Court cleared that the creamy layer among OBC’s should be excluded from the reservation.

Central Government constituted a commission chaired by Justice Ram Nandan Prasad to identify the creamy layer among OBC’s. The commission recommendations were as such approved by the Central Government.

Based on this, the Central Government issued an order regarding the guidelines and criteria for excluding Creamy Layer among OBC. The same criteria and guidelines are still in force for identifying Creamy Layer among OBC’s.

Note: There is no concept of the creamy layer with respect to SC/ST reservation.

Also read: RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

How can you know if you get OBC Reservation?

Central Government maintains a list of castes or communities which are given OBC status. Check the Central List of OBCs – based on your state. If your caste or community is mentioned there, you can apply under OBC quota – provided you meet the Non-Creamy Layer criteria as well.

If the candidate’s community is mentioned in the above list, then the next step is to check whether he/she belongs to the creamy layer or to the non-creamy layer. You should note that reservations are offered only to candidates belonging to the OBC non-creamy layer.

How can you know if you belong to Creamy Layer OBC or Non-Creamy Layer OBC?

The creamy layer is based on the status of your parents.

For the jobs under the Central Government, if the parents of an applicant entered the service as Class I officer before the age of 40 (direct recruitment), the applicant is considered as a creamy layer.

Also, if both the parents of the candidates entered into service as class II officers, before the age of 40 (direct recruitment), and entered into the service before the age of 40, the applicant is considered as a creamy layer.

Who comes under Non-Creamy Layer OBC?

Except for the above children of the above-mentioned employees, almost all get the benefit of “Non-Creamy Layer” Status.

If your parents are not directly recruited Class1 (Group A) or Class2 (GroupB) officers OR they do not occupy any constitutional posts (like that of President, Vice President, Governor etc) you are most likely to fall under Non-Creamy Layer OBC.
If your parents are not employed by the government, their income should be within the limits by the government to be treated as Non-Creamy Layer OBC.

Income Limit of determining the Non-Creamy Layer Status of OBCs

In order to qualify as an OBC non-creamy layer candidate, the applicant’s parents’ annual income should be less than Rs. 8 lakhs.

Salary and agricultural income are not to be considered as income for calculating annual income for creamy layer status. As far as the Government employees are considered, the entry cadre/post is to be taken into consideration.

While applying the “Income/Wealth Test” to determine the creamy layer status of any candidate, income from the salaries and income from the agricultural land shall not be taken into account. It means that if income from other sources other than the salary and agriculture exceeds the income limit, then only the candidates shall be treated as Creamy Layer.

Note: When the creamy layer concept was introduced, the income limit was set at Rs 1 lakh per annum (1993). Thereafter, it was raised to Rs 2.5 lakhs p.a (2004). It was subsequently increased to Rs 4.5 lakhs p.a. in 2008 and then to Rs 6 lakhs p.a in 2013. The current limit is Rs.8 lakhs per annum.

Read more about the OBC Reservation Eligibility.

EWS Reservation

The Central Government of India recently introduced EWS Reservation. 10% quota is provided for the Economically Weaker Sections (EWS) among General Category candidates in government jobs and educational institutions. This is done by adding clauses for the same in the Indian Constitution (103rd Constitution Amendment Act, 2019).

Economically weaker sections refer to the people or those households whose income is less than a certain threshold income. Tough there may be other factors that determine whether a certain household comes under a certain level of income.

On 7 January 2019, Union Council of Ministers approved a 10% reservation in government jobs and educational institutions for the Economically Weaker Section (EWS) in the General category. The cabinet decided that this would be over and above the existing 50% reservation for SC/ST/OBC categories.

Hence , this is how the EWS receive reservation under such categories.

History of Reservation System in India – Rectifying the Historical Injustice

To an extent, reservation as a policy is pursued by the State to correct the historical injustice done to certain castes by the so-called “upper castes”. The caste system prevailed in India had alienated many “lower castes” from the mainstream – hindering their development. To a great extent, the repercussions are still felt.

Original Constitution of India has provided reservation only for quota in legislatures – that too only for 10 years until 1960 (article 334). Subsequent amendments to the constitution extended the period of reservation for quota in legislatures.

Provisions of reservations in Educational Institutions and Government Jobs – article 15(4) and article 16 (4) – were too created by means of Constitutional Amendments later. No time period is given for the validity of the reservations mentioned in article 15(4) and article 16(4).

The initial reservations were only for SC and ST [article 15(4) and article 16(4)]. OBCs were included in the ambit of reservation in 1991 [article 15(5)]. In 2019, Economically Weaker Sections are also included [article 15(6) and article 16(6)]

Does India need reservation (now)?

It’s the duty of the government to provide equality of status and opportunity in India.

Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes. However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coaching, and other welfare schemes. The way the reservation is implemented and executed in India is largely governed by vote-bank politics.

Indian Consitution allowed reservation only for socially and educationally backward classes. However, in India, it became caste-based reservation instead of class-based reservation.

Initially, the reservation was intended only for SC/ST communities – that too for a period of 10 years (1951-1961). However, it got extended ever since. After the implementation of Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs).

The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased. Now, with the introduction of economic criteria for reservation, in addition to the caste-criteria which already existed, things have become more complicated.

Unequal should not be treated equally, but is reservation the only solution?

There is no doubt that unequal should not be treated equally. However, is the current system of unequal treatment perfect? Is it creating more injustice? Is it the only way out in a welfare-nation? It’s time to introspect.

Reservation based entirely on economic criteria is not an all-in-one solution, though family income can be one of the parameters. Also, it’s time to fix a time period for the reservation system – rather than extending it to eternity.

Denying India, the service of the meritorious candidates, who see them being overtaken by others with lesser academic performance or brilliance, is also a crime and injustice. Aren’t there any alternative mechanisms to uplift the marginalized so that everyone gets equal opportunities? How is affirmative action done in other countries? Reforms in the reservation system of India is the need of the hour. However, as the subject of reservation revolves around a lot of votes, parties are reluctant to disrupt the existing system.

50% Cap on Caste-Based Reservations

In Indra Sawhney vs Union of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.

“Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down.”

While introducing the bill for Economic Reservation in 2019, Arun Jaitley (Finance Minister) contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won’t be impacted by it.

Poverty cannot be the basis to provide reservation: SC

As per Article 16(4), one of the main purposes of reservation is to provide adequate representation of all classes (castes) in government services. Economic Reservation introduced by Article 16(6) is actually against this concept – as it does not take into consideration the caste-based representation.

Moreover, the reservation is not a poverty alleviation scheme. Supreme Court had also ruled that economic status cannot be the sole criterion for reservation. Many states had tried to implement Economic Reservation, however, they were subsequently quashed by Courts.

Introducing EWS bill in 2019, Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state laws for EWS quota were quashed by Courts because there was no provision for economic reservation in the Constitution before. Now, the Law will not be struck down by the Supreme Court if challenged as it has been brought by making required provisions in the Constitution.

Will Reservation System in India compromise the Merit (and efficiency of the system)?

Article 335 of the Indian Constitution states that

The claims of the member of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently, with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union
or of a State.

Provided that nothing in this article shall prevent in the making of any provision in
favor of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs
of the Union or of a State.

Author: Aaryan Mishra, KIIT Law School

Editor: Kanishka Vaish, Senior Editor, LexLife India

TRANSGENDER PERSONS (Protection of Rights) ACT, 2019

Reading time : 8 minutes

INTRODUCTION

“I know I am Transgender because my brain knows its Female, and my body disagrees”-Alan Cohen.

In the world of gender binaries were only male and female are believed to be only genders and anything out or beyond this is considered out of dictionary, LGBTQIA+ community exists where T stands for Transgender. Transgender people are the most suppressed and marginalised community of the LGBTQIA+ community. Transgender persons are neither men nor women but a mix of both called as intersex. They have been existing in every race, caste, religion and region but they have to face humiliation everywhere around. Nevertheless, they were denied all of their basic fundamental rights including Right to Equality (Article 14), Freedom of Speech and Expression (Article 19) and Right to Life and Personal Liberty (Article 21)[1]. They are defined as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta[2]”. Transitioning is opted by them to change various aspects of themselves and it can be social, legal or medical. They may change their name, pronoun used, appearance and physical body. The medical procedure for this is called sex reassignment surgery.

Transgender persons had a better living before British. They were considered loyal and were given privilege. The British criminalized penile-non-vaginal and sexual acts under section 377 of Indian Penal Code, 1860. And also put them under restrictions with the help of Criminal tribes Act, 1871[3]. The dark life of the transgender started to lighten up with the first Rights of Transgender Persons Bill, 2014[4] but it also created a lot of uproar in the society. The bill was again drafted in 2016 keeping in view the recommendations of the judge bench of the landmark judgement of National Legal Services Authority v. Union of India[5]. In the judgement, for the first time the community was considered to be the third gender in the independent India and the centre was directed to consider it as a minority group. The Transgender Persons (Protection of Rights) Bill, 2016[6] did not stand with the expectations and did not follow all the recommendations of the judge bench. And thus was sent to a standing committee in 2016 for review whose report was sent in 2017[7]. This review report and again the landmark judgement of Navtej Singh Johar v. Union of India[8] lead to the third draft of the bill, which become an act in 2019.

The Transgender Persons (Protection of Rights) Act, 2019 was passed by both the houses of parliament after 27 amendments in the 2016 draft according to the standing committee report and judicial precedents. It aims to empower transgender in all aspects of life protecting them for any kind of discrimination on any basis[9]. It also directs the centre to form National Council for Transgender Person aiming to regulate all the activity and address to the grievances.

The act still attracted fury among the transgender community, lawyers, etc. It was criticised as it ignored some of the recommendations of the standing committee, was not parallel with the judgements of the Supreme Court and violated the rights of the transgender community. It again defied the judgement of National Legal Services Authority v. Union of India[10]. Also, it defies the judgement in the cases of Navtej Singh Johar v. Union of India[11] and K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.[12] Major criticism of the act is on its legislation on identification of the transgender, does not recognise same-sex marriage, no reservation for the transgender and unequal punishment for crimes against transgender.

The following article focuses on the legislative perspective of Transgender Persons (Protection of Rights) Act, 2019. Also all the above mentioned legislations and development is discussed in the following work extensively. It also analyse criticisms against the act to bring out the loopholes and try to put forth the way ahead.

CONCEPTUAL FRAMEWORK

Since forever we have always heard and believed that there exists only two types of people i.e., male and female as per gender. There never existed a word about something called as LGBTQIA+ community. Each letter of LGBTQIA+ has its own story where L, G, B, T, Q, I, A stands for lesbian, gay, bisexual, transgender, queer, intersex and asexual respectively. In this article we will focus our study on transgender community only.

First we need to understand what gender and sex means. Sex is the bodily aspect which includes genitals, chromosomes, etc., on the other hand gender is the social aspect including behaviour, personality, interest, etc.[13] Now, transgender people can be understood as people who do not identify themselves psychologically with the gender given to them at the time of birth which is based on external genital identification. They are commonly known as hijras, kinner, jogta, etc. This is the community of people who have seen the worst side of humanity and society with the advent of British in India. Since then for a number of years they had to fight the society to have their basic rights. The fight still remains with some hopes and development with the legislations brought in along with judiciary support.

HISTORICAL EVOLUTION

Even after seven decades of Independence, this is one of the communities who are yet been discriminated and marginalised in the same way. But this was not the situation from the beginning. History shows that before British era in India, they were treated in a better way and had a preferable livelihood.

Going into the history we can see mention of transgender in the epics of Ramayana and Mahabharata. In Ramayana, when Ram was living Ayodhya with Sita and Laxman for 14 years they were followed by all the people of the area. When Ram said all men and women to go back it was transgender people who stayed there[14]. This was the incident where they were empowered to bless people during several occasions. Arjuna in the epic Mahabharata himself took the identity of transgender when he was in exile.

Lord Shiva himself has a form which is half of Shiva and half of Goddess Parvati. This form of Shiva is called as Ardhanari which is again a transgender and is sacred to transgender community especially[15]. Even in the sacred book Quran in Islam recognises that there are humans who are not male neither female in the verses of Surah Ash Shura. Also, during the Mughal Empire they were considered very loyal and were trusted with important positions.

In the 19^th century with the advent of British rule in India the situation changed into worse for transgender. They were treated as sexual service workers and were denied the basic human dignity and rights. They criminalised all sexual acts between same genders under section 377 of Indian Penal Code (IPC). Also to strengthen laws against transgender just to remove their identity from the society, Criminal Tribes Act, 1871 (CTA, 1871) was introduced and legislated upon. The same was repealed in 1952 by Jawaharlal Nehru government but it has already caused irreversible damages to the life of transgender people.

LEGISLATIONS AND CASE LAWS

After Independence, there has been constant struggle and effort to improve the situation of the transgender by the complete society. It has been a continuous process of making amends. This started with the case of Naz Foundation V. Government of NCT in 2009[16]. Naz Foundation filed a PIL in Delhi High Court challenging the constitutionality of the section 377 of Indian Penal Code. But the PIL was rejected by the court for hearing on the grounds of locus standi. The PIL was accepted assuming public interest when re-appealed in SC. The judgement given by the two judge bench decriminalised homosexual acts without striking down the whole section.

After the judgement, The Right of Transgender Persons Bill, 2014[17] was introduced by Tiruchi Siva, a member of parliament as a private members bill. The bill was never called upon in the Lok Sabha even after being passed in Rajya Sabha. The bill had several progressive ideas for the transgender community. This includes recommendation for establishment of commissions for transgender having national and state level courts[18]. This also promoted the right to equality and dignity for the transgender.

The journey to reach to a place of equality for transgender has not only been slow but unfortunate also. As the judgement of Naz Foundation V. Government of NCT decided in 2009 was overturned by two judge bench in Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors.[19] It was again held that any sexual act within two consenting homosexual is a crime and the constitutionality of section 377 of IPC was again upheld.

After the aforesaid judgement another ray of hope and development came from the judiciary in the National Legal Services Authority v. Union of India[20] case. The statutory body filed a petition in the apex court asserting for accepting gender identity of the transgender. The apex court looked upon the laws of other countries relating transgender and also the Universal Declaration of Human Rights. Eventually, a big step forward was taken by the judge bench by recognising Transgender as a Third gender after having only male and female as gender. It also recognised several fundamental rights for the transgender.

Also read: NEET PG 2021 ISSUE AND WHY DOCTORS ARE PROTESTING?

With the judiciary development, legislation of Transgender Persons (Protection of Rights) Bill, 2016[21] was drafted and introduced it in Lok Sabha. The bill had several oppositions and loopholes and thus was sent to a standing committee for recommendations on scope for improvement. The 2016 bill also defied recommendations of the expert committee which was set up for the 2014 bill[22]. As per the committee report for 2016 bill it states that the bill does not per se protect the interest of the intersex person also.

In the year 2017 right to privacy was considered under fundamental rights to be granted to every citizen of India in the case of Justice K.S. Puttaswamy V. Union of India[23] by a nine judge bench. Under this right to personal liberty was promoted which included sexual preferences. This not only paved way for the betterment of transgender but the whole country.

The most waited decision from the apex court came in September, 2018 decriminalising all consensual sex between consenting adults including homosexual intercourse by a constitution bench in Navtej Singh Johar V. Union of India[24] case. The judgement overturned the Koushal V. Naz Foundation case judgement by decriminalising part of section 377 of IPC. The decision was taken keeping in view the fundamental rights of transgender of right to equality, right to life and personal liberty. The parts of the section dealing with minor and non-consensual acts remained.

With the aforesaid case, we have reached to the part of the timeline when the final draft of series of bill relating transgender rights and protection was passed and later became an act.

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

Transgender Persons (Protection of Rights) Act, 2019[25] could have been the brightest ray of hope for change in the life of the transgender community. The bill was drafted after the judgement decriminalizing consensual sexual intercourse between same sex couple. It was introduced again by the minister of social justice and welfare, Thawar Chand Gehlot. The bill was passed in Lok Sabha and Rajya Sabha and obtained President’s assent on 5, December, 2019. The act is in effect since 10, January, 2020.

Some of the significant features and elements of the act are as follows[26]:

The act provides with legal definition of transgender persons. It defines transgender as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as kinner, hijra, aravani and jogta”. It covers intersex community under transgender community only with which many people may not agree.
It has legislations prohibiting discrimination against the transgender community on the grounds of employment, education, movement, residence, life, etc.
According to the judiciary precedence of NALSA V. Union of India, it recognizes transgender person and their identity. It gives right to the transgender to perceive their self-perceived identity. But along with it they need to have an identity certificate issued by the district magistrate on filling applications for it.
The act directs the government to introduce welfare schemes for the improvement and development of the community. This will help to promote their rights and standard of living.
It provides with instructions to the government for providing with proper educational and medical facilities to the transgender people. It gives assurance for future research in the field of medical reassignment surgery.
It makes legislations for dealing with offences and relating penalties. The offences include: physical and sexual abuse, force labor, etc. The punishment can be for six months to two years.
Last but the most important element is formation of National Council for Transgender Persons for execution of the act and providing with needed recommendations. The council will be headed by union minister of Social Justice and Empowerment and will have other members.

CRITICAL ANALYSIS

The act is subject to several criticisms and problems which can be developed and improved upon. The act faced major backlash among the transgender community, scholars and researchers. It was questioned because it did not give proper attention to all the recommendations by the expert committee and the standing committee, and also the recommendations by the judiciary in different cases.

Some of the major criticism of the act is explained below:

Self-identification & Issue of identity certificate – The act states that it is the right of the person to continue their self-perceived identity. But again to have legal recognition it makes it mandatory to have a gender identity certificate issued by the district magistrate. Also, it allows for change in the gender recognitions but only with the attested certificate provided by the medical officer. It contradicts the point of self – identification and makes proof for it mandatory. Above all of this it does not talk about any redressal committee in case of any discrepancies.
Transgender & Intersex – The act defines transgender in its first chapter. But it loosely uses the term intersex and transgender and presents them as a part of same community. There may be case where an intersex person does not identify himself/herself as a transgender. The act also focuses on some group of transgender like hijras and transwomen and not on transmen and intersex.
Reservations – According to the NALSA V. Union of India case judgement, the government was asked by the judiciary to consider the transgender community as socially and educationally backward classes. As per this there should be reservations for the community in the field of education and employment to encourage their participation. But the act only talks about providing facilities including education and employment and not about reservations and other incentives.
Same – sex marriage – After the Navtej Singh Johar case homosexual intercourse is made legal. But the complete act is silent about homosexual marriage and does not provide any rule for it. The way heterosexual intercourse as well as marriages are legal there is nothing talking about homosexual marriages.
Offences and Penalties – The act provides for penalties against the offences like sexual and physical abuse, harassment, etc. The duration of the punishment for offences against transgender lies only between two months to two years. When compared to punishment for offences against women, this can be said that it is violative of right to equality and treating every person same in the eyes of law. It can be said because under section 354B of IPC punishment for offence against women is minimum 3 years.
Others – Some other elements of the act only states directions for the improvement to the government. It does not mention the way ahead and also does not establish accountability and time limit. For example: there is need to develop the medical care system which is highlighted in the act but the development should be done in a fix time period which is not stated in the act.

GLOBAL POSITION OF TRANSGENDER

Transgender persons face different situations in different countries. Some of the countries have accepted them and are treating them equally, where on the other hand in some countries there fight for equality is still continued.

United States of America – In United States of America the transgender are considered and are given the identity of third gender. Their homosexuality is considered as normal as heterosexuality. Under Civil Rights Act 1964, Title VII and Education Amendments 1972, Title IX discrimination against transgender at work place and education centers is prohibited. The country provides for the safety and rights of the transgender.
Argentina – In Latin America, Argentina became the first country to legalize homosexuality and identified transgender community. Gender Identity Law was passed in the country in year 2010[27]. It made sex-change surgery a legal right which helped them to get the surgery without having any psychological problems. It also allowed same-sex marriage for the homosexual couples.
Denmark – Denmark even after being a country in Europe, in 2014 allowed its citizen to amend their gender identity in legal documents without any medical treatment or psychiatric evaluation[28]. This was done in Denmark by regulating the Danish Population register. In Europe major countries require medical treatment or sterilisation for gender identification.
Germany – Another country of Europe, Germany in 2017 declared to recognise transgender and intersex as third gender. The main application of the decision was that from then, in the birth certificates transgender or intersex can be written[29]. The process of having genital surgery to change gender in legal documents was declared unconstitutional.
Ukraine – Not all the countries have yet accepted transgender, Ukraine is one of them. In the country legal recognition of transgender people comes with the cost of medical treatments including surgeries, sterilisation, tests, etc. This process of psychiatric evaluation last upto 45 days is required to confirm or reject a diagnosis of “transsexualism”[30].

CONCLUSION AND RECOMMENDATIONS

From being counted as a disease to being counted as a third gender they have come a long way. In the century of modernisation and digitalisation their lives a community which still struggles to get their identity. Transgender are those people who do not identify themselves with the gender assigned to them at the time of birth. They are marginalized and discriminated since decades now. They lack the dignity, identity and rights granted to everyone. Slowly and steadily we are moving towards providing a better society to the transgender. But the legislation enacted is less practical then theoretical.

The legislation of Transgender Persons (Protection of Rights) Act, 2019 has provided with some development but there still exists a lot of scope of amendments in it. India adopted several features of its Constitution from several other countries. Similarly, while analysing the position of transgender globally, the researcher came across various arrangements which can be incorporated and adapted in India also. It includes having specific laws for prohibiting discrimination in various fields of life, giving legal recognition to same-sex marriage, proper procedure for medical surgeries, etc.

[1] Riyaa Singh, Analysis of Transgender Persons (Protection of Rights) Bill, 2019, Legal Service India

[2] Transgender Persons (protection of Rights) Act, 2019, Part II Sec I, Chapter 1(k)

[3] Shruti Iyer, The Third Gender and Indian Law- A Brief history, Blog I Pleaders

[4] Faagrawal, Transgender Persons (Protection of Rights) Act, 2019, Legal Service India

[5] National Legal Services Authority v. Union of India, AIR 2014 SC 1863

[6] Transgender Persons (Protection of Rights) Bill, 2016, Ministry of Social Justice and Welfare

[7] Standing Committee on Social Justice and Empowerment, 43rd Report, Ministry of Social Justice and Empowerment

[8] Navtej Singh Johar v. Union of India, AIR 2018 7 SCC 192

[9] Ayush Raina, A Brief Analysis Of The Transgender Persons (Protection Of Rights) Act, 2019 – Murder Of Gender Justice?, Law Street

[10] See Supra Note No.5

[11] See Supra Note no.8

[12] K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., AIR 2017 10 SCC 1

[13] Candace West & Don H. Zimmerman, Doing Gender. Gender & Society, 125-151, 1987

[14] M.Michelraj, Historical Evolution of Transgender Community in India, Vol. 4 No. 1, 17-19, Asian Review of Social Sciences, 2015

[15] Dr. Subhrajit Chaterjee, Problems Faced by Transgender Community in India: Some Recommendations, Vol. 1 Issue 6, International Journal of Creative Research Thoughts (IJCRT), 2018

[16] Naz Foundation V. Government of NCT, AIR 2009

[17] The Rights Of Transgender Persons Bill, 2014, Bill No. XLIX, As Introduced in Rajya Sabha

[18] Rohan Abraham, All you need to know about the Transgender Persons Bill, 2016, The Hindu (2017)

[19] Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors., AIR 2013

[20] See Supra Note No. 5

[21] See Supra Note No. 6

[22] Report of Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and Welfare

[23] See Supra Note No. 12

[24] See Supra Note No. 8

[25] The Transgender Persons (Protection of Rights) Act, 2019, No.40 of 2019, Ministry of Law and Justice, The Gazette of India

[26] Sneha Kolluru, The Transgender Persons (Protection Rights) Act 2019, Law Times Journal, (Nov 20, 2020)

[27] Alexei Barrionuevo, Argentina Approves Gay Marriage, in a First for Region, The New York Times, (July 15, 2010)

[28] Constance Johnson, Denmark: Changing Legal Sexual Identity Simplified, Library of Congress (July 3, 2014)

[29] Livia Gershon, Gender Identity in Weimar Germany, Jstor (Nov 18, 2018)

[30]Rights in Transition – Making Legal Recognition for Transgender People a Global Priority, World Report 2016, Human Rights Watch

Author: Varsha Khowala, SYMBIOSIS LAW SCHOOL, HYDERABAD

Editor: Kanishka Vaish, Senior Editor, LexLife India

RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

Reading time: 8 minutes

ABSTRACT

Cyberbullying leads to an extreme psychological breakdown of the victims that cause low self-esteem which in worse cases may lead to suicide. Hiding behind the screen people are hacking someone’s account, stalking, trolling, threatening victims, etc. Even though the bullies behind the screen are punished the victims are left with long-lasting fear and low self-esteem. The victims are always afraid that new people will see their personal, misleading, and embracing information and judge them and cannot forget their past traumatic experiences. At this point they want all those information to just vanish from the internet and that’s when the Right to be Forgotten comes into the picture. It provides every individual with the right to erase inaccurate and misleading information from the internet. The research tried to elucidate how the Right to be Forgotten can act as a remedy to victims of cyberbullying.

INTRODUCTION

According to the UNICEF “Cyberbullying is bullying with the use of digital technologies. It can take place on social media, messaging platforms, gaming platforms, and mobile phones. It is repeated behavior, aimed at scaring, angering, or shaming those who are targeted. Examples include: spreading lies about or posting embarrassing photos or videos of someone on social media; sending hurtful, abusive, or threatening messages, images or videos via messaging platforms; impersonating someone and sending mean messages to others on their behalf or through fake accounts.”[1] It is disappointing that we come across incidents mentioned above in news and around us daily. It is the younger generation who uses social media platforms more often and are very concerned about people’s opinions regarding them so they are prone to cyberbullying. In this research while considering impacts of cyberbullying we are focusing more on how it impacts our younger generation.

Many individuals have been subject to cyberbullying and their personal, misleading, embarrassing information went viral and left a huge scar on their social media accounts. The Right to be Forgotten gives way to victims to erase all those deep scars caused by cyberbullying and public shaming. It is disappointing that in India we don’t have any law regarding the Right to be Forgotten but the judgments of the various high courts which rule it right now. But the encouraging thing is it is one of the provisions Personal Data Protection Bill, 2019 and if approved will become a statutory right.

In this research article, we try to understand how cyberbullying is a big threat and impacts people and how it leads to violation of the constitutional rights, and how it is not something that can be ignored. Further we discuss how right to be forgotten can act as a remedy to cyberbullying and how and when it was introduced and how it has developed through all these years in India by case laws.

CYBERBULLYING: A THREAT TO INDIA’S YOUNG GENERATION

According to the recent report of Comparitech (a UK-based firm) “India is a land of cyberbullies- the country has recorded the highest rate of children falling victim to cyberbullying”.[2]

There is no age disparity when it comes to cyberbullying but the youngsters are very concerned about other people’s opinions about them and hence more prone to it. The major form of bullying that teenagers face is of trolling about their appearance. Recently due to pandemic the online presence of children has increased more and so is the cyberbullying on all social media platforms. According to Statista research “children spent around 20% more time on social media sites due to the pandemic”[3] and according to another study by L1GHT, “online toxicity and cyberbullying on social media sites and video conferencing apps increased by up to 70% due to the pandemic”[4].

A lot of teens never open up their parents or any adults as such about their mental status or what kind of pain they are in because of bullying they face and just wait for help to come to them. And when that help does not come, they fall into depression. And at times, when they open up, parents don’t take it seriously and even if they do, they are afraid to file police complaints due to the common syndrome in India ‘log kya kahenge’.

To make things worse only a few legal actions are available against cyberbullying. The bully walks free with very few punishments after the tremendous damage he/she has committed. The strong increase in cyberbullying cases every year shows how necessary it is for government to update laws and provide required punishments to the perpetrator.

NOT SOMETHING TO JUST SURVIVE AND EXIST

If to bully someone online is easy then surviving through bullying should be easy too. But that is not the reality.

A case in our capital was registered regarding cyberbullying, Students of Class 11 started a group called ‘BOIS Locker’ on a social media platform. The admin of the group was just a 18 year old and some of the members were even 15 years old. They started sending obscene images and messages of their own classmates. [5] the incident shook the entire nation and both created widespread fear among all teenagers and their parents.

Another such case was seen and registered in Kerala. An 18-year-old college girl from a poor family was selling fish to pay for her studies. This selling of fish by her created widespread trolling. Due to this trolling and bullying she faced a lot of problems.[6] People are taking advantage of the fact that they are behind the screen using fake id and thinking nobody would be able to catch them.

Nowadays many youngsters especially are harming their exes by uploading explicit images and abusive contents, the term used for this is revenge pornography. The major threat in it is bully uses the morphed photos of victims and harass them and blackmails them to do unimaginable things. Due to the fear of facing the family and the society, the victim initially suffers silently but one day getting tired of this bullying, the victim chooses to end their own lives.

So, as we can see Cyberbullying is not something in which we should encourage victims to suffer and survive silently. Stricter punishments and stricter laws need to be implemented in order to curb these and should privacy of victim who has been affected needs to be protected.

VIOLATION OF THE CONSTITUTIONAL RIGHTS

Each and every citizen has Right to Health provided under Article 21 of the Constitution which includes mental wellbeing as well. Cyberbullying leads to increased anxiety and stress, mental health issues, depression, acting out violently, and low self-worth. Cyberbullying also at times results in long-lasting emotional effects. According to psychologists, “Behavioural and mental changes are not the only effects, there can be physical effects also. Intense feelings of stress and anxiety due to cyberbullying results into physical issues such as insomnia, gastrointestinal issues, and harmful eating patterns”.[7] In worst cases victims commit suicide, According to Journal of Medical Internet Research “Children and young people under 25 who are victims of cyberbullying are more than twice as likely to self-harm and enact suicidal behaviour”.

As above mentioned, the way cyberbullying affects victims’ mental health it is no less than a serious crime. Leaking someone’s private information on internet and spreading defaming comments amounts to set of crimes. Every person has right to privacy and right to health and cyberbullying violates both of them.

HOW RIGHT TO BE FORGOTTEN CAN HELP?

People who experience a huge scam and bullying physically often feel like running somewhere and escaping from this scar of their history. The same goes with the victim of Cyberbully they also want those bullying information to vanish and disappear from internet and social media platforms. Many people are victimized as their personal information was made public and it went viral. Though we can’t reduce the agony through which they suffered but by removing those trolled comments or those defaming statements amounts them we can at least make sure that they don’t keep on suffering in the future also. The right to be forgotten is provides that vanishing power to the victims of cyberbullying. Though the removal of data depends upon the way it is affecting the victim’s public life and the nature and seriousness of the subject. The Right to be Forgotten gives a way to the victim to erase all those deep scars caused by cyberbullying and public shaming.

TRACING THE INCEPTION OF RIGHT TO BE FORGOTTEN

“The concept of such right can be traced all the way back to French Law which recognizes ‘le droit a l’oubli’ roughly translated into the right of oblivion”[8]. This right was for a convicted person who had served his time and been rehabilitated to stop publication of the facts of his conviction and incarceration.

The right was first recognized in modern times by the Data Protection Directive, 1995 of the European Union. In the said directive, an individual was allowed to put in request to the authorities to delete certain information regarding them from internet because of the incomplete or inaccurate nature of information.

The right to be forgotten first came into limelight in the landmark case of ‘Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González’ almost two decades later. The Court of Justice of the European Union (hereafter referred to as ‘CJEU’) held that “the EU citizens possess the right to be forgotten and established that personal privacy outweighed the interest in free data flow in the European Union”[9]. It was because of this decision that the said right to be forgotten found its way paved into the GDP Regulations, 2016. In the above case Mr. Costeja claimed two reliefs, “the first one against the local Spanish newspaper requesting the deletion or alteration of such article and the second one being against Google Spain SL and Google Inc. to remove or conceal the personal data relating to him so that such data ceases to be a part of the search results and cannot be connected to the article of the newspaper.”[10] The justification behind claiming such reliefs were that the proceedings against him had been resolved and he had paid his liability in full years ago, and for such information to be still available to the public, did not make any sense, and i.e., was entirely irrelevant. The regulatory authority, sustained Mr. Costeja’s claims regarding Google Inc. and Google Spain SL, as it considered that in this regard “operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries”[11]. The ‘Google Inc.’ along with ‘Google Spain’ approached the CJEU, the question raised before court was “what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users differently.”[12] The CJEU, held in “the affirmative that the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. However, certain qualifications were mentioned before the exercise of such right to be forgotten of a citizen, which the court said stems from the right to privacy and the application of such a right was made subject to the condition that if the processing of personal data will be incompatible with the concerned Directive, then it may be recalled.”[13] Hence, The Google Spain judgment was a changing point wherein the ECJ held that “right to be forgotten was a facet of right to privacy”.

Also read: RECENT GOVERNMENTAL ACTIONS TO CLIP THE LOKAYUKTAS POWER

THE DEVELOPMENT OF RIGHT TO BE FORGOTTEN IN INDIA

In the Supreme Court ‘s landmark judgment ‘Justice K.S. Puttuswamy (Retd.) and Anr. v. Union of India’ [14]right to privacy was recognized and all aspects related to it were discussed. The judgment though recognized the existence of right to be forgotten as one of the ‘facets of the right to privacy’ but chose not to impose it as a separate fundamental right. Therefore, the right to be forgotten is left as ‘a matter of judicial interpretation’ by the High courts of India. Although there have not been many cases decided by Indian courts regarding this matter but in most of the cases the High courts have ruled in favour of right but the Gujarat High court in one case has ruled against it.

In the year 2016, in ‘Civil Writ Petition No. 9478’, the Kerala High Court “passed an interim order requiring Indian Kanoon to remove the name of a rape victim which was published on its website along with the two judgments rendered by the Kerala High Court in Writ petitions filed by her.” The High court in this case recognized the Petitioner’s ‘right to privacy and reputation’, without separately using ‘right to be forgotten’.[15]

The Gujarat High court conversely though, in 2017 in the case of ‘Dharamraj Bhanushankar Dave vs State of Gujarat, Special Civil Application No. 1854/2015[16]’, dismissed a petition seeking “permanent restraint on public exhibition of judgment and order on an online repository of judgments and indexing by Google”. According to the petitioner he had been acquitted of numerous offences by the High court and the sessions court and the ‘judgement in question was class as unreportable’. The High court dismissed the petition on the following ground that “the petitioner was not able to point out any provisions in law that posed a threat to his right to life and liberty, and that publication on a website did not amount to ‘reporting’ of a judgment since it is not a law report[17]”.

However, the Delhi High Court in the ‘Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. & Ors., CS(OS) 642/2018[18]’, upheld a person’s right to be forgotten. Plaintiff in this case approached the High court “seeking a permanent injunction against the Defendants, who had written two articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign[19].” Although the Defendants had agreed to take down the news articles, the same had been republished by other websites in the interim. The court recognized the Plaintiff’s Right to privacy, of which the `Right to be forgotten’ and the `Right to be left alone’ are integral aspects, and directed that “any republication of the content of the originally impugned articles or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit[20].”

The Odisha High Court in the ‘Subhranshu Rout v. State of Odisha, BLAPL No.4592/2020’ [21]case of 2020, gave a thorough examination of one’s right to be forgotten in any context. In the above case, the High court was deciding a ‘bail application under section 439 of Cr.P.C’, wherein the Petitioner, who was the accused in the FIR, had released certain objectionable images of the complainant on Facebook against her will. The court examined the Right to be Forgotten as a remedy to victims of obscene images or films frequently shared on social media platforms by lovers to harass and blackmail innocent girls. The Court relied on cases decided in the EU regarding the issue of right to be forgotten. Remarkably, the High court commented that “it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased every single time, regarding data which is within the control of data controllers such as Facebook or Twitter or any other social media platforms[22].” It also recognized that in the absence of clear legislation, it is difficult to adjudicate on the practical limitations and technological nuances.

One of the most recent cases recognizing the Right to be Forgotten is Delhi High court’s ‘Jorawar Singh Mundy vs Union of India[23]’. The petitioner Jorawar Singh Mundy, was an American citizen by birth but of Indian origin, who was charged in a narcotics case in 2009 while visiting India but was cleared by both the trial and the Delhi High Court. Mundy later on, returned to the U.S.A and studied law and every time an employer would do a background check using google. It led employers to this judgement. Thus, he requested that three websites, ‘Google, Indian Kanoon, and vLex’, remove the judgments. ‘vLex’ removed it while the case was going on. On the other hand, the Delhi High Court noted “the irreparable harm that it may have done to Mundy’s social life and career prospects, even though he was ultimately acquitted, and gave him interim protection”. The judgment was ordered to be removed from Google’s search results, and India Kanoon was ordered to block the judgment from being accessed through using search engines such as Google and Yahoo.

The encouraging news is the Ministry of Law and Justice, on ‘recommendations of Justice B.N. Srikrishna Committee’, has included the Right to be forgotten, as a statutory right in Personal Data Protection Bill, 2019, and it is already tabled in parliament.

CONCLUSION

The article majorly dealt with how cyberbullying affects people, especially the younger generation and how the Right to be Forgotten can be its remedy. Cyberbullying leaves a long-lasting impact on the mind of victim and new more stringent laws and rules needs to be made to punish those bullies behind the screen. The Right to be Forgotten has vanishing power and acts as the victim’s soothing medicine. It cannot reduce the trauma and sufferings victims had to go through because of cyberbullying but can make sure that their scars are not rejuvenated in future. It can help victims a lot especially women whose modesty is ruined by some morphed obscene images posted on social media platforms but at the same time, we need to make sure not to make it blanket to all the people. Let us hope that our parliament very soon approves of the Right to be Forgotten and suffering of victims of cyberbullying can be reduced.

REFRENCES

“Anti-Cyber Bullying Laws In India – An Analysis – Criminal Law – India.” Accessed February 21, 2022. https://www.mondaq.com/india/crime/989624/anti-cyber-bullying-laws-in-india–an-analysis.
Aswani, Nikhil. “THE RIGHT TO BE FORGOTTEN AND ITS ENFORCEMENT IN INDIA” 6, no. 3 (2020): 17.
Bose, Abanti. “Right to Be Forgotten and the Constitutional Dilemma.” IPleaders (blog), August 15, 2021. https://blog.ipleaders.in/right-forgotten-constitutional-dilemma/.
Cook, Lyndsay. “The Right to Be Forgotten: A Step in the Right Direction for Cyberspace Law and Policy.” The Internet 6 (2015): 12.
The Times of India. “Cyber Harassment Cases See Upswing in Pandemic,” January 12, 2022. https://timesofindia.indiatimes.com/city/mumbai/cyber-harassment-cases-see-upswing-in-pandemic/articleshow/88842765.cms.
“Cyber Harassment Cases See Upswing In Pandemic | Mumbai News – Times of India.” Accessed February 21, 2022. https://timesofindia.indiatimes.com/city/mumbai/cyber-harassment-cases-see-upswing-in-pandemic/articleshow/88842765.cms.
“Cyberbullying and Its Effects on Teen Suicide – CALR.” Accessed February 21, 2022. https://calr.in/cyberbullying-and-its-effects-on-teen-suicide/.
Comparitech. “Cyberbullying Statistics and Facts for 2022.” Accessed February 20, 2022. https://www.comparitech.com/internet-providers/cyberbullying-statistics/.
“Cyberbullying Statistics and Facts for 2022 | Comparitech.” Accessed February 21, 2022. https://www.comparitech.com/internet-providers/cyberbullying-statistics/.
“Cyberbullying: What Is It and How to Stop It.” Accessed February 21, 2022. https://www.unicef.org/end-violence/how-to-stop-cyberbullying.
The Indian Express. “Indian Kids Are the Most Cyberbullied in the World: Study,” October 26, 2018. https://indianexpress.com/article/lifestyle/life-style/indian-kids-most-cyberbullied-5419510/.
Kelly, Michael, and David Satola. “The Right to Be Forgotten.” University of Illinois Law Review 2017 (January 1, 2017): 1–64.
Khatwani, Naman. “THE RIGHT TO BE FORGOTTEN; INCORPORATION IN INDIA,” n.d., 11.
Singh, Ajay Pal, and Rahil Setia. “RIGHT TO BE FORGOTTEN- RECOGINTION, LEGISLATION AND ACCEPTANCE IN INTERNATIONAL AND DOMESTIC DOMAIN” 6, no. 2 (n.d.): 20.
“The Right to Be Forgotten.” Accessed February 21, 2022. https://legalserviceindia.com/legal/article-5935-the-right-to-be-forgotten.html.
“The Right To Be Forgotten – Privacy – India.” Accessed February 20, 2022. https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten.
Lexlife India. “THE SIGNIFICANCE OF RIGHT TO BE FORGOTTEN AT CONTEMPORARY TIMES,” February 23, 2021. https://lexlife.in/2021/02/23/the-significance-of-right-to-be-forgotten-at-contemporary-times/.
RFMLR. “VOLUME 5 ISSUE 1.” Accessed February 20, 2022. https://www.rfmlr.com/volume-5-issue-1.
ScienceDaily. “Young Victims of Cyberbullying Twice as Likely to Attempt Suicide and Self-Harm, Study Finds.” Accessed February 21, 2022. https://www.sciencedaily.com/releases/2018/04/180419130923.htm.

[1] Unicef.org, https://www.unicef.org/end-violence/how-to-stop-cyberbullying ( Last visited on 20 February, 2022).

[2] Comparitech, “Cyberbullying facts and statistics for 2018 – 2022” (January,2022).

[3] Ibid

[4] Ibid

[5] Archana Sharma vs State of Nct of Delhi & Ors, WP(CRL) 3202/2020 & C.M. 11128/2020.

[7] Kapersky, https://usa.kaspersky.com/resource-center/preemptive-safety/cyberbullying-effects , (Last visited on 20 February, 2022)

[8] The Law Brigade, https://thelawbrigade.com/wp-content/uploads/2020/05/Nikhil-IJLDAI.pdf (Last visited at 20 Feb, 2022).

[9] Google Spain SL v. Agencia Espafiola de Proteccion de Datos (AEPD) 2014 E.C.R. 317.

[10] Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14] Justice K.S. Puttaswamy (Retd.), (2017) 10 SCC 1.

[15] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[16] Dharamraj Bhanushankar Dave v. State of Gujarat & Ors 2015 SCC Online Guj 2019.

[17] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[18] Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132.

[19] Mondaq, https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten? (Last visited on 20 Feb, 2021).

[20] Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132.

[21] Subhranshu Rout @ Gugul v. State of Odisha [BLAPL No. 4592 of 2020], High Court of Orissa, decided on 23 November 2020.

[22] Subhranshu Rout @ Gugul v. State of Odisha [BLAPL No. 4592 of 2020], High Court of Orissa, decided on 23 November 2020.

[23] Jorawar Singh Mundy vs Union of India, W.P.(C) 3918/2021 & CM APPL. 19941/202.

Author: Urmi Shah, Gujarat National Law University

Editor: Kanishka Vaish, Senior Editor, LexLife India

RESERVATION IN PROMOTION TO SCs AND STs: A SUPREME COURT VERDICT

Reading time : 6 minutes

INTRODUCTION

Reservation is a form of affirmative action in Indian law in which a percentage of seats in the public sector, union and state government departments, union and state civil services, and public and private educational institutions are reserved for socially and educationally backward communities, as well as Scheduled Castes and Scheduled Tribes that are underrepresented in these services and institutions.

The under-representation of identifiable groups as a consequence of the Indian caste system is the underpinning reason behind the state’s provision of reservation. Following India’s independence, the Indian Constitution designated several formerly oppressed communities as Scheduled Castes (SC) and Scheduled Tribes (ST).SCs and STs had long been oppressed and denied equal opportunity in Indian society as a consequence of caste system according to the Constitution’s authors, and hence were underrepresented in nation-building operations. Thus the system of reservation was introduced.

Even before independence, India had a reservation system in place. After independence, the Constituent Assembly, led by Dr. BR Ambedkar, devised the reservation system.It was first launched for a ten-year period. After a ten-year period, Indian legislators saw the need to keep the reservation system in place to address many years of societal and cultural prejudice against specific groups of people.

Reservations were established in India:

To correct past and historical injustices against India’s backward classes, to guarantee that individuals from all castes are represented equally in state and federal government functions, to give an equal platform for all, regardless of caste and to promote and progress the backward classes.

Several adjustments have been made to the law regarding reservations in promotions. In regards of public employment, India’s Constitution offers equal opportunity to its citizens under Article 16. This principle is stated in Article 16(1) as follows:

“In concerns of public employment, equality of opportunity- (1) in matters pertaining to employment or appointment to any position under the State, all citizens shall have equal opportunity”. With respect to reservation in promotion, Article 16 clauses 4 and 4A deal with reservation and reservation in promotional issues, respectively.

Article 16(4A) empowers the state to enact any law relating to SC/ST reservations in promotion. Article 16(4B) states that unfulfilled reserved promotion positions for SC/STs can be carried over to the next year. Article 16 (4B) further assures that the reservation quota ceiling for these carried forward empty jobs — set at 50% by Indra Sawhney — does not apply to succeeding years. These are further discussed in detail.

BACKGROUND: MAJOR MOVES AND VERDICTS THAT CHANGED THE SCENARIO

The policy of seats reservation in terms of promotion for the communities of SCs and STs communities has been followed by the central as well as the state government since 1950s, reason being the non-adequate representation of these communities at the decision making level in the public services. Relating to the same issue a landmark judgment was pronounced in case of ‘IndraSawhney v. Union of India’ by the Supreme Court of India in 1992.

1992: Indra Sawhney v. Union of India

In this landmark case also popularly known as ‘The Mandal Judgment’, the honorable Supreme Court through its nine judge bench provided that the constitution in its Article 16(4) does not provide for the reservation in promotion and is limited only to the reservation in appointment. The court through this judgment had put all the reservation in promotion to SCs and STs in public employment at risk. While taking this into account, the court gave a buffer period of five years post November 16^th 1992 to continue the reservation in promotion. This buffer period was granted to them so that they can take appropriate measures to implement the order given in the IndraSawney case.

The Supreme Court in this case upheld the reservation limit of 25% as recommended by the Mandal Commission for the backward classes, while making it clear that the combined quota for the Scheduled Caste, Scheduled Tribe and beneficiaries if backward class should not exceed the limit of 50% of the population of India. Government notification of reservation of 10% in the government jobs for the people of Economically Backward Classes was also struck down by the Supreme Court in 1992 while clarifying that according to Article 16(4) backward classes can be identified not only on the economic basis but also on the basis of caste.

The court made it clear that the reservation limit shall not exceed 50% and the same should be followed every year. However an exception can be given to the people from the remote and far flung areas because of their peculiar condition. However this all should be done with extreme caution. Although the “carry forward rule is valid” but is subject to the limit of 50%.

1995: 77^th Amendment Act

The facility of reservation have been enjoying by SCs and STs to some extent since 1955. However in case of IndraSawhney& Others v. Union of India & Others, Supreme Court observed that reservation under Article 16(4) has been restricted to initial appointment and cannot go to the extent of reservation in promotion which could hamper the interest of the Scheduled Caste and Scheduled Tribe because of their lack of representation in the same. Thus to protect the interest of these communities,the government continued the policy of providing reservation in promotion. However, in order to carry out this policy, Article 16 of the constitution was amended, and a new clause (4A) was added to the article.Thus the Constitution 77^th Amendment Act, 1955 by adding clause (4A) to Article 16 specified that, “Nothing in this article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes or posts in the services under the state in favor of SCs and STs which, in the opinion of the state, are not adequately represented in the services under the state”.

1996: Introduction of ‘Catch up Rule”

After the constitutional recognition of reservation in promotion, a situation arose where the candidate of reserved category who were promoted over their general category counterparts, became senior to them because of getting earlier promotion. This anomaly was put forward through two judgments in case of Virpal Singh (1995) and Ajit Singh (1996) which led to the introduction of the ‘Catch up Rule’. The rule laid down that the candidates who got promoted after their SCs and STs Counterparts have the possibility to regain their seniority.

2000: 81^st Amendment Act

Reserved vacancies prior to August 29, 1997 for SCs and STs which were not filled up through direct recruitment because the candidates belonged to the community were not available, were treated as “Backlog Vacancies”. These “Backlog vacancies were excluded from the 50% reservation limit and were considered a distinct group.

In IndraSawhney v. Union of India case, the Supreme Court gave a judgment that total vacancies including the number of vacancies that are to be filled in a year through reservation as well as the vacancies that were carried forward should not exceed 50% in any scenario. Because, total reservation including that for SC, ST and OBCs together had reached the forty nine and a half percent and as per the rule total vacancies could not cross the ceiling of fifty percent, it became tough to fill the ‘Backlog vacancies’ and to conduct the special recruitment drives. Hence an official Memorandum was issued dated August 29, 1997 which discontinued the special recruitment drives and applied the fifty percent limit to the current as well as to the ‘Backlog vacancies’. Because of the adverse effect of the above mentioned order of August 29, 1997, organizations like Member of Parliament put forward the request to protect the interest of Scheduled Caste and Scheduled Tribe in front of the central government.

After reviewing the position, the government decided to make an amendment in the constitution, to make the unfilled vacancies of a year that are reserved to get filled in that year according to reservation under clause (4) or clause (4A) of Article16 shall not be considered together with the vacancies of that year for the 50% ceiling limit and shall be considered as a different class of vacancies that are to be filled in any succeeding year or years. This amendment would restore the position that was in force before 29 August 1997.

Hence in Article16 of the Constitution, for clause (4A), the clause (4B) had been inserted to separate the vacancies of a particular year reserved for SC/ST for that particular year from the previous list of unfilled vacancies to reach the 50% quota of that respective year.

2000: 82^nd Amendment Act

The facility of relaxation of qualifying marks and standards of evaluation has been enjoyed by the people of SC & ST community in matters related to reservation in promotion. However, the Supreme Court ruled that these relaxations in areas of reservation in promotion were unconstitutional under Article 16(4) of the Constitution and the requirement provided in Article 335 in both S. Vinod Kumar v. Union of India case and also in Indira Sawhney& Others v. Union of India & Others. Thus the Supreme Court put forward to withdraw these relaxations with effect from 22.07.1997.

But due to the adverse effect on the interest of Scheduled Caste and Scheduled Tribes due to the order dated 22.07.1997, the government had received various representation to review the position once again, considering the same the government decided to move for a constitutional amendment to restore the relaxations withdrawn earlier.

Also read: RECENT GOVERNMENTAL ACTIONS TO CLIP THE LOKAYUKTAS POWER

Hence through this amendment, government inserted a proviso in Article 335, that provided that nothing in Article 335 shall prevent the state from making any provisions favoring members of SC & ST community for relaxation in qualifying marks in aspect of examination/job/promotion.

2001: 85^th Amendment Act

The 85^th Amendment Act of 2001 was put forward to extend the reservation benefit in the favor of Scheduled Castes and Scheduled Tribes in matters related to promotions with “consequential seniority. The amendment has substituted the words of clause (4A) of Article 16 of the Constitution from the words, “in matters of promotion to any class” to the words “in matters of promotion, with consequential seniority, to any class”. It was also made necessary to apply the proposed consequential amendment made to Article 16(4A) with retrospective effect from 17^th June, 1995 i.e. the date from which Article 16(4A) came into force.

2006: Nagaraj v. Union of India

The court in 2006 case of M. Nagaraj v. Union of India made it clear in its judgment to grant validation to parliament’s decision to extend the reservation for Scheduled Caste and Scheduled Tribes in matters of promotion as well. Although the court had specifically put forward few requirements to be fulfilled before granting reservation, thus making it difficult for the central and state government to take the decision of granting reservation.

In the case of M Nagaraj v. Union of India specifically the three controlling conditions were laid down by the Supreme Court which were necessary for the states to fulfill before granting reservation in promotion to any person belonging to SC and ST community.

The three conditions were:-

Quantifiable evidence of SC and ST backwardness

It was made necessary for the states to show the backwardness of a class by the states before granting them any reservation.

Proof of Inadequate representation

The state must show that ‘the class’ does not got adequately representation in the position or service for which the reservation in promotion is demanded.

A justification for maintaining administrative efficiency

The final requirement was to show that granting reservation is in the interest of administrative efficiency.

The Constitutional bench in this case also gave validation to all the earlier constitutional amendments made by the parliament consisting of 77^th, 81th, 82^nd and 85^th constitutional amendments.

2018: Jarnail Singh v. LacchmiNarain Gupta

This case is popularly known as ‘Reservation in Promotion’ case. The verdict on this case was given by Supreme Court on September 26^th 2018. A five judge bench of the Supreme Court having former Chief Justice of India DipakMisra, Justice RF Nariman, Justice InduMalhotra, Justice SK Kaul, Justice Kurian Joseph gave a review to the judgment of the previous case that dealt with providing reservation to the community of SC & ST in matters of promotion in public services and government jobs. This case also gave due consideration to the application of the ‘creamy layer’ aspect in terms of reservation in promotion to the SC & ST community. This ‘creamy layer’ aspect holds a great importance because it is an economic criteria in which an assumption is made that a person is no longer backward because he is doing well economically and is leading towards social advancements. Because of this progressive economic and social standard, many people consider this concept of ‘creamy layer’ as ‘caste discrimination’.

The decision made by the court in its earlier case of M Nagarj v. Union of India was challenged on different grounds by various states as well as the centre. It was said that the judgment in Nagraj case made it difficult for the centre and state to grant reservation in promotion. Hence it was demanded to refer the case to a seven judge bench. Various amendments and observations were made in this case, the constitutional validity of which was challenged and finally a petition to review the Nagaraj verdict was filed.

Issues that were raised were whether it was necessary to reconsider the Nagaraj judgment by a 7 judge bench? Is it necessary for the states to collect the quantifiable data to give a proof for the backwardness of the class? Whether the concept of creamy layer should be applied amongst the SC & ST community to limit them from getting reservation in promotion?

The Supreme Court in its judgment concluded that there is no need to refer the case of Nagaraj to a seven judge bench. It also held that the demand to prove the backwardness of SC and ST by collecting quantifiable data is in contradiction to what was held in the case of IndraSawhney v. Union of India. On one hand the court struck down the backwardness criteria while on the other hand introducing the principle of creamy layer expulsion. It was held that the expulsion of creamy layer extends to SCs &STs; hence state should refrain from granting reservation in promotion to those SCs and STs persons who come in the creamy layer category of the community.

BK Pavitra v. Union of India

This case happened because of a bunch of writ petitions that challenged the validity of the “Karnataka Extension of Consequential Seniority to Government servants promoted on the basis of reservation (To the post of civil service of the state) Act 2018”.This act was beneficial for the persons who got promotion under the policy of reservation of the state in Karnataka as it provided them with consequential seniority. Consequential seniority is a rule under which the candidates of the reserved category who got the earlier promotion as compared to their general category counterpart are allowed to retain their seniority over the candidate of general category for the subsequent promotions.The “Karnataka Determination of Seniority of Government Servants on the Basis of the Reservation (to Posts in the Civil Services of the state) Act 2002” came before the Reservation Act of 2018. BK Pavitra case also known as ‘BK Pavitra I’ case challenged the Reservation Act 2002 on the grounds of constitutional validity.A two-judge panel found that Sections 3 and 4 of the Reservation Act 2002 are in violation of Articles 14 and 16 of the Indian Constitution in this case. The Supreme Court also held the act invalid in another case of M Nagaraj v. Union of India.The legislature of the state of Karnataka, on the other hand, enacted the Reservation Act in 2018.The petitioners in this case, BK Pavitra and others v Union of India and others, commonly known as BK Pavitra II, claimed that the state legislature had essentially re-enacted the original Act without correcting the flaws. The petitioners questioned the method as well as the conclusion of the State’s search for collective measurable data in order to implement the Reservation Act 2018.Following the invalidation of the Reservation Act of 2002, the State of Karnataka established the RatnaPrabha Committee to present a quantitative assessment based on the three conditions set by the Court in the Nagraj case. And, based on the RatnaPrabha Committee’s findings, Karnataka approved the Reservation Act of 2018.The fundamental issue or question in this case was whether the Reservation Act of 2018 overruled the legislative instructions issued in the matter of BK Pavitra I. To determine whether the Reservation Act of 2018 is constitutional, the Court must determine whether it breaches Articles 14 and 16 of the Constitution. This was not, according to the Court, a legislative overruling.Another question was whether the Reservation Act of 2018 followed the Nagraj decision? In this context, the Court required to review the RatnaPrabha Committee’s reports. The Court began by examining the RatnaPrabha Committee’s findings and determining whether the parameters were adequately examined. The RatnaPrabha Committee’s technique has not been deemed unfamiliar or unusual, according to the Court.As a result, the Court noted that they were unable to determine that the Committee’s report was based on any extraneous or irrelevant information. The Act of 2018 also upheld the consequential seniority for SCs and STs.The idea of the creamy layer, according to the Court, has no bearing on the award of consequential seniority.

CURRENT SITUATION

Recently the Supreme Court gave its judgment after discuss on a series of petitions from all over the country that demanded more clarity on the modalities of providing reservation in case of promotion. The Supreme Court through its verdict denied laying down any “yardstick” to determine the inadequate representation of the members of the community of Scheduled Caste and Scheduled Tribes for reservation in promotion in case of government jobs.

Supreme Court in its ruling by a three judge bench, headed by Justice NageswaraRao mentioned the following points:-

Held ‘cadre’ as the unit for collection of data

Supreme Court in its verdict clarified that for granting promotion, it will hold ‘cadre’ as the unit for collecting quantifiable data and not class, group or the entire service. It reasoned it saying that if the data pertaining to the entire service would be taken, it would render the whole exercise of giving reservation in promotion meaningless.

Not to lay down any yardstick

The Supreme Court clarified that it will not lay down any yardstick for giving reservation in promotion to the SC and ST community or to determine their inadequacy of representation in promotion and the whole decision of whether to grant reservation or not would be left on the respective states.

Judgment in BK Pavitra case was set aside

By recognizing ‘cadre’ as the unit for collecting quantifiable data the court set aside the judgment it had given earlier in case of BK Pavitra and held that the decision of the court that approved collection of data on the basis of groups and not cadres is in contradiction of the law laid down in the earlier cases of Nagaraj and Jarnail Singh by the Supreme Court. The court also said that the judgment given by it in case of Nagaraj v. Union of India would have ‘prospective effect’.

Order of Review

The Supreme Court gave the responsibility to the union government to fix a ‘reasonable’ time for the states to conduct the review regarding the data for determining the inadequacy of reservation in promotion. Hence the court has left it on the states to determine if the representation of SCs & STs in promotional posts is inadequate or not by considering relevant factors.

VIEWS IN OPPOSITION OF RESERVATION IN PROMOTION

Effect on Efficiency: Promotions to SCs and STs throughout service and promotion appointments may make it harder to maintain administrative efficiency.

Not one of the Fundamental Rights: Reservation in promotion in public positions cannot be asserted as a fundamental right, according to the Supreme Court.

Reservation Redundancy: The SCs and STs benefit from reservation in their appointments with numerous servicers. As a result, quotas in promotions for critical positions are both unpleasant and inefficient.

Not a necessity: The Constitution only allows the State to create reservations in areas of appointment and promotion in favor of the Scheduled Castes and Scheduled Tribes “where in the view of the State they are not properly represented in the State’s services.”

NEED FOR RESRVATION IN PROMOTIONS

In a caste-based socioeconomic system, the SCs and STs have experienced centuries of discrimination and prejudice, which has created major barriers to opportunity.
The major reason for awarding upgrades in promotions is that there are very few SC/ST applicants in government positions at the higher levels.
The Constitution’s requirement for consideration of their claim to appointment would remain illusory unless specific procedures are introduced for SCs and STs in promotions as well.
The word “efficiency of administration” was not defined clearly in the Constitution by the founders.It is a prevalent misunderstanding that promotees selected from the SCs and STs are inefficient or that their appointment affects efficiency.

CONCLUSION

As a result, it is now established, that if a state wishes to provide reservation to members of the SCs and STs, it must first collect quantifiable data on the representation of SCs and STs in a specific cadre of a service and then form an opinion on the inadequacy of representation based on that data. Furthermore, regardless matter how difficult it may be, the state must determine the impact of reservation on administrative efficiency. The state may only justify its action of offering reservations in promotions if these requirements are met.

REFERENCES:

https://s3-us-west-2.amazonaws.com/visionresources/value_added_material/Reservation_Policy_Final.pdf (Last visited on February10, 2022)
Advocate Vaishali Goyal, Delhi High Court, “ Reservation in promotion”, ipleaders, Aug.19, 2020
https://www.insightsonindia.com/2022/01/29/quota-in-promotions/ (Last visited on February 10, 2022)
https://www.gktoday.in/current-affairs/reservation-in-promotion/ (Last visited on February 11, 2022)
The Constitution(77^th Amendment)Act,1995https://legislative.gov.in/constitution-seventy-seventh-amendment-act-1995
The Constitution(81^st Amendment) Act,2000https://legislative.gov.in/constitution-eighty-first-amendment-act
The Constitution(82^th Amendment Act),2000https://legislative.gov.in/constitution-eighty-second-amendment-act#:~:text=The%20Scheduled%20Castes%20and%20the,in%20the%20case%20of%20S
The Constitution(85^th Amendment Act),2001https://legislative.gov.in/constitution-eighty-fifth-amendment-act-2001
https://www.legalbites.in/case-comment-m-nagaraj-v-union-of-india-2007 (Last visited on February 12, 2022)
https://www.aspireias.com/daily-news-analysis-current-affairs/Creamy-layer-principle-in-SC-ST-quota-Nagraj-case (Last visited on February 12, 2022)
https://www.scobserver.in/cases/jarnail-singh-v-lacchmi-narain-gupta-reservation-in-promotion-case-background/ (last visited on February 13, 2022)
https://lawsisto.com/legalnewsread/ODg1Nw==/BK-PAVITRA-AND-OTHERS-V-UNION-OF-INDIA-AND-OTHERS( Last visited on February 13, 2022)
https://www.livelaw.in/amp/top-stories/reservation-in-promotions-supreme-court-holds-cadre-as-unit-for-collecting-quantifiable-date-states-obligated-to-collect-quantifiable-date-190513#aoh=16453688037833&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s (Last visited on February 15, 2022)
https://www.thehindu.com/news/national/supreme-court-verdict-on-reservation-in-promotion-to-scssts-on-january-28/article38334900.ece (Last visited on February 17, 2022)
https://m.timesofindia.com/india/states-ought-to-collect-quantifiable-data-before-granting-reservation-in-promotion-to-sc/st-employees-sc/amp_articleshow/89172757.cms (Last visited February 17, 2022)

Author: Srishti Sachdeva, Hidayatullah National Law University

Editor: Kanishka Vaish, Senior Editor, LexLife India

Farm Laws, 2020: An Assault on the Constitutional Principle of Federalism

Reading time : 8 minutes

Abstract

Background: Amidst the Covid-19 Pandemic, the Govt. of India, in the guise of introducing agricultural reforms enacted three Farm Laws. Amongst farmer’s protests, several State Governments also protested against the same on the ground that the Parliament, in enacting the Farm Laws, had overstepped its legislative domain.

Objective: The objective of this paper is to determine whether or not the enactment of the Farm Laws, 2020, by the Parliament, infringed the Constitutional Principle of Federalism by violating the scheme of distribution of legislative powers as provided under Art. 246 r/w Seventh Schedule of the Constitution of India.

Research Methodology: The study undertaken herein is doctrinal research based on data gathered from articles, blogs, research papers, case laws, Govt. reports and academic-books. Reliance has also been placed on statutory and constitutional provisions to substantiate the research.

Addition to Existing Knowledge and Conclusion: The author, after an analysis of the Farm Laws vis-à-vis doctrine of pith & substance, doctrine of colorable legislation and in lieu of established judicial precedents, has established that the Parliament lacked the legislative competence to enact the said Laws under the Seventh Schedule of the Constitution Therefore, it is stated that the Farm Laws undermined the Federal Structure upon which the Indian Constitution is based.

Keywords: Colorable Legislation; Farm Laws, 2020; Federalism; Legislative Competence; Pith & Substance.

Introduction

In India, agricultural markets are primarily regulated by the State Agricultural Produce Marketing Committee legislations, the chief objective of which is to ensure fair trade between buyers and sellers for effective price discovery of agricultural produce. However, the Standing Committee on Agriculture in its Report (2018-19) had submitted that the APMC laws were not implemented in their true sense and thus, there was urgent need for agricultural reforms.[1]

Based upon the same, the President of India, in 2020, under Art. 123 of the Constitution of India, promulgated three Ordinances namely, 1) The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020; 2) The Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020; 3) The Essential Commodities (Amendment) Ordinance, 2020. Subsequently, the Central Minister of Agriculture and Farmers’ Welfare introduced two bills replacing the above-mentioned ordinances which consequently received the President’s assent.

The three laws (‘Farm Laws’) so enacted, aimed to increase the availability of buyers for agricultural produce, by allowing them to trade freely without any license or stock limit, so that an increase in competition among them results in better prices. While it appears that the Farm Laws do not suffer from any fault, several State Governments have raised their objection w.r.t the Parliament’s legislative competence to enact the said laws. Thus, the author, in this paper analyses the constitutional validity of the Farm Laws vis-à-vis the Parliament’s legislative competence while also seeking to establish as to whether or not the enactment of the Farm Laws, being outside the Parliament’s scope of powers, violate the Constitutional Principle of Federalism.

Firstly, let’s understand the Constitutional provision(s) dealing with legislative competence of the Legislature and distribution of legislative powers between the Centre and States.

I. Scheme of Distribution of Legislative Powers Under the Indian Constitution

Art. 246 of the Constitution of India, clearly demarcates the legislative powers/fields of the Parliament and the State Legislatures, within which they have to operate.^[2] Art. 246(1) expressly states that the Parliament has the exclusive power to enact laws w.r.t any matter enumerated in List I (‘Union List’) under the Seventh Schedule. Art. 246(3) provides that the State Legislatures are vested with the exclusive powers to make laws w.r.t the subjects enumerated in List II (‘State List’). Lastly, Art. 246(2) provides that both the Parliament and the State Legislatures have the power to make laws w.r.t the subjects enumerated under List III (‘Concurrent List’).^[3]

Since, the author seeks to analyse the constitutional validity of the Farm Laws, reference has to be made to “State of A.P. v. McDowell & Co.”,^[4] wherein it was held that, to determine the constitutional validity of the impugned law, it will have to be tested on 2 main grounds namely, “legislative competence and violation of fundamental rights or any other Constitutional provisions”. In the context of the present issue, it’s only the first ground which is relevant.

In this paper, the author, by relying upon Constitutional provisions, principles and judicial precedents, analyses whether or not the Parliament, by enacting the Farm Laws has violated the scheme of distribution of legislative powers under the Constitution thereby, infringing the principle of Federalism.

II. Challenge to Parliament’s Legislative Competence to enact the Farm Laws, 2020 under the Union List

The Union List under the Seventh Schedule of the Constitution of India consists of ninety-seven items, w.r.t which, only the Parliament has the exclusive powers to enact laws.^[5] W.r.t the present issue, it is to be noted that under the Union List, there are a total of 4 entries which use/mention the word agriculture. These are Entries 82 – “Taxes on income other than agricultural income”, 86 – “Taxes on the capital value of assets, exclusive of agricultural land, of individuals and companies, taxes on capital of companies”, 87 – “Estate duty in respect of property other than agricultural land” and 88 – “Duties in respect of succession to property other than agricultural land”.

Upon a close analysis of all the above-mentioned Entries, it can be observed that the Parliament’s exclusive powers to enact laws w.r.t the same has been restricted when it comes to agricultural sector. This is evident by the usage of words like “other than” and “exclusive of”.[6]

Therefore, the author hereby submits that, the Parliament, under the Union List, has no actual legislative competence to enact the Farm Laws which deal with the subject of agriculture, as the same has been kept outside its scope.

III. Challenge to Parliament’s Legislative Competence to enact the Farm Laws, 2020 under the State List

The State Legislatures have the sole prerogative to enact laws w.r.t all of the sixty-six items enumerated under the State List under the Seventh Schedule of the Constitution.[7] Before delving into the Parliament’s legislative competence to enact the Farm Laws, 2020 under the State List, it is important to note herein that the distribution of legislative powers enumerated under Art. 246 must be strictly enforced and neither the Parliament nor the State Legislatures can encroach upon the domain reserved for the other.[8]

There are however, certain exceptions wherein the Parliament can enact laws w.r.t the items contained in the State List.[9] These exceptions are: Parliament’s power to enact laws dealing with a State subject: “(a) in the national interest,[10] or (b) while the proclamation of an emergency is in operation,[11] or (c) if two or more States agree that it is desirable to take the Parliament’s aid to enact a single legislation w.r.t a State subject,[12] or (d) for the whole of India or any territory contained therein, in furtherance of giving effect to international treaties/agreements,[13] or (e) if there is a Proclamation to that effect, in case of failure of constitutional machinery in the States.[14]” It is worthwhile to mention that, the enactment of the Farm Laws is not in furtherance of any of the above-mentioned exceptions and thus, the Parliament didn’t have the legislative competence to enact the Farm Laws even under the State List.

Regarding the State List entries, it is to be noted that ‘Agriculture’ is a State Subject as enumerated under Entry 14 of the State List and thus, only the State Legislatures have the exclusive power to legislate upon the same.

Besides Entry 14 of State List, Entries 18 (land…transfer and alienation of agricultural land, land improvement and agricultural loans…), 28 (markets and fairs), 30 (money-lending…relief of agricultural indebtedness), 45 (land revenue…and the maintenance of land records…), 47 (duties in respect of succession to agricultural land) and 48 (estate duty in respect of agricultural land), clearly establish the intention of the framers of the Constitution that “Agriculture” is exclusively a State subject which is beyond the domain of legislative powers of the Parliament. The same has been contended in the Writ-Petitions filed by Bharatiya Kisan Party[15] and D.P. Dhakad[16] against the Union of India and Ors. and Union of India Through Secretary, Ministry of Agriculture and Farmers’ Welfare and Ors., respectively, wherein the constitutionality of the Farm Laws was challenged.[17]

Pursuant to the above Entries and the subject matter contained therein, it can be said that the Parliament, by enacting the Farm laws that essentially deals with agriculture which is a State subject, has impinged upon the legislative domain reserved for the State Legislatures and therefore, the same are ultra vires.

Reference has been made to the Report of Expert Committee and Inter Ministerial Task Force, constituted by the Ministry of Agriculture in 2000, wherein they had to review the present system of marketing and accordingly make recommendations. W.r.t these recommendations the State Governments had clearly expressed that, “reforms in the agricultural marketing sector… In view of liberalization of trade and emergence of global markets, it was necessary to promote development of a competitive marketing infrastructure in the country and to bring about professionalism in the management of existing market yards and market fee structure…”[18]

W.r.t the views expressed by the State Governments, as provided above, reliance has to be placed on “ITC Ltd. vs. Agricultural Produce Market Committee”,[19] wherein the Supreme Court while dealing with a conflict between a Parliamentary law i.e. the Tobacco Board Act, 1975 (defended under Entry 52 of the Union List) and Bihar’s APMC Act (defended under Entry 28 read along with Entry 66 of the State List), had upheld the State Legislature’s exclusive power to legislate on matters dealing with agriculture. The majority Bench also observed that constitution of market areas, market yards and regulation of use of facilities within such areas or yards by levying market fee is a matter of local interest and the State Legislatures are wholly competent to legislate w.r.t the same under the State List.

Therefore, keeping in mind that the views expressed by the State Governments are consistent with the Court’s observation, it can be concluded that the Parliament by enacting the Farm Laws, has encroached upon the legislative domain reserved for the State Legislatures.

Moreover, it has been held in “Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.”[20] that the usage of the term ‘exclusive’ under Art. 246(3) essentially denotes that, within the legislative fields contained in the State List, the State Legislatures’ authority to enact laws is as plenary and ample as the Parliament’s. Therefore, since, ‘Agriculture’ and ‘Markets’ are State subjects under List II and the Farm Laws, in principle and content deal with the same, only the State Legislatures are competent to enact laws regarding the same.

IV. Farm Laws, 2020 – Ultra-Vires under the Concurrent List

Clause (2) of Art. 246 of the Constitution empowers both the Parliament and State Legislatures to legislate w.r.t any of the 47 matters enumerated in the Concurrent List, but this power is subject to Parliament’s exclusive legislative power under Clause (1), and notwithstanding anything contained in Clause (3).[21]

Under the Concurrent List, the usage of the term ‘Agriculture’ can be traced to Entries 6 – “transfer of property other than agricultural land…” and 7 – “contracts including partnership, …but not including contracts relating to agricultural land”, both of which, akin to those contained in the Union List, exclude the matters relating to ‘Agriculture’. Thus, it is to be noted that neither the Parliament nor the State Legislatures can resort to the above-mentioned entries to enact laws regarding the same. However, ‘Agriculture’ being a State-subject, empowers the State legislature to enact laws regarding the same.

Moreover, reference has to be made to Entry 41 of the Concurrent List which empowers both the Parliament and the State Legislatures to enact laws on the subject of “custody, management and disposal of property (including agricultural land) declared by law to be evacuee property”. However, in the present case, the three Farm laws that are in question, do not relate to agricultural land and therefore, Entry 41 of List III, also cannot be resorted to by the Parliament to have enacted by the Farm Laws, 2020.

On that note, it is pertinent to note that the Centre has not resorted to any of the above-mentioned entries but has instead relied upon Entry 33 of the Concurrent List to justify its legislative action of enacting the Farm Laws.

Entry 33 of the Concurrent List reads as follows:

Trade and commerce in, and the production, supply and distribution of — (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.

At this point, it important to analyse the Farm Laws by applying two important principles of interpretation i.e., the doctrine of pith and substance and doctrine of colourable legislation.

Also read: Linking of Aadhaar with Voter ID’s: Everything You Need to Know

IV.I Analysis of the Farm Laws, 2020 through the Lens of Doctrine of Pith and Substance & Doctrine of Colorable Legislation.

The doctrine of pith and substance is applied in cases where the legislative competence of a Legislature w.r.t a particular law, is challenged w.r.t entries in different Legislatives Lists, because a law dealing with a subject in one List within the competence of the enacting Legislature also incidentally touches upon a subject contained in a different legislative list which isn’t within the legislative competence of the concerned Legislature.[22] In such category of cases, the true character and the nature of the impugned legislation have to be ascertained for which the legislation as a whole, its object, scope and the effect of its provisions have to be taken into consideration following which it is to be determined that under which list does the true nature and character of the impugned law falls.[23]

In furtherance of the doctrine of pith and substance, the doctrine of colorable legislation essentially states that, “if a statute doesn’t fall within the lawful jurisdiction of a legislature in its pith and substance and transgresses into the realm of another Legislature but is made to appear in its presentation and shape as if the law were intra-vires, it would amount to a colorable legislation”.[24] It is to be noted that this doctrine is only relevant when the legislative competence of a Legislature is in question[25] and it bars a legislature from legislating on an object outside its legislative powers under the disguise/pretense of exercising its own powers.[26]

In the present case, analyzing the Farm Laws through the lens of the above-mentioned doctrines in order to ascertain as to whether or not the Parliament had the legislative competence to enact the impugned laws under the Concurrent List, reference has to be made to the Statement of Objects and Reasons of Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (‘Promotion and Facilitation Act’) which states that it is an Act “to provide for a parallel system for the purchase or sale of farmers’ produce outside the existing system of market yards of the State APMC”. Further, it defines farmer as, “a person engaged in the production of the farmers’ produce…”[27] and farmers’ produce as “(i) foodstuffs including cereals like wheat, rice… and raw jute”.[28]

The Parliament has incorporated terms such as ‘farmers’ and ‘farmers produce’ instead of ‘agriculturalist’ and ‘agricultural produce’, as used under Section 2(2)[29] & Section 2(1)[30] of the State Agricultural Produce Marketing (Development and Regulation) Model Act, 2003 (‘2003 Model Act’) and Section 2(4)[31] & Section 2(3)[32] of the Model State/UT Agricultural Produce and Livestock Marketing (Promotion and Facilitation) Act, 2017 (‘2017 Model Act’) respectively.

In addition to the above, Section 3 of the Promotion and Facilitation Act, 2020 has to be referred which talks about the farmer’s freedom to conduct trade and commerce in a trade area. It is pertinent to note herein, that the usage of the phrase trade and commerce essentially refers to the basic act of buying and selling agricultural produce, which again, both under the 2003 Model Act & 2017 Model Act has been referred to as ‘marketing of the agricultural produce’ {Section 2(31)} and ‘marketing’ {Section 2(26)}, respectively.

Further, reference has to be made to Section 6 of the Promotion and Facilitation Act, 2020 which expressly prohibits States from levying market fee/cess, which is in complete contravention to the law laid down under “ITC Ltd. vs. Agricultural Produce Market Committee”.[33] It is worthwhile to mention herein that the Hon’ble Supreme Court in “K.C. Gajapati Narayan Deo vs. State of Orissa”[34] has held that the State Legislature is certainly competent to enact laws dealing with imposition of taxes on agricultural income and that such a law was not a colourable piece of legislation.

Also, in “State of Rajasthan v. G. Chawla”,[35] it was held that “it is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given.” Relying upon the same, it can be stated that since ‘Markets’ is a State Subject, levying market fee being an ancillary matter is something that only the State Legislatures can legislate upon. This clearly establishes an intrusion into the legislative field reserved for the States.

Reliance is also placed on “Thakur Amar Singhji vs. State of Rajasthan”,[36] wherein it was held that the name given to a legislation cannot be regarded as a conclusive record about the subject matter of the Act. Therefore, although the title of the Farm Laws has been wittily worded to give the impression that they deal with trade and commerce, the name of the Act bearing the phrase trade and commerce cannot be used to describe the subject matter of the legislation.

Moreover, the author emphasizes the Statement of Objects and Reasons of the Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 which states that the objective of the Act is “to promote national framework on farming agreements and to empower the farmers to engage in the sale of farming produce”. It is to be noted that despite the terms used in the Statement of Objects and Reasons of the said Act, the essence of the legislation remains that it provides for a farming agreement for the purpose of purchase and sale of agricultural produce.

Therefore, it can be stated that although the usage of the nuanced words indicate that the impugned legislations deal with Trade and Commerce, which is a Concurrent subject, the pith and substance of these laws are – ‘agricultural produce’, ‘harvest of an agriculturalist’, ‘purchase and sale of agricultural produce’, and ‘marketing of agricultural produce’. Since, the pith and substance of the Farm Laws, by virtue of Entry 14 of the State List, fall under the State Legislatures’ exclusive domain, the Parliament has resorted to colorable devices to show that the laws are more connected to Entry 33 of the Concurrent List and deal with essential commodities and trade and commerce.

IV.II Doctrine of Pith & Substance & Doctrine of Colorable Legislation Vis-A-Vis the Indian Judiciary

The Hon’ble Supreme Court has often reiterated that “where the Parliament’s legislative competence to enact a law is challenged, the question that is to be asked is whether it relates to any of the entries in the State List and if it doesn’t, then no further question need be asked and Parliament’s legislative competence must be upheld.”[37]

In “State of Rajasthan vs. G. Chawla”,[38] a legislation enacted by the State Legislature under List II, which restricted the use of sound amplifiers, was challenged on the grounds that the State Legislature was not competent to do so as the matter fell within List I. It was held by the Hon’ble Supreme Court that the impugned legislation, in its pith and substance dealt with public health and sanitation and was therefore, not invalid, even though it incidentally encroached[39] upon the Union subject of broadcasting or communication. Thus, by relying upon the same, it can be stated that in the present case, the Parliament by relying upon Entry 33 of List III will still not be competent to enact the Farm laws as these laws, in pith and substance clearly deal with agriculture and agricultural matters which is a State subject.

Lastly, it is to be noted that as already established above, the Parliament has color quoted certain terms and phrases to disguise the Farm Laws as falling under Entry 33 of List III when it actually belongs in Entry 14 of the List II. Therefore, every piece of legislation dealing with agriculture comes under the exclusive legislative competence of the State Legislatures by virtue of Entry 14 r/w Entries 18, 28, 30, 45, 47 & 48 of the State List. Thus, the Farm Laws clearly transgress into the legislative field reserved exclusively for the State Legislatures and hence, the Central Legislature has acted outside of the scope of its legislative competence to enact the same.

V. Parliament’s Strike on the Constitutional Principle of Federalism

The Indian Constitution, is based on the principle of Federalism implying that it provides for a simple demarcation of the fields under which the Central and the State Legislatures are eligible to legislate.[40] It is obvious that, “the entries in the Constitutional Lists play a significant role in examining the legislative field taking its source of power from Art. 246 of the Constitution”.[41] But in case of an encroachment of the legislative fields, the scheme of distribution of powers would stand violated thereby, violating the principle of Federalism.

In “Keshavananda Bharati vs. State of Kerala”,[42] it was held that the federal scheme of the Indian Constitution is one of its fundamental frameworks. Moreover, “the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, the States are supreme. The Centre cannot tamper with their powers…”.[43]

In case of overlapping entries between List II and List III, the State List subject shall prevail.[44] Since, in the present case, the Parliament has not incidentally encroached upon but has instead transgressed into the legislative field reserved for the States, it has violated the federal scheme of the Constitution.

Therefore, the essence of federalism in the context of the present issue is that the exclusive authority of a legislature cannot be infringed by another. However, the Parliament by enacting the Farm Laws dealing with ‘Agriculture’, has impinged upon a legislative field exclusively reserved for the State Legislatures. Thus, a violation of the distribution of legislative powers which is one of the most important features of a Federal Constitution, automatically infringes the Federal Scheme of our Constitution, thereby, violating the basic structure of the Constitution.[45]

Conclusion

After a detailed analysis of all the Entries contained in the Union, State and the Concurrent Lists, as provided under the Seventh Schedule, it can be concluded that the enactment of the Farm Laws, 2020 violates the scheme of distribution of legislative powers provided under Art. 246. Firstly, the author has established that the Parliament lacked the legislative competence to enact the Farm Laws not only under the Union List but also the State List.

The issue, arises as the Centre claims to have enacted the Farm Laws under Entry 33 of the Concurrent List. However, it is worthwhile to mention that after analysing the scope, object and the effect of the provisions, it can be said that the Farm Laws, in pith and substance clearly deal with the subject of ‘Agriculture’, which is a State Subject. The said laws use certain nuanced terms and phrases giving the impression that they have been enacted in furtherance of a Concurrent subject, while in fact, they actually deal with a State-subject. Therefore, it is in fact, a colourable legislation.

Moreover, to conclude, it is stated that the Parliament, by enacting the Farm Laws has exceeded the scope of the legislative powers and has intentionally transgressed into the legislative field allotted to the State Legislatures by the Constitution. Such an encroachment violates the federal scheme of the Constitution of India and thereby, violating the basic structure of the Constitution.

[1] Directorate of Marketing and Inspection, “Final Report of the Committee of State Ministers, in-charge of Agriculture Marketing to Promote Reforms” (Ministry of Agriculture, 2013).

[2] State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571.

[3] Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236.

[4] (1996) 3 SCC 709.

[5] Govt. of A.P. v. J.B. Educational Society, (2005) 3 SCC 212.

[6] Bishwajit Bhattacharyya, “How Parliament overstepped itself in bringing the three Farm Laws” The Wire, 21 January 2021, available at <https://thewire.in/agriculture/how-the-parliament-overstepped-in-bringing-the-three-farm-laws> (last visited on 7 February, 2022).

[7] Kerala SEB v. Indian Aluminium Co. Ltd., (1976) 1 SCC 466.

[8] Poonam Sonwani, “Distribution of Legislative Powers under the Indian Constitution” 7 IOSR-JHSS 39-40 (2016).

[9] Uday Raj Rai, Constitutional Law I 394-397 (EBC Publishing (P) Ltd., 1st edn., 2016).

[10] The Constitution of India, art. 249.

[11] The Constitution of India, art. 250.

[12] The Constitution of India, art 252.

[13] The Constitution of India, art 253.

[14] The Constitution of India, art. 356.

[15] LiveLaw, available at: https://www.livelaw.in/pdf_upload/pdf_upload-382414.pdf (last visited on 8 February, 2022).

[16] LiveLaw, available at: https://www.livelaw.in/top-stories/new-agriculture-reform-laws-allow-big-investors-to-poor-farmers-with-liability-clauses-beyond-their-understanding-mp-farmers-leader-moves-sc-163942 (last visited 8 February, 2022).

[17] Rakesh Vaishnav and Others v. Union of India, (2021) SCC OnLine 18.

[18] Press Information Bureau, Government of India, “Task Force Set up to suggest measures”, available at: https://archive.pib.gov.in/archive/releases98/lyr2002/rsep2002/27092002/r270920028.html (last visited on 8 February, 2022).

[19] (2002) 9 SCC 232.

[20] (2007) 6 SCC 236.

[21] Ibid.

[22] E.V. Chennaiah v. State of A.P., (2005) 1 SCC 394; Attorney General for Canada v. Attorney General for British Columbia, (1930) AC 111 (PC); Russell v. R., (1882) 7 AC 829 (PC).

[23] Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., (1947) SCC OnLine 6.

[24] V.N. Shukla, Constitution of India 806-807 (EBC Publishing (P) Ltd., 13th edn., 2017).

[25] B.R. Shankaranarayana v. State of Mysore, AIR 1966 SC 1571.

[26] Attorney General of Alberta v. Attorney General of Canada and Others, (1938) SCC OnLine PC 43.

[27] Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (Act No. 21of 2020), s. 2(b).

[28] Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (Act No. 21of 2020), s. 2(c).

[29] “Agriculturist means a person who is a resident of the notified area of the market and who is engaged in production of agricultural produce by himself or by hired labour or otherwise, but does not include any market functionary.”

[30] “Agricultural Produce” means all produce and commodities, whether processed or unprocessed, of agriculture, horticulture, apiculture, sericulture, livestock and products of livestock, fleeces (raw wool) and skins of animals, forest produce etc. as are specified in the schedule or declared by the Government by notification from time to time and also includes a mixture of two or more than two such products.”

[31] “a person who is engaged in production of agricultural produce including rearing of livestock by himself or by hired labor or otherwise, including tenant; “Agriculturist” also includes association of farmers, by whatever name called, registered under any law for the time being in force and is engaged in aggregation of member farmers’ produce including livestock…”

[32] “Include all produce, whether processed or not, of agriculture, horticulture, apiculture, forest excluding trees grown on private land, specified in the schedule.”

[33] Supra note 19.

[34] AIR 1953 SC 375.

[35] AIR 1959 SC 544.

[36] (1955) 2 SC 781.

[37] Union of India v. Shri Harbhajan Singh Dhillon, (1971) 2 SCC 779.

[38] Supra note 35.

[39] State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

[40] Mamta Rao, Constitutional Law 775 (EBC Publishing (P) Ltd., 2nd edn., 2021).

[41] Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority, (2011) 3 SCC 139.

[42] (1973) 4 SCC 225.

[43] S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[44] Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45.

[45] Shreehari Aney & Abhay Anturkar, “Recasting of the Federal Structure of the Indian Constitution”, The SCC OnLine Blog, 2 April 2021 available at: <https://www.scconline.com/blog/post/2021/04/02/indian-constitution/> (last visited on 16 February, 2022).

Author: Nikunj Agarwal, Symbiosis Law School, Pune

Editor: Kanishka Vaish, Senior Editor, LexLife India

CRITICAL ANALYSIS ON RIGHT TO FAIR TRIAL IN INDIA

Reading time : 8 minutes

Introduction

Fair trial is an important aspect of our society without fair trial innocent people are convicted this hinders the principles of rule of law and public faith in justice system. The right to a fair trial is a right under article 6 of human right act . Rule of law ensuring administration of justice talk about the fair trial of the convicts. Fair trial gives fair and proper opportunities to prove innocence to the convict . An impartial judge shall treat all parties equally which is the most important part of the judicial system.

In Zahira Habibullah Sheikh and ors. Vs. State of Gujarat and ors, The Supreme Court of India states that each one has a right to fair trial . Refusal of a fair trial is not only an injustice to the accused but also to the victim and to society. Fair trial means a trial before an impartial judge, a fair prosecutor . Trial in which bias or prejudice for or against the accused, are present should be eliminated.

Indian Constitution : fair trial is the fundamental right

Article 21 of the Indian Constitution provides protection to the convicts . It says no person shall be deprived of his life and personal liberty except to the procedure established by law and it adds the quality of life , right to live with human dignity , right to livelihood is the primary aspect of human being life . It provide right to a reasonable, fair, and just trial.

In Maneka Gandhi v. Union of India the supreme court held that right to live is not a physical right but includes right to live with human dignity .the procedural rights also includes right to information and document which being used against him will deprive him, of a due opportunity to defend himself which is the human right to free and fair trial

In the case P. Ramachandra Rao v. the State of Karnataka (2002), the Court established that under Sections 309, 311, and 258 of the Code of Criminal Procedure provides the right provides for speedy trial. The High Court under Section 482 of the Criminal Procedure Code and Articles 226 and 227 of the Constitution can be used to seek appropriate remedy and directives. fundamental right under Article 21focuses on right to quick and fair trial.

Sec 243 CRPC : evidence for defence

It is obligatory on the part of the trial court to issue process when rhe accused seeks summoning of any witnesses or production of any document in his defence

Principles of impartial trial

Adversary system

Our country adopts human system of criminal trial. in step with this any dispute on the criminal responsibility of someone is to be resolved by the judicature when giving truthful and adequate chance to the person before the court of their several cases. It permits associate Impartial and competent court to own correct perspective of the case and it’s a more robust device to get the reality in an exceedingly truthful manner. In such, state represent the victim and therefore the state starts an attempt against the suspect.

This system recognized equal right and chance to each the parties. Further, the code needs the judicature to play a a lot of active and positive role than that of mere referee within the combat between the prosecutor-state and therefore the suspect person. The charge against the suspect is to be framed not by the prosecution however by the court when considering the circumstance of the case and lawyer cannot withdraw from the case while not the consent of the court.

Himanshu v. State of MP two case apex court fanciful that below free trial the Code is not granted to the gatherings and court has motivations to simply accept that organization or examiner is not acting within the imperative means and therefore the court will observe its power below section 311 and 165 of the Code of the Indian evidence Act, 1872 to bring for the material witness and acquire the necessary reports so as to serve the reason for equity.

Presumption of innocence

An accused has the right to be presumed innocent until he is proven guilty and this is a central role of our criminal justice system. It is the responsibility of the state to prove the guilty. If the accused is silent, it should not be used as evidence of guilt or as a reason to place them in pre-trial detention.

State of U.P. V. Naresh and Ors in (2001) 4 SCC 324, the Supreme Court observed every accused is assumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”

Independent, impartial and competent judge

The most essential feature of a fair criminal trial is to have an independent, impartial and competent Judge to conduct the trial. The Code has provided for the separation of the judicial from the executive and it would ensure the independent functioning of judicial free of all suspicion of executive influence or control.The right to an independent and impartial tribunal established by law is a right of every convict

Expeditious trial

Article 21 of the Constitution confers an inviolable fundamental right of expeditious trial to the applicant main purpose of expeditious trial (1) to set off the right of the accused to a speedy trial; (2) timely resolution of criminal cases in a fair and accurate manner according to public interest and (3) ensuring the effective utilization of resources.

Doctrine of double jeopardy under article 20 (2)

According to this doctrine if someone is tired and not guilty of any offence he can’t be tired more than once for same offence or on same facts for the other offence. This doctrine has been considerably incorporated in Article 20(2) of the constitution and is additionally embodied in section 300 of the code. The second or future trial in violation of the higher than doctrine would mean unjust harassment of the suspect person and may be thought of as something however truthful and has prohibited each by the code and the constitution.

In S.A. Venkatraman V. Union of India case the Supreme Court states that the procedure taken before the Enquiry Commissioner did not add up to a commission for an offense. it had been within the plan of truth finding to prompt the govt for disciplinary activity against the appellant. It cannot be aforesaid that the individual has been indicted.

Also read: Uniform Civil Code: The Need of Hour

Hearing ought to be in open court

Fair trial needs public hearing in associate open court. Section 327 of the Code makes provision for open court usually accessible to the members of the general public.
According to section 327 the place wherever the court is in command shall be open court that the general public might have access. Public trial in open court is an incredible instrument for creating certainty of public in reasonableness, sound judgement and fair mindedness of the organization

In the case of Naresh Sridhar Mirajkar V. State of Maharashtra AIR 1967 SC 1 , the apex court observed that the right to open trial must not be denied except in exceptional circumstances. High Court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings.

According to section 479

1. No judge or magistarte shall expect with permission of the upper court strive or commit for trial any case to or during which he’s a party or personally interested
2. No judge or a magistrate shall hear any appeal from any judgement or order passed or created by himself.
3. Transfer of case to secure impartial trial- in step with section a hundred ninety (1) c, a magistrate has power to require cognizance of any offence might do upon his own knowledge concerning the commission of any such offence. However, in such case the suspect should be told before any proof is taken that he’s entitled to own the case tried by another magistrate sec. 191
Secondly, whenever it’s created to look to the high court that a good and impartial inquiry or trial can’t be command in any criminal court subordinate thereto might subject to condition set down in section 407, order that (I) any offence be inquired into or tired by the other competent court or

(ii) that any explicit case or category of case be transferred from a court subordinate to its authority to the other judicature. Similarly, the ability of transfer of cause given to the Supreme court and therefore the session court by section 406 and 408.

In Ambazhagan V. Superintendent of police four, Supreme court command that party interseted about sec 406(2) would comprehend political opponents of the suspect spoken communication they’re the watch dogs of the govt. . in power. The petitioner wished the criminal case filed against the Chief Minister of the state to be transferred out of the state. The Supreme court ordered spoken communication that The petitioner has raised several excusable and affordable apprehensions of miscarriage of justice would need our interference in exercise of power below sec.406 CrPC.

Knowledge to the accused of his accusation and adequate opportunity

Accused ought to be truthful opportunity to defend himself and therefore the particulars of the offence of that he’s suspect shall be declared to him . The proper to own precise and specific accusation is contained in Section 211 of the Code.
he particulars of the offence of that he’s suspect shall be declared to him. [Ss.228, 240, 246, 25]. Just in case of serious offence, the court is needed to border in writing a proper charge and so to explain and make a case for the charge to the suspect

The right to have precise and specific accusation is contained in section 211 Criminal procedure code The right to adequate time and facilities for the preparation of a defence applies not only to the defendant but to his or her defence counsel as well.

Trial in presence of accused

The presence of the suspect throughout his trial will be understood from the provisions which permit the Court to dispense with the non-public attending of the suspect person under certain circumstances , a magistrate issuing summons might dispense with the non-public attending of the suspect and allow him to look by his advocate (Section 205). Section 317 empowers the court to dispense with personal attendance of the accused person at his trial.
This power will be exercised on condition that the suspect person is represented by a lawyer. The Court is additionally needed to record its reasons for such order.

Evidence to be taken in presence of accused
Section 273 of the Code contemplated that evidence to be taken in presence of accused.

According to section 273 all evidences taken in presence of the accused or when his personal attendance is dispensed with in the presence of his pleader . according to sec. 279 , any evidence can be given in any language and if not understood it shall be converted in language understood by him . if any accused is of unsound mind and is unable to understand the proceeding in such case special provision in section 328 -339 shall be applied .

Cross-examination of prosecution witnesses

Evidence given by witnesses may become more reliable if given on oath and tested by cross-examination. Though the burden of proving the guilt is entirely on the prosecution and though the law does not require the accused to 52 lead evidence to prove his innocence, yet a criminal trial in which the accused is not permitted to give evidence to disprove the prosecution case, or to prove any special defence available to him, cannot by any standard be considered as just and equitable.
RIGHT TO FREE LEGAL AID

The requirement of fair trial involves an opportunity to the accused to have a counsel of his own choice, and the duty of the state to provide a counsel to the accused in certain cases. The Law Commission of India in its 14th Report has mentioned that free legal aid to persons of limited means is a service which a Welfare State owes to it citizens. The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been stated in the Directive Principles of State Policy embodied in Article 39 A of the Constitution . The 42nd Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is voilated is provided not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations. Every person, therefore, has a right to a fair trial by a competent court The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case.

SPEEDY TRIAL

Speedy trial is a right of every accused. Delayed justice leads to unnecessary harassment. Sec.309(1) provides “in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
Sada Shiv Manohar Parkar Vs. State of Maharashtra, 1998 Crl. LJ 3755). The right to speedy criminal trial is one of the most valuable fundamental rights guaranteed to a citizen under the Constitution, which right is integral part of right to life and liberty guaranteed under Article 21.

SOME LATEST CASES

Krishan kumar v. State of delhi

Fair trial is the hallmark of criminal procedure , it entails not only rights of victims but also interest of accused. It is the duty of the court to ensure fair and proper opportunities are granted to the accused for just decision of the case. Adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same in the interest of justice.

Bhagwani v. State of Madhya Pradesh

Conviction and death sentence on the same day for kidnapping , rape and murder of an 11 year old. Adequate opportunity to produce relevant material on the question of death sentence should be provided to the accused by the trial . In court opinion death sentence required to be commuted to life imprisonment .

Vikas Chawla v State of NCT Delhi

Pre trial detention are grave in nature and keeping an under trial in custody would impact right to defend himself during trial and his right to fair trail gets violated

Conclusion

Equality , liberty ,justice are the basic highlights of our preamble and it is the right of every single citizen of our nation . Criminal justice system and the constitution provides for equality of access to justice and fundamental principles of fair trial . Fair Trial is the hallmark of criminal procedure and the court shall ensure fair and proper opportunities to the accused for just decision .

References

www.livelaw.in

www.casemine.com

www.equalityhumanrights.com

districts.ecourts.gov.in

indiankanoon.org

Author: Mitali Upadhyay, Chanakya Law College Kumaun University

Editor: Kanishka Vaish, Senior Editor, LexLife India

RECENT GOVERNMENTAL ACTIONS TO CLIP THE LOKAYUKTAS POWER

Reading time : 8 minutes

Administrative authority is conferred with large powers, which may lead misuse of power. to deal with this, we’ll need an authority that can clean out corruption without being biased. Yes we have our judicial system in India to deal with this threat. However, another mechanism is required for rapid correction. An independent Lokpal and Lokayukta institution had become a watershed moment in Indian politics, offering a remedy to the never-ending threat of corruption. It is a strong and effective tool for combating corruption at all levels of government.

History

The origins of Lokayukta can be traced back to Scandinavian Ombudsmen. An Ombudsman is a person who is appointed to safeguard citizens from any sort of government maladministration. In the year 1809, Sweden became the first country to establish an Ombudsman organisation. The concept was initially proposed in India by 1963, during a legislative debate on the Law Ministry’s fiscal allocation. In 1966, the Administrative Reforms Commission, led by Late Shri.Morarji Desai, issues its first report on the issues of dealing with people’ concerns against the administration. The study suggests that the Lokayukta and Lokpal institutions be established at the state and federal levels to examine complaints against governments and public employees. It also suggests that it function as a separate entity. The Lokpal Bill was initially proposed in the parliament in 1968, but it was never passed. (Between 1968 and 2011, eight additional failed attempts were undertaken.) The statute was enacted by the state of Orissa, however it took till 1983 to establish this office. Maharashtra eventually passed the law in its assembly in 1971. Thus, Maharashtra establishes the Lokayukta in 1972, putting it into action on October 25, 1972, making it the first government in India to do so. The Lokayukta office was established in Orissa in 1983. (Act passed in 1971). and just a few other states follow suit. However, Anna Hazare, the leader of India’s anti-corruption campaign, has demanded that the Indian government confront corruption promptly. Calls for the appointment of a Lokpal. As a result, the government appoints a ministerial committee, led by Pranab Mukherjee, to study the Lokpal law and provide suggestions for its implementation. As a result, the Lokpal Bill is passed by both houses of Parliament in 2013 and becomes the Lokpal and Lokayukta Act.

Appointment and Removal

The Governor of the State appoints the Lokayukta after the Chief Minister nominates him in consensus with Chief justice of the State High Court, Leaders of the Opposition in the Legislative Assembly and Legislative Council, Speaker of the Legislative Assembly and Chairman of the Legislative Council. Lokayuktas cannot be fired or transferred by the government once appointed, and may only be removed by the state legislature approving an impeachment resolution. Normally, a judge, a retired Chief Justice, or a retired High Court judge are all eligible to be appointed as Lokayuktas. While in the states of Uttar Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Odisha, and Karnataka, judicial qualifications are required for the Lokayukta. In the states of Bihar, Maharashtra, and Rajasthan, however, no formal credentials are required. In the majority of states, the Lokayukta’s term of office is set at five years or 70 years of age (Himachal Pradesh), whichever comes first, and the Lokayukta is not eligible for reappointment for a second term.

JURISDICTION

In the matter of the Lokayukta’s jurisdiction, there is no consistency at the state level. In this case:

i)The Chief Minister is subject to Lokayukta’s jurisdiction in Himachal Pradesh, Andhra Pradesh, Madhya Pradesh, and Gujarat, but not in Maharashtra, Uttar Pradesh, Rajasthan, or Bihar.

ii) Ministers and higher-ranking public workers are included in the Lokayukta’s jurisdiction. the vast majority of states Former ministers have also been listed in Maharashtra. as well as government employees.

iii) Members of state legislatures are subject to the Lokayukta’s jurisdiction. Andhra Pradesh, Himachal Pradesh, Gujarat, and Uttar Pradesh are the four states that make up Andhra Pradesh.

Also read: ONE SUN ONE WORLD ONE GRID – GO GREEN INITIATIVE

iv) In the majority of states, such as Himachal Pradesh, the authorities of corporations, firms, and societies are subject to the Lokayukta’s authority.

A state’s Lokayukta is normally accountable to the state legislature. Its yearly report is delivered to the legislature, and the House usually accepts its recommendations.

Powers

The Lokayukta supports individuals in bringing corruption to light, particularly among politicians and government personnel. It’s worth noting that the Lokayukta conducts raids but does not have the authority to punish anyone; instead, it simply recommends punishment to the government. Reduction in rank, compulsory retirement, removal from office, suspension of yearly increments, and censure are among the recommendations made by the Lokayukta to the government. It is up to the state to approve or change the recommendations. The judgement might be appealed to the state high courts or specialized tribunals by the public servant.

RECENT GOVERNMENTAL ACTIONS TO CLIP THE LOKAYUKTAS POWER

The Kerala government has introduced an Ordinance to alter the Kerala Lokayukta Act 1999, giving it the authority to reject the anti-corruption ombudsman’s findings. In an online conference with Chief Minister Pinarayi Vijayan from the United States, the state cabinet recommended that the Governor adopt an Ordinance to alter the Kerala Lokayukta Act 1999. The amendment aims to provide the government the ability to “either accept or reject the Lokayukta’s judgement, after giving an opportunity to be heard.” The proposed change would limit the Lokayukta’s powers to making recommendations or sending reports to the government, thereby limiting its role to that of an advisory body. Higher Education Minister K T Jaleel was forced to resign during the previous administration term when the Lokayukta concluded that he had misused his position. Jaleel has been charged with improperly appointing a relative to the state minority development company. The government’s action comes while complaints against Chief Minister Vijayan and Higher Education Minister R Bindu are pending before the Lokayukta. Vijayan is being sued for alleged irregularities in the allocation of cash help from the Chief Minister’s Disaster Relief Fund. State Law Minister P Rajeev justified the government’s newest step by telling reporters that the Ordinance to alter the Lokayukta Act was based on the opinion of the Advocate General. “Natural justice is denied under the current Act since there is no provision for an appeal.” Two High Court decisions have stated that the Lokayukta has only recommendatory authority and not imperative jurisdiction. Section 14 of the Lokayukta Act, according to legal opinion, violates Articles 163 and 164 of the Constitution. The Lokayukta infringes on a Cabinet’s rights,” he stated. Amidst of all the controversies the governor signed the ordinance. According to the ordinance, now that the governor has given his approval, “a competent authority will have power to accept or reject the judgement of the Lokayukta after affording a chance to hear parties affected.”

CONCLUSION

Giving administrative authorities too much power to govern legislators can lead to massive power abuse. Delegation of adjudicatory power to administrative authorities is frequently chastised as undemocratic and unaccountable. However, due of a shortage of time, we also resort to delegating powers to such agencies. Lokayuktas, on the other hand, being an independent authority, are able to quickly and impartially resolve any complaints brought before them. Thus, the government should take steps to make the appointment of lokayuktas more transparent in order to build trust in such institutions. And, as previously said, lowering the powers of lokayuktas to an advisory level is permissible, but why did the government not present this modification as a bill? This raises questions among citizens about whether the government is in good hands or has been tainted.

REFERENCE

Author: NITYA KARTHIKEYAN, SCHOOL OF INDIAN LEGAL THOUGHT, M G UNIVERSITY, KERALA

Editor: Kanishka Vaish, Senior Editor, LexLife India

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INTRODUCTION:

DEFINITIONS AND MEANING:

What is data?

INTERNATIONAL PROVISIONS:

CONSTITUTIONAL PROVISIONS IN INDIA:

CRITICAL ANALYSIS: PERSONAL DATA PROTECTION BILL, 2019

COMPARATIVE STUDY:

WAY FORWARD:

CONCLUSION:

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[2] Sexual Harassment of Women at Workplace available at

[3] What Constitutes Workplace Sexual Harassment? Available at

[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)

[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)

[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)

[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html&nbsp; ( visited on March 20, 2022)

[9] Vishaka v. State of Rajsthan available at

[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at

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The extent of Reservation in India

Reservation quota in India for Government Jobs

SC/ST Reservation

OBC Reservation

Other Backward Classes (OBC)

Benefits of being included in the OBC list:

Will all OBCs get the reservation benefit?

Origin of Creamy Layer concept with respect to OBC

How can you know if you get OBC Reservation?

How can you know if you belong to Creamy Layer OBC or Non-Creamy Layer OBC?

Who comes under Non-Creamy Layer OBC?

Income Limit of determining the Non-Creamy Layer Status of OBCs

EWS Reservation

History of Reservation System in India – Rectifying the Historical Injustice

Does India need reservation (now)?

Unequal should not be treated equally, but is reservation the only solution?

50% Cap on Caste-Based Reservations

Poverty cannot be the basis to provide reservation: SC

Will Reservation System in India compromise the Merit (and efficiency of the system)?

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INTRODUCTION

CONCEPTUAL FRAMEWORK

HISTORICAL EVOLUTION

LEGISLATIONS AND CASE LAWS

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

CRITICAL ANALYSIS

GLOBAL POSITION OF TRANSGENDER

CONCLUSION AND RECOMMENDATIONS

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Abstract

Introduction

I. Scheme of Distribution of Legislative Powers Under the Indian Constitution

II. Challenge to Parliament’s Legislative Competence to enact the Farm Laws, 2020 under the Union List

III. Challenge to Parliament’s Legislative Competence to enact the Farm Laws, 2020 under the State List

IV. Farm Laws, 2020 – Ultra-Vires under the Concurrent List

IV.I Analysis of the Farm Laws, 2020 through the Lens of Doctrine of Pith and Substance & Doctrine of Colorable Legislation.

IV.II Doctrine of Pith & Substance & Doctrine of Colorable Legislation Vis-A-Vis the Indian Judiciary

V. Parliament’s Strike on the Constitutional Principle of Federalism

Conclusion

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[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)