Category: Human Rights

Categories
Human Rights

Four women lawyers help Bastar’s imprisoned adivasis access justice in a broken system

Manish_goodhumanrightslawyeringConflict zones, as this column has pointed out earlier, are particularly difficult places for human rights lawyers to work. In the Bastar region in southern Chhattisgarh, years of the Maoist insurgency and the counter-operation by the Indian state have created a battle zone where even normal life is subject to the oversight of security forces. In Jagdalpur, I was advised not to step out after sunset as I could be picked up by the CRPF.

Paradoxically, for the wide publicity it gets, there is little in-depth information or reportage about Bastar. The legal issues that affect the region have not been understood or documented in detail.

It is in this situation that a group of committed human rights lawyers has been quietly working towards documenting the plight of undertrials in Bastar and providing them with legal aid at the trial courts. The Jagdalpur Legal Aid Group (or “JagLAG” as they call themselves), is an all-women team of lawyers based out of Jagdalpur, the headquarters of Bastar district, where they are fighting state apathy, disempowerment, and patriarchy while helping the predominantly adivasi population secure access to justice.

Earlier this year, I interacted with the group at their office in Jagdalpur and visited the courts and the jail there. JagLAG is unique in that its members are all graduates from major law universities and have chosen to litigate at the trial courts in Bastar over other, more lucrative, options. Shalini Gera, 44, is the oldest member of the group and a graduate from Delhi University, and had previously been working with senior advocate Sudha Bharadwaj in Bilaspur. The others, Guneet Kaur, Isha Khandelwal, and Parijatha Bhardwaj, are recent graduates from Indian and foreign universities. For all of them, JagLAG was the first experience at practising law at the trial courts. In an unfamiliar location, theirs has been a trial by fire of sorts.

Early days of gathering data

Chattisgarh's Bastar district

Chattisgarh’s Bastar district

JagLAG had its genesis in conversations that took place in Mumbai and Delhi among lawyers and activists around the possibility of a systematic legal intervention in Bastar. Major human rights abuses, such as the Soni Sori case, had come to light from the region. The intervention aimed at documenting human rights issues from the ground and providing legal aid to undertrials and adivasis who had been framed as “Naxals”. As a result of these conversations, a few advocates committed themselves to providing funding and mentorship for the group, with the aim of supporting an effort at ensuring access to justice in this region.

The Bastar region, where the group works, is comprised of five districts – Bastar, Dantewara, Kanker, Sukma, and Bijapur. JagLAG, being the first such intervention in the area, has had to learn the ropes from scratch. They spoke to local lawyers to get a sense of the courts and the cases being handled, and used empirical data obtained through the Right to Information Act to substantiate the anecdotes.

The RTI applications about court and prison statistics revealed a complete breakdown of the criminal justice system in Bastar. The jails were severely overcrowded. While  the average occupancy in jails across the country is 112%, the corresponding figures ranged from 255% at the Jagdalpur Central Jail to an astounding 428% at the Kanker District Jail. Most of the prisoners were illiterate adivasi men between the ages of 18 and 30 and an overwhelming majority were undertrials.

Overcrowding-in-Bastar-jails-(2012) (1)

An analysis of the case disposal statistics between 2005 and 2012 revealed that two-thirds of undertrials in Jagdalpur had to spend between two and five years in prison before receiving bail, while on an average, across the country, 75 per cent of undertrials spend less than a year in prison before receiving bail. An astounding 96 per cent of the cases between 2005 and 2012 ended in acquittal, indicating that in most cases, the police had mostly framed innocent adivasis and there was no evidence to indicate any actual links with the Maoists.

ChattisgarhJails_Undertrials_Bail

Trademark Naxalite cases

Following up, JagLAG began to track the cases of those who had been incarcerated the longest, to identify the blocks in the system. As they interacted with more prisoners and went through their files, patterns began to emerge. Most of them had been incarcerated in what Shalini described as “trademark Naxalite cases” – allegations of being involved in Maoist activities or conspiracy – including charges under Sections 302 or 307 and 149 of the Indian Penal Code, along with Sections 25 and 26 of the Arms Act, 1959 and Sections 3 and 4 of the Explosives Act, 1884. In addition, provisions of the Unlawful Activities Prevention Act, 1967 and the Chhattisgarh Special Public Security Act, 2005 are also invoked. Many of the prisoners who had been in jail for a long time had not even applied for bail, due to a combination of circumstances.

Bringing in families to file for bail

Local lawyers are reluctant to file for bail, given that the sections involved are non-bailable and the charges are grave, making it rather difficult to obtain bail from a trial court. In addition, the prisoners are usually residents of remote villages and given the long distances and poor transportation facilities in the region, it is difficult for their families to visit the jail or the lawyers. As families was unable to take an active role in the case, the local lawyers lose interest and the cases – and the undertrials involved –  would languish for years.

The Jagdalpur Legal Aid Group - (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The Jagdalpur Legal Aid Group – (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The group began their legal aid work by filing bail applications on behalf of these undertrials. This intervention, including working with the lawyers currently representing the undertrial prisoners and persuading them to file for bail and bringing the families back on board, was a learning experience. They visited the families in their villages rather than rely on them – mostly poor, illiterate adivasis – to make the long and expensive commute all the way to Jagdalpur. However, local security concerns and the looming threat of police action have forced them to restrict field visits in favour of courtwork. They also provide support to fact-finding investigations into grave human rights violations, such as the PUDR investigation into the Sarkeguda extra-judicial killings of 2012, and represent victims of custodial torture, violence, and death at enquiries before the sub-judicial magistrate. Incidentally, on the day of my visit, Guneet and Shalini had just arrived after a day’s trip to Dantewara, to record the affidavits of villagers in a case of extra-judicial execution.

Problems with data and procedure

From the beginning, JagLAG faced several challenges in their work. The initial set of RTI applications revealed that data was recorded in different ways in different places. For instance, while the jail records were referenced by crime numbers, the court records used case numbers, and matching the two took some effort. Many of the long-pending cases that they took up already had lawyers, and much time was spent in tracking down people and their cases, as well as persuading the current set of lawyers to file applications or hand over the cases.

Local procedural requirements also made simple processes, like the filing of a bail application, extremely onerous. The criminal court rules of practice in Chhattisgarh require that while applying for bail, an affidavit had to be filed by a person other than the accused, who was conversant with the facts of the case. Usually, this was a close relative who resides far away from the court and the lawyer. The bail application cannot be filed until such a person has been located and the affidavit filed. JagLAG therefore had to re-calibrate its strategy and adopt more realistic goals about the number of cases they planned to take up. At present, they have taken two cases to the High Court and have handled several more at the various trial courts.

The group’s successes have also exposed the rot within the system. One of their early achievements was securing bail for two undertrials who had been incarcerated for six years, without their names even appearing on the chargesheet. Shockingly, the bail was only granted on a surety of Rs. 10,000 which resulted in the individuals concerned remaining in jail for another ten months while they contacted relatives and raised the money. An application filed under Section 440 of the Code of Criminal Procedure, to reduce the bond amount, remains pending before the court. In another case, they managed to get bail for three arrested persons at the remand stage itself – something that, despite being permitted under law, was almost impossible to do in Bastar.

Threats to their safety

The Sukma court, deserted on a weekday.

The Sukma court, deserted on a weekday.

The rigidly binary nature of public discourse in conflict areas means that anyone who does not espouse the State’s views is seen as siding with the opposition. In Bastar, this has meant that the members of JagLAG have been branded as “Naxalite supporters” or “sympathisers” by the administration and the police, for trying to higlight human rights abuses by the State. Consequently, they work under a constant cloud of threats to their safety, and hostility from the courts. Working as ‘outsiders’ in Bastar has not been easy: they have also faced hostility from fellow lawyers, who view them suspiciously because of their model of human rights lawyering, where they blend activism with court work, and also see JagLAG as competition because do not charge for their services. Isha says, “People keep attributing ulterior motives to us all the time. It’s difficult to explain the concept to them.” In addition, they began work with no contacts or local networks, and have had to build these up from scratch. However, being outsiders with no familial or other investments in the area has also enabled them to take more aggresive stances against the State which local lawyers would have been reluctant to do. As a group, JagLAG is always conscious about the danger of their advocacy work appropriating the agency of the adivasi communities they are representing as lawyers. Says Guneet, “It’s something that goes on all the time in my head – in our role as civil society here, we shouldn’t make decisions [on behalf of the adivasis] that aren’t ours to make.”

The challenges of patriarchy

Being women in a partiarchal, all-male structure – there are almost no women among court staff and at the Bar in Jagdalpur – means that they are at the receiving end of condecension and a patronising attitude from lawyers and judges alike. Parijatha says, “We have inexperience going against us, but this gets compounded by the fact that we’re women.” Over the last couple of years, they have managed to negotiate an uneasy space for themselves, while in the process breaking stereotypes about how women are expected to work and behave in public spaces. Guneet, Isha, and Parijatha have recently featured in Forbes India‘s “30 under 30” list for their efforts.

Sustainability          

JagLAG is supported, financially and professionally, by a number of lawyers around the country, and they are grateful for the mentorship that has helped them work in a very difficult location with very little experience. All four of them have found the work to be an enriching process. Says Guneet, “There were times we would call [the senior lawyers] up at night with minute legal queries and they were always very encouraging and helpful.”

The group has not fully considered its future, given that their experiences have been different from what they had originally planned. However, they are optimistic that they will be able to sustain themselves and include more local lawyers in the process. Shalini concludes, “The key to replicating and making this sort of initiative sustainable in other places is to involve local people as a core part of the work. That is something that we look forward to doing in the future.”

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

Categories
Human Rights

New Gujarat terror law creates vague crimes, allows confessions to the police, permits secret trials, gives police immunity

Manish_authorOn March 31, the Gujarat Assembly passed the Gujarat Control of Terror and Organised Crime Bill, 2015 (“the Bill”), which is now awaiting the Governor’s assent. It is modelled on the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), a law that was criticised for being draconian, in excessive violation of civil liberties, and with several documented instances of misuse. This bill had previously been passed on two occasions, in 2003 and in 2009. Each time, it was unsuccessfully referred for the President’s assent. Now, the Opposition has abstained from voting on it and has appealed to the Governor to decline assent.

Poor drafting, vague definitions

The Bill is poorly drafted, especially in places where it deviates from MCOCA. Definitions of “continuing unlawful activity”, “organised crime”, and “organised crime syndicate” (Sections 2(1)(d), (e), and (f) respectively) all refer to one another in a circular manner and offer little clarity. The definitions are also vague. “Organised crime” includes “cyber crimes having severe consequences” and “running large scale gambling rackets”. What constitutes “severe consequences” or “large scale” has not been defined. These terms are absent in MCOCA. The Bill also attempts to define “terrorist act” in Section 2(h) through a long-winded, logically inconsistent, and grammatically incorrect sentence that is painfully strung together and offers no useful guidance regarding what exactly constitutes the act in question. A much clearer definition (with the same ingredients) is found in Section 15 of the Unlawful Activities Prevention Act, 1967.

The substantive offences are defined in Sections 3 and 4 and are mostly similar to those defined in the MCOCA except for the addition of “terrorist act” in addition to “organised crime”. Besides these acts themselves, conspiracy, abetment, harbour, membership of an organised crime syndicate, and possessing property derived therefrom are all criminalised, with the possibility of life imprisonment (and the death penalty if the organised crime or terrorist act causes death).

Special courts

Sections 5 through 12 deal with special courts and their functioning. The state government, with the concurrence of the Chief Justice, is empowered to set up one or more special courts and appoint judges for exclusively trying offences under the Bill. The special courts have the powers of sessions courts but can also take cognisance of offences. Of interest is Section 10, reproduced verbatim from MCOCA, which states that trials before a special court shall have precedence over trials before any other courts, and imposes a de facto stay on all other proceedings for the period of the trial.

Evidentiary rules for intercepted communication and confessions

Section 14 provides for the admissibility of evidence collected through the interception of wire, oral, or electronic communication. This is where the Bill makes a significant departure from MCOCA – while the latter actually provides a procedure for the interception of communications, the Bill does not do so, only making existing intercepts admissible. Therefore, the procedure that will have to be followed will be as laid down in Rule 419A of the Telegraph Rules, 1951 and Rule 3 of the IT (Interception, Monitoring and Decryption) Rules, 2009. The unhappiness of the drafting reveals itself in a rather confusing (and possibly unnecessary) non-obstante clause at the beginning of the section, followed by the words “under the provisions of any other law”. Interestingly, the first proviso to the section also requires that the accused be provided with a copy of the order of the authority authorising the interception, ten days prior to the hearing where the intercept is sought to be admitted as evidence. This is partially nullified by the second proviso, which gives the judge the discretion to waive the period of ten days.

Among the most controversial of the Bill’s provisions is Section 16, clause (1) of which makes a confession to a police officer admissible in evidence. This section overrides Section 162 of the Code of Criminal Procedure and Sections 25 and 26 of the Indian Evidence Act, 1872, which specifically prohibit the use of statements made to police officers in evidence, in order to protect the rights of the accused by preventing the extraction of confessions under duress or torture by the police. While investigating agencies ordinarily have the option to record statements before a magistrate under Section 164 of the Criminal Procedure Code, the Gujarat bill destroys this delicate balance between the rights of the accused and the powers of the investigative agencies. It opens the door to egregious violations of human rights while extracting confessions from persons detained under its provisions. By means of an eyewash, the Bill provides some ‘safeguards’ in clauses (2) to (4), which are mostly meaningless given that the authority administering them is not independent, but a part of the investigating process. The shallowness of the provision is revealed by clauses (5) and (6), under which both the statement and the person making it are required to be forwarded to a magistrate within 48 hours. In such a circumstance, the statement could well have been recorded by the magistrate. This section appears to be an elaborate ruse for legitimising confessions to the police, and the inhuman machinations that go behind it: under clause (7), an allegation of torture by the person making the confession does not invalidate the confession, but merely prompts a reference to a civil surgeon for a medical examination.

Witness protection and closed trials

Section 17 contains provisions for the protection of witnesses, and is modelled on Section 19 of MCOCA. It empowers the special courts to hold the trial in-camera and take any measures necessary for concealing the identity and address of the witnesses. As part of this power, Clause 3(d) allows the court to make a decision that “it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner”. This is an extreme provision which is reminiscent of the attempt at holding a “secret trial” in the UK for terrorist offences, which was rejected by the Court of Appeal on the ground that “open justice” was both an integral part of common law and a means of ensuring public confidence in the legal system. The same considerations regarding open trials apply to India as well: Section 327 of the Criminal Procedure Code mandates that trials be held in open court, with limited exceptions on reporting. In a situation where the Supreme Court has already laid down guidelines for court reporting, the blanket media gag proposed by the Bill is extremely troubling and avoidable.

Procedural safeguards diluted, stricter conditions for bail

Section 20 dilutes several procedural safeguards provided to the accused under the Code of Criminal Procedure. On the lines of MCOCA and UAPA, it increases the time for which a person may be detained in police and judicial custody, pending investigation, to 30 and 180 days respectively. Clause (3) removes the option of anticipatory bail and clause (4) provides for extremely restrictive conditions regarding bail, almost mandating the acquiescence of the public prosecutor. Clause (5) is another controversial provision, which denies bail even if the accused had been released on bail in an offence under any other law on the date of the offence. This clause is based on Section 21(5) of MCOCA, which was held to be unconstitutional by the Supreme Court in 2008. The Bill therefore deviates from the well-established jurisprudence of bail being a right and jail being the exception. Thus, even if no charges are made out, people detained under the provisions of the Bill will have to languish in jail.

Burden of proof shifted

Section 21 of the Bill, which is identical to Section 22 of MCOCA, is a reverse-onus clause, which shifts the burden of proof from the prosecution to the accused in certain circumstances. In doing so, it dispenses with the presumption of innocence of the accused and breaks the “golden thread” of criminal jurisprudence, requiring the prosecution to prove the guilt of the accused beyond reasonable doubt, which originated in common law but has become a settled proposition in Indian criminal jurisprudence as well.

Immunity for state functionaries

Image above is from the website of the All India Radio.

Image above is from the website of the All India Radio.

As a matter of abundant caution, Section 24 of the Bill contains another non-obstante clause giving it overriding effect over all other laws for the time being in force. Section 25 caps off the draconian legislation by granting complete immunity to all state functionaries for any action taken under the provisions of the Bill. This effectively provides impunity to police officers for torture and extra-judicial methods employed in criminal investigations, under the garb of “anti-terror operations”. Thus, even in cases of false prosecutions, like the 2002 Akshardham terror attack, the victims will be left empty handed and without any recourse to justice.

“Tough anti-terror laws” have rarely if ever proven useful at combating terrorism, and usually serve to provide a cover for the incompetence of investigating agencies. A case in point is the aforementioned Akshardham terror attack case, where the Supreme Court came down heavily on the investigating agencies for conducting a shoddy investigation, which led to the framing of innocent persons, while the actual masterminds behind the attack were still at large. Gujarat already has a history of draconian legislation in the Gujarat Prevention of Anti-Social Activities Act, 1985 (“PASA”), which authorises preventive detention, and has been heavily criticised for being used to detain activists and protestors. For now, hope rests with the Governor and the President to prevent the new Bill from becoming law. Unfortunately, judicial history shows that the Supreme Court has also been extremely restrained while testing the validity of these laws under the Constitution, with the most draconian provisions being upheld repeatedly. The last of these was MCOCA in 2008, which was upheld (although the challenge was mainly on grounds of legislative competence rather than violation of Article 21). While hope is eternal, the outlook remains bleak if the Bill is assented to.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

Categories
Human Rights Law Schools Litigation

Those who can, teach – How law teaching builds bridges and fosters intellectual arenas

AtreyeeMajumder_CraftingLawCareersLaw is a difficult thing to teach. It requires the teaching of large concepts that vastly influence how governments and authority work or should work. Skills needed for the application, implementation, and adjudication of legal provisions are important and need to be taught as well.

The law classroom, I had felt, was less effective in teaching law than the practical experience of having to work out a legal argument to fit a real-life situation. This slipping on of the real-life shoes however, is not possible without a basic skill-set, one that is complex and diverse. Different law-teaching systems have had different visions about this skill-set.

The four legal professionals who have featured in this series so far have all had some teaching experience. Usha Ramanathan has, during the course of her career, taught at the National Law School of India University (“NLSIU”), Bangalore, the Tata Institute of Social Sciences, and at the National Law University, Delhi. Arvind Narrain has taught, among others, courses related to human rights and illegal citizenship at NLSIU and several ad hoc courses on human rights, gender, and sexuality for non-law students. Harish Narasappa has taught short courses at the Indian Institute of Management and at NLSIU. Amba Salelkar takes classes on disability law at Vidya Sagar, a Chennai-based non-profit organisation.

Building bridges to law

The challenges of teaching  feature amidst the larger practice of being publicly engaged lawyers. Students from non-law backgrounds, both Salelkar and Narrain say, are not daunted by the law. People in non-profit organisations in particular, where the knowledge of law can significantly reorient practice, seem to come at it with enthusiasm. Narrain has experienced great fortitude among college students coming at judgments on sexual violence containing disturbing details. He says he found in the classroom, key allies for the campaign against Section 377 of the Indian Penal Code. People who were intrigued or interested came forth and became involved.

Many law teachers find themselves delivering bridges to the world of law to students of politics, economics, management, and development studies. Sudhir Krishnaswamy, who has taught at several law schools and has designed and taught a law and governance concentration in the development masters programme at Azim Premji University, is immersed in this exercise. He says that his primary learning from the programme was that students of non-elite backgrounds were grappling with their first encounters with the law in ways very similar to first year law students. The challenges they faced, too, were similar to the ones faced by law students – in learning to work with law and fact. The diversity of material he used has expanded considerably. For instance, he engages more thickly with legal history, using literature from colonial and post-colonial history in general. These are materials he read himself, but didn’t use in law school classrooms. Krishnaswamy’s long teaching career has shaped his belief that law as a discipline, actively straddles the domain of social sciences and humanities, especially as it concerns questions of language and cognition.

Teaching law without the intention to teach

Law teaching can be seen, thus, along three major lines – teaching in a law programme, teaching in a non-law programme, and teaching law outside the university set-up. It helps me to elaborate on the third aspect first. Law arrives at the ears of lawyers through courts, judgments, other lawyers – seniors and peers, and in the classroom. A good part of the teaching can and may occur without the intention to teach. The professional architecture places some people in pedagogic positions with regard to others. Many in the litigating field would say the senior advocates they worked for, were their teachers or gurus. They did not teach the disciplines of law in the packaged form that is usually delivered in a classroom. Skills and intuitions about what the law can offer in a given situation, and how best to use this avenue to one’s advantage, might however, be best learnt and taught through everyday interactions. Many say they learnt a lot of law listening to court proceedings, especially as interns.

I am surprised at this as court proceedings occur in fragments where the issue at stake may not be clear to a bystander who does not have access to the relevant case file. Matters quickly transition into the next matter of the day, one realm of law to the next. If a bystander – a litigant, a journalist, or an intern – learns from this, it is not intended teaching that she derives from. It is a kind of learning by immersion – osmosis, perhaps. Languages are learnt often by immersion in the social milieu where the language is spoken. Can law be learnt and taught in the same way? Some say it is an effective way.

The other method of ‘unintentioned’ teaching and learning of the law, more predictably, is through books. Law reporters, treatises, newspaper articles, and the Internet are ways in which a legal topic or idea can be learnt and disseminated. There is a vast difference of course between reading a thick tome on jurisprudence in a dark library and opening several news websites at one go and consuming some update on a legal matter as one of the many things the Internet offers for consumption. The written word is common to both modes of communication and receipt and the latter is often an effective way for a non-legal audience to learn about the law. Undergraduate students’ interests are often piqued by legal domains being involved in a matter of contemporary news – for instance, land acquisition in recent months, because of the amendment bill. I continue to learn about the law (being no longer in practice) talking with friends and colleagues who are experts in legal fields, and from the media, especially from commentaries and editorials written by practicing lawyers like Indira Jaising and Flavia Agnes.

The classroom as an intellectual arena

Sudhir Krishnaswamy (left), Amba Salelkar, and Arvind Narrain.

Sudhir Krishnaswamy (left), Amba Salelkar, and Arvind Narrain.

The classroom though, remains an important space. What is its specific role from the point of view of legal professionals who have multifaceted careers? A classroom offers the possibility of a dialogic space. Facts and ideas may be taught and disseminated there. But if the teacher is attentive, it can unfold into a  democratic and dynamic intellectual arena. Like Narrain’s experience where students became long-term associates, for many teachers whose interest in the law is motivated by possibilities of change, the classroom should be an important space to invest in. Salelkar has found the need to press a certain literacy of law, especially constitutional law, to be important in her classes on disability law. She finds it a challenge to veer between giving activists too much hope and too little. Many, she finds, enter the domain of law with great wonder and energy. Krishnaswamy found it a place to toy with law’s relationship with the broad spectrum of social sciences. I have found the acquaintance of teachers who create longer paths of learning to often begin in the classroom discussion. The discussion itself may be of lesser importance but the dialogic space it affirms creates intellectual alliances that might have long-term implications for both parties. The importance of law teaching grows with the possibility of law creating a democratic space in addition to the ones already available in civil society.

(Atreyee Majumder is an anthropologist. She teaches at the School of Development, Azim Premji University.)

Categories
Human Rights Supreme Court of India

Intermediary liability – Has the Supreme Court missed an opportunity?

JSaiDeepakpicA lot has been written about the striking down of Section 66A of the Information Technology Act, 2000 (“IT Act”) since the Supreme Court’s verdict on March 24, and rightly so because, as Saikrishna Rajagopal – my senior in the profession – has put it, the provision was crying to be struck down given its draconian language and scope. While vagueness and unreasonableness were writ large on it, the other provision of the IT Act that was read down – Section 79(3)(b), whose constitutionality was challenged solely by the Internet and Mobile Association of India (“IAMAI”) in W.P. (C). 758/2014 in the same batch of petitions – required and still requires attention to nuance.

Not directly permissible under Section 66A? Should not be permitted indirectly under Section 79(3)

This provision, which applies to intermediaries, prior to being read down by the Court earlier this week, used intermediaries as buffers or proxies to impose content restrictions, whose nature and degree were constitutionally impermissible under Articles 19(2) and (6). The argument therefore, that had to be made on behalf of the intermediaries was that, if the nature of a direct restriction on an Internet user’s speech and expression through Section 66A is beyond the pale of Article 19(2) according to the Court, it stands to reason that similar restrictions imposed on a user indirectly through limitations on the content that an intermediary could host, is equally ultra vires Article 19(2). Simply stated, what was not directly permissible under Section 66A, could not be permitted indirectly through Section 79(3)(b) when viewed through the prism of Article 19(2) since the direct and immediate consequence of the restrictions under the latter too was the abridgment of rights under Article 19(1)(a).

To understand this proposition, let’s have a look at a few relevant provisions of the IT Act. The Act defines intermediaries as follows:

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

From the definition, it is clear that the services provided by intermediaries are critical to the use of the Internet, which as the Court rightly recognised in the judgment, has become a “market place of ideas”. The Internet has evolved to become the medium of choice for the expression of social, cultural, and political views outside of the mainstream media. Therefore, intermediaries who facilitate the use of the Internet must be treated as being integral to its ecosystem. Importantly, the Internet as we know it today is increasingly driven by content generated by users. The quantum and scale of such user-generated content has become monumental.

Sample these numbers- almost 360,000 tweets are published on Twitter, 30,000 edits are made to Wikipedia, Facebook users share 684,478 pieces of content and more than 100 hours of video are added to YouTube, all inside a minute. Given these numbers, it is practically impossible for intermediaries to pre-screen content or exercise any kind of ex ante editorial control. This also means that intermediaries cannot vouch for or take responsibility for the legality of the content being uploaded or transmitted or published on their platforms. And yet, in 2004, no less than the Chief Executive Officer of Baazee.com was arrested for an offer made by a user on that portal to sell an obscene video clip.

To address such instances and so that intermediaries are not held liable for the content created or published by their users, the definition of “intermediary” was amended through the Information Technology (Amendment) Act, 2008 to arrive at the current version of the definition. Importantly, Section 79 of the Act, which deals with immunity to intermediaries from liability for user-generated content, was amended to read as follows:

Section79_ITAct

The unreasonableness of ‘actual knowledge’

The provision challenged by IAMAI was Section 79(3)(b), which has two limbs. The first limb relates to a takedown notice issued by a private individual or party, whereas the second envisages a “takedown notice” issued by a government or its authorised agency. Both these limbs give rise to different but equally grave concerns.

The first limb uses the term ‘actual knowledge’, which, although borrowed from the EU Directive on E-Commerce 2000/31/EC dated June 8, 2000, has not been defined in the Indian statute. The legal and operational challenges with the use of the term ‘actual knowledge’ are clinically captured in a study undertaken in the European Union, which was brought to my attention by Rohit Bhat, a Supreme Court advocate, and which was placed before the Court. It notes that the term has been interpreted in quite a few jurisdictions to mean that intermediaries are expected to sit in judgment over the legality or unlawfulness of content impugned in a takedown notice. Clearly, in most instances, it is beyond the wherewithal of intermediaries to evaluate the legality of content. This establishes the unreasonableness of this mandate. Acknowledging the validity of this concern, the Supreme Court read down ‘actual knowledge’ to mean that there had to be a court order directing the intermediary to expeditiously remove or disable access to the impugned content.

The Article 19(2) limitation on the executive’s power to order takedown of content

The second limb of Section 79(3)(b) suffers from the vesting of curial powers in the executive to determine the illegality of content. Importantly, the use of the term “unlawful” in Section 79(3)(b) enlarges the scope of restrictions to beyond the specific categories identified in Article 19(2). In response to this concern, the Court drew parity between the central government’s power to block content under Section 69A and the executive’s power to direct the takedown of content under Section 79(3)(b) and implicitly noted that the limitation of Article 19(2) applied to the executive’s power under both Sections 69A and 79(3)(b). This is perhaps the most positive outcome on the issue of intermediary liability because by reading in Article 19(2) to restrictions imposed on intermediaries under Sections 69A and 79(3)(b), the Court has accepted the argument of the intermediaries that the test to be applied to any law is whether it directly impacts free speech, regardless of who such restrictions may be applied through, which was done through intermediaries in this case. Importantly, even if such restrictions are imposed in return for immunity to intermediaries under Section 79(1), such perceived largesse to intermediaries does not legitimise the transgression of the boundaries set by Article 19(2). This, the Court recognised with abundant clarity.

The problem of executive competence to issue takedown notices without effective appeal

Having said that, although the Court limited the scope of the application of Section 79(3)(b) by the executive to the categories under Article 19(2), the fundamental question of the executive’s constitutional competence to direct such takedown was not addressed, perhaps because the Court was already convinced of such competence under Section 69A. Even if that be the case, the de minimis procedural safeguards provided for under Section 69A and the blocking rules made under that provision, or under Sections 95 and 96 of the Code of Criminal Procedure, 1973 ought to have been applied to Section 79(3)(b) as well, since there is no opportunity for a hearing either for the intermediary or for the creator of the content prior to the issuance of such a notice, nor is there a provision for appeal under the Act from an executive notification directing takedown (except for a writ petition). Having duly taken note in detail of the procedure laid down for blocking under Section 69A, the Court ought to have applied the same yardstick and due process to Section 79(3)(b).

Section 79 was designed as a safe harbour provision - one that protected Internet service providers from the consequences of their users' actions. The March 24 judgment has made this safe harbour more meaningful.

Section 79 was designed as a safe harbour provision – one that protected Internet service providers from the consequences of their users’ actions. The March 24 judgment has made this safe harbour more meaningful.

Critically, in its analysis of Section 66A, having recognised the reader’s right to receive information or content, the Court ought to have taken note of the adverse effect of an executive takedown notice, albeit within the metes and bounds of Article 19(2), on the right of the Internet audience to receive content. Had these concerns been addressed, the judgment would have been far more comprehensive as far as Section 79(3)(b) is concerned and importantly, it would have made India a much more attractive destination for investments by intermediaries given the potential of the internet economy and e-commerce.

No discussion on Rules 3(2)(b) and 3(2)(f) of the Intermediaries Guidelines

Apart from Section 79(3)(b), the IAMAI, along with MouthShut.com, also challenged the Information Technology (Intermediaries guidelines) Rules. Specifically, Rule 3 was challenged since Rules 3(2)(b) and 3(2)(f) are near identical in their language to the various limbs of Section 66A, and Rule 3(4) prescribes the procedure for takedown mandated by Section 79(3)(b). To the extent that the Court has read down Rule 3(4) in the same manner and to the same extent as it did with Section 79(3)(b), it attracts the same pros and cons. As regards Rules 3(2)(b) and 3(2)(f), the Court could have struck them down for the very same reasons it has struck down Section 66A. However, there is no discussion on the content-related restrictions imposed by these sub-Rules despite them being extracted in Para 112 of the judgment. That said, since Section 66A has been struck down and since Section 79(3)(b) and Rule 3(4) have been encumbered by Article 19(2), effectively Rules 3(2)(b) and 3(2)(f) have also lost their potency.

Thus, although the Court has addressed some of the primary concerns of intermediaries relating to Section 79(3)(b) and made more meaningful the immunity granted to them under Section 79(1), the Court could have dealt with the other equally important concerns which have a concrete and critical bearing on the intermediary liability regime in India. Perhaps, the egregious language and consequence of Section 66A drew the Court’s attention much more than the layered issues posed by Section 79(3)(b) and the Intermediary Rules. After all, out of 122 pages of the judgment, 109 pages have been devoted to Section 66A and a like provision of the Kerala State Police Act. Only paragraphs 112 to 118 deal with the issue of intermediary liability. Paragraph 119 contains the Court’s conclusion.

This is not to deny that the judgment is a welcome one and is expected to further the democratisation of the Internet in a tangible manner. However, given the opportunity that these writ petitions represented in undertaking a comprehensive overhaul of the IT Act on a range of related issues, each of which has a critical bearing on freedom of speech and expression on the Internet, it appears that the Supreme Court has passed up a wonderful opportunity. One wonders whether such an opportunity will present itself again.

J. Sai Deepak, an engineer-turned-litigator, is a Senior Associate in the litigation team of Saikrishna & Associates. He is @jsaideepak on Twitter and the founder of “The Demanding Mistress” blawg. He was part of the team that represented a consortium of Internet intermediaries, namely the Internet and Mobile Association of India, in the Supreme Court of India in W.P.(C) 758/2014 which challenged Section 79(3)(b) and the Intermediary rules. Saikrishna Rajagopal of Saikrishna & Associates argued the petition. All opinions expressed above are academic and those of J. Sai Deepak.

Categories
Human Rights Supreme Court of India

Legalise or abolish? Debate on sex work back in focus

VeraShrivastavIn 2011, the Supreme Court of India set up a panel to deliberate potential amendments to the law on sex work, suggest measures to rehabilitate sex workers, and ensure their basic citizenship rights. Recently, the chairwoman of the National Commission of Women, Lalitha Kumaramangalam, declared her stance in favour of the legalisation of sex work.

The Immoral Traffic (Prevention) Act, 1956, (“ITPA”), the only Indian law specifically covering prostitution in India, was passed to give effect to India’s international obligations under the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1950 and also to uphold the freedom against exploitation guaranteed under the Constitution of India.

The prohibitions in the ITPA

Under the ITPA, prostitution is defined as the sexual exploitation of women for commercial purposes. It does not criminalise sex work per se. It is not illegal to carry out sex work within the private confines of one’s home but sex work in or near public places and the soliciting of clients for the purpose of prostitution are criminal acts. It also criminalises the facilitation of the acts of kerb crawling, owning and managing brothels (more than one prostitute constitutes a brothel), pimping, procuring, and trafficking. In effect, the criminalising of prostitution has accorded an offender status to sex workers. Civil society has been largely insensitive to their forced sex work, the abusive customers, their poverty and lack of basic amenities, and most regretfully, their fundamental right to live with dignity.

In 2006, an amendment was proposed in the Parliament to decriminalise prostitution and the solicitation of clients under the ITPA. It also purported to strengthen the definition of trafficking but this bill promptly lapsed with the dissolution of the Fourteenth Lok Sabha. If passed, it would have provided sex workers with a large degree of protection from harassment by the police, social ostracism, and the exploitative network of pimps, traffickers, and abusive customers. Further, it would have embraced a victim-centric approach towards sex workers as opposed to the offender status accorded to them under the existing law.

Lalitha Kumaramangalam (left) and Bharati Dey

Lalitha Kumaramangalam (left) and Bharati Dey

Amongst all the facilitating acts, the trafficking of sex workers is easily the most lucrative business for pimps and traffickers. It exploits minors and adults alike, who are often trafficked into the trade against their will and better judgment. Given that the social fabric of India highly stigmatises prostitution and given that sex workers are not legally recognised, the number of sex workers in India who freely choose this means of livelihood, without being driven or trafficked into it by poverty, illiteracy, and the lack of other viable alternatives, are few. While the statistics of the Ministry of Women and Child Development had estimated over 3 million sex workers in India a few years ago, the Human Rights Watch pegs the number at a much higher 20 million sex workers. A 2013 report by Dasra Foundation also estimates the number of sex workers in India at 20 million, of which 80 per cent are victims of trafficking.

Under the ITPA, trafficking was not defined comprehensively and the measures were ineffective in curbing it. To remedy this, the Verma Committee in 2013 recommended the adoption of the definition of ‘trafficking’ from United Nations Palermo Protocol which classifies trafficking as an offence if done for the purpose of exploitation. This definition has been incorporated in Section 370 the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act, 2013.

Abolition versus legalisation

The approach towards trafficking is a contentious point between two opposing viewpoints on sex work. There are the abolitionists who advocate abolishing the sex work industry altogether and who consider trafficking a crime in itself and then there is the pro-legalisation group who recognise the sex work industry and the accompanying trafficking as part of the trade, as long as it is not done for exploitation.

Apne Aap Women Worldwide and a number of other NGOs and activists advocate a third way between abolishing and legalising sex work. They advocate the decriminalisation of the sex worker, penalising and educating the customers, and criminalising the traffickers.

Apne Aap strongly feels that “prostitution is inherently exploitative and unequal and is in reality an absence of choice, not a choice. Women who have been prostituted must have their basic rights recognised and safeguarded but this must not be confused with the issue of legitimising the sex trade and creating a section of ‘sex workers’ as an employment avenue, such that women from poor and socially oppressed backgrounds, or women lacking education and skills fall prey to the pressures of the market economy, to serve the interest of the profiteers such as pimps, traffickers, procurers, running this trade. The prostituted woman is completely controlled by an exploitative network of pimps, recruiters, brothel managers, money lenders, muscle men and organised crime networks who actually take most of the money a prostituted woman makes from sale of her body, leaving her into a vicious debt cycle”.

An opposing viewpoint is provided by Bharati Dey, the President of the All India Network of Sex Workers and the Secretary of the Durbar Mahila Samanwaya Committee, who leads the pro-legalisation campaign. Sex work, she says, should be treated as labour and should be brought under the purview of labour laws and policies of the state so that sex workers can live with dignity and enjoy workers rights. She also believes that once the sex work industry is regulated under labour laws, the ITPA will serve no purpose and ought to be repealed. Ms. Dey’s vision encompasses a scenario where the sex workers are empowered and self–reliant. She proposes a self–regulatory board as well as an anti-trafficking board, which will be constituted of and managed by the sex workers themselves. This way, the sex workers union will be able to closely supervise and segregate the women who join the trade of their own free will and those women including minors who are trafficked into the trade. For the latter and those who wish to opt out of this means of livelihood, she proposes to involve the government for long-term rehabilitation measures.

Some NGOs and activists also believe that legalising sex work will prevent the spread of HIV/AIDS and other sexually transmitted diseases, provide access to health facilities, education opportunities, and financial inclusion in society as well as prevent exploitation but there is no conclusive study to support that legalisation will improve the conditions of sex workers.

Most parts of Asia, Africa, and the United States have criminalised prostitution while most of Latin America and Europe legalise prostitution or regulate it in some way. Germany and Netherlands, the leading examples of countries which have legalised prostitution, are still facing problems of illegal trafficking of women from less prosperous countries, links with organised crime syndicates, and drug abuse. Conditions amongst prostituted women have not improved noticeably. Sweden is a prime example for the decriminalisation model. Sweden has decriminalised the sex worker and offered rehabilitation measures, but has criminalised the traffickers and customers. This Nordic model has been adopted in Norway, Finland, Iceland, Korea, Philippines, and Russia.

Any model that we adopt must provide solutions to the pressing issues of exploitation by the trafficking network, lack of access to health, prevention of diseases, safety measures for women, financial inclusion in society, and the right to live with dignity. Further, the government must ensure strong long-term rehabilitation measures for any sex worker who wishes to opt out of this means of livelihood.

(Vera Shrivastav is an Associate at LegaLogic law firm and is a part time researcher and writer.)