Category: Supreme Court of India

Categories
History Supreme Court of India

Amendments to shield eminent domain from the courts have left the Constitution without private property rights

Since Independence, there have been several special laws that have been used by both Union and state governments to acquire land Suhrith_Parthasarathyfrom private individuals. Many of them continue to exist. But, for more than a century, the Land Acquisition Act of 1894 has stood as the centrepiece of the Indian state’s policy of expropriation, used most frequently to acquire private property.

Viewed broadly, the 1894 statute canonised a power of eminent domain, which was thought to be a facet intrinsic to a sovereign. The law gave the authority to government to acquire private land for what the state perceived to be a public purpose, in exchange for a compensation, which, when determined under the process prescribed by the statute, was almost always grossly derisory.

The Union Minister for Rural Development in the UPA government, Jairam Ramesh (left), and Union Minister for Urban Development in the NDA government, Venkaiah Naidu, addressing press conferences on the land acquisition law in September, 2013 and March, 2015.

The Union Minister for Rural Development in the UPA government, Jairam Ramesh (left), and Union Minister for Urban Development in the NDA government, Venkaiah Naidu, addressing press conferences on the land acquisition law in September, 2013 and March, 2015 respectively.

It also allowed the state the authority to acquire land unbothered by the economic and social impact that the acquisition might have on the landowner. The statute did not prescribe any social or environmental impact assessment as a precondition for expropriation, and it also imposed no obligation on the government to rehabilitate those displaced by the acquisition. The lack of any safeguards in favour of the landowner effectively meant that the poor person’s land was viewed as the sole property of the state, as property that could be subjected to legally sanctioned fraud and plunder. It was in this backdrop that in early 2014, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“LARR Act”) was brought into force to replace the 1894 law.

The new act was designed to bring an end to a century-long form of oppression. It sought to define the public purpose, for which land could be acquired, with particular clarity; in cases where land was to be acquired for a private project, the consent of at least 80 per cent of the landowners was mandated; the state was barred from acquiring land for the purposes of establishing private hospitals and private educational institutions; a detailed social impact assessment (“SIA”) and an environmental impact assessment was mandated as a precondition to any acquisition; and, most crucially, compensation for lands acquired was to be fixed at four times the market value of the land, in cases where the property was situated in a rural area, and at two times the market value for properties situated in an urban area.

In all, the LARR Act, which was enacted on a largely bipartisan platform, was meant to usher an era of a more participative democratic process, where the people could have a genuine say in how their land is used. Unfortunately, these changes were far too short-lived.

Immediately upon assuming office, the Narendra Modi-led government criticised the LARR Act as a measure aimed at thwarting development. The premise of the new government’s argument was that expropriation of private property through powers of eminent domain stimulates economic growth, and brings about greater commercial expansion. The LARR Act, as they saw it, was simply antithetical to commonly understood notions of eminent domain.

Their solution, while awaiting parliamentary approval to amend the law, was to bring forth an ordinance. This ordinance, which amends the LARR Act, among other things, does the following. One, it removes a previous bar on acquisitions by the state for the purposes of establishing private hospitals and educational institutions. Two, it removes the necessity to secure the consent of landowners when property is acquired for the purposes of redistribution to private entities. Three, it eliminates the requirement for an SIA when land is acquired for a special category of purposes, including for the purposes of national security and the defence of India, and for purposes of establishing “industrial corridors,” and “infrastructure” projects.

As is plainly evident, the proposed amendments, which are presently in force through the operation of the ordinance, seeks to revert us to a slightly modified version of the 1894 law, by virtually removing the spine of the LARR Act. The changes amount, as G. Sampath, wrote in The Mint, to what the Marxist geographer David Harvey might have described as “accumulation through dispossession.” The question now is: would these changes, if ultimately enacted by Parliament, be constitutionally sustainable?

Eminent domain and the constitutional right to property

The Constitution of India, as originally enacted, on the one hand, guaranteed to citizens a right to property, while, on the other hand, implanted in the state an express authority to take property through an exercise of a power of eminent domain. Article 19(1)(f), subject to reasonable restrictions in the public interest, guaranteed to all citizens the right to acquire, hold and dispose off property. Article 31 provided that any acquisition of property by the state may be done only for a public purpose and upon payment of compensation, through a validly enacted law. What this meant was that once a person’s privately owned property was acquired by the state in accordance with Article 31, his or her right to hold the property subject to reasonable restrictions under Article 19 was rendered otiose.

In the earliest cases that emanated in post-Independence India out of the exercise by the state of its power to acquire property, the Supreme Court tended to view Article 31 as an embodiment of a power of eminent domain, which inheres in the state as a sovereign.

The term “eminent domain,” wrote Justice Mahajan in State of Bihar v. Kameshwar Singh, (1952) 1 SCR 889, could be traced back to the year 1625 and to the great jurist Hugo Grotius’s work, De Jure Belli et Pacis. “The property of subjects is under the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy such property,” wrote Grotius, “not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends these who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the State is bound to make good the loss to those who lose their property.”

The meaning of eminent domain, in its irreducible terms, was, therefore, according to Justice Mahajan, (a) a “power to take” land (b) “without the owner’s consent,” (c) “for the public use,” after payment of compensation. In the initial years, the power, thus understood, seemed to impede the state in implementing its socialistically driven policies of expropriating land owned by zamindars more than it benefited it. Yet, as we have seen in the decades since, the very idea of viewing eminent domain as a power that is intrinsic to a sovereign has proved problematic. (Usha Ramanathan, “A Word on Eminent Domain”, Displaced by Development – Confronting Marginalisation and Gender Injustice).

Justice Vivian Bose, however, notably warned against using a “doubtful” term such as eminent domain to understand the Indian state’s power to acquire property. Doubtful, not because the term is “devoid of meaning,” but because it enjoys a different shade of meaning in different countries. “In my opinion, it is wrong to assume,” he wrote in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd., AIR 1954 SC119, “that these powers are inherent in the State in India and then to see how far the Constitution regulates and fits in with them. We have to interpret the plain provisions of the Constitution and it is for jurists and students of law, not for Judges to see whether our Constitution also provides for these powers and it is for them to determine whether the shape which they take in India resemble any of the varying forms which they assume in other countries.”

The final draft of Article 31, which constitutionalised the power of eminent domain, was arrived at purely through compromise. There were some in the Constituent Assembly who believed that land had to be usurped from zamindars, without payment of any compensation (or at any rate, by paying only a minimal, meagre amount) to help herald a more equal and just society, while there were others who argued for a strong protection of property rights, requiring the fulfilment of elements of due process prior to any expropriation. The ultimate provision, contained in Article 31, which was almost literally adopted from Section 299 of the Government of India Act, 1935, as Namita Wahi has pointed out, pleased neither group. It merely transferred the debate on the right to property to the court halls around the country. And, contrary to popular discourse, barring few instances where the courts have restrained Parliament’s powers, by objecting to specific acquisition laws, judges have predominantly allowed the state substantial leeway in exercising its power of eminent domain.

Amending the Constitution, protecting eminent domain from the courts

The Supreme Court of India

The Supreme Court of India

Yet, it was in fear of intervention by the courts that the First Amendment to India’s Constitution (whose validity was upheld by the Supreme Court in Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458) was introduced in 1951, inserting not only Article 31A, which immunised land reform laws from challenges against violation of fundamental rights, but also Article 31B and concomitantly Schedule IX to the Constitution, which protected 13 particular legislation from challenge under Part III of the Constitution, with added retrospective effect. By virtue of these amendments, the crux of the challenge to the Bihar Land Reforms Act, 1950, which had been struck down by the Patna High Court, prompting the first amendment, was effectively rendered futile. Nonetheless, the Supreme Court, in State of Bihar v. Kameshwar Singh, (1952) 1 SCR 889, found that the Act, which sought to redistribute estates in Bihar, was based on a legitimate public purpose, and was therefore in consonance with Article 31.

Immediately after Kameshwar Singh’s case, the Supreme Court rendered a judgment, in State of West Bengal v. Bela Banerjee, AIR 1954 SC 170, which was significant in its elaboration of the importance of the right to property (Seervai, Constitutional Law of India), and which ultimately led to the Constitution’s Fourth Amendment. Here, a provision of the West Bengal Land Development and Planning Act, 1948 was challenged as violating Article 31, as it limited the compensation payable to the market value of the land as on December 31, 1946.

The word “compensation,” as used in Article 31, the Supreme Court ruled, referred to a “just equivalent of what the owner has been deprived of,” and, therefore it found that the provision offended the Constitution. As a result of this decision, Parliament introduced the fourth constitutional amendment and altered Article 31(2) to provide that a law under which compensation is determined for acquisition of land could not be questioned on the ground that such compensation is inadequate.

This amendment, as the legendary constitutional law scholar H.M. Seervai wrote, was considered in four different cases, P. Vajravelu Mudaliar v. Special Deputy Collector, Madras, AIR 1965 SC 1017, Union of India v. Metal Corporation of India, AIR 1967 SC 637, State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634, and RC Cooper v. Union of India, AIR 1970 SC 564 (“the Bank Nationalisation Case”). Each of these cases contradicted the other on the issue of compensation under Article 31. Ultimately, it was the decision in the Bank Nationalisation Case, which was heard by a bench of ten judges, that proved most telling, rendering the fourth amendment’s purport nugatory, and reverted the law to the position established previously by the court in Bela Banerjee. The Supreme Court held in the Bank Nationalisation Case that the word compensation as used in Article 31, even after the fourth amendment, continued to denote a just equivalent of what the landowner had been deprived of. As had become common by now, when a court’s ruling tended to affect the ideology of the government in power, what resulted was a constitutional amendment: in this case, the 25th amendment.

Through this, Article 31(2) was altered, and the word “compensation” was replaced with the word “amount”; acquisitions under Article 31 were expressly removed from being subject to the right guaranteed under Article 19(1)(f), as was held in the Bank Nationalisation case; and laws giving effect to the directive principles contained in clauses (b) and (c) of Article 39 could no longer be questioned on the ground that they violated the rights guaranteed in Articles 14, 19 or 31.

Eventually, the Supreme Court in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, struck down the last limb of the 25th amendment alone. Here, a 13-judge-bench famously held that constitutional amendments could not be used as a tool to abrogate the basic structure of the Constitution: in this case, the power of the courts to judicially review Parliamentary law.

For the purposes of the right to property, though, it was Justice Khanna, whose opinion in Kesavananda proved the most decisive, that continues to resonate. He held that the right to property was not a part of the basic structure in his efforts to illustrate the fact that fundamental rights could, in limited circumstances, be annulled through constitutional amendment.

The jagged hole left by the 44th amendment

The decision in Kesavananda heralded an era of a battle between the government and the court over who holds the ultimate authority to interpret the Constitution. The give and take between Parliament and the Supreme Court may not quite have completely thwarted the state’s program to bring forth land reforms—if anything, the courts sought to place the odd impediment that they found was mandated under the Constitution.

But governments, impatient as they were, thought it necessary to bring forth a plethora of constitutional amendments aimed at placing land laws completely beyond the scope of judicial review. Ultimately, in 1978, the Janata Party, which had come into power following the Indira Gandhi-enforced Emergency, through the 44th constitutional amendment, removed altogether the guarantee of the right to property as a fundamental right. Both Article 19(1)(f) and Article 31 were completely obliterated. In their place, Article 300A was introduced, according the right to property the mere non-fundamental status of a legal right. These amendments, as Seervai argued, failed to grasp that Articles 19(1)(f) and 31 “were so closely interwoven with the whole fabric of our Constitution that those rights cannot be torn out without leaving a jagged hole…”

In the short run, the 44th amendment might have even helped in bringing forth more equivalence in land ownership, as desired by the government at the time. But, during the decades that followed, with an atmosphere of neo-liberalism taking over the Indian polity, the amendment has only contributed towards increasing discrimination. The power of eminent domain has been regularly abused to serve private interests. As Namita Wahi has pointed out, a number of measures have been introduced to place property at the hand of select institutions and corporations, often transcending constraints of public purpose contained in the original doctrine of eminent domain. (Namita Wahi, “State, Private Property and the Supreme Court”, Frontline).

For instance, “with the enactment of the Special Economic Zones Act in 2005,” wrote Wahi, “the acquisition of land by government to hand over to private industry which had happened in an ad hoc manner in previous decades became official government policy.” The meaning of “public purpose” has been expanded to absurd lengths, and different governments have overseen the most arbitrary expropriation of land, particularly from farmers, through the archaic, and draconian, Land Acquisition Act of 1894. These acquisitions have been rarely, if ever, disturbed by the courts, and even the compensation paid to individual landowners has been seldom enhanced.

What’s more, state governments also enacted their own special legislation to acquire land, bypassing, in the process, even the minimal safeguards contained in the central law.

Thus far, the Supreme Court has not ruled on the merits of the validity of the 44th constitutional amendment. It has only occasionally taken the pains to point out that the removal of the right to property from Part III has accorded substantial leeway to the state in expropriating land. (See for example, KT Plantation Pvt Ltd. v. State of Karnataka, (2011) 9 SCC 1.) Most of the Supreme Court’s decisions seem to indicate that it too has been equally buoyed by the supposed joys of liberalisation.

When viewed in this context, the LARR Act of 2013 represented a substantial breakthrough. It sought to realign the nature of property in India, by guaranteeing to citizens a right to own and hold land, which ought to ideally enjoy fundamental status. To the extent that it provided not only for an enhanced and more just compensation, but also for a social and environmental impact assessment, and for a voice to landowners, the LARR Act was a decidedly successful piece of legislation. It is therefore that the present ordinance, which seeks to remove many of the integral facets of the LARR Act, has to be considered as an anathema. To make things worse, by virtue of the 44th amendment, the state can today argue convincingly that the ordinance is legally valid and that it stands on substantial constitutional bedrock.

None of the diktats of the LARR Act, which have been removed by the ordinance, can be considered as constitutionally mandated, if we were to assume that the 44th amendment has accorded the state a carte blanche over private property, as some Supreme Court decisions seem to suggest. (See for example, Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142).

A historic re-interpretation of the Constitution is required

The state, unless convinced by the abiding public sentiment on the matter, would argue in the case of the proposed amendments: firstly, that the consent of landowners and the conduct of an SIA are simply not required as a matter of constitutional guarantee, and secondly that in the absence of an express prohibition of acquisition by the state for private purposes, the argument that the ordinance violates traditional notions of eminent domain, in allowing acquisition of land for private educational institutions and private hospitals, does not pass muster.

To negate such submissions, we would require the Supreme Court to shed its apathy, and to interpret the Constitution in its right spirit. The court will have to reconsider the understanding of eminent domain that has pervaded its jurisprudence, over the years. The removal of the fundamental right to property, by the 44th amendment, cannot be considered as a final nail in the coffin of rights over land.

To rebut the notion that eminent domain inheres in a sovereign, we might require an intervention that transcends mere judicial review, an intervention that is democratically justifiable. But what the courts can do is to examine Article 14, and the basic guarantee to the people of equal protection of the laws. Interpreted in its finest light, the right to equality ought to impose a superior obligation on the state to protect private property, and to give people a genuine say in how their land is used. To not hold so would negate the very idea of citizenship.

(Suhrith Parthasarathy is an advocate practising at the Madras High Court.)

Categories
Supreme Court of India

Amendment to negotiable instruments law has not completely bounced out the jurisdiction question

Himanshu_SumanWhere should the complaint for a cheque bounce offence be filed? Since this question has not been answered in the Negotiable Instruments Act, 1881 (“NI Act”), courts have applied general principles of criminal procedure to answer it. An offence should be tried by a court within whose jurisdiction it was committed. If the offence consists of more than one ingredient, it may be tried at any place where any of the ingredients occur. Following a Supreme Court decision in 1999, there had been significant confusion and uncertainty on this question, but that was settled when, on August 1 last year, the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra and Another, (2014) 9 SCC 129, held that the complaint had to be filed where the drawee bank is located.

The “cheque bounce” offence under Section 138 of the NI Act was created by the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988 to establish and strengthen cheques as a form of mercantile tender. Section 138 makes the dishonour of a cheque for insufficiency of funds or because the amount exceeds the arrangement agreed with the drawee bank, an offence punishable with imprisonment up to two years and a fine up to twice the amount of the cheque. This is subject to compliance with the proviso to Section 138 – the payee has to deposit the cheque with the bank within six months of being drawn, issue a written notice to the drawer demanding payment within 30 days of the cheque being returned unpaid, and the drawer has to fail to make the payment within 15 days of receiving this notice.

Lifting the confusion about the jurisdiction question

In K. Bhaskaran v. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510, the Supreme Court had held that the offence under Section 138 consisted of five ingredients – the drawing of the cheque, the presentation of the cheque to the bank, the return of the dishonoured cheque, the issuing of notice to the drawer, and the failure of the drawer to pay the amount after receipt of the notice. Following Section 178 of the CrPC, jurisdiction can vest at any place where any of them occur.

Besides introducing uncertainty, this interpretation also allowed the payee to harass the drawer by filing the complaint at distant places that had no causal connection to the transaction or the drawer.

Dashrath Rupsingh Rahthod rightly held that the offence involved not five ingredients but one, that is, the dishonour of the cheque by the drawee bank. Bhaskaran had wrongly interpreted the conditions under the proviso as being ingredients of the offence rather than merely the conditions that had to be met to initiate prosecution. The correction in Dashrath Rupsingh Rathod finally deprived the payee of his power to unilaterally confer jurisdiction on a place of his choosing and fixed with certainty the jurisdiction for complaints under Section 138.

Amendment to the negotiable instruments law returns power to payee

cheque_negotiableinstrumentThe decision in Dashrath Rupsingh Rathod was criticised by industrial associations and financial institutions for unjustly requiring the creditor to go the debtor. In their view, it ought to have been the other way round. The Negotiable Instruments (Amendment) Bill, 2015 which, has been passed by the Lok Sabha and will be introduced in Rajya Sabha during the next session, proposes in Section 142(2) that the complaint should be filed where the collecting bank is located. This will also apply to all pending cases and after it becomes law, almost every pending complaint under Section 138 will have to be transferred from the place where the drawee bank is (following Dashrath Rupsingh Rathod decision) to where the collecting bank is.

This will once again empower the payee to unilaterally confer jurisdiction on any place where he has a bank account. The drawer will have to make arrangements to defend himself in criminal proceedings at such place, wherever it may be.

Amendment benefits frequent defaulter

For some balance, the proposed amendment will prevent the payee from unduly harassing a drawer by taking four cheques and filing them in four different parts of the country as separate complaints. All complaints between the same parties are to be tried at one place irrespective of where the payee deposits the cheques.

It even proposes that all complaints against a drawer, even by different payees, should be tried before the same court, which will be the court where the first of such complaints has been filed. Whenever a payee files a complaint under Section 138 against a drawer and it is brought to the notice of the court that there is a prior pending complaint against the drawer, then the court will transfer the subsequent complaint to the court trying the prior complaint. The provision only mandates that the complaints be tried before the same court and not that they be tried together.

There is no clarity about which party bears the onus of giving notice of the prior complaint or about the time period within which it has to be given. The erring drawer would thus be able to delay subsequent complaints by revealing the prior complaint only at a later stage. A frequently defaulting drawer would benefit the most from this proposal because subsequent payee(s) would have to go where the collecting bank of the prior payee is even though such place may not have any causal connection to their transaction with the drawer.

It is welcome that the jurisdiction question will finally be settled by statute. The rough edges around the proposed Section 142-A however, have to be creased out by subsequent judicial decisions and the courts may not be wiling to interpret a penal provision meriting strict interpretation in a manner that advances the objective of establishing and strengthening cheques as a form of mercantile tender.

Himanshu Suman, an alumnus of NLSIU, Bangalore, is a Delhi-based advocate.

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.)

Categories
Human Rights Supreme Court of India

“I know it, when I see it” – The limits of the law in finding illegality in obscenity

AparGupta_freedomofspeechThe recent legal prosecution of AIB, a stand-up comics collective, has thrown open the debate on obscenity standards. In its show, AIB used cuss words and made express sexual innuendos. It was plainly visible that they were challenging, even if unwittingly, not only the conventional social mores but also the thresholds of obscenity law. Many see their prosecution as unfair and unequitable and evidence of greater intolerance in Indian society. Many have also questioned the law that formed the basis for the prosecution. It has been described as vague, indeterminate, and providing a ground for complaint to the least tolerant.

This is properly a debate on the legal standards used to determine obscenity. As opposed to a debate on the necessity of the offence of obscenity itself. This article focusses on examining arguments for greater certainty in the legal tests for determining obscenity and seeks to build towards a more ambitious proposal, that legal tests and criteria cannot define obscenity to any reasonable certainty. Its moral desirability, even in the face of such subjectivity, is of course a choice left for the legislature.

The Hicklin test

The legal standards governing obscenity arise from the case of Ranjit Udeshi v. State of Maharashtra where the Supreme Court of India interpreted Section 292 of the Indian Penal Code, 1860. Though Section 292 only criminalises printed materials, its definition of obscenity is utilised in other criminal provisions such as Section 294, which criminalises obscene speech and songs. In Ranjit Udeshi, a five-judge bench of the Supreme Court of India adopted the Hicklin Test laid down in the case of Regina v. Hicklin by Justice Cockburn.

D.H. Lawrence's classic novel, the subject of controversy in Ranjit Udeshi's case.

D.H. Lawrence’s classic novel, the subject of controversy in Ranjit Udeshi’s case.

The test relies on gauging the content with respect to its tendency to deprave or corrupt. This depravity is reasoned to result from the content evoking or opening a person’s mind to any eroticism or sexual arousal. Finally, the test is not gauged from the perspective of an adult, but those minds which are open to such “immoral” influences. In a sense, its objective remains the infantilising of an adult mind. Our Supreme Court, while adopting this test, made slight modifications indicating that, “community standards” have an important bearing in adjudicating the legality of content as well. The case acknowledged that such obscenity can be part of a longer movie or song, but it had to, “remain in the shadows”. It is not without reason that old Bollywood movies contain visual innuendos, of a shaking bush or a rocking bed to represent love making.

The test by itself, on its very face, seems vague and incomprehensible and this seemed to be within the contemplation of the judges as well. They wrote in the decision itself that the “court must, therefore, apply itself to consider each work at a time.” In a sense, this revolts against the necessity of giving adequate notice to authors and artists.

This subjectivity became visible when the Supreme Court, in the case of C.K. Kakodar v. State of Maharashtra, applied the Hicklin Test. To gauge the obscenity in a story, it examined the theme of the story, the main protagonists, and the “artistic merit” in it. Explaining its approach, the Court stated that its duty was to “ascertain whether the book or story or any passage or passages offend the provisions of S. 292”. This implicitly recognises that it requires highly trained judicial minds which seek to balance competing interests to gauge whether a work is not obscene, and has, “artistic merit”. Again disposing of the petition and holding in favour of the author, the Court made reference to the contemporary morals of Indian society, which it also noticed, were “fast changing”. A convenient result therefore, backed by unfortunate reasoning.

Limiting the Hicklin test

It is not as if the criticisms of such an ad-hoc and content-by-content approach were not felt by the Court. In the same year as the Kakodar case, the Supreme Court made express reference to Udeshi’s case, when called to adjudge the legality of the pre-censorship of movies. The petitioners in K.A. Abbas v. Union of India argued that the mandatory certification necessary to any prior exhibition by the Cinematograph Act was unconstitutional as a prior-restraint. The Court, while holding the Act constitutional, laid down some guidelines that in its view, afforded reasonable safeguards. In its penultimate paragraph however, it contained some criticism that indicated a small but significant realisation that the law by and large contained vague obscenity standards. Its prescription revolted against any liberal conception of censorship, stating that Parliament should legislate more, as if to clinically separate the obscene from the moral. As we go along, we will discover the limits of law and of judicial eloquence to regulate the arts.

first_image_new

After an interregnum of about five years, the Supreme Court, in Samaresh Bose v. Amal Mitra, again faced its precedent and marked a significant departure from it by seeking to limit the applicability of the Hicklin test. Rather, it sought to make community standards the overreaching or controlling criteria to gauge obscenity. The Court in its inquiry, first focussed on certain prongs devised under a community standards grouping and only after this, did it proceeded to a pure analysis of obscenity under Section 292 and the Hicklin test. This was achieved by the Court stating that in order to determine the offence of obscenity, the judge should first place themselves in the position of the author to gauge the literary and artistic merit and thereafter place themselves in the position of a reader of every age group, not only children and those open to influences. Only after this should the inquiry on the Hicklin test proceed. This test or the tiered approach to gauge illegality appears persuasive, however again, in practice, requires subjective, content-by-content determinations.

bandit-queen-movie-poster-1994Even though the test in Samaresh Bose has not been followed, courts have evenly sought to apply its variations to gauge the artistic merit in a work while determining obscenity. In Bobby Art International, Etc v. Om Pal Singh Hoon, the Supreme Court, while adjudicating the appropriateness of the movie Bandit Queen being given a Central Board of Film Certification (“Censor Board”) certificate with an “A” rating, exhaustively analysed the theme of the movie. The Court held that the objections of the Censor Board that the movie depicted social evils could not be sustained as it was unavoidable in a movie which showed the consequent harm caused by it. Further, in Director General, Directorate v. Anand Patwardhan, the Supreme Court directed Doordarshan to screen the respondent’s documentary Father, son and Holy War and in doing so, sought to expressly apply “community standards” while not expressly overruling the Hicklin test.

The resultant confusion in standards which may be applied to obscenity is evident from the Supreme Court’s reasoning in Ajay Goswami v. Union of India. These tests, which are chronologically listed, are prefaced in the judgement as “broad principles”. Not only are these principles broad, but their girth seems to have increased with time. Though the judgement in terms of legal articulation correctly notices past precedent, it also makes it evident that India, for a long period of time, had several legal standards to gauge obscenity, permitting subjectivity and preventing adequate notice of illegality to artists and authors.

Express adoption of community standards

This position in law seems to have undergone a dramatic change last year, with the Supreme Court ruling in Aveek Sarkar v. State of West Bengal. The ruling expressly discards the Hicklin test, stating that it is not good law. In its place, it adopts the more liberally oriented “community standards” test. However, the manner in which the Court applies the community standards test itself gives cause for concern. If one reads the judgement, the Court again examines the content in question and the social merit in the publication. Again, the result may be liberal, but the reasoning itself may only be a modest improvement on the Hicklin Test.

This is not to say that the express adoption of the community standards test in the Aveek Sarkar case is not cause for hope, however its promise is limited. While it does signify an express statement from the Supreme Court recognising the need for the greater liberty of artists and authors, it maintains the necessity for “artistic merit” or social need. The application of the community standards test can also be criticised on several other grounds but the major criticism is that it again permits subjectivity and a value-driven assessment by our higher judiciary.

Again, it needs to be emphasised that the High Court of Delhi has in two recent cases, by the application of Aveek Sarkar, refused to prohibit the exhibition of movies with Censor Board certificates. In both instances however, the Court gave substantial credence to the legality of the movies on the basis of the certificate for exhibition issued by the Censor Board. In the first case, Nandini Tewari and Another v. Union of India, the Court was asked to prohibit the exhibition of the movie Finding Fanny due to the name of the movie itself. The Court examined the term “fanny” as well as the term as it appeared in the dialogues of other movies in the past. It not only applied the Aveek Sarkar case but even earlier precedent to implicitly form a “community interest” and an “anticipated danger” test.

In the second case, Ajay Gautam v. Union of India, the High Court examined the contents of the movie PK, which the petitioner complained, mocked the Hindu religion and hence should be prohibited from exhibition. The Court again substantively appreciated the movie in question, heavily relying on the prior existence of a Censor Board certificate, and the nature of the movie, that is, a parody. Though the case is not per se concerned with obscenity, precedent on obscenity is bundled with larger free speech jurisprudence including the, “clear and present danger” test.

The limits of law

A review of legal precedent suggests that both the Hicklin test and the community standards test are not only fallible in some isolated instances but by their very nature permit subjectivity and value-based assessments. It has been my firm belief that any moral harm that is supposed to originate from movies, songs, paintings, or any other form of creative art is illusory. This moral harm is at the core of any justification for the offence of obscenity. Even if such an outlook is not shared by others, it is evident that obscenity to a large degree is a vague concept which will rely on a case-by-case determination, dependent on the facts of each case, in which a judicially trained mind (as opposed to an artistically inclined one) will examine the artistic merits and the potential illegality.

Though Indian case law to a large degree has drawn inspiration from the First Amendment precedent of the United States Supreme Court, it has failed to notice the dissent of Justice Brennan in Paris Adult Theatre I v. Slaton. Justice Brennan’s eloquence lays evident the limits of law, as it seeks to balance any purported moral harm with the liberty of artists. To end it is quoted below:

“Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our [p84] failure to reach a consensus on any one standard. But, after 16 years of experimentation and debate, I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we “know it when [we] see it,” Jacobellis v. Ohio, supra, at 197 (STEWART, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.”

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)