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Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021: Analysis on the Perspective of the Right to Self Determination

3 days ago 0Comments 179Views

By Akshay Lodhi and Rainy Jain

October 23, 2021

India stands second in the world population index with the current population of 1.39 billion and it is increasing with every passing second. The population growth rate in India is twice the population growth rate of China and India is expected to replace China in the world population index in next 2-3 years. When compared to other countries, population density in India per square km is on an average 3 times higher than other countries, except in the case of Bangladesh.

India is a country still attached to its root values and customs and hence Indians tend to think that a bigger family is a blessing. It is perceived that more number of family members is directly proportional to more income to the family, which is a questionable approach when the nation as a whole is developing and does not have sufficient resources to distribute to each and every individual.

On the other hand, more number of people in a family means more mouths to feed even as the resources are scarce. The impact of rapid population growth with limited resources is one of the reasons for poverty, unemployment, additional burden on health care facilities, illiteracy and increased crime rates.

In the light of these issues faced by the nation, various efforts have been made by the Legislature after independence to control the population growth. The National Population Policy 1976 was proposed to look into the aspect of increased population growth as a reason for increase in poverty, burden on health care infrastructure, etc. This policy placed emphasis on medical education to help the rural population. However, this policy was neither discussed nor adopted. Later, the National Health Policy 1983 was formulated for the purpose of spreading awareness among the common people about the need of population stabilization through improved health care services. In the wake of National Health Policy 1983, the National Population Policy 2000 (NPP) was formulated with an objective to address the concerns about the usage of contraceptive medicines and infrastructure for child health care with the long term goal to have a stable population but these efforts were in vain because of higher illiteracy rate in a majority of the states.

The 84^th Constitutional Amendment 2002, followed the principle of National Population Policy by taking steps to freeze the allocation of seats in the Lok Sabha to a state which failed to pursue the agendas of population stabilization. Later, the Ministry of Health and Family Welfare setup the National Population Stabilization Fund in 2005, to review, monitor and achieve population stabilization. This program emphasized on the primary health care of women including the distribution of free contraceptive medicines.

In the year 2017, the Assam Government introduced the Population & Women Empowerment Policy for population stabilization in lieu of demographic development of the state. However, the same did not came into force. In the year 2019, the Population Regulation Bill was again introduced by a member of the Rajya Sabha, however, the same turned out to be a failure. In the year 2020, Anil Desai, member of the Rajya Sabha, introduced a proposal to amend Article 47A of the Indian Constitution in favour of population control without any success.

Recently, the UP Government proposed the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, for the purpose of population control and stabilization. This bill emphasizes mainly on the implementation of policies which will incentivize the target demography to adopt the two-child policy of the government in order to avail and enjoy government-sponsored benefits. Further, in case of failure to adopt the two-child policy by the target demography, there are no benefits available to these people and these people will be disincentivized, says the Bill. The current bill can be taken as an extension of the Population Regulation Bill 2019, with the only changes being increase in both incentives and disincentives to the people who will and will not adopt the policy respectively.

There is no doubt that this bill has certain objectives that are in favour of society including population stability so that equal and sufficient distribution of resources can be achieved. With stabilized population, premium healthcare and better education can availed by society and it is highly probable that crime rates may reduce. Another aspect is socio-economic development of the nation which will help in overall growth of the State.

However, with the implementation of this bill, the chances of sex selective abortion may increase in future as a large number of Indians still prefer a male child over a female child. Further, coercive implementation of this bill will not be fruitful as India’s total fertility rate has fallen from 3.4 children per woman in year 1992-93 to 2.2 children in 2015-16 according to the National Family Health Survey 4 (NFHS 4) and the Total Fertility rate, as projected in current trend, will reduce to 1.8 children per woman in the year 2030. Further, this bill in certain cases prevents individuals from taking part in self governance, even if a candidate has been elected through the people’s mandated.

Now looking into the world perspective, in certain countries efforts have been made to have more kids such as South Korea, Singapore, Turkey, France etc.These countries have good medical infrastructure and have the lowest birth rate, and are spending billions of dollars on policies that encourage people into having more children as the disparity between the ratio of young and old population is growing by the day and is creating an imbalance. However, it is the opposite in the case of India and it is necessary to take steps towards population stabilization but it is uncertain whether the current version of the bill and implementation of two child policy according to this bill is a bane or a boon in the long run.

With regards to the proposed bill in the State of Uttar Pradesh, its implementation may infringe upon the rights of the people. These rights have been defined under various laws and the same has been recognized by the Constitution of India.

The Right of Self Determination in light of the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021

The Declaration of Social Progress and Development, proclaimed by the United Nations General Assembly Resolution 2542 of December 1969 begins with “reaffirming faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person, and of social justice under the resolution”. Upon reading Article 22 of the Resolution, it is easy to understand that the common concern of the international community is the development and co-ordinations of policies to strengthen the functions of families as a basic unit of society. Further clause (b) of Article 22 of the resolution puts emphasis on the right to determine freely and responsibly the number of spacing of their children. The International Conference on Human Rights Teheran 1968, under Chapter 3 (VIII), emphasizes that right to self-determinations is a basic human right, which provides decision making autonomy to an individual and the absence of such right amounts to violation of basic Human Rights in International Law Regime.

In case of Indian social structure, the Constitutional Bench of the Hon’ble Supreme Court in case titled as Justice K.S.Puttaswamy(Retd) vs. Union Of India, was of the opinion that“…Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects…”. Furthermore it was also observed that “…The sanctity of marriage, the liberty of procreation, the choice of family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity.” Here intimacy and autonomy includes the right to procreate or to make sexual or reproductive decisions. Furthermore, in R. Rajagopal vs. State of Tamil Nadu, the Hon’ble Supreme Court, while deciding right to privacy under the ambit of Article 21 of the Constitution of India, opined that privacy interest in autonomy must also be placed in the context of other rights and values. Further, right to privacy also includes right to be let alone which can further be extended to privacy of an individual, his family, marriage, procreation, child bearing and others.

In Justice K.S. Puttaswamy (Retd.) vs. Union of India(Supra), the Hon’ble Supreme Court dwelled into the ambit of Article 21 in the light of “procedure established by law”. The Hon’ble Supreme Court upon analyzing numerous judgments including Maneka Gandhi vs. Union of India (1978) 1 SCC 248; Bachan Singh vs. State of Punjab (1980) 2 SCC 684: (1982)3 SCC 24 and Mithu vs. State of Punjab (1983) 2 SCC 277, analyzed that the ambit of Article 21 not only restricted to the procedure that has been established by law, but put the procedure established by law to the test of fair, just and reasonableness. The application of the test of fair, just and reasonableness becomes the paramount consideration while determining the substantive procedure established by law laid down by the parliament and if the substantive procedure fails to justify the test of fair, just and reasonableness, the same can be challenged under Article 14 and 21 of the Constitution of India. The application of Article 14 with Article 21 justifies fairness and reasonableness not only in the procedure established by law but also the law enacted by the legislation in its entirety.

Similarly,in the case of Mohd. Arif vs. Supreme Court of India, JusticeRohinton Fali Nariman brought in the observation laid down by Justice Krishna Iyer in Maneka Gandhi vs. Union of India(supra),“…Procedure’ in Article 21 means fair not formal procedure. ‘Law’ is reasonable law, not any enacted piece…’. And later on, Justice Rohinton Fali Nariman was of the opinion that “…the wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty…”

The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021 (hereinafter “the Bill”), is one such Bill that has been brought in by the State government with the object to control and stabilize the population of the State of Uttar Pradesh. But upon careful perusal of the Bill in the ambit of the test laid down by the Apex Court under Article 21, the bill fails to justify the substantive process established by law as no regulatory authority has been defined in the bill, neither any protective mechanism has been mentioned through which people can seek relief in case of any grievance. Thus, in the light of the rulings of the Apex Court, violation of rights under Article 14 and Article 21 of the Constitution of India can be claimed. It is further to be observed that the bill itself can be challenged on the ground that it does not provide any procedure by which the people can approach the state or any other authority. Therefore, this bill does not survive the test of fair, just and reasonableness laid down in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India (Supra) and other cases as discussed above.

This Bill also does not adhere to the principle of Reasonable Classification as given under Article 14 of the Constitution. The bill, 2021, creates two separate classes among the citizens of state of Uttar Pradesh-one being the government employees and the second being the non-government employees/self-employed/businessmen/small occupations and others. Now in the given scenario, if this Bill comes into force it may result in forced sterilization of either of the spouses who are government employees so that the incentives given under section 4 of the Bill can be availed, and if the same is not done the government employee will have to bear the consequences in the form of disincentives. On the other hand, there is no procedure or guidelines given in the bill with regard to the application of the bill on non-government employees and other employees. Thus, it is only the government employees or the persons who are appearing for government service/job who will have to go through voluntary sterilization in order to avail the incentives. Therefore, there is intelligible differentia among the class of people created by this bill on the basis of sterilization. And therefore, this bill clearly violates Article 14 of the Constitution.

Further, there is no Reasonable Nexus between the intelligible differentia and the object to be sought by the Bill. It can be seen that the country’s fertility rate has decreased in last two decades. It can also be seen that the rate of sterilization is much lower in U.P as compared to rest of Indian States (18% to 36%). As per research conducted by a researchjournal, the cause of higher fertility rate is lack of education and the families which are not educated enough opt for sterilization instead of using contraceptives. The fertility rate in the state of U.P has decreased drastically from 4.4 to 2.7 children per couple from 2000 to till 2017-18. This paper has also observed that the fertility rate declined because of modern contraceptive methods than due to sterilization. In the absence of any concrete demonstration that population can solely be controlled through sterilization, the bill in itself takes away the constitutional right from the citizen of the state and therefore, the Bill violates Article 14.

Thus, in the light of above-noted judgments it is clear that every individual has the right to privacy which also includes and protects personal intimacy of a person including procreation and child bearing rights. The right under Article 21 cannot be taken away through implementation of two-child policies, nor by way of providing additional subsidies and increment policies, as is the case of Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021.

The major concern that can be seen in implementation of this bill is that, it will also violate the Right to Equality under Article 14 of the Constitution of India as this bill will divide married couples on the basis of the number of marriage one can enter into. A Hindu married couple can only have two children, whereas a Muslim man who can have upto four wives can have eight children from all the wives together and therefore, the ambit of this bill lacks in case of polygamy marriages. Further, this bill under section 18 and 19, determines polygamy marriages and the issue related to the birth of two or more children.However, these sections are not crystal clear upon the aspect of rights of a spouse to procreate. For example, in case of a Muslim man having four wives, if each wife has one child then there is no contravention of section 18 and 19, when looked from the perspective of the wife. Whereas, from the perspective of a husband he has four children, thereforethe husband has violated the objective of the Bill.

This bill will cease the right of a future spouse to procreate, if he/she marries a divorced/widow/widower already having two children. Thus, in the light of pre-existing rights, it is highly impossible to support the social structure of democracy when any bill may create social imbalance among the community of people on one hand and taking away the fundamental rights enshrined under Article 14 and 21 on the other hand.

Conclusion

The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, comes with an objective of better socio-economic structure of society in which families are in a position to avail better medical facilities and a healthy lifestyle. This bill further provides incentives to those people who are ready to accept the two child policy norms. However, the bill does not instill confidence in the minds of people as to how this bill will not infringe upon decisional autonomy of the public to decide how many kids they want and enforces the two-child policy upon them.

Furthermore, it can be observed that the implementation of this bill will clearly result in violation of fundamental rights. This bill is a better version of all the previous bills that have been placed before Parliament.However,this bill still fails to address the question about how society is benefited from this bill without violating the constitutional mandate under Articles 14 and 21.

Akshay Lodhi is Advocate, Delhi High Court.

Rainy Jain is an Associate at Samyag Legal, Jaipur.

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Contextualising Mob Lynching in India as a Form of Honour Crimes

October 12, 2021 0Comments 59Views

By Ritabrata Roy and Triman Goel

October 12, 2021

PART 1

“It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that’s pretty important.”

― Martin Luther King Jr.

1.INTRODUCTION

Largely during the last five years, among other instances of aggravated violence particularly upon the religious minorities in India, the phenomenon of mob-lynching has significantly managed to create its niche. Recent reports suggest that this method of violence has become extremely popular among the masses in the sub-continent, especially in the wake of recent events of communal violence nationwide. According to reports, 2018 recorded the largest number of mob lynching cases between the years 2015-19, when the tally was more than 50 in the year itself.[1] In wake of the alarming rise of these incidents, the Supreme Court of India in 2018 prescribed some strict guidelines to curb these incidents in future. The core issue of this study is to analyse the elements of patriarchal communityhonour, which is arguably one of the primary motivations behind the phenomenon. I will argue that mob-lynching is a specific category of honour crimes and thereby, will make a strong case for implementing the 242^ndReport of the Law Commission of India towards enacting a specific provision on honour crimes within the Indian Penal Code 1860.[2]Such a provision, in my opinion, should encompass the subject of mob lynching by mainly focussing on the honour-based motivations of the crime. I further believe that such a comprehensive enactment will be a commendable step towards implementation of the Supreme Court’s guidelines in the TehseenPoonawalla judgment.[3]

2.INCIDENTS OF MOB LYNCHING AND THE TEHSEEN POONAWALLA GUIDELINES

2.1 The cases

The usage of mob-lynching as a form of so-called ‘retributive justice’ in the eyes of certain sections of the society is not an alien concept to the Indian subcontinent. However, in my opinion, the alarming reality that needs to be highlighted here is the sharp increase of the number of cases, especially in the last five years. Coupled with the volume of the incidents, the sheer magnitude of public brutality involved therein has compelled civil society and the judiciary alike to rethink about the measures to curb these incidents.

In my view, it is imperative to present a brief background to a few of such spine-chilling incidents of mob-lynching that shook the moral conscience of the country recently.

The Shahrukh Khan Case: In this case, a 20-year-old man was lynched by an angry mob on the suspicion of trying to steal a buffalo. The incident happened in the state of Uttar Pradesh on August 29, 2018.

About a year later, on June 18, 2019, a similar gut-wrenching incident from the state of Jharkhand again came to the forefront. Popularly known as the Tabrez Ansari case, the incident in which a young man who was alleged to have stolen a motorcycle was lynched by a mob. The victim died on June 22, four days after the incident. The video evidences of the incident revealed that the mob had forced the victim to chant some jargons of the dominant religious community in India, thereby communalizing the incident, making it a highlight in the popular discourses in the media circuit for days to come.

Within a couple of months, several other incidents of mob violence were reported in different parts of the country. One such widely reported was the Beena Devi case from the state of Uttar Pradesh, where a 50-year-old woman was brutally attacked on suspicions of child-lifting on August 26, 2019. The state of West Bengal reported an incident on July 26, 2019, where a Muslim boy (Faiz) was beaten to death by the family of a tribal girl, who was in a relationship with the deceased.

2.2 Statistics

Table A, provided below presents a graphical representation of the year-wise reported cases of mob-lynching across the country from 2015 to 2019.

TABLE A

2.3 Major characteristics of theTehseenPoonawalla guidelines

In the wake of these incidents, social activist TehseenPoonawalla and Tushar Gandhi moved the Supreme Court of India in 2018, seeking judicial interference to curb the magnitude of the growing menace.[4] In a landmark judgment pronounced by a three-judge bench headed by the then Chief Justice of India (Deepak Mishra, J) A.M Khanwilkar and Dr. D.Y. Chandrachud, JJ was highly critical about the growing incidents of mob-lynching across the country. Expressing grave concerns, the bench called for a complete overhaul of the law enforcement system to this regard.[5]The guidelines suggest creation of a special task force (STF) to procure intelligence reports on subjects likely to commit or incite such offence. Further, the Director General of Police and Secretary of Home Department of the States were directed to take regular meetings at least once a quarter with all nodal officers and State Police Intelligence Heads.[6] Regular police patrolling was also suggested as a complementing method to provide the necessary intelligence on the subject to STF.

With regards to the legislative methods, the court recommended that the Parliament enact a specific legislation directed towards the offence of mob-lynching with adequate punishment for the same.

2.4 Critically analysing the guidelines

2.4.1. Open-ended terminologies

Previous studies have revealed complex discrepancies in these guidelines from both policy-making and implementational standpoints. However, in my opinion the most striking feature that sticks out as a sore thumb, is the prolific use of open-ended terminologies throughout the guidelines. For the purpose of study, it appears to me that the court has not restricted the applicability of the guidelines only to the phenomenon of mob-lynching.

In this context, I wish to argue that, the impugned guidelines provide for an excellent opportunity to comprehensively implement the guidelines on honour crimes proposed by the 242^nd Report of the Law Commission of India,along with the guidelines given in the Shakti Vahini judgment.[7] However, for doing that, firstly, we need to characterize certain kinds of mob lynching as manifestations of honour crimes. In the forthcoming sections, I will first try to categorize the acts of mob-lynching as a specific form of honour crimes. Thereafter, I will try to make a case for comprehensive implementations of the aforementioned recommendations and guidelines.

PART 2

3. MOBLYNCHING: A SPECIFIC FORM OF HONOR CRIMES?

At the outset, let us go back to the different incidents of mob lynching that I have discussed in section 2. A closer analysis of these cases will reflect a variety of motivations behind these violent acts. In these four instances, while three of them reflect a stain of communal violence involved, one was rather a manifestation of discontentment with the existing law and order system. A recent study has claimed that majority of the mob lynching acts since 2015 are mostly motivated by communal disharmony. In these cases, the victims mostly belonged from the minority communities.

The core argument of my present study is that, most of the cases of mob lynching in India are violent manifestation of the so-called ‘protection’ of family or community honour which effectively brings them within the broader ambit of honour crimes or honour-based violence (HBV). For the purpose of this claim, I will argue for giving a broad interpretation of the term ‘honour’. However, to elaborate this claim further, let me first critically discuss the concept of honour crimes, particularly from a motivational aspect.

3.1 Honour Crimes: Concept and Motivations

Honour crimes are commonly defined as, “acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonor upon the family.” Mainstream literature on the subject have reflected upon the nature of the ‘honour’ involved in these crimes, as patriarchal community or family honour. Discussing this point, Phyllis Chesler has observed that, a family/community honour is often associated with the chastity/purity of a woman. Therefore, “female chastity and fertility is considered a family-owned asset that no individual woman dares to claim as her own.”[8] As Safia Heidi rightly summarized that it is the collective patriarchal community honour that is usually borneby the women of the community. Even the slightest perceived taint to suchhonour is washed away with retributive violent retaliations such as killing of the victim and other forms of honour violence.[9]

3.2 Feeling of collective shame and anger

The mainstream literature on the subject has often charactarized ‘honour crimes’ as a retributive means of redeeming collective institutional shame. Erving Goffman notes that, ‘shame’ is an outcome of embarrassing interactions with the society, which can both be temporary and permanent/institutional.[10] With regards honour crimes, it is institutional honour that works as the motivating factor.[11] Further, it has been noted that the honour offenders often work as a group, trying to clean/preserve their community honour as a unit, by acting violently against the victim who is perceived to have maligned it.[12]

It is this collective feeling of honour/shame that makes the honour crimes unique. Thus, a closer look at the cases worldwide would reveal the intrinsic involvement of the extended family members or the community members of the victim in planning and executing the act. MazherIdriss of Manchester Metropolitan University points out that the strong sense of bond (brotherhood) among the community members in a closely knit society ignites a sense of retributive compulsiveness among them, to retaliate violently against the victim even in the slightest threat to such honour.

Interestingly, such collective feeling of honour (pride) and shame is visible within different communities across the world, having certain cultural identities similar to each other. For e.g. in a recent incident in Berlin, a young Turkish girl was murdered by her cousins after she had tried to escape the possibility of a forced marriage. It was found out that the entire family had conspired for the act.

Similarly, among the Pashtun community in Afghanistan, the community honouris violently protected (usually) by the male members of the community (collectively) by punishing anybody who is presumed to have maligned the same.[13]

Therefore, the phenomenon of redemption through retribution, reflects a strong manifestation of collective institutional honour, as Goffman has previously pointed out.[14]

3.3 Collective sense of honour in mob lynching

In my opinion, the act of mob lynching at a motivational level presents intrinsic similarities to that of honour crimes. Leaving the political discourses concerning the phenomenon aside, if we investigate the motives behind the act of mob lynching, a strong sense of immediate threat to the collective honour of the group concerned, coupled with an urgency of violent redemption, is clearly visible.

Both Shahrukh and Faiz’s incidents reflect the same. For instance, Shahrukh’s alleged act of trying to steal a buffalo (which is considered pious by members of the community in question), was readily perceived to be a threat to the collective feeling of religious honour and was redeemed in the form of a violent retaliation. Faiz’s death rather presents a template case of honour killing emerging out of a disapproved inter-faith relationship. Here, the act of entering into a relationship with a girl from a different community was perceived to be dishonorable by the girl’s family/community members, worthy of a violent retaliation in the form of honour killing.

The above discourse, therefore, makes it clear that the acts of mob lynching largely reflect similar intrinsic traits of honour crimes to the extent that in my opinion, the former can be regarded as a specific species of the former genus. This line of argument is pitched by Mark Walters in his extensive literature on hate crimes, where Walters frequently argues in favour of an integrated paradigm of honour and hate crimes.[15]

4. LEGAL REFORMS SUGGESTED

4.1 The judiciary-proposed reforms relating to honor crimes

Within the legal parlance, the issue of honour crimes has been doing the persisting rounds in the reformative discourses for a long time. The urgency of the situation is so grave that the Supreme Court on numerous occasions has recommended an amendment in the Indian Penal Code to include a separate section or a subsection within the existing provisions on murder dedicated to honour crimes.

Time and again, the apex court has also called for enactment of strict punishments (including capital punishment) for these barbaric practices. In BhagwanDass v. State (N.C.T.) of Delhi,[16]Katju, J observed that,

“In our opinion honor killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honor’ killings should know that the gallows await them.”

Similar recommendations have been made by the Law Commission of India, back in 2012, in its 242^nd Report where clear recommendations are made to amend the existing provisions of the Indian Penal Code, 1860 to the extent of including a sub-section within the provisions of Sections 300 and 302 to include a specific provision dedicated to honor crimes. It also called for enactment of a specialized legislation vis-à-vis “Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011”. This proposed law is directed towards prohibition of khap panchayats, labelling them as ‘unlawful assemblies’.Such recommendations have been reviewed and approved by the judiciary in Shakti Vahini v. Union of India and Ors.[17] In this case, the judges went to the extent of giving specific state-wise directions for legislative amendments to combat the menace of honour crimes.

4.2 Progress towards implementation

Despite the Supreme Court’s directions and sheer urgency of the implementation, unfortunately no significant progress has been made yet by either the union government or the respective state governments towards implementing the Law Commission recommendations. However, it is noteworthy that some of the states such as Tamil Nadu has constituted dedicated ‘anti-honor killing cells’. But the enactment of a new dedicated law still appears to be a distant dream. Demand for such a legislation has often been criticized by the government, because of its potential of being misused.Analysts, however, have often pointed out that the unfettered influence of vote bank politics entrusted with the local khap panchayats, is one of the core reasons behind this lackluster attitude on behalf of the legislature.

4.3 Anti-mob lynching guidelines: A similar fate?

As seen in section 2.3, in the TehseenPoonawalla Case(supra),[18] the Supreme Court has categorically laid down some explicit guidelines to prevent the heinous acts of mob lynching from happening in future. Such measures include,setting up of Special Task Force (STF), regular monitoring of the situation, meetings between the top brass of the police force and the legislatures and finally enactment of a dedicated legislation. However, within the last couple of years, despite the sharp increase in the number of incidents of mob violence, no significant measures have been adopted by the legislatures or the executive to implement these aforesaid guidelines. Even more heartbreaking is the recent reluctance among the judiciary to seek update on the matter. In June 2020, a petition, filed before the Jharkhand High Court, seeking responses from the state government on the implementation of the Tehseen S. Poonawalla guidelines, was rejected on technical grounds. Interestingly, a similar petition is pending before the Supreme Court for the last two years.

The irony of the matter is that in theTehseenPoonawalla case(supra), due to the urgency of the issue, the court had made many of the guidelines as time-bound. The court observed that,

“horrendous acts of mobocracy cannot be permitted to inundate the law of the land” and “earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become ‘the new normal’.”[19]

However, it seems that the sense of urgency has now somewhat fizzled out.

4.4 The opportunity and the right time to seize it

Throughout the discussions till now, we have seen how both phenomena of mob lynching and honour crimes, despite their alarming increase, has been somewhat pushed to the sidelines in the present scheme of things. However, in my opinion, this scenario presents an excellent opportunity to comprehensively curb both these practices simultaneously.

I have already established that at least on a theoretical premise, how mob lynching can be regarded as a manifestation of honour crimes. Having these similarities of the salient features at the backdrop, I believe that the time has come to enact a comprehensive legislation targeting both these practices.

Such legislation, in my opinion, will have to treat the act of mob lynching as a form of honour crime, focusing on the motivational aspects of the crime. By doing so, it will have to define the concept of ‘honour’ in an open-ended manner, so as to encompass different forms of violence committed in the name of it, either explicitly or implicitly.

This form of legislation will also do away with the shortcomings of the proposed monotoned form of template honour crimes, largely involving an unapproved relationship. It is noteworthy that the legislation, that is proposed by the Law Commission of India, primarily focusses on such template form of honour crimes, thereby rather ignoring allied issues such as homosexuality, hate crimes and others as forms of honour crimes. I believe that this integrated approach is essential because both mob lynching and honour crimes have gradually become global phenomena at present. India is gradually rising higher up the ladder as far as the global rates of these crimes are concerned. It is interesting to note, that these crimes are presently viewed from a multi-dimensional standpoint globally, while India lags behind in that quotient.

Ritabrata is principal founder of ‘The Dailogue Box’, a Doctoral Tutor and a PhD researcher at University of Sussex, United Kingdom. He has also been working as an Assistant Editor at Manchester Journal of Transinslamic Law and Practices since 2019. His research interests lie in areas such as honour based violence, gender studies and male victimology.

Trimanis a student at Lloyd Law College.

[1]Refer to Table A in section 2.2.

[2]Tehseen S Poonawalla v Union of India & Ors [2018] Supreme Court of India WRIT PETITION (CIVIL) NO. 754 OF 2016, SCC.

[3]ibid.

[4]M Mohsin Alam Bhat, Vidisha Bajaj and Sanjana Arvind Kumar, ‘The Crime Vanishes: Mob Lynching, Hate Crime, and Police Discretion in India’ [2020] Jindal global law review.

[5]Tehseen S. Poonawalla v. Union of India & Ors. (n 3).

[6]ibid.

[7]Shakti Vahini vs Union of India and Ors [2018] Supreme Court of India Writ Petition (Civil) No. 231 of 2010, 7 SCC 192.

[8]Phyllis Chesler, ‘Are Honor Killings Simply Domestic Violence?’ (2009) 16 Middle East Quarterly G1.

[9]Veena Meetoo and Heidi Safia Mirza, ‘“There Is Nothing ‘Honorable’ about Honor Killings”: Gender, Violence and the Limits of Multiculturalism’ (2007) 30 Women’s studies international forum 187.

[10]Erving Goffman, Stigma : Notes on the Management of Spoiled Identity (Harmondsworth : Penguin 1990).

[11]ibid.

[12]Lynn Welchman and Sara Hossain, ‘Honor’ : Crimes, Paradigms, and Violence against Women (Zed Books 2005).

[13]Yasmin Jiwani, ‘Posthumous Rescue: The Shafia Young Women as Worthy Victims’ (2014) 7 Girlhood studies 27.

[14]Goffman (n 13).

[15]Mark Austin Walters and Jessica Tumath, ‘Gender “Hostility”, Rape, and the Hate Crime Paradigm’ (2014) 77 Modern law review 563.

[16]Bhagwan Dass v State (NCT) of Delhi [2011] Supreme Court of India Criminal Appeal No. 1117 of 2011, 6 SCC 396.

[17]Shakti Vahini vs. Union of India and Ors (n 10).

[18] Tehseen S. Poonawalla v. Union of India & Ors. (n 3).

[19]ibid.

Columns

Decoding the demarcation of Legislative Powers – By Surel S Shah

September 7, 2021 0Comments 168Views

September 6,2021

Part-XI of the Constitution of India delineates the legislative relations between the Centre and the State.It also throws light on the distribution of legislative powers. Though the distinction and demarcation of legislative powers appear to be subtle but there is a clear demarcation of their respective powers.

Parliament is competent to enact laws in so far as they relate to whole or any part of the territory of India. The State is competent to make laws in so far the law would relate to the whole or any part of the State. Despite, the clear demarcation still there are instances where the Parliament can enact laws for a State or States and that’s precisely the reason why it is provided under Article 252(2) that merely because the law enacted by the Parliament has extra territorial operation it would not render the law so enacted invalid.

Article 246 compartmentalises the competence of legislature to legislate principally in 3 lists. Each such list details the subject and this is also known in legal parlance as ‘Entry’ . In respect of each such entries, laws can be enacted or are made referable to. The lists are detailed and form part of the VII^th Schedule of the Constitution.

The first list is called as the Union List –List I which empowers the Parliament to make laws in respect of those matters/entries/subjects which are mentioned therein.

The State, on the other hand, is empowered to make laws so far as the matters/entries/subjects enumerated in List-II and this is known as the State List.

The third List which is known as Concurrent list-List III, empowers both the Union and the State to legislate in respect of matters/entries enumerated in the said list. The matters/entries mentioned in this list more often than not are the source of major litigations between the Union and States.

Under Article 246(4) the Parliament has been empowered to make laws in respect of any matter mentioned in the State List in its application to a territory which is not included in the territory of any State. This means that Union can make laws in regards to matter mentioned in the State list for a Union Territory.

The Parliament under Article 248 is also empowered to make laws including power to make law imposing tax with respect to any matters/entries, which are not enumerated in the Concurrent list or State List which means that any matter which is not prescribed in the concurrent or State List, Parliament has the authority or exclusive power to make laws.

Article 249 is an exception to the legislative competence to enact the laws from their respective lists as it gives power to the Parliament to legislate with respect to matters/entries though included in the State List provided the Parliament thinks it to be fit in the national interest. However for the said Parliament to legislate in respect of matters/entries in the State List, it is necessary that the Council of States empower the Parliament by a resolution, which has to be supported by not less than 2/3^rd of the members present in such meeting and each such member should under the law be entitled to vote. The resolution empowering the Parliament to legislate has to be one which the State legislature feels that it is necessary and expedient in the national interest to make such law.

The said resolution passed by the State as required under Article 249 is valid only for a period of one year. However, the period of one year can be extended for a further period of one year provided such a resolution is again passed by the Council of States which is supported by not less than 2/3^rd members. It is important to note that Sub-Article (3) of Article 249 permits the resolution passed by the Council of States to be in operation for a further period of 6 months after the expiry of resolution period i.e. one year. The laws so made or the acts so done during the said extended period of 6 months will have the force of law and will be binding .The Evacuee Interest (Seperation )Act 1951,Supply and Prices of Goods Act ,1950, are some of the instances of legislation under Article 249.

Article 250 empowers the Parliament to legislate in respect of any matter/entry in the State List if there is a proclamation of emergency in operation. However, the law so made by the Parliament shall cease to have effect on the expiry of period of 6 months after the proclamation has ceased to operate and the things done or omitted to be done before the said period will be held to be valid.

Article 251 provides that merely because Parliament has the power under Articles 249 & 250 to legislate in an event of contingency mentioned in Articles 249 & 250 occurring, it does not prevent the State Legislature to legislate in respect of the State List. However the said power of State is with a caveat that provision of law made by the State Legislature if it is repugnant to any of the provision of law made by the Parliament then the law made by the Parliament whether before or after law is made by the Legislature of State, shall prevail and law made by the Legislature to that extent shall be repugnant. However the repugnancy will continue only till law made by the Parliament is in operation.

Article 252 is the power bestowed upon Parliament by two or more States which desire that in respect of any matter/entry which otherwise the Parliament has no power to make laws for the State ,the Parliament should make law on that subject/matter. This means that in respect of matters/entries enumerated in the Second List, two or more States could by a resolution passed by all the houses of its Legislature make a request to the Parliament to make a law on the said matters/entries mentioned in the Second List.

Any State or States which have not initially consented to passing of such Act or had made a request to the Parliament, can later adopt the Act so made by the Parliament. However the procedure for adoption of such Act is the same i.e. it has to be passed by both the houses of Legislature of the said State.

Article 252 (2) provides that if the Act/s are promulgated under Article 252 (1) by the Parliament then the Act/s so promulgated can be amended or repealed only by an Act of Parliament and amendment if any by the Parliament has to be adopted in the same manner which has been aforementioned in Article 252(1). The State Legislature does not have the power to amend or repeal the Act so promulgated under Article 252(1).

By invoking Article 252, the Parliament has had promulgated the following laws :

All these laws which were /are promulgated by the Parliament though the subject /entry under which they were enacted fell within the State List, however by virtue of request by the State Legislatures, the Parliament has promulgated the aforesaid laws. Though the aforesaid laws were in existence, the States had by invoking their powers under the same entry in State List had promulgated certain laws such as, the Kerala Agricultural Reforms Act or Karnataka Land Reforms Act,1961, where the Apex Court has held that though Parliament made the law under Art 252 was in vogue, however certain provisions of the State made Act and nature of the said State Act did not encroach upon law made by the Parliament under Article 252 and State made law’s validity was upheld[1].

An issue had also cropped up whereby regulations framed under The Indian Veterinary Council Act, (No.52 of 1984) were challenged in the case of Udai Singh Dagar[2]. It was contended that Veterinary Doctors who were registered under the Maharashtra Veterinary Practitioner Act which was in vogue when Indian veterinary council Act was promulgated, had a right to be appointed or practice the faculty of medicine. The Apex Court after considering the provision of Article 252 and provision of Indian Veterinary Council Act, rejected their contentions in view of necessity of Central Act being passed under Article 252 as also by relying upon Art 19(6).

Thus, Article 252 is an important provision in our Constitution which empowers the Parliament to legislate in respect of matters/entries which are governed under the State List, however in the larger interest of country, the Parliament is empowered to make uniform law in respect of said matter, but the same is to be passed by both the houses of the State Legislature and adopted accordingly.

Article 253 empowers the Parliament to make law for the whole or part of the Territory for implementing any treaty, agreement or convention with any other country or countries or any decision made at the International Conference Association or other body. This means that even if the entry under which the law is made, pertains to the domain of the State Legislature yet to give an effect to implement any treaty, agreement or convention, the Union Legislature is empowered to make law in respect of an entry under the second list.

Article 254 provides that if a State legislature enacts a Law in respect of matter/entry in the concurrent list and there exists a Law made by Parliament covering the same subject /matter in the concurrent list then ,the law made by the Parliament shall prevail over the State made Law .If the Parliament enacts a Law in respect of Concurrent list after the Law by the State legislature already holds the field, then the Law made by the Legislature shall be repugnant and void to the extent of the law made by Parliament. This doctrine is more often referred to “Doctrine of Occupied field”. The Apex Court in many cases has also expounded the theory of “pith and substance” to come to conclusion whether there is overlapping or transgression of powers by the legislatures [3]. Incidental transgressions are also upheld by the Apex Court in case of Offshore Holdings Pvt Ltd v/s Banglore Development Authority &ors (supra).

Article 254 (2) however protects the law made by the State legislature, in respect of a matter in concurrent list even though there is already a Law made by the Parliament, provided such Law is reserved for consideration by the President and has received his assent .The moment the President gives his assent then the Law made by the State shall prevail in the State. However the laws which are referred to in Article 254 have to be Law/s which are in respect of matters/entries mentioned in Concurrent List viz, List-III of the VIIth Schedule[4].

Thus, this Chapter of our constitution is an important feature which demarcates the legislative powers of the Union and the State .

****

Surel S Shah is an Advocate practicing in the High Court of Bombay.

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[1] Krishna Bhimrao Deshpande Vs Land Revenue Tribunal,Dharwad

[2] Udai Singh Dagar Vs Union of India

[3] Offshore Holdings Pvt Ltd v/s Banglore Development Authority &ors; K.K.Baskaran V/s State

[4] Pt.Rishikesh & Ors V/s Salma Begum

Columns

Opinion: The Saga of Privatization of Airports

August 27, 2021 0Comments 540Views

                                                                  By Deepak Kumar Thakur and Puspak Chamariya
August 27, 2021

The inadequacy of the airports to handle congestion, the slow movement of the infrastructure development, inefficient services, tackling passenger’s discomfort as well as commercial considerations, has not beenO very profitable for the Government. These issues, coupled with covid, are reflective of a government owned public sector commercial ecosystem that is calling for privatization. 

Hence, in the footsteps of the past with evident improvements through liberalization, the Central Government vehemently believes that privatization of airports (among other sectors) has become essential in the current scenario. The quality of airport infrastructure is a vital component of the overall transportation network and it contributes directly to a country’s international competitiveness and the flow of foreign investment. 

Conventionally, privatization is the process of moving from a regime-controlled system to a privately run, for-profit system (“Privatization”). However, the nuances of the shift in regime from public sector to private sector and the parameters of the collective effort, under the Public-Private-Partnership (“PPP”) model has the propensity of raising many questions.

Some argue that this is a hasty decision by the Centre to privatize the airports due to the deteriorating condition of the industry. It is their contention that the privatization will make Airport Authority of India (“AAI”) to lose crucial monetary assets and resources for transient additions to the treasury. Further, All Airports Employee Union (“AAEU”) has vowed to endlessly protest the privatization. In the midst of this ongoing battles for supremacy on the privatization debate, there are some legal nuances that are underpinning the argumentation.

While this may be seen in light of hasty moves to gather funds, some experts marvel at the possibility of infrastructure development. According to the Central Government, the decision to hand over the airport to a private concessionaire will help improve the quality of services and bring in global standards. 

Privatisation of Airports

The Government of India had commenced the process of privatising airports in the year 2006 only. However, that privatisation spree remained limited only to four metropolitan cities namely, Delhi, Mumbai, Bangalore and Hyderabad. The next round of privatisation was much awaited and took place only in the year 2019 with quite different fundamental understandings then the previous round of privatisation. 

Upon following the rigorous international competitive bidding process, the Government of India, acting through Ministry of Civil Aviation and Airports Authority of India, awarded the concession for the six major airports of Jaipur, Guwahati, Mangalore, Lucknow, Ahmadabad and Thiruvananthapuram under public-private partnership (“PPP”) framework on (operate, maintain, develop model) for a duration of 50 years, to Adani Enterprises Limited (“AEL”). 

With the huge success for the Government in this recent round of privatisation of airports, it is expected that the Government will continue with the privatization process in the coming times. Infact, the recent amendment in concerned legislation is aimed in this direction only.

Earlier this year AEL had asked for an extension of at least half a year for assuming control over Lucknow, Ahmedabad and Mangaluru airports referring to vulnerability because of the pandemic. The extention was allowed by the AAI and it is still unclear whether the private entity will actually be able to take over within the mandatory six-month time frame.

There is political opposition against the ruling party’s intentions, as members of Congress arranged a protest at different locations against the Centre's decision to privatize it. The AAEU has been agitating since the Centre chose to privatise the Guwahati, Jaipur and Thiruvananthapuram airports. 

However, in reference to the earlier rounds of privatization of airports in Mumbai and Delhi awarded to GMR and GVK, the case of Reliance Airports Developers Private Limited v/s Airports Authority of India (2006) 10 SCC 1) had multiple pointers noted by the Supreme Court of India regarding the discretion of the relevant authority in granting the concession. Adequate discretion had been given to the authorities in that judgment for the award of the concessions, as well as the timelines for the implementation for such concessions. If the past legal history is to be considered, the privatization route has considerable merit. 

Legal Issues and Determination
 
As is the norm in India, privatisation of airports is also marred with set of litigations from various quarters. 
 
More specific to the present round of privatisation of the 6 airports, the Karnataka High Court, in February 2021, issued a notice in a writ petition filed by AAEU challenging the decision of the Central Government and AAI to grant concession and hand over the operation and management of Mangalore International Airport to AEL. 
 
The petition filed by the AAEU challenges the Central Government’s decision to privatize six airports, while alleging the said process as being illegal, arbitrary and beyond the scope of the Airport Authority Act, 1994 (“AAI Act”). The AAEU’s contentions attack the legal basis of the bidding process while stating that the AAI Act does not provide for any type of transfer of property other than a lease. It is contended by AAEU that by virtue of the concession agreements, the Government of India is trying to overreach and throw away the intent and object of the AAI Act. 
 
Further, analysis of Section 12 of the AAI Act does not envisage handing over the entire Airport in the name of lessee, and that too not for anything beyond 30 years, as the government has done for 50 years. It has been alleged by the AAEU members that the entire process of award of concession adopted by AAI is arbitrary and illegal due to the alleged disregard for procedures. 
 
It would not be out of place to mention here that a case was filed by the Government of Kerala as well in the Kerala High Court substantially on the similar grounds against the Central Government’s decision to privatize Thiruvananthapuram International Airport. The Government of Kerala had moved the Hon’ble Kerala High Court against the privatization of the Thiruvananthapuram Airport. The Hon’ble High Court rejected all the challenges made by the Government of Kerala and upheld the bid process and award of concession for the Thiruvananthapuram by the Government of India/ AAI as valid and enforceable.

Some of the major points, having larger legal implications with respect to the privatization of airports and discussed in the above referred judgement of the Hon’ble Kerala High Court are discussed below: 

(a) Extent of Lease term and consideration 

There had been allegation that huge parcels of profitable government-owned land are being handed over for-profit to private entities, with the apprehension that all costs and fees shall be passed on to un-suspecting passengers for profit motive. In response to this, the Kerala High Court has clarified that such a narrative is not the case. Only legitimate portions of the land, as required for the concession, are being legitimately given for lease. 

The Kerala High Court has settled the speculation with analysis of the relevant provisions of the AAI Act. The Kerala High Court has acknowledged that profit participation is a fulcrum of privatization, and the private party shall be responsible for development fee under Section 22A of the AAI Act (which shall not be levied to the passenger), and the amounts payable by the lessee under Section 12A of the AAI Act (which shall be in lieu of the services provided). 

With respect to the duration of the lease, contrary to the allegation that the AAI Act does not provide for leasing out the airports for over 30 years, it is decided that a 50-year lease is not contrary to the AAI Act, provided the Central Government has permitted the same. Considering the RFP is originated from the Ministry of Civil Aviation, the apprehension is that such permission is granted. 

(b) Legitimate Expectation and Promissory Estoppel 

With respect to privatization of the Thiruvananthapuram Airport, as a part of the 6 airports consented for privatization, the State Government of Kerala, through the Chief Minister, offered to match the bid of the highest bidder at the same price as AEL. The bid was awarded to AEL as per the bidding process, and not to the State Government of Kerala. The Kerala High Court clarified that there was no entitlement of the State Government to receive the concession if it had matched the highest bid amount. 

In appeal against the Kerala High Court judgment, the State Government of Kerala has asserted that the AAI land has been given free of cost for airport development on the affirmation that the State Government would be associated in the forming of a SPV. This was a "legitimate expectation", according to the Kerala Government. 

The Kerala High Court has elaborately decoded that the correspondences did not indicate any promise or estoppel towards the State government. The State Government was not able to prove any estoppel or promise, to claim domain over the airport. Interestingly, the Kerala High Court also opined that the State government does not have the right to challenge the RFP after having participated in the bidding. The petitioners of the case have themselves lost the bid in a fair manner and is called a classic example of “sour grapes”.

(c) Arbitrariness 

With respect to the Thiruvananthapuram Airport (alike others), the biggest allegation levied by the Kerala Government as well as other opposition political parties, activists etc. has revolved around the ‘arbitrary’ manner of bidding, which was allegedly tailor made to favour the AEL, on two broad grounds: i) the financial capacity of INR 3,500 crores; and ii) the absence of experience in development of airports. While these criteria are unlike the criteria that was employed for the first round of privatization of Mumbai and Delhi airports which required prior experience, however, the Kerala High Court did not find substance in these allegations. The mandatory requirement of prior airport experience creates a monopoly market, which is not suited for fair competition, especially when multiple eligible bidders placed bids. 

Further, the Kerala High Court unequivocally iterated that the judicial review process is to check the ‘legality’ of a decision, and the veracity of it. It is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides, and not to check whether choice or decision is sound. 

(d) Public Interest 

The alleged lack of public interest in the petition was rebuked with a variety of commercial and legal reasonings by the High Court. The Kerala High Court observed that there shall be no profit erosion for AAI (contrary to the political opposition), and the domino effect on infrastructure development is a larger public benefit, while the AAI stands to gain monetarily. 

The re-focussed abilities of the AAI (financially and operationally) to completely devote the efforts and expertise towards the smaller airports and improving quality infrastructure there (like currently done at Chennai and Kolkata Airports), would help in increasing the passenger satisfaction level and in turn increasing the footfalls at the Airport and number of passengers.

Even the specific resistance raised by employees has been dealt with. The Kerala High Court has opined that the fear of retrenchment or loss of emoluments is sans substance, as the provisions of the concession agreement is said to adequately cover this contingency.

(e) Jurisdiction of the Kerala High Court 

The Kerala High Court has dismissed the jurisdictional challenge of the Central Government on the ground that there is no question arising as to the relationship between the Union Government and the State in the federal set up, as envisaged in the Constitution of India. There is no question arising which involves overlapping of the power, authority or right of the Central Government and that of the State Government. The policy of the Central Government is not under challenge and even the State's bid for the lease under the RFP, could be maintained only under Section 12A of the AAI Act. Therefore, the contention that the Supreme Court is the only relevant forum is sans substance. The High Court has assumed effective jurisdiction.

Legislative Reform While Focussing on Privatization 

Both the houses of Parliament have passed the Airports Economic Regulatory Authority of India (Amendment) Act, 2021 (“Amendment”). The erstwhile Airports Economic Regulatory Authority of India Act, 2008 (as amended from time to time) (“AERA Act”) defines a ‘major airport’ as one which has, or is designed to have, annual passenger throughput in excess of 35 lakh passengers, or any other airport that the Central Government may specify by notification. Under the same AERA Act, the legislature bestowed upon the power to AERA to regulate tariffs and other aeronautical charges (like landing charges, parking charges and passenger service fees) at ‘major airports’.   

Now, in light of the renewed interest in privatization of the airports, the AERA Act has been amended vide the Amendment, which seeks to extend the scope of the term ‘major airport’ by adding after “or any other airport” the words “or a group of airports”. The implication is that AERA can now determine tariff and other charges for aeronautical charges levied at small airports by grouping them together into one entity, with other airports, for the purpose of aeronautical charges. 

Now, smaller and less-busier airports from remote parts of the country (sometimes under-developed or loss-making) can be clubbed with larger or mid-tier airports to meet the threshold of 35 Lakh annual passenger count, to be classified as a ‘major airport’. 

In an attempt to sweeten the pot for private bidders as well as the Central Government, the Amendment seeks to include a larger sample set of tier-2 and tier-3 airports available to be regulated by the AERA, and privatized.  

A lot of criticism was received that the AAI would be left with insignificant and loss-making airports upon the completion of the privatization process, making this a burden on the government to rejuvenate the non-performing infrastructure. However, with this clubbing provision, that apprehension is averted, with the private sector mandated to pull the back-benchers along. 

In the background of the ongoing tussle between the Central Government’s adamant push for privatization of airports across the country and the consequent backlash from various stakeholders, this Amendment comes in a veiled manner to give another push to the Privatization process. While there may be the possibility of a financial burden to be added to airlines and customers, the larger underlying commercial rationale that the development of smaller airports can be facilitated where there is low traffic, through their being clubbed with the profitable ones could be a winner for better infrastructure and development.  

The government is looking to privatise the airports at Amritsar, Bhubaneshwar, Indore, Raipur, Tirchi and Varanasi, and it seems like the proposed Amendment is to the AERA Act will pave the way for clubbing some loss-making airports with these six, thereby making the deal sweeter for the Government, and the overall infrastructure health of the aviation sector. The success of this move remains to be seen, as it is a big ambitious move. 

We will have to await and see if there is any challenge from the state governments against the reasonableness of these classifications of ‘Major Airports’. The acceptability of commuters and airlines for the probable higher fares and prices, aeronautical charges and the management could face resistance. There is lack of clarity on the parameters of these clubbing of airports to consider them ‘major airports’, and the nuances of this exercise shall determine the consequence going forward. 

CONCLUSION

The ‘efficiency of the private sector’ is not in doubt given the fact that private sector firms are subject to the discipline of market forces while its managers are subject to considerable incentives and discipline different from and more demanding than those which apply to public sector managers. However, as many other policy decisions of the present Government face opposition from various factions, the legal questions answered at this inception point of the privatization debate would have immense precedential value in the years to come, not just for airports.


Deepak Kumar Thakur is Partner, L&L Partners. 

Puspak Chamariya is Associate, L&L Partners.

Columns

Using Competition Law to Regulate Data Privacy: Abuse or Apt?

August 26, 2021 0Comments 443Views

By Vasundhara Shankar and Mudit Kaushik
August 26, 2021

Pioneering and futuristic technology companies have been known to provide free services to their users and, in turn, have amassed a massive amount of data. Companies such as Facebook, Google, WhatsApp have become a gold mine of data and are encashing on it, like never before. While these companies have been using data mostly for the purpose of targeted advertisements and primarily revenue generation for their custodians, regulators foresee a situation where these companies might gain a monopolistic position in the market, thereby creating suffocating competition for other, smaller players.

This takes us to the question of whether monopolistic data ownership and behaviour concerning data should be regulated through the use of competition law provisions? Is there a valid ground in the regulator’s perceived apprehension and fear in the manner of handling data?

OBJECTIVES OF THE LAWS CONCERNED

In order to understand, appreciate and discern the synergy between Data Privacy Laws and Competition Laws, it’s important to first consider each of these laws, their aim, purpose and agenda, in isolation.

The concern that competition regulators have had across the world has primarily been over activities of data-driven companies controlling the market by perhaps employing algorithms to fix prices, facilitate cartel agreements, which may lead to tacit collusion. This possible collusion ought to cause discomfort to regulators across the board and globally, too, considering how easily companies can avoid legal scrutiny under the current and existing legal frameworks since technology has gone way beyond what legislators perhaps accounted for. Legislations tend to define monopoly or other such concepts for only an offline world. There have been several judgments across the world, especially in the European Union, concerning monopolistic activities by entities such as Google & Facebook, and hefty fines have been imposed against them.

A bare analysis of this would make one wonder - would the usage of data in this manner by companies then not fall under the direct ambit of Competition Laws? Let’s dive deeper into the concept of Competition Laws.

Competition Law, as the name suggests, is a law or a set of regulations intended to regulate inter alia, anti-competitive practices and dominance in the market by an entity. This law seems to be primarily backed by the concept that once a company acquires a dominant position in the relevant market, monopoly will be automatically created, difficult to control and important to regulate.

UNCOVERING THE DISGUISED LINK

Data, as a commodity, will tend to grow progressively and proportionally for a dominant company, owing to its significantly high market share, and ever-growing access. For a smaller entity, gaining such traction and thereby procuring such volumes of data, is unimaginable. In addition, it might take them years to collect any substantial volume of data. In fact, the nature of data and the privacy rules around it, make it impossible for smaller entities to gain access to or acquire any of this data. In addition to this, since “Data” includes personal information such as contact number and email address for communication, user behaviour such as purchasing activities, spending patterns, etc., the dominant entity has the weapon to regulate and capitalise on several different fronts, by using such data.

With the growing use of technology and the internet for every little thing today, it becomes easier for these online companies to regulate, control and influence a user using cookies, re-marketing services, history details, chat conversation mentions, voice assistant instructions - you name it, they have it!

One may argue that the competition law practically should come into play when the circumstances so transpire that the small players are unable to replicate the data which the ‘Big’ players have amassed and the same is causing a high level of prejudice to maintain fair competition in the market between all sized players. As a counterclaim to the said proposition, it can be asserted that collection is an activity which can be done by small players as the ‘Big’ players do not necessarily and always block the small players from doing so; hence, the exercise of collecting and storing data should not be construed as competitive conduct.

IN LIEU OF CONCLUSION

The million-dollar question, an answer to which perhaps will save the big players from paying millions of dollars in fines, is whether competition law should be given the steering to drive the data collected by the companies? More specifically, should data-rich companies be completely let loose to dominate the market and eliminate any company which could become a potential competitor in the near future, or should competition law have the ultimate power to monitor minute moves? Should access to, use of and application of bigdata by an organisation be considered a competitive threat to industry, segment or group of companies?

It would definitely be ethical to have healthy competition in the market, and the position of the small players should not be prejudiced outrightly by the big data players. An appropriate law should certainly bring a strict action/fine to the big data players so that they do not, in an unprincipled manner, use the data and manoeuvre it in a way that may drastically impact consumer choices and prices.

However, since the competition has to be fair, it would be just to state that the competition office(s) should not always keep the big players under surveillance merely with the aim to make them a target for hefty fines. As speculations have it, the evolving concept of the overlap of data privacy and competition law has given birth to the emerging concern that there might be overregulation, leading to a massive disadvantage to innovative conglomerates that are using evolving technologies, massive amounts of data to change everything from surfing to shopping experience.

We may try to find a perfect solution to the problem at hand; however, we know that this puzzle does not have a piece that might fit in perfectly. Good harmony between competition and data privacy laws is the need of the hour, and regulators must ensure that none of the provisions of either law overrides or contradicts the provision of the other. It might also be a good move for the big players to offer some portion of non-personal information to small players which they can use to boost their presence, and there is no such unfair competition in the market, and help them reduce the tension and obvious prejudice that regulators have against them, owing to their superior position in the mark.

However, using competition law to vindicate privacy interests could make it harder for innovative companies to thrive with new products or technology-based offerings, which could potentially result in less competition and, in fact, trample the ever-exploding market. A regulation to work on the ways in which data might be safely monetised, a ceiling on how much manipulation or “tackling” can be done using data, should perhaps help both the bigger as well as the smaller players.

This debate has, however, seen a huge following of the anti-synergy bandwagon that have been found to support the theory that data should not be considered as a barrier to entry since it is readily accessible to most parties in the market. They perhaps believe in the adage “give credit where it’s due” and propagate the theory that if bigger companies have managed to collect, process and store humongous amounts of data, then they should be allowed to monetise and encash the benefit it brings alone as well. Another of their favourite arguments is that data’s ever-changing nature and a very brief “shelf life” makes it cheaper to store, process and use, thereby making it easier for an entity of any size and calibre to have a fair chance in the game.

The issue has been getting increasing eyeballs and has been discussed in several cases in India. For instance, in the case of Vinod Kumar Gupta vs. WhatsApp Inc., the Competition Commission of India noted that any privacy concern was outside of its purview and had to be dealt with exclusively under the Information Technology Act, 2000 - a very “birds-eye” view of an issue which absolutely needs a much more extensive consideration and deliberation.

This is perhaps why, in Re Matrimony.com vs. Google, the CCI noted:

“[I]t would not be out of place to equate data in this century to what oil was to the last one. The Commission is not oblivious of the increasing value of data for firms that can be used to target advertising better. Moreover, the data can be turned into any number of revenue-generating artificial-intelligence (AI) based innovations.”

This is well-supported by cases that have been decided in the European Union to say that “data is key in the digital economy and the same is to be considered from the competition perspective.”, and where it was also explicitly held that to protect the fundamental right to informational self-determination, data protection law provides the individual with the right to decide freely and without coercion on the processing of his or her personal data.

In this sea of data, a genuine aspiration would be that all sizes of fish, whether big or small, co-exist with the help of fair law, and regulators channelize their powers in providing solutions to the problems instead of merely imposing fines. While traditionally, price points and the market size were what that determined monopolistic competition in an industry, in today’s digital market, the parameter for competition analysis shifts focus as competition is increasingly focusing on a non-price element such as quality. The premise of this comparison is primarily based on the idea that consumer welfare is the prime focus of the competition law, and in today’s world, competition drives privacy, and when one declines, so does the other - creating a direct correlation between the two.

Vasundhara Shankar is Managing Partner, Verum Legal. She is a startup lawyer and focuses on data privacy, IP, tech laws, white-collar crime, dispute resolution & legal tech innovations.
Mudit Kaushik is Counsel, ZeusIP Advocates LLP. He is an IP and Tech law lawyer skilled in pre-filing strategies, prosecution, opposition, brand enforcement, data protection laws and domain name disputes.

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Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur

February 3, 2020 0Comments 1414Views

Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.

Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?

A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.

Q: So you have had the feeling that the establishment is trying to interfere in the matters?

A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.

Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?

A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.

Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?

A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.

Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?

A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.

Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?

A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.

Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?

A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.

Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?

A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.

Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?

I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.

Q: What kind of technology would you recommend that courts should have?

A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.

Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?

You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.

Q: Do you think law should permit this to death row convicts?

A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.

Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?

A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.

Q: What about capital punishment as a means of punishment itself?

A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.

Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?

A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.

Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?

A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?

Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?

A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).

Q: You think giving proper training to police to prepare a case will make a difference?

A: Yes, it will make a difference.

Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?

A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.

Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?

A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.

Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?

A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.

Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?

A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.

Q: What will happen if in a democracy these rights are controlled by hook or by crook?

A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.

Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?

A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.

Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?

A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.

Q: Is there any other thing you would like to say?

A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.

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