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Decoding the demarcation of Legislative Powers – By Surel S Shah

September 7, 2021 0Comments 85Views

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

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Opinion: The Saga of Privatization of Airports

August 27, 2021 0Comments 437Views

                                                                  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.

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

August 26, 2021 0Comments 378Views

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.

Columns

Department ought not to tax notional ALV, in absence of actual rent receipts by landlord

August 13, 2021 0Comments 117Views

August 12, 2021

By Pankaj Bajpai

On the date of filing I-T returns, the taxpayers always remain in a hurry to complete the formalities before the schedule. Be it a salaried person, a business person, an investor or a corporate, every one wishes to save their taxes by claiming exemptions & deductions from the five heads of salary. One such head is “income from house property”. The provisions for determination of income from house property are contained in Chapter – IVC of the Income Tax Act, 1961, whose Section 22 talks about the annual value of property consisting building or lands appurtenant thereto, of which the assessee is owner, and other than such portions of which he occupies for business or profession carried on by him. Now, the term ‘Annual Letting Value’ (ALV) is defined u/s 23 of Income tax Act, as (a) the sum for which the property might reasonably be expected to let from year to year; or (b) where the property or any part of the property is let and the actual rent received or receivable by the owner in respect thereof is in excess of the sum referred to in clause (a), the amount so received or receivable; or (c) where the property or any part of the property is let and was vacant during the whole or any part of the previous year and owing to such vacancy the actual rent received or receivable by the owner in respect thereof is less than the sum referred to in clause (a), the amount so received or receivable.

The definition of ALV looks straight and simple, as it is made clear under the Statute that when a landlord receives rent over & above the market rate/municipal rate fixed as per Rent Control Board, then the actual rent receipts will be treated as income from house property. However, the dispute arises when the rent received by a landlord is much below the ceiling limit prescribed by the concerned authority or market rate. A somewhat similar controversy was answered by Calcutta High Court in the case of CIT vs. Bhasker Mittar, wherein a question was raised as to whether the annual letting value of a property could be a figure lower than that returned by the assesse himself in his return.

This question was put to rest by holding that an assessee is liable to pay tax only upon such income as can be lawfully assessed under the Income Tax Act. Therefore, while framing an assessment, the ITO cannot assess any rental income to tax simply because assesse has mistakenly offered it to tax. The Calcutta High Court therefore held that there is no error in fixing the annual letting value of a premise in question in accordance with the provision of Section 23, by adopting municipal valuation even though the same is less than the annual rent returned by the assesse.

In another landmark judgment of Supreme Court in the matter of Patel Gordhandas vs Municipal Commissioner, Ahmedabad, it was held that the criteria for determining rateable value of the building is annual rent which the owner might reasonably expect to get from a hypothetical tenant, less certain deductions. The Apex Court further even went on to hold that rateable value of a building, whether tenanted or self-occupied , is limited by the measure of standard rent arrived at by applying the principle of Rent Act, and cannot exceed the figure of standard rent so arrived at by the ITO. While fixing the rateable value, the ITO has to take into consideration the rent, which the owner of similar premises constructed earlier or situated in it or in an adjoining locality, might reasonably expect to receive from a hypothetical tenant so that there is no wide disparity between rates of rent.

In similar line of reasoning, there is catena of judgments on the assertion of preference of fair rent vis-à-vis standard rent. Starting from ITO, Mumbai vs. M/s Makrupa Chemicals Pvt Ltd [ITA no.4376/Mum./2012] where it was held that if fair rent is less than standard rent, it is the fair rent that is to be taken as annual letting value and not standard rent. Again, in case of Tivoli Investment and Trading Co Pvt Ltd vs. Asst CIT [ITA No.2808 & 2809/Mum/1996], Mumbai it was pointed that AO is not required to substitute the fair rent determined u/s 23(1)(a) by municipal value or standard rent and he is not permitted to determine ALV on its own and discard the ratable value or standard rent. The point is that, if the provision regarding calculation of annual letting value is so clear and simple, then what is the reason for an increasing litigation on such premises. All the judgments mentioned above talk about municipal rate or standard rent, but nowhere discuss the actual rent received by the owner of a house property.

Article 265 of Indian Constitution prescribes that no tax shall be levied or collected except by the authority of law. Further, Entry 81 to Schedule 7 of the Constitution, under which the Income tax Act is incorporated, mentions “tax on income”. Therefore, what are to be taxed are only an ‘income’ and not a ‘hypothetical sum’. Accordingly, the Income Tax Act, 1961 provides that actual rent received under normal circumstances will be reliable evidence unless the rent is inflated / deflated by reason of extraneous consideration. However, an inflated or deflated rent based on extraneous consideration may take it out of the bounds of reasonableness. There may be circumstances where the owner lets out his property at a value which is lower than the fair rent or municipal rate. Then, will it be ideal to assess the owner at the inflated sum, even when he is not in receipt of the said sum. Is it not violation of the Constitution itself, which says taxes should be levied only on real income but not hypothetical income? It is not always true that an owner deflates his rental income so as to evade payment of taxes.

Coming forward to dilute the ambiguity, the Mumbai High Court in case of CIT vs. Tip Top Typography, observed that municipal rateable value, although being a safe guide to determine fair rent, is not always binding on the AO for purposes of Section 23(1)(a). But, it failed to clear the vagueness on the issue of actual rent received/receivable. In the latest decision of M/s Europa Chemicals Pvt Ltd vs. ITO [ITA NO. 387, 388 & 390/Mum/2018], Mumbai delivered on June 15, 2018, it was clarified that the rate of rent prevalent in the market is no basis enough to override the actual rent of a property. But, the problem still persists. The reason being there is no provision in the Legislation to curb the ill effects which grants excess power in the hands of Revenue Department to tax what does not exist. Even when the Income Tax Act being a beneficial piece of legislation, no steps have been taken by the law framers to provide for an amendment for a permanent answer. The question therefore still remains, as to whether notional or real rental income is to be taxed?

Pankaj Bajpai is Senior Copy Editor at LegitEye. A Law Graduate with Honors in Taxation Law from KIIT University, Bhubaneswar, he has eight years’ work experience.

Columns

Presidential Assent under Article 254(2): Analysing the Mandate for State to Point Out Specific Provisions of Repugnancy – By Pawan Reley & Rida Ameen

August 7, 2021 0Comments 574Views

“The philosophy of the dual federalism is essentially the exposition of the States’ rights position. It is that conception of the Federal system that views the powers of the natural government and the State as mutually exclusive, conflicting and antagonistic.” – Creig R Ducat, Constitutional Interpretation, 8^th Ed, Pg. 273

Article 254(1) of the Constitution of India states that if a law made by the State Legislature under the Concurrent List is repugnant to a Central law, the State law is void to the extent of the repugnancy. To the general rule laid down in Clause (1), Clause (2) engrafts an exception viz., that if the President assents to a State law which has been reserved for his consideration (Article 200), it will prevail notwithstanding its repugnancy to an earlier law of the Union, both dealing with a concurrent subject. Article 254 (2) only deals with the legislative supremacy and not legislative competency. This clause is confined to a case of ‘repugnancy’ between a State and a Union law relating to the same subject enumerated in the Concurrent List. In such a case, the State law shall prevail notwithstanding such repugnancy, if it receives the assent of the President. It has no application to any State law which is ultra-vires, e.g., if it substantially relates to a subject in List I. In such a case the State law is void ab intio and no assent of the President can validate it. Though, it is relevant to note that Parliament will still have power under the Proviso of Article 254 (2) to amend or repeal law.

Clauses (1) and (2) of Article 254 of the Constitution substantially reproduces sub-ss. (1) and (2) of Section 107 of the Government of India Act, 1935. The similar provision may also be found in Section 109 of the Australian Constitution which deals with ‘inconstancy between State and Commonwealth laws.’

Recently, there has been frequent use or mulling over to use of Article 254 (2) by the State to bypass the Central Legislation. It is apt to note that the Hon’ble President of India has assented all the eight Bills presented to him under Article 200 read with Article 254 (2) and Article 201 of the Constitution of India from January 1, 2021 to June 7, 2021. Out of the total eight Bills four belong to the State of Gujarat and four belongs to Assam and Odisha. The four Bills of Gujarat are the Industrial Disputes (Gujarat Amendment) Bill, 2020, the Contract Labour (Regulation and Abolition) (Gujarat Amendment) Bill, 2020, the Small Cause Courts Laws (Gujrat Amendment) Bill, 2020, and the Child and Adolescent Labour (Prohibition and Regulation) (Gujarat Amendment) Bill, 2020. Further, the remaining four Bills which belong to State of Assam, and Odisha are the Contract Labour (Regulation and Abolition) (Assam Amendment) Bill, 2020, the Industrial Disputes (Assam Amendment), Bill 2020, the Industrial Disputes (Odisha Amendment) Bill, 2020, and the Contract Labour (Regulation & Abolition) (Odisha Amendment) Bill, 2020.

Moreover, when three farm laws had created havoc in the entire country in 2020-2021 after getting assent from the President of India, Congress had advised the Party-ruled states to use Article 254(2) of the Constitution to negate three farm laws.

When State uses Article 254(2) to pass any law which is in conflict with the law made by the Parliament, there is some procedure which is required to be followed. It is divided in two stages. First is prior approval stage where the State before sends the Bill to Union government for approval (not mandated by Constitution). Secondly, is after approval stage where the State sends the Bill for assent (Mandated by Constitution). In second Stage, there are few protocols which State is required to be followed (though not uniformly followed by all States) such as to provide five copies of Bill, provide extracts from proceeding of the State Legislature on the Bill, and to explain the extent of repugnancy to existing Central legislation in forwarding letter. This last practice to explain the extent of repugnancy has always been the heat of the debate between Centre and State.

Thus, the frequent use of Article 254(2) or mulling over to use by the State for their political or legal ends, may again raise the debate to explain the extent of repugnancy in the State Bill in relation to the Central Law or laws. Thus, it behoves the authors to analyse the following questions:

Whether the State Legislature really needs to point out the provisions of the State law that are repugnant to the Central Law or laws to comply with Article 254(2)?
Whether the ‘assent’ of the President of India under Article 254(2) of the Constitution is justiciable and is subject to judicial review, and if yes when to what extent?

Analysing the Question No. 1:

The Hon’ble Supreme Court in the case of Kaiser-i-Hind Pvt.ltd v. National Textile Corporation Ltd in 2002 analysed this position. The issue before the Hon’ble Supreme Court was whether the Bombay Rent Act, 1947 had received the assent of the President under Article 254(2) for all the Central laws which it was repugnant to or only those Central laws for which assent was specifically sought from the President?

The Constitution bench of the Hon’ble Supreme Court laid down that there are two essentials for obtaining ‘assent’ under Article 254(2), namely, that the law must be ‘reserved for the consideration of the President’ and the law must receive the ‘assent of the President’. The Court held that ‘reserved for the consideration of the President’ would mean that the President has actively applied his mind to the repugnancy which was pointed out by the State legislature and the reasons for enacting a repugnant law. This would imply that if the President granted his assent, the repugnancy between the Central and State law is within his knowledge. It could mean either that all the Central laws which are repugnant to the State law must be brought to the attention of the President or that the conflicting provisions in the State law must be specified to the President to allow him to make an informed decision regarding the operation of the repugnant State law. Since the State legislature had mentioned only certain Central laws which were repugnant to the Bombay Rent Act, the Court held that the Act was void to the extent of the repugnancy with the Central laws for which assent was not sought from the President.

Although the judgment states that ‘pointed attention’ of the President must be drawn to the repugnancy between the State and Central law, the context in which this was laid down indicates that Article 254(2) does not require specific provisions to be brought to the attention of the President. On the contrary, it is only required that the State Legislature indicate the specific laws made by the Parliament which are repugnant to the State law as this will allow the President to consider all the relevant materials before granting assent. This is clarified in paragraph 27 of the judgment wherein the Court states that it is not considering whether assent was rightly or wrongly given or if the President considered the nature and extent of repugnancy. It would mean that if the text of the bill passed by the State and the conflicting Central laws are produced before the President, it would be ‘reserved for the consideration of the President’ and hence, the requirement under Article 254(2) is fulfilled.

Further, in Rajiv Sarin v. State Of Uttarakhand, 2011 the Supreme Court clarified and relied on the Kaiser-I-Hind (supra) judgment. Here, the Court emphasised that the assent of the President, if sought for a specific purpose or specific provisions, would apply only for those provisions even if general assent was given.

However, in Yogendra Kumar Jaiswal & Others v. State of Bihar & Others, 2015 the Supreme Court upheld the validity of the Orissa Special Courts Act, 2006 although assent was sought for specific provisions only. This was because the entire Bill was sent for the consideration of the President and general assent was given for the entire Bill. Thus, an inference can be drawn that if the complete State law and Central law is placed before the President, it is presumed that he has applied his mind to the repugnancy between the provisions of the respective legislations before granting his assent.

The Delhi High Court rendered a contrary decision in Delhi High Court Bar Association v. Govt. of NCT of Delhi, 2013 wherein the Court held that merely forwarding copies of a bill does not fulfil the requirements under Article 254(2). The Court specified that the State must meet the requirement of ‘active application of the mind of the President’ by placing the specific provisions of the State law which are repugnant to the Central law. In doing so, the Court has reviewed the assent granted by the President and decided if he has considered the materials placed before him while granting assent. This was explicitly restricted in Kaiser-I-Hind as courts cannot adjudicate upon the manner in which assent was given or whether it was given correctly after examining the repugnant laws and the reasons for repugnancy.

The contention that specific provisions must be pointed out by the State Legislature was raised before the Supreme Court in G. Mohan Rao v. State Of Tamil Nadu, 2020. Here, the Court clarified the position in Kaiser-I-Hind, stating that the only requirement is to bring the conflicting laws to the notice of the President and the reasons for enacting a repugnant law. It was held that the scope of examination of the President’s assent is limited and hence, the Court can only determine if the materials necessary for the President to take an informed decision were placed before him by the State legislature.

Analysing the Question No. 2:

In relation to analyse the question that whether the ‘assent’ of the President of India under Article 254(2) of the Constitution is justiciable and is subject to judicial review, and if yes when to what extent, it is essential to look into the law laid down by the Hon’ble Supreme Court in the case of Gram Panchayat of Village Jamalpur v. Malwinder Singh and Ors, 1985, wherein the Court held that assent granted by the President under Article 254(2) is not an ‘empty formality’ and must be given only after considering the reasons for placing the State law before him and enacting a repugnant State law thus allowing courts to examine Presidential assent to some extent. However, in Hoechst Pharmaceuticals Ltd. v. State Of Bihar, 1983 and Kaiser-I-Hind the Court held that the assent of the President is not justiciable and cannot be subject to judicial review.

Therefore, courts must decide if the requirements under Article 254(2) have been fulfilled while restricting themselves from reviewing an action taken by the President. Courts cannot consider if the President granted assent correctly, but they must decide if assent was sought correctly by placing all the relevant materials before him. Hence, if the entire text of the bill passed by the State Legislature is placed before the President and the Central laws with which it is conflicting is brought to his notice, there is no reason why specific provisions must be pointed out to him. The judgment in G. Mohan Rao (supra) supports this position.

Conclusion:

After analysing the aforesaid points, it may safely be concluded that Article 254(2) lays down two simple requirements which must be complied with by the State legislature for a repugnant State law to receive valid assent from the President. Firstly, the entire text of the State law for which assent is sought and all the conflicting Central laws must be placed before the President and secondly, the reasons for introducing a repugnant State law must be brought to the attention of the President. Any examination by the courts beyond these requirements will result in a judicial review of the assent granted by the President which is not permitted by law. This can be seen from the line of precedents laid down by the Supreme Court which restricts the judiciary from examining the manner in which assent was given by the President. Instead, it only allows examination of the manner in which assent was sought from the President by the State Legislature. Through the decision in Kaiser-I-Hind and the recent decision in G. Mohan Rao, the Hon’ble Supreme Court has clarified that the assent of the President to a repugnant State law will not be invalid merely because specific provisions repugnant to the law made by the Parliament were not brought to the attention of the President since this would entail a judicial review of the assent granted by the President.

****

Authors:

Mr. Pawan Reley [Advocate, Supreme Court of India, & Co-Founder NIEV Judicial Education]
Ms. Rida Ameen [Final Year, B.A., LL.B (Hons.) Student at School of Law, Christ (Deemed to be University)]

Interviews

Interviews, Trending

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

February 3, 2020 0Comments 1365Views

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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