More importantly, this policy could be seen as violating Article 15 (2)(a) of the Indian Constitution. Article 15(2(a) prohibits discrimination on grounds of sex, among others, to shops, public restaurants, hotels and places of public entertainment

Oyo’s policy disproportionately affects opposite-gender pairs, as they are more likely to be perceived as couples and be required to provide proof of marriage. In contrast, same-gender pairs, whether romantic or not, are less likely to face such scrutiny. For example, a man and a woman may be denied accommodation without proof of marriage, while two men or two women in the same situation may not encounter this barrier.

This differential treatment imposes unequal access conditions based on the sex of the individuals involved, effectively discriminating against opposite-gender pairs. Despite the policy’s neutral appearance, its implementation creates a disparity that contravenes Article 15(2) (a) by restricting access to hotel accommodations in a manner that is inherently sex-based.

Now, what could be done against discrimination is a natural question to arise. One would be to file a case under a statute but this is a specific right under Constitution but might not be enshrined in any statute. Can the Court be approached?

To address such discrimination and to answer the question, it is essential to explore the horizontal application of fundamental rights, which extends these rights to interactions between private individuals and entities, not just between individuals and the state.

Traditionally, fundamental rights have been viewed as protections against state action. However, with private entities exerting significant influence over essential services, there has been a discourse to consider the horizontal application of fundamental rights in a much more expansive scale than before. This article will examine the concept of horizontal application of fundamental rights and where we stand as of today, as far as jurisprudence is concerned.

The traditional vertical approach to fundamental rights

Fundamental rights in India have historically been seen as constraints on state power. This is known as the vertical application of fundamental rights, where rights are enforced only against the State (Malik, 2007). The reasoning behind this approach is that fundamental rights are guaranteed to citizens as protection from the State, with private actions being addressed through ordinary laws (Bhatia, 2021).

Under this traditional model, a private hospital denying treatment might not be directly liable for violating fundamental rights. Remedies would typically be sought through consumer protection laws or tort claims, rather than constitutional challenges. However, globalization and neoliberalism have transferred welfare responsibilities to the private sector without corresponding constitutional obligations (Bhatia, 2021). This has created power imbalances that the traditional vertical model fails to address.

The need for a horizontal application of fundamental rights

The horizontal application of fundamental rights extends constitutional protections to private actors, ensuring they also respect basic rights. In many cases, private entities hold economic and social power comparable to the State, necessitating constitutional oversight. This concept has been recognized in global legal frameworks, as seen in the constitutionalisation of private law, which integrates fundamental rights into private contracts, torts, and property law (Smits, 2010).

The horizontal effect can manifest in different forms:

• Direct horizontal effect: Fundamental rights are directly enforceable against private actors, much like they are against the state (Walkila, 2011). This means that an individual can directly bring a legal claim against another private party for violating their fundamental rights (Bhatia, 2021).

• Indirect horizontal effect: Fundamental rights influence the interpretation of private law provisions (Walkila, 2011). In this case, courts interpret existing private law in a way that gives effect to fundamental rights. This is not a direct enforcement but rather an interpretation or application of fundamental rights through other legal provisions.

• State-mediated effect: Rights are applied through the actions of public authorities (Walkila, 2011). This involves the state intervening to ensure private actors respect the rights of individuals. It is neither direct nor purely indirect but involves the state acting as a mediator to ensure fundamental rights are observed in private interactions (Frantziou, 2019).
• Functional equivalence: This approach seeks to equate private parties with the state, in character, functions, or impact, and hence subject them to constitutional obligations (Bhatia, 2021)

Critics argue that horizontal application may infringe on private autonomy (Friedmann & Barak, 2001). However, proponents emphasize its necessity in addressing social inequalities and mitigating power imbalances (Frantziou, 2019). Before the Horizontal Rights approach is discussed in Indian context, it is necessary to see how different legal system across the world have approached this matter so that at the end, we can not only compare our jurisprudence with the standards set by our own necessities but also with the standards set internationally.

Horizontal approach and jurisdictions across the world

Different countries have adopted varying approaches to the horizontal application of constitutional rights, which refers to the application of these rights to disputes between private parties, rather than solely between individuals and the state (Bhatia, 2021) This is because new power centres and mechanisms of oppression have emerged, necessitating departures from the default vertical approach where rights only apply between the state and individuals.

Germany has a strong tradition of applying constitutional rights in private law (Frantziou, 2019). The German approach is characterized by the concept of “indirect horizontality” (mittelbare Drittwirkung) (Frantziou, 2019; Walkila, 2016). In this model, constitutional rights do not directly bind private parties (Frantziou, 2019; Walkila, 2016). However, these rights influence the interpretation and development of private law rules (Frantziou, 2019; Walkila, 2016). The German Federal Constitutional Court has played a significant role in developing this concept (Frantziou, 2019; Walkila, 2016). In the landmark Lüth case, the court established that while fundamental rights do not override conflicting rules of private law, they must be considered when formulating private law (Henne & Riedlinger, 2005). This means that general clauses of the (private) civil codes are interpreted in light of the fundamental rights (Henne & Riedlinger, 2005). The German approach, therefore, does not impose direct obligations on private parties but ensures that the private law is consistent with constitutional values (Henne & Riedlinger, 2005, Katharina Stein, 2022)

The United States employs the “state action doctrine,” which limits the application of constitutional rights to actions by the government or those acting under its authority (Balkin, 2014). This doctrine means that, generally, constitutional rights do not apply to private actors (Balkin, 2014). In Shelley v. Kraemer (1948), the U.S. Supreme Court ruled that courts cannot enforce agreements that stop people from buying homes because of their race. These racial covenants, were private contracts where homeowners promised not to sell to certain racial groups. While individuals could still make these agreements, the Court decided that if a judge enforced them, it would count as government action and violate the Constitution (Henkin 1962). This reasoning was subjected to criticism, rightly so, by the scholars of that time, saying that such reasoning is antithetical to personal liberties (Nerken, 1977). It wasn’t until the Fair Housing Act of 1968 that the inclusion of racially restrictive covenants in property agreements was explicitly prohibited by law.

Typically, the U.S. follows a strict approach: a right either applies in a given situation or it doesn’t, without much consideration of the specific circumstances (Balkin, 2014). This is different from other countries that use “proportionality analysis,” which means they look at the context and details of each case to decide how rights should be applied (Balkin, 2014)

South Africa’s constitutional approach has evolved from indirect to more direct horizontal application of rights (Frantziou, 2019; Van der Walt, 2012). Under its Interim Constitution, there was a subtle shift from indirect horizontal effect to direct horizontal effect under the Final Constitution (Frantziou, 2019; Van der Walt, 2012). The South African Constitution grants some provisions of the Bill of Rights direct horizontal effect, making all ordinary legislation subject to compliance with the Bill of Rights (Frantziou, 2019; Van der Walt, 2012). This means that national courts are obligated to protect the realization of fundamental rights and provide effective remedies (Frantziou, 2019; Van der Walt, 2012). South African jurisprudence reveals that the horizontal effect operates through general provisions in the Bill of Rights, which apply to all law and bind private parties (Frantziou, 2019; Van der Walt, 2012).

In Canada, the approach to horizontal rights is often described as the “governmental functions” approach which follows the logic of state action but is narrower in its operation (Weinrib and Weinrib, 2001). The Canadian Charter of Rights and Freedoms does not directly bind private persons or apply to the common law governing their relations (Weinrib, 2001). The Supreme Court of Canada case R.W.D.S.U. v. Dolphin Delivery Ltd. held that the rights and freedoms in the Charter do not apply to private persons (Saunders, 2005; Weinrib, 2001). However, the common law can be adapted to the Constitution, with courts developing the common law in a way that is consistent with constitutional values (Saunders, 2005; Weinrib, 2001). This is called a parallel development of the common law, where courts exercise their inherent jurisdiction to interpret the common law to align with constitutional rights (Saunders, 2005; Weinrib, 2001). Some scholars note that the Canadian approach ignores the extensive German debate about direct and indirect application (Weinrib, 2001).

The United Kingdom does not have a single written constitution but has a quasi-constitutional statutory bill of rights – the Human Rights Act 1998 which raises similar issues to other jurisdictions (Hunt, 1998). The debate in the UK after the entry into force of the Human Rights Act, has focused on which form of horizontality is appropriate to the UK’s political constitution (Hunt, 1998). There are various opinions ranging from supporting a conception of horizontality through interpretation and incremental development of the common law compatibly with Convention rights (Hunt, 1998). Some legal scholars argue for an absolute duty to develop all existing common law compatibly with Convention rights, or simply to apply human rights directly (Hunt, 1998). The interaction of EU and UK law in the field of fundamental rights has influenced this debate in recent years, so that it would be fair to say that both direct and indirect forms of horizontal effect are available in the UK in respect of certain rights (Hunt, 1998).

Ireland: The Irish legal system has accepted the doctrine of full direct horizontal effect of constitutional rights. This means that the Irish Supreme Court interprets some constitutional rights to be directly binding and producing effects on the legal relationships between private parties. Every citizen in Ireland is entitled to invoke constitutional rights directly against another citizen, and not only against the State. The Irish Constitution itself, however, does not specifically provide for horizontal application. This approach contrasts with many Continental European approaches to the effect of fundamental rights. The Irish model allows for a direct application of constitutional rights in private disputes, meaning that an individual can bring a claim directly against another individual for violating their constitutional rights. The Irish model is considered a “constitutional tort,” where a violation of constitutional rights by one private actor against another can give rise to a legal claim (O’Cinneide, 2007).

Spain recognizes the direct horizontal application of human rights. The Spanish Constitutional Court has aligned its approach to the degree of protection guaranteed in EU law (Walkila, 2014, p. 133). In the Netherlands, both direct and indirect horizontal effects are recognized (Walkila, 2014, p. 164). Direct horizontal effect means fundamental rights are directly enforceable in the same way as in vertical relations, while indirect effect serves as an aid for interpretation, ensuring private law provisions conform to the contents of fundamental rights (Walkila, 2014, p. 147). A similar distinction exists in the Czech Republic (Walkila, 2014, p. 164), where the horizontal effect of constitutional rights has been addressed relatively recently. The Czech Republic is noted as having followed a strategy of constitution-conform interpretation and is among the jurisdictions that recognize both direct and indirect horizontal effects.

Slovakia, like the Czech Republic, has undergone recent constitutional reforms, leading to a more recent focus on the horizontal effect of fundamental rights. Before 2002, Slovakia’s Constitutional Tribunal could not review decisions of ordinary courts. However, the country has been recognized as having adopted a strategy similar to that of Poland, where high courts of the ordinary judiciary implement the horizontal effect of basic rights. In Poland, indirect horizontal effect is realized through general clauses and the interpretation of statutes in conformity with constitutional values, along with the review of constitutionality. Direct horizontal application of clear and precise constitutional provisions is also possible in exceptional cases (Walkila, 2014, p. 147).

Kenya’s Constitution of 2010 contains provisions that allow for the direct horizontal application of constitutional rights. This means that these rights can be applied in relationships between private parties, not just between individuals and the state. Specifically, Article 20 of the Kenyan Constitution does not formally limit the reach of horizontality. The Kenyan courts have also shown a willingness to apply the institutional approach to horizontal rights, particularly in cases of discrimination. However, while the courts have made some strides in this direction, they have been hesitant to articulate a fully consistent normative account of horizontality. This has resulted in an application of horizontality that is inconsistent and partial.

Jamaica’s 2011 Charter of Fundamental Rights and Freedoms also introduced the concept of bounded interpretive horizontality. Section 13(5) of the Charter allows for the application of constitutional rights to private relationships. However, this application is not unlimited. The Jamaican Constitution does not subject every private relationship to the Constitution, nor every fundamental right. Like South Africa, the Jamaican Constitution was intended to tackle disparities in power between private parties. The Jamaican courts have grappled with the challenge of balancing competing rights and determining the limits of horizontal application. The courts have tended towards a “balancing” doctrine and focusing on whether “adequate alternative remedies” exist in other laws to limit the application of horizontality. The Jamaican courts have engaged in depth with judgments from other jurisdictions, using comparative examples in their judgments.

Both Kenya and Jamaica’s horizontal rights doctrines are works in progress. While both jurisdictions have embraced the idea of applying constitutional rights to private relationships, they continue to grapple with questions around the limits of this application, and the need for a clear normative framework to guide decision-making in horizontal rights cases. An institutional approach, taking into account the institutionally-mediated power differences, may be a useful way to address the gaps in the current doctrine (Bhatia, 2024).

EU Law

The EU legal order incorporates all three dimensions of horizontality (direct, indirect, and state-mediated effect) (Frantziou, 2019; Walkila, 2016). However, in practice, the EU focuses almost exclusively on direct horizontal effect or its absence (Frantziou, 2019; Walkila, 2016). The EU law is influenced by different legal traditions but has its own method of systematisation of law (Frantziou, 2019; Walkila, 2016). The Court of Justice of the EU tends to pronounce itself on a case-by-case basis, which has led to complex concepts (Frantziou, 2019; Walkila, 2016).

Key Considerations:

• Public Interest: The application of horizontal effect is often justified by a ‘public interest’ reason that constitutionally justifies applying constitutional rights in private relationships (Frantziou, 2019; Walkila, 2016).
• Interchangeability of Approaches: Different forms of horizontality are seen as complementary and interchangeable (Frantziou, 2019). What is key is the effective constitutional justification as a means of recognizing private relations in which fundamental rights are relevant (Frantziou, 2019).
• Context: The application of rights can be influenced by the context of the specific situation, with proportionality analysis allowing for a more nuanced application of rights (Frantziou, 2019).

The horizontal application of constitutional rights is a complex and evolving area of law (Frantziou, 2019). Different jurisdictions have adopted various approaches, influenced by their unique constitutional and legal traditions (Frantziou, 2019). While some, like Germany, favor indirect application, others, like South Africa, have embraced a more direct approach (Frantziou, 2019; Van der Walt, 2012). The United States, with its state action doctrine, stands out as more restrictive on the direct application of constitutional rights to the private sphere (Balkin, 2014). The EU legal order incorporates various dimensions of horizontality, focusing more on direct effect (Frantziou, 2019).

With this awareness, let us discuss Horizontal Approach in Indian context.

The Indian Constitutional Framework for Horizontal Rights

Unlike many constitutions that focus solely on state action, the Indian Constitution explicitly recognizes horizontal rights in specific provisions:

• Article 15(2): Prohibits discrimination in access to public spaces and services.
• Article 17: Abolishes untouchability.
• Article 23: Prohibits human trafficking and forced labour.
• Article 24: Prohibits child labour in hazardous industries

These provisions directly regulate interactions between private parties, reflecting India’s commitment to addressing deep-rooted social inequalities and how private entities have taken an active part in perpetrating such inequalities.

Case law and institutional interpretation

Indian courts have interpreted fundamental rights in a manner that extends their applicability beyond state actors, particularly through an institutional approach (Bhatia, 2021).

The horizontal application of fundamental rights in India, where these rights are enforceable against private individuals and entities, has been a significant aspect of the country’s constitutional jurisprudence. This approach ensures that fundamental rights are not only protected against state actions but also in interactions between private parties.

In 1982, the Supreme Court addressed this concept in the case of People’s Union for Democratic Rights (PUDR) v. Union of India (1982 AIR 1473). The Court examined the exploitation of labourers involved in the construction projects for the 1982 Asian Games in New Delhi. The petitioners argued that the workers were subjected to inhumane conditions, denied minimum wages, and coerced into labour, violating their fundamental rights. Invoking Article 23, which prohibits trafficking in human beings and forced labour, the Court recognized that forcing individuals to work for less than the minimum wage constitutes a form of forced labour. This judgment expanded the interpretation of forced labour to include economic coercion and underscored the state’s obligation to protect vulnerable workers from exploitation.

Later, in the landmark judgment of Indian Young Lawyers’ Association v. State of Kerala ((2017) 10 SCC 689), commonly known as the Sabarimala case, the Supreme Court further explored the horizontal application of fundamental rights. The case centred on the exclusion of women aged 10 to 50 from entering the Sabarimala Temple, a practice based on notions of purity related to menstruation. Justice D.Y. Chandrachud, in his concurring opinion, invoked Article 17, which abolishes “untouchability” in all its forms. He argued that the exclusion of women based on physiological factors perpetuated a form of social exclusion akin to untouchability, thereby violating constitutional values by a religious trust rather than by a state. He emphasized that such practices stigmatize individuals and have no place in a constitutional order.

More recently, in the case of Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1), the Supreme Court delved deeper into the horizontal application of fundamental rights. The Court examined whether fundamental rights under Articles 19 and 21 could be enforced against private individuals and entities. In a 4:1 majority decision, the Court held that these rights are indeed enforceable against non-state actors. This, being the latest and a specific judgement on the horizontal approach—with a question being formulated and answered in the judgement—is worthy of consideration for a better understanding.

On Kaushal Kishor judgment on horizontality:

In 2016, a writ petition was filed in the Supreme Court of India seeking action against a U.P. government minister who called a gang rape case a “political controversy”. The petitioner in the case, Kaushal Kishor v. Union of India, also sought a fair investigation and transfer of the trial outside of Uttar Pradesh. The minister then apologized to the Supreme Court, and the matter should have rested, but in October 2017, the case was referred to a five-judge Constitution Bench.

During this time, the Court also took up a Special Leave Petition (Diary) that raised similar questions about statements made by a Kerala government minister and tagged it with the original writ petition. The Constitution Bench then framed five questions for resolution:

• Whether restrictions on free speech could be imposed on grounds not found in Article 19(2) of the Constitution
• Whether fundamental rights could be claimed against non-state actors
• Whether the State has a duty to protect citizens’ rights against threats from private parties
• Whether a minister’s statement could be attributed to the government
• Whether a minister’s statement violating a citizen’s rights constitutes a “constitutional tort”

The majority opinion, delivered by Justice V. Ramasubramanian, held that a fundamental right under Article 19 or 21 can be enforced against persons other than the State or its instrumentalities.

Evolution of “State”: The court traced how the concept of “State” has broadened over time. Initially, fundamental rights were enforced only against the State. However, this understanding expanded to include “Authorities,” “instrumentalities of State,” “agency of the Government,” entities with “governmental character,” those with “monopoly status conferred by State,” those under “deep and pervasive control,” and ultimately to include entities based on the “nature of the duties/functions performed”. This evolution was crucial in recognizing that fundamental rights could be infringed upon by private actors.

Technological Advancements: The court acknowledged the increasing role of private players in infringing upon fundamental rights due to technological advancements. The court pointed out that infringement of the right to privacy was now mostly by private players. If fundamental rights cannot be enforced against non-State actors, these rights would be severely undermined.

Interpretation of Article 21: The court emphasized the broad interpretation of the right to life under Article 21. This right now includes a variety of rights, making it possible to hold non-state actors accountable for violations. The court noted that the focus has shifted from “who the respondent was” to “the nature of the duties/functions performed” by the respondent in determining amenability to jurisdiction under Article 226.

Paramountcy of Personal Liberty: The court highlighted that the right to personal liberty is paramount, and the state has a duty to protect it even from non-state actors. This emphasized the state’s positive obligation to protect citizen’s rights.

Horizontal Effect: The majority acknowledged that some fundamental rights are specifically granted against non-State actors, such as Article 15(2) (a) (access to public places), Article 17 (untouchability), Article 23 (forced labour), and Article 24 (child labour). Additionally, aspects of Article 21, like the right to a clean environment, have been enforced against private parties.

Dissenting Opinion on Horizontality:

Justice Nagarathna’s dissenting opinion offers a different perspective on the issue of horizontality. While agreeing that Article 19(2) is exhaustive regarding restrictions on free speech, she argued that fundamental rights under Articles 19 and 21 cannot generally be enforced against non-state actors. She distinguished between common law rights and fundamental rights, stating that common law remedies are available in cases of infringement by private individuals. She also pointed out that a writ petition to enforce fundamental rights would not be entertained against non-state entities, especially because such matters involve disputed questions of fact.

Exception for Habeas Corpus: Nagarathna J. noted an exception in cases where a writ of habeas corpus is sought against a private person based on Article 21, in which case a constitutional court could hear the matter.

Rejection of Broad Horizontality: The dissenting opinion explicitly rejected the notion of allowing fundamental rights to operate broadly between private citizens. It suggested that doing so would render the tests and doctrines developed by the Court to define “State” under Article 12 redundant.

Despite a seemingly progressive stance, the judgement was criticised for taking upon a question of law on itself without having the explicit need to.

Conceptual Confusion and Conflation: A major point of criticism is that the judgment demonstrated a fundamental misunderstanding of horizontality. The court, according to some, conflated different concepts related to the application of constitutional principles to non-state actors. These concepts include state action, where the state is directly involved; indirect horizontality, where the law affects private parties through interpretation; and situations where the judiciary itself is considered part of the state. This lack of conceptual clarity was seen as a significant flaw, muddling the understanding of how constitutional rights should apply in different contexts. The judgment was criticized for conflating distinct legal approaches, misrepresenting countries’ positions on horizontality, and providing an outdated, inaccurate comparative analysis.

Lack of Engagement with Doctrinal Nuances: The judgment was criticized for not engaging with the nuances of how horizontality is understood and applied in different jurisdictions. Critics argue that the judgment ignores the structure of the Indian Constitution, which explicitly provides for horizontal application of certain fundamental rights (Articles 15(2), 17, 23, and 24), while being silent on others. This is interpreted to mean that the constitution intends for horizontal application only in specific carve-outs. The judgment was criticized for failing to explain why it departs from the obvious result of this textual structure, thereby opening the Pandora’s box of litigation wherein people approach constitutional courts for recourses that exist in common law. The critique went to the extent of arguing that the judgement is ‘unconstitutional informal constitutional changes’—meaning that the judgement has an effect of changing the constitutional goals so radically that it falls under the category of ‘constitutional dismemberments’

Is it so radical?

It is radical to the extent of saying in unequivocal terms that Article 19 and 21, the 2/3 of the commonly known Golden Triangle is enforceable against private parties. However, to say that the judgement falls under the category of ‘constitutional dismemberments’ would be an exaggeration.

While a result of uncalled judicial enthusiasm to philosophize constitutional issues, the judgement merely posits that if there is a fundamental right (Articles 19 and 21) violation by a private party, the right can be enforced.

The Kaushal Kishor judgment should not be interpreted as an open invitation for individuals to approach the Supreme Court for grievances that can be addressed through common law remedies. Instead, it must be understood within the context of Indian realities, where marginalized individuals often lack the means to navigate complex bureaucratic and legal systems to seek redress for violations of their fundamental rights. The Supreme Court has historically served as a beacon of hope for such individuals. In this context, empowering the Court to enforce fundamental rights, particularly the expansive rights under Articles 19 and 21, against private parties is both practical and necessary.

Conclusion

The judgement appreciably, defines, the concepts of vertical and horizontal effects of constitutional rights. It clarifies that constitutional rights have a “vertical effect” when they regulate the conduct of the government and governmental actors in their dealings with private individuals, while they have a “horizontal effect” when they impact the relationships between private individuals. [Para 74]

Moreover, the expansion of this doctrine will not rest on this single case but will develop through multiple rulings, allowing for corrections over time. Viewing it as a radical upheaval is unwarranted.  India’s stance has evolved, with Kaushal Kishor v. State of Uttar Pradesh recognizing the enforceability of Articles 19 and 21 against private entities. While this brings India closer to South Africa and Ireland, one could rightly argue that it lacks doctrinal clarity and risks overextension. Unlike Germany or Canada, India has not developed a robust framework for indirect horizontality, leaving room for judicial refinement.

(The author is part of the organisations legal research team)

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The impugned order was issued by the Ministry of Information & Broadcasting on February 12, 2024. Through the order, the ministry had ordered the removal of the article titled ‘Screams from the Army Post’ from The Caravan’s website, along with certain URLs of social media posts posted from its social media handles disseminating the article. As per the petition, the reason provided by the ministry is that the articles have the potential to lead to communal disharmony and uprising against the security forces in Jammu and Kashmir, they are “detrimental to sovereignty and integrity of India, security of the State, and public order in the country.” Deeming the order to be in violation of the fundamental right to free speech and expression and the freedom of the press under Article 19(1)(a) of the Constitution of India and the right to equality under Article 14, the petitioner has approached the High Court to quash the same. 

What did the article publish:

On February 1, 2024, The Caravan magazine published an article titled ‘Screams from the Army Post’. The article, written by journalist Jatinder Kaur Tur, covers the incidents of allegations of abduction, torture and custodial killings of civilians at the hands of the officials of the 48 Rashtriya Rifles counter-insurgency force of the Indian Army on December 22, 2023 in Poonch and Rajouri districts of Jammu and Kashmir. The article centred around the killing of three civilians, allegedly by unidentified soldiers, on December 22, 2023 which was widely reported in the media. The deceased were Safeer Hussain (aged 48), Mohammad Showkat (aged 28) and Shabbir Ahmad (aged 25). A day after the killings, locals from the Poonch district had provided that the men were killed in army custody. 

Later, videos of them being tortured by uniformed armed personnel had gone viral. In the video, the victims could be seen pleading and begging the armed personnel as they continued to beat them and apply chilli powder on their private parts. With the news going viral and resulting in an uproar by the citizenry, the Army had initiated a high-level internal probe into videos within two days. Meanwhile, the government had also suspended internet in Kashmir amid intensifying protests. Additionally, the government had swiftly announced compensation and jobs to the kin of these civilian.

It is essential to note that the report by The Caravan also emphasised that while three men had been killed, a much larger number of approximately 25 had been reportedly picked up by the Army and “severely tortured”. The report also named a brigadier, who allegedly had given the orders for what happened. 

Based on extensive reporting, no reply to the questionnaires sent to the Army:

According to the petition, the extensive report was based on “interviews with the survivors of the torture, relatives of the deceased, other eyewitnesses of the incident, local residents of the area, political leaders, civil servants, officers of the Intelligence Bureau, and senior officers of the Indian Army and an examination of medical reports of the victims, publicly reported and available facts, and videos of the torture recorded and shared widely on social media.”

The petition also highlights the fact that, prior to the publication of the article, The Caravan had sent detailed questionnaires to the Army, Ministry of Defence, Director General of Police, Senior Superintendent of Police, and the District Deputy Commissioner, regarding the incident and allegations of torture, seeking their responses to the same. To the said questionnaire, no responses or denials were received, the petition pointedly provided. Thus, basic fair practices were followed by the publication giving full opportunity to the Army to respond.

A video story related to the article was also posted by The Caravan on YouTube. After its publication, social media posts promoting the article and video story were posted on social media websites such as ‘X’ (formerly Twitter) and Instagram.

Order of the Union government:

On February 9, The Caravan received a notice from the Ministry of Information & Broadcasting under the controversial IT Rules intimating the publication that, since,  a complaint had been received by the Ministry regarding the abovementioned article and social media posts as they were “detrimental to sovereignty & integrity of India, security of the State, and have the potential to lead to communal tensions leading to disturbance of public order in the U.T. of Jammu and Kashmir”.

Through the notice, a representative from The Caravan was asked to be present for an online meeting with Inter Departmental Committee that had taken place on February 12 at 12:00 pm. It had been highlighted by the petitioner that one of the URLs (links) complained of in the order was a post on put up on X that was not even connected with the custodial torture. Rather, the said post was connected to an earlier article published by The Caravan in its August 2023 issue on the ethnic cleansing in the state of Manipur since May 2023.

The petition, accessed by Sabrangindia narrates that, a response had also been sent by the Editorial Manager of The Caravan on February 11 to the notice of the ministry. Through the response, the Editorial Manager had denied the allegations levied against the article and social media posts by asserting the correctness of the article. In addition to this, the Editorial Manager sought access to the complaint made against the custodial torture article on the basis of which the proceedings had been initiated, as well as the procedure that would be followed by the Inter Departmental Committee, so that a proper informed response could be given against the said complaint.

The petition provided the details of the meeting that took place on February 12. As stated in the petition, the principles of natural justice were not followed as even before hearing the representative of The Caravan, the Committee members declared that the URLs (links) in question were required to be pulled down, without detailing any reasons. It was also provided that the representative was neither supplied a copy of the request/complaint. The details of the complainant, the allegations therein, or the details of the specific portion(s) of the Article was deemed to be detrimental to the sovereignty & integrity of India, security of the State, and had the potential to disturb public order were not provided to the representative as well. 

According to the petition, the main grievance raised by the Committee was that the article lacked an official response from the Indian Army on the incident. Upon this, the representative had informed the Committee that the Army had not offered a response to the author despite being requested for interviews and being supplied with a questionnaire and, thus being given a full opportunity to respond. The representative had also assured the Committee that the online version of the article would be updated if a response was received even after publication. Lastly, the representative had also pointed out that there was no any official denial or rebuttal of any of the contents of the article by any government agency. Notably, the said meeting had only lasted for 30-35 minutes.

On the same day, within a few hours post the meeting, The Caravan received the impugned order under Section 69A of the Information Technology Act, 2000 read with Rule 15(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code). Rules, 2021. 

Section 69A confers on the Central and State governments the power to issue directions “to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource”. The grounds on which these powers may be exercised are as follows:

• In the interest of the sovereignty or integrity of India, defence of India, the security of the state.
• Friendly relations with foreign states.
• Public order, or for preventing incitement to the commission of any cognizable offence relating to these.
• For investigating any offence.

As per Rule 15 (2), the Authorised Officer shall direct the publisher, any agency of the Government or any intermediary, on approval of the decision by the Secretary, Ministry of Information and Broadcasting, to delete or modify or block the relevant content and information generated, transmitted, received, stored or hosted in their computer resource for public access within the time limit specified in the direction.

Thus, through the impugned order, the petitioners were directed to remove the article and the provided social media posts within 24 hours, failing which the website of The Caravan would be blocked by the union government. The notice further stated that the article and posts have the potential to lead to communal disharmony and uprising against the security forces in Jammu and Kashmir, and were detrimental to sovereignty and integrity of India, security of the State, and public order in the country. 

Violations underlined by the petitioner:

The following violations have been highlighted by the petitioner in the writ petition:

• As per the petitioner, the impugned order failed to show any incorrectness or error in the article and ordered for the removal based on its incorrect subjective reading.
• The order completely ignores that the incidents reported in the article are based on extensively gathered facts, oral testimonies, medical evidence, and publicly available information.
• No weightage was given to the fact that the army or any other government agency had not denied the information provided in the article. 
• The order is devoid of reasoning showing the any negative impact of the article on communal harmony, sovereignty and integrity of India, security of the State or public order. 
• In the appendix of the order, specific observations of the Committee qua individual urls had been provided, which were visibly copy-pasted from one to the other, reflecting complete non-application of mind by the Committee.
• The procedure adopted by the Respondent (Ministry) violates the principles of natural justice as The Caravan was not provided a copy of the complaint, or the allegations made therein. 
• No proper and effective opportunity to rebut the allegations provided was provided during the hearing which lasted 30-35 minutes. As the relevant materials relied upon were not provided, the hearing was rendered a meaningless empty formality.

Based on the aforementioned, the petitioner alleged the following:

Violation of fundamental rights: As per the petitioners, that the impugned order has gravely violated their fundamental rights of free speech and expression, by imposing an unreasonable, excessive, and arbitrary restriction of the freedom of the press. In addition to this, the procedure adopted by the Respondent has also violated the fundamental right to equality by violating the principles of natural justice.

Section 69A not established or attracted: The petitioner has argued that, the twin requirements of necessity and expediency under Section 69A have not been established and no pressing state interest requiring their removal has been demonstrated. The petitioner has also claimed that since they were directed to remove the requested article and posts or otherwise face the consequences, they had no option but to comply with the impugned order under objection. 

The arbitrarily removed social media posts also included the Twitter post related to the Manipur article, which had no connection to the article in question in this case.

Related:

Centre opposes Twitter’s plea to set aside blocking orders under Section 69A of the IT Act

‘X’ distances itself from the clampdown on freedom of expression by blocking accounts on the executive orders of the Union government

Caravan to challenge Min of I&B order censoring story/video alleging torture of 25 civilians, 3 deaths by Army

EXCLUSIVE: Three independent Tamil channels win battle against censorship by MeitY-YouTube after 6 months of a gritty battle

The post Free Speech: Petition by The Caravan against removal of its article on custodial torture in J&K points to violations of principles of natural justice, fundamental rights appeared first on SabrangIndia.

The Telecommunications Bill, 2023, introduced by Union Minister Ashwini Vaishnaw in the Lok Sabha on December 18, 2023, aims to overhaul antiquated legislation like the Indian Telegraph Act, 1885, and Indian Wireless Telegraphy Act, 1933. This bill intends to “modernise” regulations governing communication technologies to adapt to the evolving digital landscape. The bill was passed on December 20, 2023 with no substantive debate as the Opposition benches remained largely empty with as many as 97 MPs having been suspended from the House.

The Bill was passed in an aggressive and tumultuous session of Parliament with 97 members of parliament (MP) suspended at the time of its passage in the Lok Sabha while, at the same time, another 46 MPs had been suspended from the Upper House, the Rajya Sabha. 

Key Provisions

Scope and Ambiguity

The bill’s language is broad and ambiguous, causing apprehension among activists and legal experts. Its potential expansive interpretation raises concerns about its application to all digital applications within India, impacting fundamental rights such as privacy, freedom of expression, and access to information.

Authorisation requirement

The proposed Bill aims to overhaul the existing licensing regime for telecom networks, transitioning from the current system to an authorisation framework. Under the present arrangement, the telecom department issues over 100 types of licenses, registrations and permissions. The Bill aims to streamline this process by consolidating many of these into a “single authorisation mechanism.” 

A pivotal element of the bill mandates authorisation for all telecommunication service providers. Failure to comply could lead to the blocking or banning of channels. However, ambiguity surrounding the definition of “unauthorised channels” raises concerns about potential misuse or arbitrary enforcement by authorities. 

Prior authorisation from the union government will be required to provide telecommunication services, establish, operate, maintain, or expand telecommunications networks, or possess radio equipment. 

Existing licenses will continue to be valid for the period of their grant, or for five years, where the period is not specified.

Assignment of spectrum

Spectrum will be assigned by auction, except for specified uses, where it will be allocated on an administrative basis. These include purposes such as national security and defence, transport, satellite services such as DTH and satellite telephony, and BSNL, MTNL, and public broadcasting services. The union government may re-purpose or re-assign any frequency range. The union government may also permit sharing, trading, leasing, and surrender of spectrum.

Regulation of OTT Apps

The Bill has removed over the top (OTT) services and apps from the definition of telecommunication services, in a big relief to communication service providers such as WhatsApp and Telegram. The Ministry of Electronics and IT will handle the regulation of OTT apps under the potential Digital India Act, not included in the Telecom Bill.

Adjudication process

The union government will appoint an adjudicating officer to conduct inquiries and pass orders against civil offenses under the Bill.

Penalties and Surveillance Powers

The bill imposes stringent penalties on users accessing “unauthorised channels”, subject to authorities’ discretion. It grants the government extensive powers for temporary control and tracking of information on grounds of public safety and national security, prompting fears of unchecked surveillance and communication network control.

The Bill specifies various criminal and civil offenses. Providing telecom services without authorisation, or gaining unauthorised access to a telecom network or data, are punishable with imprisonment up to three years, a fine up to two crore rupees, or both. The breaching of terms and conditions of authorisation is punishable with a civil penalty up to five crore rupees. The possession of unauthorised equipment, or using unauthorised network or service, is punishable with a penalty of up to ten lakh rupees.

The messages between two or more persons may be intercepted, monitored, or blocked on certain grounds. Such actions must be necessary or expedient in the interest of public safety or public emergency, and must be in the interest of specified grounds which include: security of the state, prevention of incitement of offenses, or public order. Telecom services may be suspended on similar grounds. The government may take temporary possession of any telecom infrastructure, network, or services on occurrence of any public emergency or public safety. An officer authorised by the government may search premises or vehicles for possession of unauthorized telecom networks or equipment.

Critical Analysis

Democratic process and Opposition absence

The bill’s passage in the Lok Sabha occurred amid the suspension of over 143 Opposition leaders in both houses of Parliament (97 Opposition MPS were not even present in the Lok Sabha at the time of its passage). The absence of opposition voices during the debate and voting stages raises questions about democratic processes, undermining essential checks and balances required for comprehensive legislative scrutiny.

Concerns about fundamental rights

The bill’s vague language and extensive powers raise substantial concerns about potential violations of fundamental rights, particularly the right to privacy and freedom of expression. Biometric Authentication is mandatory for telecom customers to combat spam calls and messages. Its broad scope could facilitate mass surveillance without adequate safeguards.

Ambiguity and interpretation

Key terms like “message” and “unauthorised channels” lack precise definitions, providing wide leeway for interpretation. This ambiguity might allow arbitrary application and selective enforcement, potentially impeding constitutional freedoms.

Importance of Deliberation and Transparency:

The hurried passage of the Telecommunications Bill, 2023, without robust debate or input from diverse representatives, diminishes the democratic essence of legislative processes. Laws regulating communication technologies have far-reaching implications for citizens’ rights and freedoms, necessitating thorough scrutiny and robust safeguards.

Status of the Telecom Sector in India

The Telecom industry in India is the second largest in the world with a subscriber base of 1.179 Billion as of August 2023 (wireless + wireline subscribers). It is also the fourth largest sector in terms of FDI inflows, contributing 6% of total FDI inflow. India has an overall tele-density of 84.69%. Tele-density denotes the number of telephones per 100 population, and is an important indicator of telecom penetration. The average monthly data consumption per wireless data subscriber has also increased to 17.36 GB in March 2023 from 61.66 MB in March 2014.

Conclusion: A call for transparency and accountability

The passage of the Telecommunications Bill, 2023, in the Lok Sabha, amidst concerns about its impact on fundamental rights, raises critical questions about balancing security, regulation, and upholding democratic principles. Comprehensive deliberation, transparency, and a balanced regulatory approach are crucial to safeguard national security interests while preserving citizens’ constitutional freedoms.

The new bill brings about far greater powers for the government than the laws it replaces. Many activists and researchers have called the bill “draconian” because it empowers the government to temporarily control and track information on grounds of public safety and national security. 

As The Wire reports, a message under this Bill is defined as any “sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication.” A key feature of the Bill is that its scope is ambiguous enough to be broadly applicable to all digital apps within the country, which will be forced to comply with the law. 

“Definitional ambiguity in the Telecom Bill, 2023 leaves us worried and confused about its application to internet services. In any scenario, the bill will have implications for our fundamental right to privacy as well as our constitutional freedoms such as freedom of expression and right to receive information,” Internet Freedom Foundation noted. Further, any telecommunication service will have to apply for authorization under the Bill, which means that any unauthorized channels will likely be blocked or banned.

Using unauthorised channels comes with steep penalties for users, if the authorities have “reason to believe so” – another vague provision whose ambiguity raises concerns about how it might be applied. The process being undemocratic raises concerns as the Bill is one big step closer to becoming law. It is crucial to ensure that such bills undergo meticulous scrutiny, encompass robust safeguards for fundamental rights, and reflect the consensus of diverse voices in a democratic society. Transparency, accountability, and a balanced approach to regulation are essential to create an environment that protects both national security interests and citizens’ constitutional freedoms.

(The author is an intern with the organisation)

Related:

No plans to make law on regulation of internet shutdown: Centre to LS

Parliamentary inquiry unveils 165 data breaches from 2018-23 as reported by CERT-In

Union data shows increasing beneficiaries of scholarships for OBCs in the past 5 years

The post Passing of Telecommunications Bill amid suspension of 97 opposition leaders sparks fears of rights infringement & surveillance appeared first on SabrangIndia.

“Article 19(1)(a) of the Constitution of India provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote,” the Court said. (Para 35)

This particular judgment was delivered by Justice MV Muralidaran who was recently transferred to the Calcutta High Court. It further provides that while exercising the right to cast a vote, information about the candidate to be selected is must. The judgment also emphasised that the voter’s right to know the antecedents, including criminal past of the candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy.

The judgment of the court stated that “Voter’s right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The voter may think over before making his choice of electing law breakers as law makers” (Para 35)

This particular judgment was delivered by Justice MV Muralidaran, who was Acting Chief Justice at the time of decision and has recently been transferred to the Calcutta High Court. The said judgment has paved a path for a more transparent election process and can potentially have a serious impact in the arena of voting and election rights as it clarifies the legal character that the right to vote holds in India.  

Facts of the present case:

The aforementioned observations were made by the Manipur High Court while hearing a plea filed by Bharatiya Janata Party (BJP) Member of Legislative Assembly (MLA) Thounaojam Shyamkumar. His plea urged for the dismissal of petitions filed that sought for his dismissal of his election from Andro Assembly Constituency during the 2022 Legislative Assembly polls. Shyamkumar’s election had been challenged by Manipur election runner-up candidate Lourembam Sanjoy Singh and his brother Lourembam Sanjit Singh on the ground of non-disclosure of information regarding the pendency of a criminal case against Shyamkumar. The petition had also raised allegations that Shyamkumar had committed the offence of corrupt practices owing to improper declaration of information regarding Shyamkumar’s wife’s non-agricultural land. 

Observations of the court:

After hearing the parties of the plea, the Court observed that whether the criminal cases said to have been registered against the Shyamkumar were deliberately omitted from the FORM-26 at time of filing of nomination papers has to be decided during the trial by the Court. A similar observation was made by the Court with regard to mentioning of non-agricultural land and agricultural land in the relevant columns.

“Whether the allegation of the election petitioner and the second respondent (the Singh brothers) are correct or not has to be proved by the election petitioner and the second respondent respectively and further, as to whether, incorrect particulars have been mentioned in the affidavit in Form-26 by the first respondent/returned candidate and whether the alleged false affidavit would amount to violation of the provisions of Section 33 of the RP Act so as to render 24 the election of the first respondent void are to be considered by the Court in the course of trial,” Justice Muralidharan opined in Para 44 of the judgment. 

In regards to this, the High Court rejected the plea filed by Shyamkumar and concluded that it cannot be said that election petitions against him do not contain a concise statement of material facts. Rather, the court held that the petitions disclose a cause of action against him. 

It further observed that an election vitiated by reason of corrupt practices, illegalities and irregularities, as mentioned in Sections 100 and 123 of the Representation of People Act, cannot obviously be recognized and respected as the decision of the majority of the electorate. Observing this, the Court noted that it is the obligation of the Courts to examine such allegations, the bench said they cannot be “unduly hyper-technical” in their approach and oblivious of the ground realities.

The complete judgment can be read here:

The right to vote in India:

Article 326 of the Indian Constitution provides that every citizen of India above the age of 18 (Sixty- first Amendment) were granted the right to vote. It also provides that the Constitution provides that the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage. It states that “every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.”

The aforementioned judgment of the Manipur High Court is significant today as on several occasions, the Supreme Court of India has taken a contradictory stand on whether the right to vote is merely a statutory right or holds more value. For context, statutory rights are those provided for by any laws passed by Parliament. These rights can be enforced in courts provided for in the law itself, and can also be curtailed or completely removed by bringing in amendments to the law. On the other hand, fundamental rights are those rights provided under Part III of the Constitution, which are guaranteed to every citizen of the country, and cannot be taken away by the state, except for the reasonable restrictions imposed on these by the Constitution itself. In case of any infringement of the fundamental rights, the victim can approach the Supreme Court (under Article 32) or the High Court (under Article 226). 

Through its recent judgments, the Supreme Court has categorised the same to be a constitutional right. These judgments are provided below.

A move from statutory right to constitutional right:

• Right to vote based on informed choice

In July 2023, a bench comprising Justices S Ravindra Bhat (now retired) and Aravind Kumar had deemed it to be paradoxical that the right to vote has not been held to be a fundamental right, though democracy forms a part of the basic features of Constitution. In the case of Bhim Rao Baswanth Rao Patil V. K. Madan Mohan Rao & Ors., the Supreme Court stated that “Democracy has been held to be a part of one of the essential features of the Constitution. Yet, somewhat paradoxically, the right to vote has not been recognized as a Fundamental Right yet; it was termed as a ‘mere’ statutory right”. Notably, even as the Supreme Court had made the said comment, it shied away from declaring the right to vote as a fundamental right.

In the said case, the Court has also held that a voter has the full right to be informed about the background of a candidate. In its judgment, the bench had observed that “The elector or voter’s right to know about the full background of a candidate- evolved through court decisions- is an added dimension to the rich tapestry of our constitutional jurisprudence.”

The court had also emphasized the right of a voter to make an informed choice, a right that had been a result of our long fight for India. The Supreme Court stated “the right to vote, based on an informed choice, is a crucial component of the essence of democracy. This right is precious and was the result of a long and arduous fight for freedom, for Swaraj, where the citizen has an inalienable right to exercise her or his right to franchise. This finds articulation in Article 326 of the Constitution.”

Facts of the case: The division bench of the Supreme Court was considering a challenge to the order of the Telangana High Court that dismissed an application seeking rejection of the election petition filed against Bhim Rao Baswanth Rao Patil, the appellant. The election petition had been filed for non-disclosure of certain pending cases against him. The appellant had contended that the election petition did not disclose any cause of action and was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.

• Right to vote is a constitutional right

In March of 2023, a Constitutional bench of the Supreme Court comprising Justices KM Joseph (now retired), Ajay Rastogi (now retired), Aniruddha Bose, Hrishikesh Roy and CT Ravikumar had sparked a debate on the legal status that is granted to a citizen’s right to vote. In the case of Anoop Baranwal v. Union of India, the four judges led by former Justice KM Joseph had declared the majority judgment which had held the right to vote to be a constitutional right. 

Former Justice KM Joseph, who had written the majority judgment, had held that while free and fair elections formulate a basic feature of the Constitution and is fundamental to democracy, the right to elect representatives is one of the most important statutory rights. 

The judgement had stated that “What is important is that the Court noted in Anukul (supra) that holding of free and fair elections constitute a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy. Even if it is treated as a statutory right…the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis.”

Notably, in the majority judgment, Former Justice Joseph had refrained from making a final judicial declaration in this regard chose not to “finally pronounce” on this aspect, while taking into account the view taken by an earlier Constitution Bench in Kuldip Nayar and Others v. Union of India and Others. In Kuldip Nayar, the top court had rejected the view that “right to vote is a constitutional right beside that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution.” 

In his separate but concurring judgment, former Justice Ajay Rastogi had differed from the view of the majority and held the right to vote to be a fundamental right. The former justice had said that by exercising the right to vote, the citizens of India get to choose their own destiny. The former justice had further observed that the right to vote is not merely a constitutional right, but a component of fundamental rights under Part III of the Constitution. Holding the same right to be indispensable, the then Supreme Court judge had gone on to state that the right to vote does not only remain limited to Article 326, but also flowed through Article 15, 17, 19 and reflected in Article 21 of the Constitution.

“In history, the right to vote was denied to women and those were socially oppressed. Our Constitution took a visionary step by extending franchise to everyone. In that way, the right to vote enshrines the protection guaranteed under Article 15 and 17…The right to take part in the conduct of public affairs as a voter is the core of the democratic form of government, which is a basic feature of the Constitution. The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen’s life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21,” former Justice Ajay Rastogi had said. 

Facts of the case: The aforementioned judgment of the Supreme Court came in the PIL (Public Interest Litigation) that was filed by Anoop Baranwal in the year 2005 on the ground that the current system for appointing members of the Election Commission of India (ECI) was unconstitutional. As per the PIL, the executive enjoyed the power to make appointments, which the PIL contended had degraded the ECI’s independence over time. The PIL pleaded for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments.

• Right to vote a constitutional right and not a statutory right

In February 2023, the question on the legal position that right to vote holds under the Indian Constitution was also referred to by a Supreme Court bench led by CJI DY Chandrachud. The bench, also comprising Justices PS Narasimha and JB Pardiwala, was hearing a PIL challenging the constitutionality of Section 33(7) of the Representation of Peoples Act 1951 that allowed a candidate to contest from two seats in elections. During the hearing, the CJI expressed his reservations regarding treating the right to vote as a statutory right. 

CJI Chandrachud had said “Of course, there are some judgments that say that the Right to Vote is only a statutory right and not a constitutional right. But no, it is a constitutional right because it’s a part of Article 19(1)(a) – the right of expression, the right of people to elect, and for people to vote.”

These remarks of the CJI stand right in the middle of ratio decidendi and obiter dicta. However, CJI Chandrachud did not elaborate much on this issue as it did not form an essential question in this matter.

A necessary shift?

Vote is an instrument by which a person elects their representative to represent them before the sovereign and the elected representative reflects and represents the people by whom that person is elected. It is crucial to highlight that through the current judgment, and the July judgment of the Supreme Court, the courts have also re-iterated the right to information that every voter is guaranteed with. A proper use of voting rights by citizens of a country can act as a shaping instrument of the future of any country, and it is the right of citizens to be supplied with information that aids their decision-making without any manipulation. In the year 2020, in Public Interest Foundation vs Union of India, political parties had been directed by the Supreme Court to publish criminal antecedents of contesting candidates along with reasons for fielding each one of these candidates, notwithstanding their ‘winnability’. Based upon the judgment of the Supreme Court, the Election Commission of India (ECI) had also issued a directive to implement the apex court’s orders concerning criminal antecedents of candidates.

The right to vote has been on a crucial judicial journey. A positive shift can be seen in this regard, with the Manipur High Court holding the said right to be an extension of the fundamental right guaranteed by India’s Constitution rather than a statutory expression provided under the Representation of Peoples Act, 1951. An unequivocal judgment of the Supreme Court declaring the right to vote as a fundamental right is the need of the hour as it is through this right that the citizens of India express their political will, exercise their choice and uphold the spirit of our democratic country. 

Related:

CJP moves Election Commission against Kailash Vijayvargiya speech offering money in return for votes

ECI undertaking to SC: Aadhaar number not mandatory to enrol as voter

The Missing Indian Voter, how many crores of Indians are missing from the electoral rolls?

Election Commission of India says voters’ names not to be removed without prior notice

The post Manipur High Court: Right to cast vote an integral part of Article 19(1)(a), affirms voters right to know criminal antecedents appeared first on SabrangIndia.

In their petition, the petitioners have essentially questioned the constitutionality of the Forest (Conservation) Amendment Act of 2023, arguing that the act represents a ‘dereliction of duty’ on behalf of the State who is required to protect and conserve the environment. Furthermore, according to The Wire, the petition argues that the new amended Act “introduces a regulatory regime that facilitates a regression in the nature and extent of protection that forests were afforded earlier.”, thus meaning that the government seems to have reduced its duties towards protection of forests as opposed to what it had signed up for earlier. Further arguing and identifying the potential ills that act would do for the environment, the petitioners have asked for the act to be rendered invalid. 

Under the Directive Principles of State Policy it is s the government’s mandated duty to safeguard the environment and forests. The Constitution has perennially entrusted the government with the role of a guardian for these vital natural resources. However, the proposed bill has raised concerns of potential misuse of this guardianship and attempts to escape from the responsibility that accompanies it.

According to Livelaw, the petitioners have also put this in view with the existence of legal principles in India such as the precautionary principle, intergenerational equity, principle of non-regression and public trust doctrine – each of these they argue have been ignored in the act.  

The petitioners consist of retired civil servants, including former members of ministries, as well as former members of the Standing Committee of the National Board of Wildlife, and other esteemed retired officials. The group of petitioners also has the former IAS officer MK Ranjitsinh, who led an advisory team which was created to assist the court on bringing back and reintroducing cheetahs in India.

Following the hearing, a notice from the Supreme Court has been served to the Ministry of Environment, Forest and Climate Change as well as the Ministry of Law and Justice. The government of India’s is expected to furnish an official response to the writ petition.

Senior Advocate Prasanto Chandra Sen, Advocates Kaushik Chaudhury and Shibani Ghosh are representing the petitions, whereas the Supreme Court bench comprises of Justice B.R. Gavai, Justice Aravind Kumar, and Prashant Kumar Mishra. The bench has called upon the Union Ministries of Environment & Forests and Law & Justice to furnish their response within a period of six weeks. History tells us this crucial petition could hold the potential to shape the future of environmental and forest conservation in our country.

What does the petition say?

Senior advocate Prasanto Chandra Sen for the petitioners has stated to the court that the amendment seeks to ‘restrict’ definition of ‘forests’ which was earlier defined by the Supreme Court in the 1996 TN Godavarman case, according to IANS. 

The 1995 case was a crucial chapter in the history of forest rights and environmental conservation in India when T.N. Godavarman Thirumulpad filed a landmark writ petition in the Supreme Court. The reason behind this legal action was the need to safeguard the Nilgiris forest land from the devastating consequences of illegal timber operations.

This petition has had far-reaching consequences for India’s forests and environmental sustainability. For in its response to the petition the Supreme Court issued a series of comprehensive directives designed to ensure the sustainable and secure use of the nation’s forests. Moreover, the court established an efficient framework that was tasked with keeping a check on monitoring and implementation where regional and state-level communities play pivotal roles in regulating the movement and felling of timber across the country. This was a landmark judgement which sought to secure India’s forests and their biodiversity – but especially so for the livelihoods and future generations of countless Indians dependent on them. 

However, the petitioners today argued that aspects in the amended law of 2023 are hazy and subject to interpretation, which the petitioners attest, may post a threat to the idea of public interest as well as have the possibility to work in favour commercial entities. The petitioners also argued that this could really ensure a setback for forest conservation efforts borne painstakingly in India, especially the north eastern states.

 The plea further asserts that, “Each diversion of land, without any cumulative ceiling being prescribed across the country, will pockmark our forests with cancerously growing deforested ‘islands’ and fragment them, causing enormous ecological loss.”

What is the Forest (Conservation) Amendment Act 2023?

The Forest (Conservation) Amendment Bill of 2023 passed in the Lok Sabha this year in July as concerns and fears run amok for forest rights activists and tribal groups. What essentially does the amendment seek to do?

According to Sabrang India, the act seeks to introduce broad changes to the 1980 forest law, which was initially formulated to stop the rampant transformation of forest land into land non-forestry purposes. The amended act wishes to exempt certain lands that come under this act thus seeks to make it easier for these lands to be stripped of trees and be used for commercial purposes. It must be of note that about 28% of India’s forests remain outside the purview of the Recorded Forest Area, and thus will lose whatever protection they had been afforded earlier. However, this is not the first time the law has been amended, it has been amended over the years, yet the dilution of the original provisions that were provided in this Act is what has been a source of immense alarm to activists and observers alike. 

The Act had originally granted the central government a pivotal role, entrusting upon it the authority and responsibility to ensure appropriate compensation when and wherever forest land was redirected for non-forestry uses, and what is more, this provision was extended even to lands not officially designated as ‘forest’ in government records.

However, the current set of proposed amendments have taken a steep shift from its previous trajectory. The government, in its response, has argued that these changes are motivated by the need for eliminating ambiguities and bringing clarity to the Act’s applicability across a diverse arena of land categories. However, critics argue that the act gives the government too many exemptions.

Among the proposed modifications, some are specific exemptions from the Act’s purview, while others actively advocate for plantation cultivation on non-forest land. Furthermore, these amendments aim to dismantle restrictions on infrastructure development, particularly in regions which are considered vital for national security such as those areas near the nation’s borders.

However, these proposed amendments have triggered concerns on multiple fronts. Foremost among these concerns is the fear that these changes may dilute the impact of the seminal 1996 Godavarman case judgement delivered by the Supreme Court. This landmark judgement was extremely progressive and ahead of its time in that it also extended protection to extensive, forest-like areas, even when official recognition as ‘forests’ was lacking.

Another contentious point in the amended act revolves around the exemption from the forest clearance requirement for construction projects that will be located within a 100-kilometre radius of international borders or along the Line of Control in geographically sensitive regions if they are being given for security-related to tourism related projects. Furthermore, the new Act will be applicable only to lands that have been designated and notified as forest under the law on or after October 25, 1980. 

Activists have contended that the proposed amendments might potentially weaken forest protection measures. In response, the Environment Ministry has countered these claims, asserting that the provisions embedded in the Bill have been carefully designed to guard against such scenarios. 

According to Hindustan Times, the petition today has asserted that “these kinds of exemptions will be the death knell of forests in India.” The future for forest rights stands at a crucial juncture. 

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The post Retired civil servants file petition against Forest (Conservation) Amendment Act, Supreme Court gives Centre 6 weeks’ time to respond appeared first on SabrangIndia.

Over the past weeks we have been performing our play Words Have Been Uttered (WHBU), which is an exploration of the idea of dissent. It’s not structured as a conventional play (one major theatre festival in India even rejected it because it didn’t fit into their definition of a theatre piece).

WHBU is eight of us, actors, and a musician, sitting in a shallow semi-circle, with our books, our texts, and musical instruments sharing with the audience a diverse selection of creative expressions of dissent. We read, recite, sing, and perform scenes from theatre, poetry, songs, satirical pieces, and even personal writings from across time, across cultures, across languages. These amazing texts question caste, gender, organized religion, superstition, authoritarianism, majoritarianism, notions of nationalism and much more, illuminating how nuanced the idea of dissent is, and how universal it is.

I usually introduce the evening to the audience to prepare them for what is to follow, and while doing so I acknowledge that the while the idea of dissent in our times seems particularly loaded and edgy, it has always been so. It is not easy for any society to deal with dissent, and it requires maturity and tremendous self-belief to engage with dissent in a positive and constructive way. Ideas need space to be aired, and people who are willing to listen. We need to be able to listen, agree, or disagree, and move on without fear of violence, humiliation, and threat.

We all agree that such spaces are shrinking, and we believe that theatre, in a fundamental way, offers such a space. The isolation of Covid-19 times brought into sharp focus what it means to be able to assemble and engage with live performance. A space where you enter as an individual and very quickly become a part of a group of people sharing a unique moment. Theatre is about story-telling, about personal experiences, and the use of metaphor. The mode of communication can be nuanced and appeal to mind and to the heart. Such a space can nurture ideas and open conversations – and be a radical counter to the frightening culture of hate, intolerance, violence and majoritarianism that we see around us. The overall response to Words Have Been Uttered by different kinds of audience validates this belief.

We are faced with challenges all the time whether it is censorship, cynicism, or of the threat of recrimination from the state. But the biggest enemy of arts practitioners which is perhaps the most difficult to overcome is self-censorship.

Over the past 10 to 15 years our work at Theatre Arpana, and Tamaasha Theatre has been across various genres of theatre practice and has been engaging with and presenting the complex nature of contemporary India, in conventional theatre spaces as well as in various alternative spaces. The work spans across themes and issues that concern modern Indian society, across class, caste, gender and other inequalities. Our choice of work has been possible because of an understanding of the theatre ecosystem in India, careful strategising, and a belief that theatre can respond to our times without losing out on audience engagement, and in fact, by celebrating the human spirit.

We may then wonder why the potential of theatre to play this role is not explored often enough. There are many different reasons why people make theatre. There is a large theatre practice which believes that theatre has to entertain and no more, a conviction shared with practitioners of other forms like cinema.  Unfortunately, the accepted norm is that entertainment and meaningful work cannot go hand in hand. This is not a place to argue that point, but I will add that cross overs have been tried, and several have succeeded. There are many examples in Marathi language theatre for instance where plays and theatre makers, both, have straddled the worlds of commerce and artistic practice. In our own work we have deliberately tried to place “our kind” of theatre thinking in mainstream spaces, and while we may not have been able to sustain this over time, our attempts have not been entirely unsuccessful.

Our 2012 production of Ramu Ramnathan’s play Cotton 56, Polyester 84 was a re-telling of the history of the textile mill workers of Mumbai. Told by two out of work mill workers, the play was developed by Ramu based on interviews with mill workers and their families, from court room trials where textile trade unions fought the powerful mill owners to secure the rights of mill workers, and Meena Menon and Neera Adarkar’s oral history of the history of Mumbai’s textile mills and trade unions. The play brought to light the suppressed history, subculture and marginalisation of the mill workers of Mumbai, whose plight was largely ignored in the raging public debate on the development of the mill lands.

As you can imagine Cotton 56 could be no stretch of imagination be called a conventional entertainer, and yet audiences in Mumbai and across the country responded to the play both intellectually and emotionally.

A few years later we made Sex, Morality, and Censorship written by Shanta Gokhale and Irawati Karnik, which dealt with the idea of censorship by examining the censorship of Vijay Tendulkar’s play Sakharam Binder in 1972. Using archival material from India and abroad, theatre history, arguments and scenes from Sakharam Binder, the play was again not conventional story telling. As a director I was very aware that we were constructing an argument about censorship of a play in the context of its times. Sex, Morality and Censorship went on to perform across the country, often in large auditoria, engaging with diverse audiences who seemed to connect to the ideas of the play.

In Loretta we adapted the colourful Goan Tiatr tradition to talk about narrow parochialism, language and identity, and linguistic purity and hybridity. This at a time when we were being asked to prove our “Indian-ness” by the rapidly growing ranks of right wing bhakts.

In Words Have Been Uttered we tried to push our own boundaries further by dispensing with frills and narrative support devices, and concentrate purely on the core idea of the play – dissent.

These and several other examples have convinced us that even audiences whose only exposure is to the conventions of mainstream theatre can surprise you with their acceptance of new ideas, non-conventional forms of theatre making. Unfortunately, there are gate keepers, in our own community, who show scant respect for audience “intelligence” and perpetuate the myth that audiences are not willing to engage with plays that have a more meaningful intent.

It is within the ecosystem of “smaller theatre” you are more likely to find work that is artistic in intent and responds to the time. The is the space we largely inhabit for a variety of reasons. To begin with, the economics and availability of smaller spaces are manageable. Often audiences that come to smaller plays and spaces are seeking something different, and hence are more open to new ideas and conventions. That’s half our battle won.

The downside? We get comfortable, even complacent, in a safe space, and you may be “preaching to the converted”. Of course, gatherings like these have importance too. There is tremendous value in people who share similar beliefs gathering and experiencing something that validates, or expands, the world of ideas they subscribe to. We know this doesn’t happen enough, and we must be careful not to take a cynical view of this. But the need to reach out to new audiences is critical, and difficult as it maybe, there is not getting away from it.

When we founded Tamaasha Theatre about ten years ago we did so with the clearly stated intent of working outside conventional theatre spaces, creating a theatre of ideas, and forging a different relationship with an audience. We expanded our definition of theatre beyond merely producing and performing plays, to training, study, and audience building.

Audience building is one of the most important aspects of theatre practice. This is not about merely publicising your performances where you look to get an audience into the performance space. It’s about building a longer-term relationship with people so that they see themselves as co-travellers in your journey. When we build audiences we also look to create diversity so that a broader representation of society engages with the work and ideas. Various strategies help this – pricing of shows, open sharing of ideas, diverse programming to cater to specific interest and so on.

We run a studio space in Mumbai, as an arts centre, where theatre practitioners, students, musicians, and occasionally dancers can meet, make work, and perform for audiences that are enthusiastic about engaging with the arts in more than a passive way.  In the last few years, we have often asked ourselves, how do we respond to the times. There is our own need, and also an expectation from our audiences and from our larger community.

These are our some of our dilemmas:

The space available for alternatives views, ideologies, and thoughts has always been limited, but in more recent times the situation has become much more fraught. It doesn’t take much for someone to take objection to a piece of work, or a thought, and for the authorities to slap rather serious charges on the hapless “offender”

We are not activists, so are we psychologically and otherwise prepared for this kind of an eventuality?

On the other hand, today more than ever before, the need for alternative narratives is critical.

Why do artists have an added responsibility? Can art provide the nuances that journalism cannot? Even the best of journalism? Can art resist the numbing influence of the mainstream? We believe the answer to both is yes.

And two events that took place at our studio validated this belief.

The first was when we did an evening of Urdu texts – poetry and fiction – that dealt with different ideas of Kashmir. The texts were written by some well-known writers both from within Kashmir, and outside, and some less known voices. As you can imagine, the evening was somewhat tense for us. We are open to all audiences and we exercise no control on who attends. There is a degree of unpredictability to an evening such as this. But as the texts unfolded within the framework of a context which was both literary and political, we sensed a mood of deep involvement and thoughtfulness in the audience. There was emotion, there was humour, there was on offer many ways of seeing a land, a culture, and a people over time. In the post reading discussion that followed we saw restraint and responsibility in the way people spoke. Not all views were similar, but everyone heard the other out, and discussion flowed outside the venue into our open terrace space.

On another evening we had a rendering of texts from Palestine and Syria, but we were careful to frame it within the context of a land under occupation, and how common images and ideas are often found in the cultural expressions of people under siege.

This time in the post-performance discussion, after the first polite questions, a dam seemed to burst, and there was an animated discussion.  A sense of relief at being able to speak was palpable in the room. This time connections were made to radical poetry from other parts of India and the world. There was an honesty and open-ness that was powerful.

We really are in no position to understand what happens after an evening like this. Perhaps the conversations are forgotten, perhaps they remain. It’s hard to say. Also, we have touched no more than 40 people in an evening. A tiny, tiny micro drop in our vast ocean. Are we deluding ourselves about the impact?

Difficult questions …

For those of us who learnt our theatre fundamentals in the 1970s and 1980s the times we lived in had a deep impact on our view of theatre. This was a turbulent period — the great railway strike in 1974, Jayprakash Narayan’s “total revolution” which led to the clamping of Emergency by Indira Gandhi, the birth of the human rights movement, emergence of the Dalit Panther party, and the textile strike of 1982. It was very clear to us that your work wouldn’t be taken seriously if it did not respond to its times. Today the situation is more fraught because authoritarianism is highly visible and resistance to it virtually invisible. There seems endless darkness. But we often remind ourselves of the inspiring words of the great writer Toni Morrison, 

“This is precisely the time when artists go to work. There is no time for despair, no place for self-pity, no need for silence, no room for fear. We speak, we write, we do language. That is how civilizations heal.”

(Sunil Shanbag is a Mumbai based theatre director and producer. He is the co-founder and artistic director of Theatre Arpana, and Tamaasha Theatre. Over the past 45 years, Sunil’s work spans across themes and issues that concern modern Indian society, across class, caste, gender and other inequalities) 

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The post Breaking silences makes civilisations heal: theatre director, Sunil Shanbag appeared first on SabrangIndia.

Bitter outbreaks of violence have claimed 100 lives, destroyed through arson at least 57 villages in the hills and rendered thousands from both sides of the ethnic divide that has taken a sectarian and majoritarian turn, displaced. Amidst this misery and insecurity, people of Manipur have been victim of a complete internet shutdown.

Five years in a row India has become the single largest internet shutdowns offender. In 2019, India took its place as the “Internet shutdown capital of the world” with 67% of the total recorded worldwide in 2018 peaking during the nationwide protests against the Citizenship Amendment Act. The longest shutdown was for 213 days in Kashmir when Article 370 of the Indian constitution was abrogated. In 2021, India saw a total of 21 internet shutdowns across the country. Early February 2021 marked yet another instance of the governments imposing complete shutdowns of internet access when there were blanket restrictions imposed on entire districts in the Near Capital Region. This was following the fallout of the powerful farmer’s protests. 

Manipur, a state on the boil since May 3, 2023 when violence erupted and for the fifth week of a deliberately inept government’s failure to protect lives, dignity and property, the state’s residents have suffered from regular internet outages, which have seriously added to the physical disruption of everyday life in the state. As we go to press, the state remains in the throes of an inter-net ban in force till June 10, Saturday. On Friday, June 9, when the Supreme Court was approached on the issue through its vacation bench, it has chosen not to intervene. These arbitrary internet closures break the crucial connection between people and the digital world, having far-reaching detrimental effects on economies, education, information access, social cohesion, and the fundamental foundation of democratic societies. In order to protect the open and inclusive nature of the internet, which has evolved into a crucial cornerstone of contemporary lives, it is vital to acknowledge and address the devastating effects of internet shutdowns.

The shutdowns in India have been arbitrary and the result of a unilateral decision of the government adding to the list of shutdowns in the country in the name of curbing political unrest. The Ministry of Home Affairs (MHA) have deemed this necessary for the “maintenance of public safety and averting public emergency” – words employed that are overused bureaucratic generalisations that, in effect, impose restrictive measures which violate human rights on multiple fronts, the freedom of expression, the right to access information leaving citizens left to emergency health services, other online basic necessities and moreover, with little or no access to grievance redressal mechanisms.

Are authorities justified in exercising such control over the internet or are internet-shutdowns actually counterproductive? Do digital rights stand in equivalence with those in or of the real world? Are the internet bans of Manipur a part of a larger narrative that defines the attitude of the central government towards its citizens and freedom of expression? 

We look at Manipur’s internet shutdowns or “net ban” and their implications for lives and freedoms.

The Law

The basic legislation governing telecommunications in India, the Indian Telegraph Act of 1885, gives the government the authority to take actions to uphold public order and national security. In the interest of public safety, the government may issue orders under Section 5(2) of the Act ordering the interception or blockage of messages. Additionally, the government may order the blocking or prohibition of websites or information that it deems to be a danger to public order or national security under the Information Technology Act, 2000, which is the fundamental law controlling internet-based communication in India.

In order to impose an internet ban, certain basic procedure must be fulfilled, according to the Supreme Court of India. These recommendations are:

1. A court must have the authority to evaluate any internet censorship.
2. The government must give public justifications for blocking internet access.
3. The government must follow the concept of least restrictive action and the internet ban cannot be enforced arbitrarily.
4. To guarantee that citizens’ fundamental rights are not infringed in the name of security, the government must take into account how a ban on the internet would affect the populace.

A Chronology

In Manipur, there were multiple instances when internet shutdowns were placed and made public. Legal Support: Section 144 of the Code of Criminal Procedure (CrPC) governs the use of the internet in Manipur. Local governments have the authority to impose orders under Section 144 that forbid gatherings of four or more individuals in one place and limit the mobility of people during emergencies.

The website internetshutdowns.in lists all 6 of them:

1. Complete Internet shutdown (mobile and broadband, except for certain BSNL lines) starting September 2, 2015 after violence in Churachandpur district (Protests after the passage of the Protection of Manipur People Bill)
2. Orders were issued by the District Magistrate to disconnect mobile Internet services in Imphal East and Imphal West from December 18, 2016 due to law and order turmoil over economic blockade by the United Naga Council (UNC). 
3. Following a protest demanding the ouster of Manipur University Vice Chancellor Adya Prasad Pandey, the Manipur Government ordered the suspension of all the telecom services except voice calls in Manipur on July 20, 2018 for five days as a precautionary measure to prevent from any disturbances of the peace and public order in the jurisdiction of Manipur.
4. In the light of a massive protest by students following the arrest of eighty students and six professors of the Manipur University. Internet services have been suspended for the entire state of Manipur since Friday September 21, 2018 afternoon for next 5 days.
5. Mobile internet services were suspended in Imphal from midnight on Tuesday, February 12, 2019, as a precautionary measure as protestors against Citizenship Amendment Bill decided to fight till the end.
6. Manipur government has ordered shutdown of services in the state for three days from March 16, 2020 to prevent misuse of social media to spread hate video messages and images following clashes between two villages over a dispute.      
7. November 2020 – In response to a demonstration over an alleged death in custody, the Manipuri administration announced the suspension of mobile internet services in the Imphal West area.
8. Following conflicts between police and farmers on strike, the Manipuri government announced the suspension of mobile internet services in a few Imphal neighbourhoods in February 2021.
9. After militants attacked a police station in August 2021, the government of Manipur announced the suspension of mobile internet services in several areas of the Imphal East and Imphal West districts.
10. October 2021, in response to demonstrations against the assassination of a police officer after an encounter with alleged terrorists, the government of Manipur ordered the suspension of mobile internet services in Imphal city and many other districts.
11.  In response to demonstrations against the Citizenship Amendment Act (CAA), the Manipuri government announced the suspension of mobile internet services in a number of Imphal neighbourhoods in February 2022.
12.  Due to security concerns, the Manipuri government has now prolonged the internet blackout until June 10, 2023.

As can be observed from the data, since 2016, there have been sporadic internet shutdowns and limitations in the north-eastern Indian state of Manipur. These shutdowns have been justified on grounds of law and order, public safety, and national security, among other things. The outages, which often lasted for days, weeks, or even months, have affected both mobile data and internet services. The internet prohibition in Manipur has had a substantial negative impact on a number of sectors of daily life, including social media, business, health, education, and business. Additionally, it has come under fire for allegedly violating access to information, freedom of speech, and other fundamental rights. Many people and groups in Manipur and beyond have spoken out against the ban and asked for it to be lifted. Others have also petitioned the courts. With little relief.

In March 2020, as the whole nation was preparing to face the unprecedented crisis of the Corona virus pandemic, the people of Manipur faced their sixth mobile internet shutdown. That is a shocking six shutdowns in less than 5 years. The imposition of lockdowns and curfews to contain the spread of the virus were in the happening stage. But the people of Manipur were going through a gagging of sorts, albeit digitally. The shutdown of all mobile internet telephony in the state was premised on the curbing of communal tensions when a clash between two villages in the hills brought to the fore old communal wounds between two major communities of Manipur- the Kukis and the Nagas. Although violent content and disinformation has seen an increasing rise in circulation since the proliferation of the internet in Manipur, the feud that ignited this time was decades old and tensions among the Nagas and the Kukis in general have existed from pre-independence period. 

Then, in May 2023, yet again, a conflict between the ethnicities of Manipur-Meitei and Kuki clashed. Response from the powers that be? An internet ban. While ordinary people in Manipur may and do experience psychological and related anguish as a result of the unexpected lack of internet connectivity. Frustration, boredom, and a sense of powerlessness can emerge from not being able to communicate with people, obtain information, or participate in routine online activities. Particularly for people who significantly rely on the internet for social connection and support, this might have a negative impact on mental health. The internet has developed into a potent medium for sharing ideas, promoting social awareness, and taking part in political debates. A prohibition on the internet hinders individuals in Manipur from exercising their right to free expression and prevents them from participating in political debate, which reduces democratic participation. The internet is a huge informational resource that individuals may use to research a variety of topics, obtain instructional materials, and remain current on current events. When internet is prohibited, the people of Manipur have less access to news, research resources, and knowledge, which impairs their capacity to decide wisely and pursue intellectual activities.

An analysis of internet shutdowns during the Covid-19 pandemic

Internet shutdowns are imposed for a variety of reasons with varying degrees of disruption across the world. A resolution passed by the United Nations in 2016 identifies prevention of social media from “spreading messages that may incite anti-social sentiments in a sensitive situation” as the most commonly cited reason for internet shutdowns. The Manipur state government has enforced internet shutdowns for two primary reasons- either to contain the spread of sensitive content in communally tense situations or as “precautionary measures” during mass protests against the government. 

Whether or not such bans work can be contested as there is no proper evidence that they do. Consider the example of the internet shutdown of 2020 in Manipur following the incident at Chassad village, a remote village in Kamjong district, where a communally charged mob lit houses on fire and caused severe property damage. There is a stark urban-rural digital divide that exists in Manipur where a majority of the internet service users as well as the infrastructure that enables these services are concentrated in the cities and towns. Imposing a blanket ban on the internet services does not really make sense as those who are likely to be fuelled by the hate messages or disinformation regarding the Chassad village incident, do not largely have access to social media and mobile internet in the first place. It is also safe to say that the communal tension arose not as a result of social media content. 

Another point of note is that the imposing of internet shutdowns simply assumes that the people have no ability to filter of information and are gullible to any kind of information that is circulated on social media. It is not a well thought out decision of the government to assume that there will be state-wide riots if the social media content is not stopped from circulation in this context. 

There is still another obvious angle from which the shut down in free flow of information and communication at times of social tension can be gauged. False information and rumours that have the potential to start riots and rumours never really required the internet to manifest. One can argue that the internet can only make the spread faster. But a counter argument would be that quelling of fake news and quicker debunking of rumours can also be similarly made faster and more efficiently through the internet. Hence the shutdown has the potential of both allowing rumours and false information unchecked among affected communities and localities. This does not mean to undermine the potential hazards of an ill purposed piece of information in times of heightened public tension but rather points to the bigger picture while analysing measures to maintain order. 

Consider the internet shutdown that was imposed on the entire state following the widespread protests in Manipur University (July 2018) demanding resignation of Manipur University Vice Chancellor Adya Prasad Pandey- who was accused by both students and staff for inefficiency and attempts of saffronisation in education. Clearly the ruling party of the state, BJP, had a political stake in the fall out. Nonetheless it was a varsity issue confined to the state actors and the university. However, in response to this localised protest, an Internet shutdown was imposed on the entire state premised on prevention of “disturbances of peace and public order” leading to some districts even claiming that a localised issue was unfairly converted into a state issue. There  was little chance of the law and order situation breaking down in the entire state considering that the people of Manipur have grown somewhat allergic to turmoil ever since the insurgency era.  But the state government responded in an exaggerated way.

Arguably, such shutdowns attempt to limit the potential and reach of social media and new internet media as locations for public discussions and opinion formation. This can be interpreted as the response of a government in a state of moral panic, trying to divert or unnaturally diffuse issues behind citizens’ agitation.  Besides, the internet has indeed created a more open and fluid political opportunity structure. For instance, there has been an emergence of a large number of viral content that has political opinions regarding Manipur and social media that have enabled formation of large public forums to discuss political issues openly without any old media mediating them. The electronic and print media even interprets and cites such content from the internet to disseminate information and news. This also allows for a more decentralised form of opinion sharing. This kind of dynamic that the internet enabled social media and new media brings is what causes uncertainty and moral panic among the elite politicians of Manipur, perhaps. 

The 2023 internet ban

Manipur has seen 100 lives lost, close to 5 dozen villagers arsoned and thousands displaced in the current conflict. Some aspects of the ongoing conflict has a long-standing, centuries-old historical origin that include land conflicts, issues with culture, language, and identity. The ban justified on predictable grounds, has in fact served to inflame the dispute.

The state of Manipur’s internet censorship has had a significant impact on people’s everyday life, access to essential services, access to healthcare, communication, business, and education. It has made it significantly more difficult for people to access emergency services, online education, and medical treatment, which has had a detrimental impact on their health and generated financial losses. Additionally, it has violated people’s fundamental rights by restricting their freedom of speech, expression, and access to information. 

Lives: People’s access to life-saving medical information and emergency services may be hampered by a lack of internet connectivity. For instance, the internet restriction has had a significant negative impact on Manipur residents’ ability to use telemedicine services, which are necessary for healthcare consultations.

Security: The internet has developed into a vital tool for law enforcement organisations to exchange vital information and plan emergency responses. Public security may suffer because of Manipur’s law enforcement authorities’ struggles to keep up with the rapidly evolving security environment as a result of the internet ban.

Jobs and employment: Since many businesses rely on digital platforms for their operations, a lack of internet connection may result in job losses. The region’s start-ups and the IT sector, both of which depend on internet connectivity for their operations, have been disproportionately affected by the economic effects of the internet ban.

Communication and education: The internet has grown in importance as a tool for communication nowadays, and Manipur’s prohibition on it has made it difficult for residents to connect with one another both locally and internationally. In the modern world, social media platforms like WhatsApp, Facebook, and Instagram are crucial for communication, and it is challenging for individuals in Manipur to remain in touch with their loved ones or obtain crucial information. Due of the Covid-19 epidemic, many schools and colleges in Manipur have been shuttered. The internet restriction has prevented students from using online learning tools including video lectures, notes, and study materials. It has had a significant influence on the region’s pupils’ access to a high-quality education.

Some well-sourced real-life examples of what happens with a lack of access to the internet in Manipur include: 

1. Health care: In Manipur, a patient passed away in September 2021 after an ambulance became delayed in traffic for hours because there was no way for law enforcement and medical personnel to connect because of the internet ban. The internet embargo has had a significant negative impact on emergency services including ambulances, hospitals, and governmental organisations. Emergency response coordination has grown challenging, sometimes resulting in delays
2.  Education: A story in The Wire claims that students in Manipur have been unable to attend online lessons as a result of the internet restriction, which has affected their capacity to finish their assignments and prepare for examinations. Due to the crisis, schools and institutions have been shuttered, thus students have been using online learning tools. However, because of the internet censorship, students are unable to access online courses, study materials, and notes, which has an effect on their education and chances for the future.
3. Economy suffers, financial and business losses: According to a research by the Internet and Mobile Association of India, Manipur’s internet ban has cost the state’s economy around INR 1,100 crores and resulted in job losses and firm closures. Due to the internet restriction, several online firms in Manipur were forced to close their doors or temporarily halt operations, which resulted in a considerable loss of revenue and employment. Financial transactions have been challenging since the internet was banned, causing delays in day-to-day operations. Due to the absence of accessibility to online payment methods, many individuals and small and medium-sized enterprises who depend on a digital economy have been severely harmed.

Jurisprudence around internet shutdowns 

The Indian Supreme Court’s rulings should heavily influence the internet restriction regulations. However, the failure of all governments, union and state, to implement Supreme Court rulings is legendary. Policy loopholes exist which allow for freedom of speech and ideas of liberty to be restricted without question. These were further brought out as burning issues of debate when the longest internet shutdown was imposed in Kashmir following the revoking of its status through Article 370. The policy mechanism for imposing such bans is the Temporary Suspension of Telecom Services Rule under the Telegraph Act, 2017 which contains broadly worded phrases like “public emergency” and “in interest of public safety”.  This allows the act to be extended to cover any ambit of communication including those enabled by the Internet.

In 2018, the Manipur government suspended the internet for five days amidst the protests against the Citizenship Amendment Bill 2018. This was an instance when the internet shutdown was used as a digital embodiment of the section 144 of the Indian constitution used to limit people’s movements and public assemblies. Media coverage was further limited by invoking the Cable Television Networks (Regulation Act), 1995 to effectively stop all TV news coverage of the protests. 

The Supreme Court of India ruled in the landmark case of Anuradha Bhasin v. Union of India (2020) that indefinite internet shutdowns are prohibited and that any restrictions on internet access must be justified by the concepts of necessity and proportionality. The court ruled that an internet blackout must only be a temporary solution and be up for legal review. According to Article 21A of the Indian Constitution, the ability to use the internet is a basic right that is a part of the right to education, according to the constitutional courts that followed the Kerala High Court (2017) ruling in Faheem Shirin R.K. v. State of Kerala. The court found that any limitations on the internet must follow the rules of proportionality and must not unnecessarily impede the right to education. The court acknowledged the significance of the internet as a vital instrument for obtaining information and education. The ruling offers essential advice on how to strike a balance between the state’s justifiable objectives and people’s constitutional rights to an education and internet access. The Court also emphasised on the need for transparency and has mandated that shutdown orders need to be published. This was as far as the judicial review went but it does not provide a long term solution to the government’s monolithic grasp over the Internet. 

Hearing the petition, some months down the road (internet shutdown in J & K 2019), the Supreme Court of India however ordered the constitution of a Special Committee to review the restriction of internet mobile service to 2G in the Union Territory of Jammu and Kashmir. The petitions were brought by the Foundation for Media Professionals, a lawyer, Soayib Qureshi and the Private Schools Association of Jammu and Kashmir, seeking the restoration of 4G internet in the region following the communication blackout imposed by the central government in August 2019. The Court recognised that the rights to freedom of speech and expression, health, education and business must be balanced against the prevailing national security concerns. Applying the minimum standards for internet restrictions set out in Anuradha Bhasin v. Union of India, WP (C) No. 1031/2019, the Court held that the impugned order did not “provide any reasons” for the blanket enforcement of the shutdown across all districts. 

However, the Court held back from declaring the ban to be a constitutional violation [para 19]. While the petition would “merit consideration” in “normal circumstances”, the particular “compelling circumstances of cross border terrorism” prevented the Court from finding a this to be a constitutional violation. [para. 19] Rather, the Court directed the constitution of a Special Committee, led by the Indian Home Secretary, to evaluate the necessity of the internet restriction in Jammu and Kashmir. The Court did however emphasise on the need for transparency and has mandated that shutdown orders need to be published. This was as far as the judicial review went but it does not provide a long term solution to the government’s monolithic grasp over the Internet. 

The Internet Freedom Foundation v. Union of India case came before the Indian Supreme Court in 2019. The Internet Freedom Foundation, a non-profit organisation that concentrates on digital rights and freedoms, filed the lawsuit. In the case, the government’s practise of imposing lengthy and frequent internet shutdowns across India was contested, and the court was asked for rules to control and limit the use of arbitrary internet shutdowns by the government. The right to free speech and expression, the right to possess property, and the right to an education are among the fundamental rights that, according to the Internet Freedom Foundation, are violated when the internet is shut down. According to the Supreme Court’s ruling, protracted and frequent internet outages are illegal and infringe on residents’ basic rights. The court established a number of rules for the government to abide by when shutting down the internet in exceptional circumstances, including that any restrictions on internet access must be the last resort, must be the least restrictive way to accomplish the intended goal, must be time-bound, and must be subject to regular review and scrutiny. The government needs and must immediately post all orders relating to internet shutdowns, along with their justifications, according to another court decision. The ruling highlighted the significance of a free and open internet in promoting democracy and upholding fundamental rights, and it was viewed as an important win for internet freedom in India.

The court further ruled that the government must follow the principle of least restrictive action, which states that all alternative options must be explored before enacting an internet ban. The court additionally found that the government may only impose an internet restriction under special circumstances, and that such bans had to be justified and regularly reviewed by a competent body. 

A petition asking for the restoration of internet services in Manipur, which had been without them for several months, came up before the Supreme Court of India in October 2020. The argument made in the petition was that the internet blackout was implemented arbitrarily and infringed on residents’ basic rights. But in January 2021, the Supreme Court decided against getting involved right away, saying there was no compelling need to do so. The state administration had previously established a review committee, the court noted, to determine whether the internet shutdown was necessary and how much it should be removed. 

The review committee was instructed by the court to present its findings to the government within seven days, and the administration was also given a week to evaluate the report and decide whether to remove the internet closure. The government was also ordered by the court to publish all orders pertaining to the internet shutdown, along with the justifications for them. The Supreme Court emphasised the significance of examining the necessity and proportionality of internet shutdowns and established rules for the same even though it declined to immediately intervene in the case. The court ruled that any limitations on internet use must adhere to the principles of necessity and proportionality, and that the government is required to make any orders pertaining to internet shutdowns and their justifications public.

On June 9 (2023), again, the Supreme Court of India’s Vacation Bench declined to make an immediate intervention in the case of the current internet blackout in Manipur. The Bench noted that there wasn’t a pressing need for the court to get involved right away. The state government had previously established a review committee to determine whether the internet restriction was still necessary, and the committee had filed a report with recommendations to relax the ban in some places, the court noted. The state government was ordered by the court to take into account the review committee’s report and act appropriately in light of it. The government was additionally ordered by the court to take into account the affected people’s worries while making any decisions about the internet restriction. The lack of “evidence that the situation had worsened since the ban was first imposed” appears to have contributed to the court’s lack of urgency in the case.

The internet ban in Manipur raises important questions about the balance between national security and individual rights. The government must ensure any restrictions on internet access are proportionate and narrowly tailored to achieve the desired objective. The internet has become an essential tool for communication, education, and commerce, and any restriction on internet access affects not only the right to freedom of speech and expression, but also the right to information and the right to conduct business. The government must weigh these competing interests carefully before imposing an internet ban.

1.  Violation of Fundamental Rights: International organisations and civil society organisations have criticised the internet censorship in Manipur for infringing on the citizens’ fundamental rights to information, speech, and expression.
2.  Information Access: Today, the internet is a crucial source of news and information. The Manipur internet ban has made people more susceptible to propaganda and false information since they are unable to obtain news about regional and international developments.
3. Health, Job, Employment: emergency and everyday health services, government social security schemes, online employment and educational opportunities all seriously get affected with such a blanket ban.

India: what lies ahead?

The number of internet shutdowns in India has surpassed those that have occurred in some of the most autocratic states of the world. This begs the question- Is our country, under the current leadership, becoming increasingly autocratic? The recently notified IT Rules of India are a step towards cementing the monolithic grasp over the internet by government. 

A larger narrative, then, that can be drawn from this is the tactics of the government that goes along Agamben’s theory of the state of exception which is when the state suspends ordinary rules of all citizens or some citizens to allow the state to undertake any course of action including a violation of rights. Places like Manipur, the North East region and Kashmir usually come under these states of exception where rights could be violated by the state for various “exceptional” reasons almost always justified in the interests of the “nation”. 

Now, extending far beyond the “border” areas of Kashmir and the North-East, across the country, the reasoning behind most internet shutdowns reflects the same trend- political unrest, communal tension and anti-government protests. 

Is the entire country now being put in a state of Agamben exception?

[This piece does not premise itself on the belief that the Internet should be a free and unregulated space for pursuits like the neoliberal agenda of the OTT players. Nor does it claim that social disturbances cannot be caused by the media messages or information disseminated through online mediums. The overarching argument is that there are policy gaps which call for better regulatory norms and a more transparent and accountable dissemination of the required understandings of internet as an entity in a democratic country like India.] 

 (This resource was put together under the guidance of the CJP Legal Research team by an intern Khaidem Nongpoknganba in 2020 with some recent inputs from Khyaati Thingnam)

¹ The rules make it a compulsion for messaging platforms to allow identification of “first originator” of information that undermines “sovereignty of India, security of state and public order”. Of course this comes in direct conflict with people’s right to privacy. As per the rules, social media intermediaries are not only required to adhere to the set rules but also mandated to appoint chief compliance officer, nodal contact person and resident grievance officer- a step towards centralising the command and control of the digital space, a step that acknowledges the internet as an enabler of social interactions and an extension of the public sphere.

Related: 

Right to Internet: Is it a fundamental right in India?

Cannot suspend internet for more than 15 days says Centre

Farmers’ agitation: Students miss online classes due to internet suspensions

After 18 months, J&K gets 4G internet back!

No order on 4G restoration in J&K: SC

J&K to spend Diwali with 2G internet

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The right to health should be enacted as a fundamental right, demands Oxfam India in its Inequality Report 2021. The report analyses the country’s weak public healthcare system, health inequalities and the ongoing pandemic.

Titled India’s Unequal Healthcare Story, the report provides a comprehensive analysis of the health status across different socioeconomic groups such as marginalised communities that suffer from ill-health the most.

“The general category performs better than SCs and STs, Hindus perform better than Muslims, the rich perform better than the poor, men are better off than women, and the urban population is better off than the rural population on various health indicators,” said the report in its introduction.

Further in the report there is a closer look at health inequalities during the recent health emergency.

India’s healthcare and Covid 19

While analysing state performance in terms of the global pandemic, the report found that states that attempt to reduce social inequalities and spend more on health reported lower confirmed cases. However, states attempting to reduce inequalities showed lower recovery rate as well. 

According to contributor Apoorva Mahendru, this may be because the ‘Reduced Inequality Index’ used by the report does not take into account factors like social distancing, access to improved water and sanitation. Such access contributes greatly to recovery from Covid-19. These same factors are not easily available for marginalised communities.

Similarly, higher-income groups could easily arrange for transport to hospitals. Among the lowest income bracket, comprising households with a monthly income of Rs. 15,000, the report found that 30 percent had to arrange for transport themselves. In households with income of Rs. 30,000 or less, 14.8 percent and 22.2 percent faced issues of slow response and quality of food served, respectively.

“Percentage of respondents in low-income brackets facing discrimination in the community due to being Covid positive was five times than those in high-income brackets,” said the report.

Further, over 50 percent of people hailing from Scheduled Castes (SC) and Scheduled Tribes (ST) faced difficulties in accessing non-Covid medical facilities compared to 18.2 percent in the general category. In the same way, only 3.9 percent of general category respondents depended on springs or streams for water consumption. The figure for Scheduled Castes was four times that of the open category. This means that more SCs were forced to use unsafe sources of water.

In terms of gender disparity, 33.9 percent of female respondents experienced anxiety, irritation and anger, and sleep-deprivation during the lockdown compared to 18.2 percent males.

“This is because of an increase in women’s unpaid care work burden at home, increase in cases of domestic violence, and probability of re-employment of women lesser than that of men post-lockdown,” said the report.

Experts also pointed out that current vaccination drives are blind to the digital divide in India. At the beginning of the pandemic, only 15 percent rural households had internet connection, smartphone users in rural India were almost half of urban India. More than 60 percent of women across 12 states said they had never used the internet. SCs and STs with smartphones stood at 25 and 23 percent respectively, while 43 percent open category individuals had access to smartphones.

“The number of Covid cases doubled in the second wave. The second wave hit the middle class more with 90 percent of all cases in Mumbai concentrated in high-rise buildings, while 10 percent were in slums,” said the report.

Considering infrastructure, India ranks 155 out of 167 countries on bed availability. It has five beds and 8.6 doctors per 10,000 of its population. However, only 40 percent of beds are concentrated in rural India that houses 70 percent of the population.

Social inequalities and its impact on healthcare

Using National Family Health Survey (NFHS) 3 and 4 data, the report stated that literacy rate for general category women is 18.6 percent higher than SC women and 27.9 percent higher than ST women.

“Education, specifically of women, has a direct effect on improving the health outcome at the level of the household as educated women are known to take informed healthcare decisions,” said contributor Khalid Khan.

Thus, the health inequality is evident in the attainment of female literacy with a gap of 55.1 percent between the top and bottom 20 percent of population in 2015-16.

In case of water and sanitation, two out of three households have access to improved, non-shared sanitation facilities in the general category. Meanwhile, SC households are 28.5 percent behind the open category and ST are 39.8 percent behind them. It is worth noting that poor water, sanitation and hygiene conditions were responsible for 1,00,000 deaths from diarrhoeal diseases in under-five children in 2015 in India.

Moreover, while 93.4 percent of households in the top 20 percent have access to improved sanitation, only 6 percent have access in the bottom 20 percent, a difference of 87.4 percent.

Regarding household expenditure on health, one in every six rupees spent on hospitalization by households is financed through borrowings. Less than one-third of households were covered by a government insurance scheme in 2015-16.

Another indicator of health inequality are institutional and home births. Though the gap in the institutional delivery of rural-urban, caste, religion and income groups has been declining over the decade, inequality prevails across these categories.

Institutional births in ST households were 15 percent below general category births in 2015- 16. There is a 35 percent gap in institutional births between the lowest and highest 20 percent wealth quintile groups in 2015-16.

Further, despite improvement in child immunisation, female-child immunisation rate continues to be below that of the male child. Similarly, more children in urban areas are immunised compared to rural children. Immunisation of SCs and STs is behind that of other caste groups. The child immunisation of the high wealth quintile group is much higher than of low wealth quintile.

Even in terms of nutrition, the difference between stunted children in SC and ST households and those in general category households is 12.6 and 13.6 percent, respectively. One in every two children are anaemic, wherein 60 percent of anaemic children are from SC and ST households.

Efficacy of government intervention

In the last 10 years, around 18 percent Indians have begun seeking some form of healthcare when they report being sick. Still, the current health status is a testament to the unfulfilled dream of ‘Health for All’ said contributor Mayurakshi Datta.

“The right to the highest attainable health is far from being realized. This holds especially true for the socially and economically marginalised,” said Datta.

In the 2021-22 budget, the health ministry has been allocated Rs. 76,901 crore, 9.8 percent less than Rs. 85,250 crore reported from revised estimates of 2020-21. Moreover, public funds for health have also been invested specifically on secondary and tertiary care rather than primary healthcare. Meanwhile, private healthcare providers are thriving, widening inequalities along caste, class, gender and geography.

“Health insurance schemes are being promoted as a way to achieve UHC [Universal Health Coverage] and to reduce OOPE [Out-of-Pocket Expenditure]. But evidence shows that the limited scope and coverage of the insurance schemes cannot address the all-encompassing requirements of UHC,” said the report.

So what next?

Aside from a call for right to health and free vaccine policy, the report called for an increase in health spending to 2.5 percent of GDP at the union and state level.

They also called upon the government to ensure that union budgetary allocation in health for SCs and STs is proportionate to their population while dedicating two-thirds of the concerned budget to primary healthcare. The centre should provide financial support to states with low per capita health expenditure to reduce inter-state inequality in health.

Regions with higher concentration of marginalised population should be identified and public health facilities should be established, equipped and made fully functional as per Indian Public Health Standards (IPHS).

While the report does not endorse Government-financed Health Insurance Schemes (GFHIS) as a way to achieve UHC, it is imperative that GFHIS widens its ambit to include outpatient costs as a way to reduce out-of-pocket expenditure (OOPE).

Experts also called for a centrally-sponsored scheme that earmarks funds for free essential drugs and diagnostics at all public health facilities. Further, rights under the Patients’ Rights Charter should be made enforceable by law.

The private health sector must be regulated by ensuring that all state governments adopt and effectively implement Clinical Establishments Act. They also called for regularisation of women frontline health workers services especially Accredited Social Health Activists (ASHAs), establishing government medical colleges with district hospitals prioritising their establishment in hilly, tribal, rural and other hard-to-reach areas, enhancing medical infrastructure and establishing contingency plans for scenarios such as the second wave of the pandemic.

Report can be read here:

Related:

Is the right to health a forgotten constitutional mandate?
Protect people’s health and life: JSA to gov’ts
Great Number Game of Vaccine Funding: Zero Allotment = Rs. 35000 Crores !!!
Using digital portal for vaccination will impede universal immunisation: SC

The post Make Right to Health a fundamental right: Oxfam India’s report on unequal healthcare appeared first on SabrangIndia.

The choice of what food we eat or do not eat, is both dictated by cultural choice and economics. Regimes, especially authoritarian ones impose restrictions on this choice. Here we explore who decides what people eat in which Indian state, and how meat is politicised to impose “upper” caste culture upon the “lower” castes. Also, how courts have tried to balance constitutional provisions and fundamental rights while dealing with the politics of meat consumption.

On June 22, Kerala High Court stayed an order passed by the Lakshadweep administration to close down dairy farms on the islands and change the midday meal diet of school children by excluding chicken, beef, and other meat from the menu. The UT administration had decided to shut down dairy farms and auction off the animals which did not go down well with people residing in the UT. The inclusion of meat and eggs in mid-day meals has persistently been a contentious issue.

In the state of Gujarat in the mid-1990s – early 2,000s Dalit and Muslim mothers would be warned if they packed a boiled egg in the tiffin(s) of their school-going children. In April 2000, in its cover story on Gujarat, Face to Face with Fascism, co-editor, Teesta Setalvad had reported how, in the three years previously, “Members of the RSS–BJP–VHP combine have deliberately raked the whole issue of slaughter on Bakri Id, since 1997.” Waljibhai Patel, the doyen of the legal struggle for Dalits and minorities in the Gujarat High Court through his organisation, the Council for Social Justice (CSJ), told CC, “Jains are barely 0.2 per cent of the population but are extremely wealthy and influential. Hence the hue and cry around Bakri Id that also falls close to Mahavir Jayanti. Digambar Jains have a fortnight of observance of Paryushan.” 

In 1997, Jains demanded that the slaughterhouse be closed for two weeks in consideration of their sentiments. Waljibhai asks, “Seventy–eighty per cent of the population that includes SCs, STs and the religious minorities are beef-eating, how are they expected to survive?” He further told the publication, “We challenged this move in the High Court challenging the state’s right to tell us what to eat and what not to eat? They even tried getting restaurants to shut for a full month during the month of Ramzan in 1997 on the ground that the smell of non–vegetarian food offends their sensibilities!”

The writ petition in 1997 resulted in a Gujarat High Court order directing that the slaughterhouse be re-opened. But the influential Jain lobby again voiced the same demand the very next year — this time with the BJP in power. Once again the CSJ approached the court and the HC directed the slaughterhouses to remain open for the entire fortnight, barring the first and last days. The politics over meat-eating that targeted both Dalits and minorities reared its head in the state of Gujarat, recognised as the harbinger of hardline Hindutva, authoritarian politics in the country.

It is not just the mid-day meals that the issue of meat has been raised. In May 2017, the Central government attempted a complete ban on slaughter of cattle including – cows, buffaloes, bullocks, calves and camels- but this decision was stayed by the Supreme Court as it interfered with livelihood of people involved in leather and tanning industry as well as the meat production industry.

India has consistently witnessed the politicisation of food culture, be it in mid-day meals or the food on the plate of a common man. Such politics goes hand in hand with the politics of caste and religion. It has been largely observed that right wing states are more likely to get rid of meat and eggs from the mid-day meal scheme that is supposed to provide food of nutritional value to children attending government schools to check growing malnutrition among young children. The irony is that the decision regarding exclusion of eggs from mid-day meals is usually taken by upper castes in positions of power while their children do not attend government schools and take benefit of these schemes. It is people from marginalised sections and Scheduled Castes and Scheduled Tribes whose children attend government schools and are in need of the nutrition that mid meals aim to provide, yet these beneficiaries are not represented in the positions of power who ultimately make such decisions. Studies reveal that most of rural India, the coastal states and the north-east have meat-consuming communities.

This, despite the fact that the majority population in India are meat eaters, and meat consumption is high especially among the SC and ST communities and of course India’s religious minorities. Thus, it is merely an attempt of the upper castes imposing their values or their eating habits upon the lower castes. A strong case has been made for inclusion of eggs in mid-day meals hailing eggs as nutritional superfood with longer shelf life as also source of rural employment.

In Chhattisgarh when BJP came to power in 2015, eggs were removed from midday meals saying it hurts religious sentiments of the people. In 2019, when a Congress government came to power, it re-introduced eggs in midday meals to fight chronic malnourishment among school children; while it kept bananas in the scheme for vegetarian preferences. The party in opposition, BJP, claimed that the move will force vegetarian children to eat eggs.

In Madhya Pradesh as well, in 2019 when the Congress government sought to introduce eggs in mid-day meals, Leader of Opposition Gopal Bhargava from BJP, said inclusion of eggs in the government’s mid-day meal may turn children into cannibals. “Our culture prohibits non-vegetarianism. We can’t force anyone to eat (eggs). If we teach this right from childhood they may end up becoming cannibals when they grow up,” he said.

The debate around meat or eggs on the plate is always rife with contentions around “beliefs and religious sentiments” of people. While the truth remains that the majority of people in India are meat eaters and the egg consuming population is higher than the meat eating population. Consumption over the egg is dogged by both religious beliefs and contradictory views over cholesterol content in the egg.

In the 1980s the National Egg Coordination Committee (NECC) India, launched a campaign ‘Sunday ho ya Monday, roz khao ande’. The campaign became an instant hit and enjoys recall even today. “That campaign was launched in response to prevalent religious beliefs which made people avoid eggs – as part of non-vegetarian – food on certain days of the week,” recalls national vice-chairman, NECC, Sandeep Mehta, speaking to Hindustan Times. But that does not mean that poultry farmers weren’t affected by the medical flip-flop over eggs. “About 20 years ago, the cholesterol worry was making many give up eggs. Our business had been seriously affected,” recalls Mehta. Despite the need for a reasoned and rational debate, the right wing upper caste men in power have always tried to impose “vegetarianism” upon all.

Meat politics v/s Indian judiciary

In 2018, a PIL was filed by Healthy Wealthy Ethical World Guide India Trust seeking a complete ban on export of all types of meat (including beef, fish, pork, poultry) and all related products by the government or by private parties. A bench of Justice Madan Lokur and Justice Deepak Gupta while hearing it, said it cannot issue an order that everybody should turn vegetarian. In February 2019, a bench headed by then Chief Justice of India Ranjan Gogoi refused to entertain the plea.

In May 2017, Madurai bench of Madras High Court stayed the central government’s notification banning the sale of cattle at animal markets for slaughter. The notification issued on May 26, 2017 stated that cattle sold in animal markets can only be used for agricultural and such other purposes, and required cattle traders to give an undertaking that the animals being sold at markets would only be used for agricultural purposes. The new rules formulated under the Prevention of Cruelty to Animals Act disallow the sale of cattle – cows, buffaloes, bullocks, calves and camels – for slaughter in animal markets.

Thereafter, in July 2017, a bench headed by then Chief Justice of India JS Khehar extended the stay imposed by Madras High Court stating that “The livelihood of people should not be affected by this.” The Centre had then told the court that it would re-consider certain aspects of the Rules owing to objections from the public.

In 1958 the cattle slaughter laws imposed in states of Bihar, UP and Madhya Pradesh were challenged before the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar 1958 AIR 731 for violating fundamental rights. The court had held that restrictions on the slaughter of cattle did not infringe on the petitioners’ freedom to practice their religion under article 25 since it had not been established that the sacrifice of cows on the religious holiday of Bakr-Eid is of an obligatory or essential part of the Islamic religion as opposed to being optional. The court observed that since the country was in short supply of milch cattle, breeding bulls and working bullocks, a total ban on their slaughter is a reasonable restriction to impose in the interests of the general public. The court however, also held that a total ban on the slaughter of bulls, bullocks and she-buffaloes after they had ceased to be useful was invalid under the Constitution. 

In Abdul Hakim Quraishi And Others vs The State Of Bihar 1961 AIR 448 Supreme Court held that the high age requirements, the introduction of procedural hurdles, and additional appeal processes involved in issuing a certificate imposed unreasonable and disproportionate restrictions on the rights of the petitioners in the case.

In Haji Usmanbhai Hasanbhai Qureshi & Ors. vs. State of Gujarat 1986 AIR 1213 upheld an amendment to the Bombay Animal Preservation Act banning slaughter of bulls and bullock below the age of 16 citing that scientific development has proved that longevity of cattle and their useful span of life has increased.

Some years later, when the Madhya Pradesh government tried to circumvent the judgement in Mohd. Hanif Qureshi by a complete ban on slaughter of bulls and bullocks, the Supreme Court struck it down in Hashmattullah vs State Of Madhya Pradesh (1996) 4 SCC 391 while observing that there had been no change in circumstance since the Hanif Qureshi judgement.

However, the Hanif Qureshi judgement was partially subverted in 2005 in State Of Gujarat vs Mirzapur Moti Kureshi Kassab (2005) 8 SCC 534 by a 7-judge Constitution bench by upholding an amendment to the Bombay Animal Preservation Act, 1954 which meant a total ban on the slaughter of bulls and bullocks of any age; which was earlier restricted to bulls and bullocks of age 16 and under. The court reasoned its departure from the Hanif Qureshi precedent stating that the petitioner’s business is not affected in that they are “not prohibited from slaughtering animals other than the cattle belonging to the cow progeny.” The court had also observed that food security was a greater concern in the past but that was no longer the case as also that fodder shortage is no longer an issue and the question of wasteful drain on the feed required for active milch does not arise. The court had also observed that Bulls and bullocks remain useful past a certain age, since urine and dung are tremendously useful for the production of manure and biogas, particularly as renewable sources of energy.

In Hinsa Virodhak Sangh vs Mirzapur Moti Kuresh Jamat & Ors (2008) 5 SCC 33 the Supreme Court upheld a temporary nine day closure of municipal slaughter houses during Jain community’s Paryushan festival considering their religious sentiments and the public interest objective to preserve mutual respect and tolerance between India’s diverse communities.

Gujarat and Cow and Bullock Slaughter

In August 2020, SabrangIndia carried a two-part exclusive investigation (The Missing Cows of Gujarat) that revealed how even Cow Protection Laws have failed to protect the animal in the state. Investigated by Abdul Samad— former Dean of Bombay Veterinary College, Faculty Dean and Director of Instruction at Maharashtra Animal and Fishery Science University with more than 35 years of experience in veterinary research —- that revealed how Gujarat’s farmers, hindered by an unrealistic legislation steeped in rhetoric and a dishonest objective, are illegally culling and disposing off the bovine animals: a close scrutiny of the 2012 Livestock Census data figures on breeding cows and female calves, the expected population are revealing: whereas in 2019 the figures of cows in the state should have been 114.04 lakhs, in reality only 76.26 lakhs cows were reported in the census. 

The data shows that around 37.78 lakh cows went missing during the period, which means these were illegally culled and disposed of by the farmers. The missing cow phenomenon was not a one-time aberration but consistent. The second part of the Investigation revealed disappearing bullocks in the western Indian state revealed how Gujarat’s farmers have dodged an impracticable Cow Protection Law. The point being made is that even after the Supreme Court’s endorsement of a stringent amendment to the Gujarat Cattle Preservation Act in 2005, has failed to protect either bullocks, male calves or cows, never mind the political rhetoric behind the law.

Who decides what goes on my plate?

The Constitution has assigned “preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice” in Entry 15 of seventh Schedule in State List while “prevention of cruelty to animals” is Entry 17 under the Concurrent List. Further, Article 48 which comes under Directive Principles of State Policy states, “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

Thus, ban on slaughter of cattle has been predominantly imposed by states, and when Centre tried to impose it nation-wide it was stopped by the Supreme Court. So depending on what political party is elected, it will decide what goes on your plate. It states like Kerala, West Bengal, Arunachal, Mizoram, Meghalaya, Nagaland, Tripura and Sikkim, cow slaughter is still not banned, and the same is relative to the socio-cultural demographics in these states as well as the ideology of political parties being elected in these states.

In the rest of states, while cow slaughter is banned, there is also restriction on other cattle of the cow progeny at varying levels. While courts have always tried to ensure that right to carry on trade under Article 19(1)(g) is not violated, many of these regulations imposed by states have been in some way or the other allowed to continue under “reasonable restrictions” in the interest of the Directive Principles of State Policy that run concurrently with fundamental rights.

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Cow vigilantes assault Muslim man, cops file case against victim too!

The post Meat politics and related jurisprudence in India appeared first on SabrangIndia.

Image Courtesy: Indiatoday.in

The introductory letter addressed to the citizens states, “Under the Constitution of India as an Indian Citizen YOU are sovereign and are guaranteed certain Fundamental Rights. One of these Rights is Freedom of Speech, however to be Free to Speak you need to be Free To Know. It is this right that the present Govt is trying to curtail. The Right To Information act 2005 granted YOU powers to ask questions & demand accountability for the way YOUR taxes are being spent. It gave YOU the power to know details of the work done in YOUR localities, the decisions taken by YOUR govt.Unfortunately, the Right To Information Amendment 2019 just passed by YOUR MPs now threatens to take away YOUR power by making Information Commissioners dependent on THEIR whims. Taking away impartiality & independence so that everyone from the Central Information Commissioner to now dependent on THEM & therefore less answerable to YOU”.

The letter to the President of India begins with the words, “I am appealing to you not to sign the RTI amendment bill. I beseech you to send it back to the Parliament for reconsideration. This is a cherished right which has been codified by the RTI Act 2005. It has been rated amongst the best transparency laws in the world”.

Whether President Ram Nath Kovind, pays heed to this appeal (by not giving his assent) is, at this moment, anyone’s guess! Strangely enough, as a former Member of Parliament of the Bharatiya Janata Party, President Kovind was a member of the Parliamentary Standing Committee on ‘Personnel, Public Grievances, Law and Justice’ that had minutely and very comprehensively discussed each and every section of the RTI Bill in five sittings before it became an Act in 2005.

That Committee held the unanimous view that the Central Information Commission was a vital and core creation under the Act, which would be responsible for the execution of the RTI legislation. It therefore deemed it imperative to confer on the Central Information Commissioner (CIC) and the Information Commissioners the status equivalent to that of the Chief Election Commissioner and Election Commissioners respectively. The campaign whether it ultimately succeeds or not – is bound to have a long-term impact on the mobilisation of people’s opinions in the country.

July 25, 2019 was indeed a black day for Indian democracy when ‘The RTI Amendment Bill, 2019’was introduced in the Rajya Sabha and passed by it. Most of the opposition wanted it to be referred to a ‘Select Committee’ for further scrutiny- but this was rejected by the Government. In the voting that followed, the BJD, the TRS and the YSR Congress, played truant; they sided with the Government and provided them with the ‘win’ they desperately needed. It was extremely tragic for the people of India, that opportunistic politics, lust for power and not wanting to be accountable, has in effect destroyed an important instrument which had greatly empowered the citizens of India!

Earlier, on 19 July ‘The RTI Amendment Bill, 2019’, was introduced in the Lok Sabha and it was subsequently passed. The new Bill seeks to amend the RTI Act in order to empower the Central Government to unilaterally decide the tenure, salary, allowances and other terms of service of Information Commissioners. This of course is a subtle way of telling the Information Commissioners“either you toe our line or out you go”! Until now, those in the Information Commission were on par with the Election Commission and the Judiciary – with regard to their tenure, salaries etc. Making the members of this independent statutory body, another group of ‘babus’, will in effect undermine the autonomy of the Act. There will be just a few who will be willing to stand up to the brute power of the State if their careers and remuneration are at stake. Until now several of the Information Commissioners were able to deal with queries in an objective way; sought and provided information free of fear or favour and in more ways than one upheld the dignity and the rights of an empowered citizen.
 
Ironically,it is today the BJP and its ilk – who have left no stone unturned to make the RTI as toothless and redundant as possible. Inspite of doing all they can to destroy several Constitutional and other independent statutory bodies in the past five years, some citizens have effectively used the RTI to expose their corrupt and other fraudulent acts of the current regime. So naturally, they are mortally afraid of the RTI. In a hard-hitting Op-ed in the ‘Indian Express’ (26 July 2019), AAP leader Manish Sisodia writes, “An honest government would never be scared of information being made accessible. Even a corrupt UPA regime deserves credit for introducing RTI in the first place. But the Bharatiya Janata Party, a party that used RTI exposes against the Congress, and has now taken its place in the national political landscape, is ironically, terrified of it. This speaks volumes about the intent of this government. We are entering a disturbing phase, where the wheels of democracy are being forced to stop in their tracks.”

With the Right to Information (RTI) Act coming into force on 12 October 2005-participatory democracy had come of age in India! It was indeed a red-letter day for the country. The UPA Government that taken over the reins of power a little over a year earlier, was making good its promise: of ensuring a more transparent and people-centred governance. The RTI was a significant step in the right direction. After all,democracy is a participatory process and a well-informed citizenry acts as its watchdog. Information dissemination and exchange is an inevitable part of a vibrant democracy. This helps maintain transparency at all levels. Till 2005, transparency was held hostage to red tape largely by an insensitive bureaucracy and an opaque political system!

The Right to Information (RTI) Act is in essence a codification of this important right of citizens. It is derived from our Fundamental Right to expression under Article 19. Any citizen therefore has the right to know from officialdom all opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating togovernance. Section 4 of the RTI Act makes it mandatory for a public authority to disseminate certain information proactively. The RTI Act 2005 has enabled citizens to effectively have access to information (including records, documents, memos, e-mails).

The UPA through its commitment to the RTI gave a huge gift to the country! They failed miserably however in their ability to ‘market’ it and the two other rights namely the Right to Education (RTE) and the Right to Food (RTF) which they piloted and ushered in during their ten-year reign. Their inability to highlight their path-breaking achievements was a crucial factor for their massive defeat in the General Elections of 2014. The BJP on the other hand seized the RTI as an opportunity to expose corruption and other chinks of the UPA Government. Thanks to RTI, some corruption in high places was exposed and it ultimately resulted in the undoing of the UPA and particularly the Congress party.

Aruna Roy, the leader of the‘National Campaign for People’s Right to Information’ (NCPRI) and who has been instrumental in the passage of the RTI 2005, went hammer and tongs at the proposed amendments to the RTI and the surreptious manner with which the Government introduced it in the Lok Sabha a few days ago. Roy categorically stated at a Press Conference in Jaipur, “The bill proposing changes in the Right to Information Act (RTI) Act is regressive and aimed at undermining the independence of information commissions. It is a matter of grave concern that the amendments to the Right to Information Act (RTI) law were introduced in complete secrecy and in flagrant violation of the Pre-Legislative Consultation Policy of the Central government, which mandates public disclosure and consultation on draft legislation,”She further added, “owing to the undemocratic way of its introduction”, the contents of the draft amendments were not known by MPs, citizens and the media till the bill was circulated to members of the Lok Sabha on the eve of its introduction”.

For the BJP, their allies in the NDA and for the Central Government there were five significant orders passed by the Central Information Commission that would have propelled the Right to Information (Amendment) Bill 2019. Each of these orders clearly exposed the deep level of corruption that has become the DNA of the ruling party and its naked muscle to negate any challenge to their “authority”.

During the debate in the Rajya Sabha on the amendments it was Congress leader Jairam Ramesh who highlighted these five orders issued by the CIC.The five cases he mentioned to strengthen his arguments as to why these amendments were being brought in, were the CIC’s order on disclosure of Prime Minister’s educational qualification; the false claims made by the Prime Minister on bogus ration cards;the CIC’s revelation on demonetisation that RBI disapproved it and the then RBI Raghuram Rajan giving the list of top NPA defaulters and value of black money brought back from abroad.

Jairam was emphatic in saying, “The timing of the amendment is not so innocuous and innocent. There are five cases that have propelled the government to bring these amendments”. He further alleged that the government was bringing in amendments in the Right to Information Act to take revenge on institutions as it exposes the “false claims” of the government.

Jairam also raised questions on the timing of bringing the amendments to the Bill which mandates timely response to citizen requests for government information. He said between 2003 and 2013, the then Chief Minister of Gujarat (Narendra Modi) would come to the Planning Commission and the body would ask him uncomfortable questions on the state of health and education in Gujarat. “In 2014 the CM of Gujarat who became PM of India had his revenge and abolished the Planning Commission. Today, Prime Minister of India is taking his revenge with for these five cases,” he said.

He went on to add that,“These are the embarrassing cases for the government. The case about his educational qualification in Delhi Court. The Prime Minister has claimed four crore bogus ration cards were weeded out by his government whereas the RTI shows that the number of bogus rations cards was actually 2.3 crore. The CIC directed the Prime Minister office about the quantum of black money brought back from abroad. The PMO refused to share the details despite CIC order,” The former union minister said that the real reason for the amendments in the Bill was to make the CIC “toothless” and to convert the information body to “Prime Minister office directed body”. He also accused the government of giving misleading statements regarding its claim of strengthening the RTI Act and the CIC.

Further, Sisodia highlights what the RTI has done for democracy since it was made law in 2005 when he says poignantly,“The wheels were turning in the direction of a deepening of democracy. The measure of progress of any democracy is the level of empowerment of ordinary citizens.

When the state seeks to take away power from ordinary citizens, it is at the cost of democracy itself. The RTI movement was born out of the view that people are the masters and the government exist to serve them. For the five-year period after elections concluded, there was no mechanism to hold governments accountable. The RTI plugged this loophole. The RTI has now become the backbone of our democracy”.

Concerned citizens from all over the country and from all walks of life have been expressing their displeasure of how every facet of Indian democracy is not only being hijacked but being totally destroyed, by the BJP their allies and their ilk. Well-known RTI activist Anjali Bhardwaj tweeted, “Sad day for democracy. The ONE law which empowers people to hold the government to account stands diluted. RTI amendmentBill passed by Parliament. We will now petition the President to return the Bill” and in a further tweet she writes, “Struggle to #SaveRTI not over.Use petition in link to email President of India demanding that he not sign #RTIAmendment Bill”. It is a passionate appeal that no one who is concerned about the future of the country, should dare ignore.The ruling regime, who is just not concerned about the rights and freedom of the ordinary citizen, has just tolled another death-knell for democracy in India. We, the people of India, must wake up at least now, take a stand to #Save RTI and petition the President,before it is too late.

(The author is a human rights and peace activist/writer. cntact:cedricprakash@gmail.com)
 

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