Covid-19: Securing access to socio-economic rights in times of a nationwide lockdown

Ever since the nationwide lockdown was imposed on 25^th March, we have come across heart-wrenching reports of the sufferings of migrant workers, daily wage laborers and other sections of the population - who lack access to means of livelihood till this lockdown prevails. This has led to multiple discussions on the manner in which the State should provide them access to basic resources, so that they can sustain themselves during the continuance of the lockdown.

Two of the biggest challenges that migrant workers, daily wage earners etc. have faced in this lockdown are: (i) lack of access to sufficient quantity of food; and (ii) lack of access to financial resources - in a situation where they may not be able to earn wages, or have lost their only source of income. Policy experts have persuasively argued that in this situation, it is the State’s duty to ensure that the deprived sections of society have access to food and social security. There has however not been sufficient discussion on the nature of this duty, which is to be fulfilled by the State.

Now, right to food and social security are undoubtedly socio-economic rights that fall within the penumbra of rights that have been read into Article 21 of the Constitution. Reading Article 21 in consonance with international human rights law principles, I  shall in this post argue that the State has a constitutional obligation to secure access to - (i) a basic level of nutrition, by providing a certain minimum quantity of food; and (ii) a basic level of cash or sustenance income, for those who cannot earn wages and are bound to lose their means of livelihood during the lockdown.

The corollary between rights and duties

Every right imposes both positive and negative obligations on the State. The negative obligation requires the State to refrain from infringing that right. The positive obligation on the other hand requires the State to secure access to that particular right, by framing requisite schemes and policies. For instance, with respect to the right to food, the State has a negative obligation to ensure that it does not discriminate between citizens while granting food rations. The State also has a positive obligation to ensure that the deprived sections of society have adequate access to food. This obligation of securing access to food requires the State to spend financial resources, and also draw up an effective policy to achieve the same. During a situation of a lockdown, the obligation on the State is positive in nature – to ensure that underprivileged sections of society are not deprived of food or basic social security.  

Now, the State may not have the financial means to immediately secure access to a certain quantity of food and thereby a minimum level of nutrition. Similarly, the State may not have the resources to provide access to a minimum level of income to those who have lost their means of livelihood during the lockdown. Hence, the question that arises here is – What is the scope and ambit of the State’s positive obligation to secure access to food and social security, during this pandemic? This is where the principles laid down in the International Covenant on Economic, Social and Cultural Rights (ICESCR) come in handy.

General Comment No.3 of the ICESCR talks about a ‘minimum core’ obligation – which means that the minimum essential levels of each of the rights recognized by the Covenant should be immediately realized by the State. Aspects of the right which do not form part of the minimum core should be progressively realized by the State – based on availability of financial resources. In other words, States should immediately secure access to those aspects of a right that forms part of the minimum core. This can be illustrated by referring to the example mentioned in the General Comment itself, which is as follows. If in a particular State, a number of individuals are deprived of essential foodstuffs, then that State party is failing to fulfil its minimum core obligation under the ICESCR.

The minimum core obligation is designed to ensure that deprived sections of society have access to a minimum level of resources, through which they can live with dignity. What aspects of a particular right constitute the ‘minimum core’ may also vary based on the prevailing circumstances. Different countries have however adopted different approaches in the past, while elucidating the scope of the minimum core obligation. Courts have especially found it difficult to define the content of the ‘minimum core’ of a right. The approaches adopted by Courts in South Africa, Argentina and India shall be discussed below.

Differences approaches adopted by Courts to define the ‘minimum core’ obligation

South Africa:

In decisions such as Grootboom and Treatment Action Campaign, the South African Constitutional Court has held that minimum core is not an independent enforceable standard in itself, and that it can only be used to examine the reasonableness of the measures adopted by the Government. In Mazibuko v. City of Johanesburg, it was contended that a minimum quantity of 50 litres of water should be provided to every household, in accordance with Section 27 of the South African Constitution, which prescribed a right to access sufficient water. The appellants fixed 50 litres as the minimum threshold of water to be provided based on expert evidence.

The South African Constitutional Court held that Section 27 of the Constitution does not confer the right to claim sufficient water immediately. It held that a minimum quantity of water cannot be prescribed by the Court, and that the Court should only determine whether reasonable measures are being taken to progressively achieve the right of access to sufficient water. This decision has however been criticized by scholars such as David Bilchitz, who have argued that this approach conflates the distinction between a right and a duty. Such an approach of not spelling out the content of the right may also adversely affect the vulnerable sections of society.

Argentina:

In the Miguel Angel case, where the fact situation that was similar to Mazibuko, the Court spelt out the minimum content of the right to water by referring to the Argentinian Constitution and other provincial regulations. This approach of spelling out the content of the minimum core of the right in question is better than the approach adopted in Mazibuko - as spelling out the content gives clarity regarding the State’s obligation to enforce the right, which may work to the benefit of the deprived sections.

India:

The Indian Courts have imposed a minimum core obligation in certain situations, such as while examining the scope of right to health under Article 21. In Mohd Ahmed v. Union of India (Delhi HC) and Manoj v. State of Kerala (Kerala HC), the Courts have held that the right to health under Article 21 imposes a minimum core obligation of providing access to life-saving drugs, especially to the deprived sections of society. Specifically in Mohd Ahmed,  the Indian Courts held that for obligations that fall within the ambit of the minimum core, a paucity of financial resources is not an excuse. Indian Courts have hence imposed a non-derogable minimum core obligation for certain aspects of the right to health.

In my view, this approach is better than the one adopted by the South African Constitutional Court for two reasons. First, it aims to define the minimum content of the right, by taking into account the basic essential levels of the right in question - which is necessary for a person to live a life with dignity. This imposes a specific obligation that the State has to fulfil, to secure access to this right. Second, while defining this minimum core obligation, the approach places specific emphasis on meeting the needs of deprived sections of society.

Applying this ‘minimum core’ standard during a nationwide lockdown

Let us take forward the ‘minimum core’ standard applied in Mohd Ahmed and Manoj to the situation of nationwide lockdown, which exists as of today. Now, if we consider the basic essential levels of the right to food and the right to social security that is necessary in this situation for deprived sections of society to live a life with dignity, there can only be one common end. During a nationwide lockdown, providing a minimum basic level of food (and thereby ensuring basic levels of nutrition) and basic sustenance income to deprived sections of the population who have lost their means of livelihood can be considered as components of the ‘minimum core’ of the right to food and the right to social security. 

The State hence has a constitutional obligation to secure access to the minimum levels of each of these rights. Now, with respect to the right to food, this would mean providing a certain minimum quantity of foodgrain, along with other commodities such as cooking oil and pulses – to the deprived sections of society who may have lost their only source of income. While framing this minimum quantity, the parameter should be to secure access to a minimum essential level of nutrition that is necessary for deprived sections of society to live with dignity. 

While the modalities of framing this minimum quantity falls within the domain of the executive, the constitutional benchmark imposed by the minimum core obligation should be satisfied. Similarly, with respect to social security for the deprived sections of the population, the constitutional benchmark shall be for the State to provide a basic level of cash or sustenance income, that shall be in consonance with the income otherwise earned by such individuals. Providing such a basic sustenance income along with basic levels of nutrition is integral for migrant workers and laborers to live with dignity. 

Meeting this minimum core obligation also serves as an answer to the debate that we are having in India today - on saving lives (through enforcing a lockdown) v. ensuring livelihood (by relaxing the lockdown measures and permitting economic activity). While saving lives v. ensuring livelihoods is being seen as a binary and a trade-off, it is definitely possible for us to fulfill both these goals simultaneously. This can be done by meeting the minimum core obligations discussed above – through which those who have lost their livelihood get access to food and basic sustenance income, even during the prevalence of the lockdown. Fulfilling the minimum core can hence ensure that safeguarding health does not come at the cost of destroying livelihood, and vice versa.

While many State Governments are providing food and cash to migrant workers, daily wage earners etc, a lot more needs to be done to ensure that similarly placed individuals are not excluded from such schemes. Until this is done, the constitutional duties imposed by the ‘minimum core’ aspects of the right to food and social security shall not be enforced in letter and in spirit.

(This is our second post highlighting certain constitutional aspects of the nationwide lockdown and the Covid-19 pandemic. In the next post relating to Covid-19, we shall deal with the right to privacy, and whether it should necessarily be ‘traded-off’ in favor of public health.)

Covid-19 and suppression of information - Drawing parallels between China and Jammu & Kashmir

As the world grapples with the Covid-19 pandemic, the international community has placed significant emphasis on the manner in which China has handled this global health crisis. There has been significant discussion over the manner in which China initially handled the coronavirus outbreak in late December and early January, after it broke out in the city of Wuhan.

In this post, I shall first highlight how China suppressed speech and information after the outbreak broke out in Wuhan, and how such suppression has culminated in a global health crisis. I shall then draw parallels with another prominent instance of censorship and information suppression that we are witnessing today – which is the internet ban in Jammu & Kashmir. I shall argue that both these instances have a common thread – which is that suppression of information can result in adverse consequences for a community as a whole, along with infringing individual rights.

The onset of Coivd-19 and the suppression of information – a brief background

There exists substantial evidence to state that the novel coronavirus (SARS-Cov-2) originated partly or fully from a wet-animal market in Wuhan. There was however no concrete evidence to this effect in December last year, when China had alerted the WHO about a significant number of cases of unusual pneumonia in Wuhan. Around the same time, a Chinese ophthalmologist named Dr. Li Wenliang had alerted his colleagues through a message on the WeChat application, regarding the possible emergence of an illness similar to the severe acute respiratory syndrome (SARS) outbreak of 2003, which could be caused by a novel coronavirus.

As soon as Dr. Li Wenliang raised this alarm, he was, on 3^rd January, summoned by the Wuhan Public Security Bureau and was made to sign an undertaking stating that he had made incorrect statements and had indulged in rumour mongering. He was also made to sign a statement to the effect that he would not commit this ‘unlawful’ act again. Shortly thereafter, the Chinese National Health Commission ordered that no institution should publish any information relating to this ‘unknown’ disease. The Hubei Provincial Health Commission ordered that no new samples of the unknown disease shall be tested, and also ordered for the destruction of all existing samples. Subsequently, on 7^th January, Chinese medical authorities claimed that they had identified the novel virus, and stated that it belonged to the coronavirus family.

However, they continued to hold the view that there was no evidence that this novel virus could spread through human-to-human transmission. In the interregnum, even the WHO deferred to China’s stand, and stated publicly on 14^th January that the preliminary investigation conducted by the Chinese authorities had concluded that there was no evidence of human-to-human transmission of the novel coronavirus that was identified in Wuhan. But, after the first three deaths occurred from the virus, China clandestinely changed its stance and placed the city of Wuhan under effective quarantine on 23^rd January, and suspended air and rail travel from the city. Hence, although the first signs of the disease had occurred in December, the Chinese Government initiated their first measures only on the 23^rd of January, by which time, a number of potential carriers of the virus had travelled out of Wuhan.

Despite a steady increase in the number of cases and the virus spreading rapidly to other countries, the WHO declared coronavirus to be a ‘pandemic’ only on 11^th March, which was almost 45 days after China took its first set of measures in Wuhan. Meanwhile, on 1^st February, Dr. Li Wenliang contracted Covid-19 while treating patients in Wuhan, and passed away due to this illness on 7^th February. Keeping aside the WHO’s delinquency in deferring to the views of China, what is more significant here is the manner in which Chinese authorities suppressed information regarding the emergence of a novel coronavirus after the alarm bells raised by Dr. Li Wenliang. As pointed out above, after silencing Dr. Wenliang, the Chinese authorities also placed an embargo on the testing of new virus samples, and the publication of any information relating to the disease.

As other nations such as Italy, USA and India continue to impose lockdowns to minimize the damage caused by Covid-19, China has already lifted the lockdown of Wuhan on 8^th April, claiming that the rise in fresh cases is well under control. However, in a sudden move last week, the Chinese Government also increased the death toll of those who died due to Covid-19 in Wuhan by 50%, which has amplified concerns regarding information manipulation.

The Covid-19 pandemic – a direct consequence of this suppression of information

Had the Chinese medical authorities investigated upon the red flag raised by Dr. Wenliang, the novel coronavirus could have been discovered in the first week of January itself. Wuhan could then have been locked down well before 23^rd January, by which time there had been significant passenger movement in and out of the city. If there was no suppression of information, the spread of the virus out of Wuhan could have been significantly curtailed.

The above discussion illustrates that the Covid-19 pandemic could have been averted in the initial stages itself, if China had not censored Dr. Li Wenliang and suppressed information regarding the emergence of a novel coronavirus. As George Orwell had presciently highlighted in his classic novel titled – 1984, one feature of a totalitarian regime is that it will manipulate all news and information in its favor, and shall disregard the truth to suit its agenda. From a constitutional perspective, the biggest lesson from the censoring of Dr. Li Wenliang and the subsequent suppression of information by the Chinese medical authorities is that suppression of speech and access to information may, along with infringing on an individual’s fundamental rights, also simultaneously lead to adverse consequences for an entire community. The consequence of the suppression in the present situation is the global health crisis caused by Covid-19.

While we have always tended to look at suppression of free speech and access to information from the perspective of individual rights, we must also keep in mind that this may have large-scale unintended repercussions, such as the pandemic that we face today. These incidents also bring to light certain important lessons for the Indian Government, in light of the continued suppression of information and communication in Jammu & Kashmir, through the internet suspension orders.

Drawing parallels with the internet suspension in Jammu & Kashmir

This suppression of information also has parallels with the internet ban in Jammu & Kashmir, which commenced on 4^th August 2019, and has held fort till today. While the absolute ban on internet access was challenged in the Supreme Court in the Anuradha Bhasin case, the Court only directed the Central Government and the Jammu & Kashmir Administration to ‘review’ their internet suspension orders on a weekly basis. The Court laid down a stringent proportionality standard to review the validity of internet suspension orders, but refused to apply the same and give any relief to the petitioners. It ultimately deferred to the Central Government’s claims of a threat to national security.

The Court looked at this issue from the perspective of Article 19(1)(a) and 19(1)(g) of the Constitution, by holding that freedom of speech and freedom to carry on trade, business and occupation with the internet as a medium deserves constitutional protection. One aspect that the Court did not elaborate upon was that the internet as a medium is crucial for having access to information, and this right to access information through the internet as the medium can also be considered as integral to Article 19(1)(a).

As of today, the ban has only been partially restored, with around 300 whitelisted websites being made available solely on 2G mobile internet network. Despite this relaxation, there is still effectively a ban on the internet in Kashmir, as 2G mobile internet speeds are not sufficient for conducting most internet-oriented activities. It is for precisely these reasons that a fresh petition has been filed before the Supreme Court, demanding the restoration of 4G mobile internet services in the State. Irrespective of the outcome of this petition, which is currently pending before the Supreme Court, it is imperative to keep note of the larger constitutional implications of this internet suspension, which shall be highlighted below.

While India battles with a rapid spread of Covid-19 through a nationwide lockdown, the residents of Kashmir lack proper access to the internet, which is essential for having accurate information about how to tackle the virus, and how to cope up with a lockdown situation. Hence, along with preventing the residents from effectively communicating and disseminating information, the internet ban also prevents them from having access to essential information during this pandemic. This suppression of information access may lead to deleterious consequences especially for patients, doctors and healthcare workers, who may be unable to access research and best practices that are being developed and updated by medical institutions across India, such as the ICMR. Such suppression of information leads to two adverse consequences, which have significant constitutional implications.

First, this lack of information access hinders the residents of Jammu & Kashmir from effectively participating in national affairs. Such freedom of expression through active democratic participation in national affairs can be considered as another integral aspect of Article 19(1)(a), which stands violated. Second, this may adversely affect access to quality healthcare facilities during the pandemic. Access to quality healthcare facilities during a pandemic can be considered as an intrinsic aspect of the right to health, which is part of Article 21. The internet ban may hence result in depriving access to other socio-economic rights, such as the right to health.

This serves as an epitome of the manner in which suppression of civil and political rights conferred by Article 19(1)(a) may also result in unintended consequences, such as hindering access to other socio-economic rights, such as the right to access quality healthcare facilities during a pandemic. Along with looking at this internet ban from the perspective of the proportionality doctrine (as the Court did in Anuradha Bhasin), we should also keep note of the larger constitutional implications that have been referred to above.

The adverse consequences of the Kashmir internet suspension brings us back to our earlier discussion of China’s suppression of information. While China’s suppression of information culminated in a global health crisis, the suppression of information in Jammu & Kashmir has significant constitutional implications for all residents of the Union Territory, especially during the prevalence of this pandemic. Both these instances have a common thread, which highlights the manner in which censoring of speech and information may have pernicious consequences for an entire community, along with infringing individual rights. In this time of an unprecedented global health crisis, individuals, policymakers and institutions such as the Supreme Court may do well to reflect on the manner in which China has put the entire world at risk by not paying heed to Dr. Li Wenliang.

How integration of databases through Aadhaar severely compromises privacy

In this post, we shall discuss how integration of multiple databases through the Aadhaar number severely compromises privacy - by making it possible to profile and surveil the activities of a person.

In 2009, the Aadhaar project commenced after the Union Government set-up the Unique Identification Authority of India (UIDAI) through an executive notification. Under the Aadhaar project, a resident is required to submit his name, date of birth and place of residence, along with his biometric information – which includes fingerprints and iris scans. The individual would then obtain a twelve-digit unique identity number, which could be printed as an Aadhaar card, and used for establishing one’s identity while availing government services and welfare schemes.

After enrolling for Aadhaar an receiving their unique identity number, an individual could ‘authenticate’ his Aadhaar details to establish his identity for availing welfare schemes and services. While Aadhaar was initially intended to be voluntary mechanism for establishing one’s identity, attempts were made to make enrolling for Aadhaar a mandatory precondition to avail certain subsides and benefits. These attempts were shot down by the Supreme Court in 2013. Subsequently, the Aadhaar Act, 2016 was enacted, and the Union Government created a statutory framework that authorized the collection of identity and biometric information.

The passing of the Aadhaar Act, 2016

Under Section 7 of the Aadhaar Act, Aadhaar-based authentication can be used to establish the identity of an individual, while receiving ‘subsidies, benefits and services, whose expenditure is incurred from the Consolidated Fund of India. Section 2(c) of the Act defines the term ‘authentication’ as the process by which the Aadhaar number of an individual along with his/her biometric and demographic information is submitted to the centralized Aadhaar database (known as the Central Identities Data Repository) for verifying the individual’s identity.

The Preamble to the Act mentions that it’s purpose is to ensure efficient and targeted delivery of subsidies, benefits and services. The Union Government has accordingly contended that Aadhaar helps eliminate identity fraud, and also eliminates fake and duplicate beneficiaries of welfare schemes.

The expansion of the use of Aadhaar

After the coming into force of the Aadhaar Act, having an Aadhaar number was made a mandatory condition precedent for accessing a wide variety of welfare schemes, subsidies and services. The range of schemes and services for which Aadhaar has been made mandatory include – the bonded labour rehabilitation scheme, for persons rescued from manual scavenging to avail rehabilitation schemes, midday-meal scheme, for availing MGNREGA payments, for availing scholarships, appearing in entrance exams etc.

Hence, the scope and ambit of Aadhaar has expanded manifold from what it was originally envisaged for – which was for better targeting of government subsidies that were prone to leakage and corruption. Usha Ramanathan has described this expansion of the use of Aadhaar as a ‘function creep’ -  a scenario where technology that was created for a specific purpose is expanded beyond it’s original objective.

The seeding of multiple databases through the Aadhaar number, and its perils

The expansion of Aadhaar has resulted in a situation where the Aadhaar number of an individual is being ‘seeded’ or linked across multiple databases. This can be illustrated by referring to the following illustration. When an individual who has been rescued from manual scavenging seeks to take the benefit of rehabilitation schemes, he has to link his Aadhaar number with the rehabilitation scheme database.

The same individual may also use his Aadhaar number for availing subsidized foodgrains from the Public Distribution System ( PDS). His Aadhaar number may then get linked to the PDS database. The seeding of the Aadhaar number makes it a common identifier across multiple databases. This seeding of the Aadhaar number also creates a single point of failure – where even if one database is compromised through a data breach or a data theft, then all the other Aadhaar-linked databases become susceptible.

Privacy concerns associated with seeding of multiple databases with Aadhaar as the common identifier

The manner in which the seeding of the Aadhaar number across multiple databases violates the right to privacy was highlighted by Chandrachud, J in his dissenting opinion in the K.S. Puttuswamy II case, where the constitutionality of the Aadhaar project was adjudicated upon. Chandrachud, J pointed out that the seeding of the Aadhaar number across different databases makes the Aadhaar number the ‘central unifying feature’ which may connect information that would usually be unconnected. It could also be used to profile individuals by creating co-relation between human lives, and was capable of influencing the behavioral patterns of individuals, in a manner that would affect their privacy and liberty. He further goes on to state that if traces of the Aadhaar number are ‘left in every facet of human life’, the result shall be a loss of privacy.

Chandrachud, J then mentions that when the Aadhaar number is seeded in every database, it becomes a ‘bridge across discreet data silos’. Anyone with access to the seeded databases can construct a detailed profile of an individual’s life, which was contrary to the right to privacy. This implies that anyone who has access to the seeded databases can collate information about various facets of an individual’s life – such as his religion, economic status, affiliations, medical history etc. He then highlights how seeding of the Aadhaar number nullifies the restriction placed on profiling of individuals by Section 2(k) of the Aadhaar Act. Under Section 2(k), the UIDAI cannot collect and store information relating to the race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history of the individual.

However, when the Aadhaar number is seeded across multiple databases, the effective result is the collection of information relating to religion, ethnicity, medical history, income etc, which nullifies the restriction placed under Section 2(k). This can be illustrated with an example that Chandrachud, J gives in his opinion. When a person from a particular caste is rescued from manual scavenging and seeks to take benefit of rehabilitation schemes, he has to get his Aadhaar number linked to the rehabilitation scheme database. This effectively results in a situation where a profile of that person, as someone who has engaged in manual scavenging, gets permanently added to the scheme database. The stigma of being a manual scavenger in the past gets permanently fixed to the person’s identity.

The same person may use his Aadhaar number for availing other benefits, which shall ensure that his Aadhaar number is seeded across other databases. Anyone accessing these databases can then generate a detailed profile about that individual, by collating information relating to categories relating to the race, religion, ethnicity etc. This can be further illustrated through another example of the Ujjwala scheme. Under the Ujjwala scheme, rehabilitation services are provided for victims who have been rescued from trafficking for commercial sexual exploitation. Even under the Ujjwala scheme, the services can be availed only if the individual links her Aadhaar number with the scheme database. Hence, one the victim submits her Aadhaar number, the stigma of being someone who was trafficked for sexual exploitation gets permanently attached to the victim’s identity.

The victim may in future use her Aadhaar number to avail health services under the Ayushman Bharat Yojana or the National Health Mission. Her Aadhaar number shall then be seeded with this scheme database, which may also contain other information regarding her medical records and medical history. The Aadhaar number hence becomes a central unifying feature across all the linked databases. Anyone who accesses these databases can use the Aadhaar number to deconstruct a profile of the victim’s life – by taking note of her stigmatic past as a victim of sexual exploitation, her medical records, religion etc. The seeding of Aadhaar across multiple databases may accordingly lead to profiling, and effectively nullifies the restriction placed by Section 2(k). This, as Chandrachud, J argues, has the threat of potential surveillance over the activities of the individual, and is contrary to the right to privacy. This was one of the main reasons for his ultimate conclusion – which was that the Aadhaar project as a whole was unconstitutional.

From a reading of Chandrachud, J’s opinion, it is implicit that he does not consider the seeding of Aadhaar to be a reasonable restriction on the right to privacy, even if such seeding is for trying to bring about more efficient delivery of subsidies and welfare schemes. The majority opinion authored by Sikri, J on the other hand only struck down the seeding of the Aadhaar number with databases owned up private parties – such as the seeding of Aadhaar number with bank accounts. With respect to the use of Aadhaar for government welfare schemes, the majority took the view that the invasion of privacy through Aadhaar was ‘minimal’, and that the Aadhaar Act had achieved a fair balance between the right to privacy and other socio-economic rights, such as the right to food.

The majority also did not specifically prevent the government from making Aadhaar authentication a mandatory condition precedent for availing welfare schemes. It only expressed hope that no benefits shall be denied to a person if there is an authentication failure, technical error etc. This way, the majority has also impliedly upheld the seeding of the Aadhaar number across multiple government databases. Hence, while Chandrachud, J concluded that seeding of the Aadhaar number across multiple data was not a reasonable or proportionate restriction on privacy, the majority concluded that the use of Aadhaar achieved a fair balance between privacy and other socio-economic rights.

Conclusion

While there can be differing viewpoints on whether this restriction can be considered as reasonable, what cannot be disputed is that the seeding of the Aadhaar number can result in profiling of an individual, which severely impinges on his privacy. Such profiling of information can be then used by different government departments to surveil upon the activities of a person. Hence, for the reasons mentioned above, the seeding of the Aadhaar number across multiple databases leads to a severe compromise of individual privacy. After the constitutionality of the Aadhaar project was upheld by the Supreme Court, the Government effectively has a carte blanche to merge multiple databases with the Aadhaar number as the common identifier. Ergo, we as citizens should continue to be vigilant, and safeguard our fundamental rights. 

Demystifying the flawed narrative surrounding the Article 370 amendments

(In the inaugural post on this blog, we shall demystify the flawed narrative surrounding the Article 370 amendment, which was brought about on 5th August last year. We shall be critiquing multiple aspects of the constitutional changes made in Jammu & Kashmir in future posts)

Through a Presidential order and a statutory resolution introduced in Parliament on the 5^th of August, the Union Government made significant amendments to Article 370 of the Indian Constitution. Through the statutory resolution that was introduced in Parliament, the Union Government deleted clause (2) and clause (3) of Article 370, and amended clause (1) to the effect that all provisions of the Indian Constitution shall apply to the State of Jammu & Kashmir, without any ‘modification or exception’. The amendment was followed by the Jammu & Kashmir Reorganization Bill, 2019, which converts the State of Jammu & Kashmir into two Union Territories of Jammu & Kashmir (hereinafter “J & K”) & Ladakh.

These decisions have generated considerable debate on both ends of the political and legal spectrum. However, in the months that have followed this controversial decision, the narrative surrounding the Article 370 amendments has been severely flawed. This has resulted in the propagation of several myths regarding the nature and scope of Article 370, and the changes that were made on 5^th August. In this piece, I aim to bring to light certain aspects of this flawed narrative, which should be kept in mind for any future discussion surrounding this amendment.

Has the ‘abrogation’ of Article 370 led to the ‘complete integration’ of J & K?

Due to the narrative created by the Union Government, the biggest myth regarding this amendment is that the ‘scrapping’ of Article 370 has led to the complete integration of J & K with the Union of India. This is flawed for two reasons. Firstly, the statutory resolution that was passed in Parliament only deletes clause (2) and clause (3) of Article 370, and amends clause (1). The amended clause (1) of Article 370 hence continues to exist, and states that all provisions of the Indian Constitution shall apply to the State of J & K without any modification or exception.

Secondly, Article 370 has never come in way of the ‘integration’ of J & K with the Union of India. While J & K acceded to India through the Instrument of Accession signed by Maharaja Hari Singh on 26^th October 1947, the complete integration of India-occupied J & K took place through certain other constitutional provisions. This is evidenced by Article 1 of the Indian Constitution, and Article 3 of the Constitution of J & K.  Article 1 mentions that India shall be a ‘Union of States’. The list of States that form an integral part of the Union are enlisted in Schedule 1. Schedule 1 accordingly mentions that the ‘Indian State of J & K’ is one of the States that constitute the Union.

This is supplemented by Article 3 of the J & K Constitution, which mentions that the State of J & K “is and shall be an integral part of the Union of India”. This reflected that despite having a separate Constitution, J & K continues to be integrated into India. The integration of J & K was hence a product of these constitutional provisions, along with the Instrument of Accession. The mere conferring of a special status can also not be construed in a manner that implies a lack of integration of that State with the Union. Under Article 371 of the Constitution, multiple other States have also been conferred a ‘special status’. For instance, Article 371A confers a special status on Nagaland, which inter alia provides that no parliamentary law that deals with naga customary law, ownership and transfer of land etc. can be made applicable without the express consent of the Nagaland Legislative Assembly.

The presence of such a constitutional provision does not in any way imply that Nagaland is not completely integrated into India. Similarly, Article 370 has never stalled the integration of J & K, and as I shall show below, it has only determined the constitutional relationship between the Sate of J & K and the Union of India.

The application of constitutional provisions and parliamentary laws to J & K

The Union Government has on the one hand contended that the 5^th August amendment was necessary as Article 370 forbid the application of parliamentary legislations such as the RTI Act, 2005, or the Prevention of Corruption Act, 1988. On the other hand, critics have contended that the amendment to Article 370 has significantly diluted the autonomy of J & K.

Before proceeding further, it is instructive to keep note of one important condition under which Maharaja Hari Singh signed the Instrument of Accession with the Indian Republic. Under the terms of the Instrument of Accession, the Indian Republic could make laws for J & K on only three subject matters – which were defence, foreign affairs and communications. In other words, only Indian laws that dealt with defence, foreign affairs and communications would be applicable in J & K. For all other matters, it was envisaged that J & K would have complete autonomy.

Now, Article 370, which was part of the original Constitution, made a significant modification to the vision expressed in the Instrument of Accession. Under the erstwhile Article 370(1)(b) and 370(1)(d), subject matters apart from those specified in the Instrument of Accession could be made applicable by the Union Government through a Presidential Order, after obtaining the concurrence of the J & K Government. Furthermore, all other provisions of the Indian Constitution could also be made applicable to J & K (with any modification if necessary) in the same manner. Hence, although J & K had a separate Constitution, all other provisions of the Indian Constitution could be made applicable to the State through a Presidential Order.

Since 1950, a number of Presidential Orders have been issued, which have made various provisions of the Indian Constitution applicable to the State. As Professor Faizan Mustafa points out, 260 out of 395 Articles and 7 out of 12 Schedules have been made applicable to J & K. Also, as Justice Nariman noted in State Bank of India v. Santosh Gupta (2016), all entries except only 4 entries of the Union List (in the Seventh Schedule) have been made applicable to J & K. Justice Nariman also put to rest one long-pending confusion regarding the applicability of parliamentary laws to J & K.  

He interpreted Article 370 to the effect that if a particular entry in the Union List or the Concurrent List is made applicable to J & K, then all parliamentary laws that fall within the ambit of that particular entry shall also be automatically applicable in J & K. This can be illustrated by referring to the issue that fell for consideration in Santosh Gupta. This case concerned whether the SARFAESI Act, 2002 was applicable in J & K. Justice Nariman held that the SARFAESI Act, 2002 fell within Entry 45 of the Union List, which dealt with banking. As Entry 45 had been extended to J & K, the SARFAESI Act shall automatically apply to the State, without any need to obtain the concurrence of the State Government.  

It is hence fallacious to argue that Article 370 entirely forbid the applicability of parliamentary legislations to J & K. The Union Government has also contended that because of Article 370, multiple beneficial legislations like the RTI Act, 2005 or the Prevention of Corruption Act, 1988 have not been made applicable to J & K. This is not entirely correct as J & K has had its own version of many such legislations, including its own right to information statute and statute for prevention of corruption. In fact, the J & K Reorganization Act, 2019 has repealed J & K’s Prevention of Corruption Act, 2006 and the J & K Right to Information Act, 2009. These repealed State legislations have been replaced by the corresponding Central legislation i.e. the RTI Act, 2005 and the Prevention of Corruption Act, 1988. It is hence incorrect to claim that prior to 5^th August, J & K has not had the benefit of such progressive legislations.

Now, let us once again refer to the amendment made to clause (1) of Article 370. As the amendment makes the entire Indian Constitution applicable to the State, it in a way supersedes and replaces all previously issued Presidential Orders. Now, as per the amended Article 370(1), all provisions of the Indian Constitution shall apply to J & K without any modification or exception. Hence, by virtue of this amendment, the small remaining chunk of the Indian Constitution which was not made applicable to J & K shall now be applicable. As the Union List and the Concurrent List is now applicable without any exception, all parliamentary legislations shall also be automatically applicable, without the need to obtain any kind of concurrence of the J & K Government. This is the limited change that has been brought about to the constitutional relationship between the J & K and the Union of India through the statutory resolution and the presidential order.

Concluding remarks: Has there been any significant dilution of autonomy through the amendment to Article 370?  

It is significant to recall here that as per the erstwhile Article 370, any provision of the Indian Constitution could be made applicable to J & K through a Presidential order, after obtaining the concurrence of the State Government. Hence, as AG Noorani has argued, the erosion and dilution of Article 370 began in the 1950s itself, when various provisions of the Indian Constitution were made applicable to J & K through Presidential Orders. The Article 370 amendment made on 5^th August has consequentially only led to a small dilution of this existing autonomy, by making all other constitutional provisions applicable to the State.

In my view, the greater dilution in autonomy has in fact occurred through the J & K Reorganization Act, 2019, which converts the State into two Union Territories of J & K and Ladakh. While the Union Territory of J & K shall consist of a Lieutenant Governor and an elected Legislative Assembly, the Union Territory of Ladakh shall be administered solely by the Lieutenant Governor. As the tussle between the Lieutenant Governor and the Delhi Government showed us, such an arrangement severely curtails the autonomy of an elected Government. There shall hence be a significant dilution of autonomy through the conversion of the State into a Union Territory, and not solely through the Article 370 amendment.

In conclusion, I would like to submit that the issues discussed above should be kept in mind for preventing the creation of a flawed narrative, and setting a correct legal perspective to the debate surrounding the Article 370 amendment.