Uncodified personal laws and fundamental rights scrutiny: Revisiting Shayara Bano & Narasu Appa Mali

(In this piece, we will first briefly revisit the Shayara Bano decision. We will then shift focus to a decision which the Bombay High Court gave in 1951, in Narasu Appa Mali’s case. Even though it has been 69 years since this judgment was delivered, it has continued to act as a stumbling block while examining whether uncodified personal laws violate fundamental rights. It is one of those rare High Court judgments on a significant aspect of constitutional law, that has not yet been overruled for seven decades now). 

In Shayara Bano v. Union of India (August, 2017), a Constitution Bench of the Supreme Court invalidated the practice of ‘Triple Talaq’, which allowed a Muslim man to unilaterally divorce his wife by uttering the word ‘Talaq’ thrice. The Court invalidated this practice without settling the contentious question of whether uncodified personal laws fall within the ambit of Article 13 of the Constitution – and whether they can be challenged for violation of fundamental rights. The majority judges refused to re-examine the correctness of the Bombay High Court’s decision in Narasu Appa Mali - which exempted uncodified personal laws from the ambit of Article 13 of the Constitution, and effectively made them immune to judicial review.

The reasoning employed by the Apex Court to invalidate Triple Talaq

The practice of Triple Talaq was invalidated by a slender margin of 3:2. Two separate majority opinions were delivered by Justice Nariman and Justice Joseph. While Justice Nariman and Justice Joseph arrived at the same conclusion, their rationale for invalidating Triple Talaq was significantly different. Justice Nariman held that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 [“the 1937 Act”] provides legal sanction to the practice of Triple Talaq.

As the 1937 Act is a pre-constitutional law, it would fall within the ambit of Article 13(1) of the Constitution, and shall be void to the extent that it contravenes any fundamental right. Hence, according to Nariman J, the practice of Triple Talaq would be subject to scrutiny under Part III of the Constitution. After arriving at this conclusion, Justice Nariman invalidated Triple Talaq because it was manifestly arbitrary, and hence violative of Article 14.

On the other hand, Justice Joseph affirmed the law laid down in the Shamin Ara case (2002). In Shamin Ara, the Supreme Court held that arbitrary and unilateral talaq that was pronounced without reasonable cause and without any attempt at reconciliation between husband and wife was not permitted by the tenets of the Quran, and hence would not have legal sanctity. According to Justice Joseph, as triple talaq could be pronounced solely by the man without any prior attempt of reconciliation, such an arbitrary and unilateral form of talaq went against the basic tenets of the Quran, and could not receive any legal sanctity. As triple talaq went against the tenets of the Quran, Justice Joseph held that it could not be considered as a practice that was essential or integral to Islam.

Disagreeing with Justice Nariman, Justice Joseph held that the 1937 Act could not be tested under Part III, as it was not a legislation “regulating” talaq. He held that the 1937 Act only made the Shariat applicable to all Muslims, and did not in any way “regulate” or codify the practice of talaq. In his dissent, Justice Khehar followed the same line of thought and held that the 1937 Act did not codify triple talaq. Hence, three out of five judges held that the 1937 Act did not give legal sanction to Triple Talaq - and that the practice of Triple Talaq could not be subjected to Part III scrutiny.

Both Justices Nariman and Joseph refused to address the contentious question of whether uncodified personal laws fall within the ambit of Article 13. They refused to re-examine the correctness of the Bombay High Court’s decision in Narasu Appa Mali, which held that uncodified personal laws are exempted from the ambit of Article 13, and hence cannot be challenged for violation of fundamental rights.

Justice Nariman specifically noted that in the instant case, there was no need to re-examine the correctness of Narasu Appa Mali, and that this could be done in an appropriate future case. This was a missed opportunity, as the disagreement amongst the judges over the applicability of the 1937 Act could have been conclusively resolved by determining whether Narasu Appa Mali must be overruled.

Narasu Appa Mali was among the earliest constitutional cases heard by the Bombay High Court post-independence. The judgment was delivered on 24^th July 1951 – by a Division Bench of the High Court, consisting of Justice Chagla and Justice Gajendragadkar. Both the judges gave separate opinions, but arrived at the same final conclusion. As we shall discuss below, the decision in Narasu continues to be a stumbling block in subjecting personal laws to fundamental rights scrutiny, even 69 years after it was delivered. 

Exclusion of uncodified personal laws from Article 13: The need to conclusively overrule Narasu Appa Mali

Personal laws govern an individual’s rights and privileges with respect to marriage, divorce, succession and other family relations. Personal laws may exist in either codified or uncodified forms. Codified versions of personal law include legislations such as the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. These legislations provide a statutory basis for Hindu personal law, which had largely existed in an uncodified form during the British Raj.

Also, various codified personal laws such as the Indian Succession Act, 1925 and the Indian Christian Marriage Act, 1872 are pre-constitutional in nature, and continue to operate by virtue of Article 13(1) and Article 372(1) of the Constitution. Provisions of such pre-constitutional personal laws have also been successfully challenged in Court. For instance, in John Vallamattom, the Apex Court struck down Section 118 of the Indian Succession Act, on grounds of violation of Article 14.

Uncodified personal laws such as the Shariat are a set of traditional laws that derive their legitimacy from the scriptures, tenets and the customs of a particular religion. An individual is bound to follow such uncodified personal laws by virtue of his association to a particular religion.Although they are not enacted by the State - even uncodified personal laws receive legal recognition, as they are enforced by Indian Courts for matters governing family relations such as marriage and divorce. For instance, the set of rules prescribed in the Shariat (Muslim personal law) are enforced by Indian Courts – to resolve disputes relating to marriage, divorce, succession etc.

Under Article 13(3)(a) of the Constitution, the definition of ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, and any ‘custom or usage’ that has the force of law within the territory of India. While a ‘custom or usage’ that has the force of law falls within the ambit of Article 13(3)(a), personal laws have not been specifically included.

In Narasu Appa Mali, the Bombay High Court had to determine the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. One of the arguments made here by the petitioner was that the Act was discriminatory, as it penalized polygamy only among Hindus, and did not outlaw polygamy amongst Muslims, which was authorized under Muslim personal law.

While addressing this contention, Justice Chagla stated that uncodified personal laws have been specifically excluded from the purview of Article 13, and hence cannot be challenged for violation of fundamental rights. Although this is only a decision of the Bombay High Court, it has dominated judicial discourse on whether personal laws can be challenged for violation of fundamental rights.

In his judgment, Justice Chagla held that ‘personal laws’ are distinct from ‘customs and usages’ that have the force of law, and are not ‘laws in force’ within the meaning of Article 13(3)(b). He stated that it was the specific intention of the Constituent Assembly to exclude personal laws from judicial scrutiny, so that they may be reformed at an appropriate time by the Legislature. This, according to him, was corroborated by the presence of constitutional provisions such as Article 17 (abolition of untouchability), Article 25(2)(b) (Hindu social reform legislations) and Article 44 (uniform civil code). In effect, the Bench held that only a ‘custom or usage’ that does not form part of a personal law falls within the ambit of Article 13.

While the principles of Narasu Appa Mali has been affirmed by the Supreme Court on certain occasions, there have also been decisions where the Apex Court has taken a different view. For instance, in Sant Ram v. Labh Singh, Justice Gajendragadkar took a different view, even  though he did not make any reference to his earlier decision in Narasu. This decision was delivered in 1964, after Justice Gajendragadkar had been elevated to the Supreme Court.

Speaking on behalf of a Constitution Bench, he held that the definition of the word ‘law’ as mentioned in Article 13(3)(a) can be read into the term ‘laws in force’ mentioned in Article 13(3)(b). Accordingly, the term ‘laws in force’ in Article 13(3)(b) must include all those categories of ‘law’ mentioned in Article 13(3)(a). This was based on the premise that the terms ‘law’ and ‘laws in force’ are inclusive in nature, and cannot be interpreted in a restrictive manner.

After arriving at this conclusion, he held that a ‘custom or usage’ that existed prior to the commencement of the Constitution shall fall within the definition of ‘laws in force’ under Article 13(3)(b), and shall be void to the extent that it contravenes any fundamental right. While Justice Gajendragadkar did not refer to the view he took in Narasu, he nevertheless adopted an interpretation that overruled one of the premises on which the Narasu decision was founded on.

Taking this inclusive interpretation forward, it can be argued that uncodified personal laws must also fall within the definition of ‘law’ and ‘laws in force’. Such a conclusion can be further buttressed by referring to the views of Seervai, who pointed out that personal law and ‘customs and usages’ are inextricably mixed up, and it becomes extremely difficult to make a clear distinction between the two. Such a distinction is in any case only fictional in nature, as uncodified personal laws derive their authority solely from the customs and tenets of the religion itself.

Also, the mere presence of constitutional provisions such as Article 17, Article 25(2)(b) and Article 44 does not justify making uncodified personal laws immune from judicial scrutiny. Prior to any kind of reform, personal laws such as the Shariat continue to have binding force, and have always been applied by Indian Courts in disputes relating to family relations such as marriage and divorce. Provisions that permit future reform of personal laws cannot be used to interpret personal laws in a way that would make them immune to judicial review, in their present form.

Such an interpretation also leads to an anomaly where uncodified personal laws shall be immune from judicial review, but as soon as they are codified through a statute, the statute shall then be subject to the provisions of Part III. For instance, according to this interpretation, uncodified Hindu personal law shall be exempt from Article 13. But, as soon as Hindu personal law is codified through statutes such as the HMA, the statute shall fall within the ambit of Part III.

Such a distinction is fictional, as both uncodified Hindu personal law and statutes such as the HMA are applied and enforced by Indian Courts for matters governing family relations. For these reasons, uncodified personal laws and codified personal laws should be placed at the same pedestal, and must be subject to similar standards of judicial review under Part III. This can be achieved by conclusively overruling Narasu Appa Mali. The Bench in Shayara Bano missed an opportunity to do precisely this.

While it is now 69 years since Narasu continues to hold fort, it has far outlived its expiry date.

Note: In the Sabarimala judgment, Justice Chandrachud had also discussed the need to overrule Narasu. He stopped short of overruling it as the case was not directly relevant to the issues argued before the Bench in Sabarimala.

Implications of subjecting uncodified personal laws to judicial review

Once practices associated with personal laws and customs are subjected to judicial review, they can be invalidated or read down for violation of any of the fundamental rights conferred by Part III of the Constitution. Legal commentators have expressed apprehensions that subjecting personal laws to judicial review may lead to social reform through the judiciary – which does not have the expertise to determine complex questions associated with religion.

It has also been argued that matters associated with personal law should not be scrutinized by Courts – and that personal law reform should be left solely to the Legislature, and to the leaders of the religious community. However, such a view is incorrect, as leaders of religious communities have always been inimical towards reforming personal law, and making it more gender neutral. Also, due to political considerations, even the Legislatures have been inimical towards reform, and have tended to cater to the wishes of religious leaders.  

The most significant example of this is the reaction that followed the Shah Bano verdict, where the Supreme Court had enhanced the quantum of maintenance that could be availed by divorced Muslim women. Under pressure from the Muslim clergy and Muslim conservatives, the Rajiv Gandhi Government enacted legislation to overturn the Supreme Court verdict. Invoking the power of judicial review to invalidate or read down aspects of personal law that violate the mandate of gender equality and dignity is hence necessary, and the buck cannot simply be passed to the Legislature.

Also, progressive interventions into uncodified personal law have been successfully made in the past. For instance, in Vishwa Lochan Madan, the Apex Court held that fatwas and other decisions of Sharia Courts have no legally binding force even on the parties that approach these forums – and that such fatwas cannot be used to perpetrate gender inequality. This approach needs to be taken forward – and aspects of personal law that violate fundamental rights must either be invalidated or read down.

[Postscript: Before I let you go, here is a small snippet on Justice M.C Chagla. Justice Chagla was the first Indian Chief Justice of the Bombay High Court, and was formerly a junior in the chambers of Muhammad Ali Jinnah. When he was Chief Justice of the Bombay High Court, he had declined an offer to be elevated to the Supreme Court. This was because in those days, being Chief Justice of the Bombay High Court was considered more prestigious than serving in the Supreme Court! How much have the tables turned.]

Revisiting Bank Nationalization and the R.C. Cooper case

(This post takes you through the story behind Indira Gandhi's bank nationalization decision, and the litigation that followed)

19^th July marked exactly 51 years since Indira Gandhi’s bank nationalization ordinance. Indira Gandhi’s decision to nationalize 14 commercial banks was brought about on 19^th July 1969, which was a Saturday. Nationalizing 14 commercial banks through this ordinance brought more than 75% of India’s banking sector under direct State control. All assets, liabilities and paid-up capital of the 14 commercial banks were to vest directly with the Central Government. The ordinance was promulgated on a Saturday even though Parliament was scheduled to reconvene on Monday, 21^st July 1969 – which was less than 48 hours away.

The ordinance was also drafted in utmost secrecy. Only Indira Gandhi’s trusted officers were aware about the plan, and even the Cabinet Ministers were not kept in the loop. As Granville Austin notes in his book - Working a Democratic Constitution, Indira Gandhi’s Cabinet colleagues heard about the ordinance only once they arrived at the Cabinet Meeting, which was called to give rubber-stamp approval to the ordinance.[1] Even copies of the ordinance that had been circulated during the meeting were taken back, so that there were no leaks in advance.

After the Cabinet Meeting, the ordinance was taken to Acting President V.V. Giri for his assent. Interestingly, V.V. Giri, who was then the Acting President after the death of President Zakir Hussain, was going to demit office the next day. This was because he was contesting as a candidate in the upcoming Presidential elections.

Indira Gandhi announced her decision to the public through a radio broadcast in the evening. She stated that this decision was necessary for a larger social purpose, and was done to make banking facilities more accessible in rural areas. This was the first among many measures that Indira Gandhi undertook to facilitate greater State control over different sectors of the economy.

The events of 19^th July 1969 have an eerie resemblance with 8^th November 2016, when Narendra Modi shocked us all by announcing demonetization through a televised address. Akin to the bank nationalization decision, Modi’s Cabinet Ministers were informed about demonetization only in the Cabinet meeting that took place before the announcement. In fact, to prevent any leakage of information, the Cabinet Ministers were also prevented from bringing in their cellphones, and were not allowed to leave the meeting venue until Modi ended his television speech!

Be that as it may, there is one other common factor between demonetization and bank nationalization. Both were undertaken keeping in mind political considerations, along with other economic and social factors. In Indira Gandhi’s case, bank nationalization was a move that would establish her supremacy within the Congress, and prevent challengers like Morarji Desai from taking control of her party or Government. It is for precisely this reason that Morarji Desai was sacked as Finance Minister on 17^th July, which was two days prior to the promulgation of the bank nationalization ordinance.

The bank nationalization ordinance was severely criticized by other smaller political parties like the Swatantra Party and the Jan Sangh. They argued that bringing more than three-fourths of the banking sector under direct State control would cripple its growth in the long-run, and shall also lead to losses, corruption and red-tapism. While this was debated, preparations were already underway for challenging the ordinance before the Supreme Court. On Sunday, 20^th July 1969 (one day after the ordinance was promulgated), the legendary Nani Palkhivala took a flight to Delhi.

As Soli Sorabjee and Arvind Datar write in Nani Palkhivala: The Courtroom Genius, the writ petition to challenge the ordinance was drafted and finalized by Palkhivala a few hours after his arrival.[2] It was filed in the Supreme Court on Monday, 21^st July 1969, which was less than 48 hours after the ordinance had been promulgated. The petitioner before the Supreme Court was Rustom Cavasjee Cooper. 

R.C. Cooper was a Director and shareholder in the Central Bank of India. He was also a shareholder in Bank of Baroda and Bank of India Ltd. All of these 3 banks had been nationalized under the ordinance. The Supreme Court granted an interim order on Tuesday, 22^nd July, and restrained the Government from removing the Chairmen of all the banks which had been nationalized.

As the Supreme Court was seized of this petition, the ordinance was replaced by the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 (‘the Nationalization Act’) - which was passed in Parliament on 8^th August. The Supreme Court subsequently began hearing arguments on the unconstitutionality of the Nationalization Act, and the ordinance which preceded it. While Palkhivala advanced several arguments, let us briefly discuss two of his main arguments. Palkhivala first contended that the compensation that was being paid to erstwhile shareholders of the 14 banks was severely inadequate.

He argued that this was in violation of Article 31, under which the State had an obligation to pay full and adequate compensation while acquiring property. He also contended that the Nationalization Act violated Article 19(1)(f), which had conferred the right to acquire, hold and dispose off property. (Both Article 31 and 19(1)(f) were subsequently repealed through the 44^th Amendment in 1978).

Palkhivala’s other key argument was based on Article 14, where he contended that there was hostile discrimination against these 14 banks - as they were prevented from carrying on banking business after being nationalized. He argued that other banks which had not been nationalized were not subjected to this disqualification, and even foreign banks were allowed to carry on banking business.

After hearing arguments, the Court delivered its verdict on 10^th February 1970, which was less than 7 months after Indira Gandhi’s decision to promulgate an ordinance on a Saturday.[3] The majority opinion was delivered by Justice J.C. Shah. While Justice Shah upheld Parliament’s legislative power to nationalize banks as a whole, he concluded that the Nationalization Act failed to pass constitutional scrutiny.

He accepted Palkhivala’s argument on violation of Article 14, 19(1)(f) and 31. Significantly, the Court also overruled two principles laid down in A.K. Gopalan v. State of Madras (1950). In A.K. Gopalan, the majority led by Chief Justice Kania held that each fundamental right was mutually exclusive, and had to be looked at independently from other fundamental rights.

The majority also held that while determining whether a law violated any fundamental right under Part III of the Constitution, the Court would have to examine the object of the law, and not the effect that the law has on fundamental rights. Justice Fazal Ali did not agree with the majority, and took the view that every fundamental right is not a separate compartment, and that all fundamental rights are mutually interdependent. Justice Fazal Ali’s dissenting view was upheld 20 years later by the majority in R.C. Cooper.

The majority in R.C. Cooper overruled Chief Justice Kania’s view and conclusively held that fundamental rights were mutually interdependent, and not mutually exclusive. In other words, a law that was challenged as violative of 31 could also be violative of Article 19(1)(f), or Article 14, as none of these rights should be looked at as isolated compartments.

The majority also held that while examining whether a law violates fundamental rights, the Court shall have to scrutinize the effect that the law has on fundamental rights, and not the object that the State sought to achieve. Hence, two aspects of the Chief Justice Kania’s decision in A.K. Gopalan were overruled 20 years later, and the fundamental rights chapter was made permanently stronger.

This judgment laid down the foundation stone for Justice Bhagwati’s opinion in Maneka Gandhi v. Union of India,  where it was held that Article 14,19 and 21 formed a golden trinity, and that any law which is challenged under Article 21 should also meet the tests reasonableness under Article 14 and 19. This also paved the way for reading in unenumerated rights into Part III, such as the right to privacy and the right to food. Justice Fazal Ali’s dissent hence became the starting point for a more progressive interpretation of the fundamental rights chapter.

The decision in R.C. Cooper was however not unanimous. Justice A.N. Ray dissented from the majority and upheld the Nationalization Act. Ironically, three years later, Justice A.N. Ray was appointed as the Chief Justice of India by superseding Justices Shelat, Grover and Hegde, who were above him in the order of seniority. This was after Justice Ray held in favor of the Government in the Keshavananda Bharati case, and was the first instance where senior judges were superseded for the post of Chief Justice of India.

Following the decision in R.C. Cooper, the Central Government was forced to pass a fresh bank nationalization legislation in Parliament. This acquisition of the ownership of 14 banks has not been undone until today, despite severe criticism of the corruption and inefficiency that plagues the public sector banking system. Even the Modi Government does not seem to have any plan to undo all of the changes brought about in 1969, despite enjoying a majority in Parliament. Bank nationalization has hence effectively acquired a level of permanence in our economic polity.  

Another significant aspect to note here is the duration within which this judgment was delivered – which was less than seven months after Indira Gandhi decided to take the ordinance route. This can be contrasted with the situation we have in the Supreme Court as of today. The petitions challenging the constitutionality of the Citizenship Amendment Act, which was passed in December 2019, has not even been listed for a hearing. Even the challenge to the Article 370 amendment and the Jammu & Kashmir Reorganization Act, 2019 has met a similar fate, almost one year after they were passed in Parliament on 5^th August 2019.

While R.C. Cooper’s overruling of A.K. Gopalan still forms the pillar of our fundamental rights chapter, the speed and alacrity with which significant constitutional cases must be heard and adjudicated is another takeaway that we should remember. 

[1] Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Pg. 215.  

[2] Soli Sorabjee and Arvind Datar, Nani Palkhivala: The Courtroom Genius, Pg.60.

[3] The then Chief Justice of India, M Hidayatullah, could not be a part of the Bench as he was sworn in as the Acting President of India on 20^th July 1969. This was after V.V Giri demitted office as Acting President - to contest as a candidate in the upcoming Presidential elections.

The forgotten soldiers - Some reflections on the migrant workers' crisis

This post has been co-authored with Rohit Sharma. Rohit is a graduate student from NUJS Kolkata (Batch of 2020). He is a former Editor of the Journal of Indian Law and Society. During his tenure as an Editor, he also successfully headed the JILS Blog. Over the course of the last two months, Rohit has done commendable work in helping stranded migrant workers in the State of Madhya Pradesh. 

Since the advent of the Covid-19 pandemic, countries have tended to adopt a protectionist approach to minimize the health risk that has ensued. However, as we shall discuss below, this protectionism has led to unintended consequences, and has created multiple new issues in addition to the health crisis. 

One such step of protectionism was taken by the Modi Government, which imposed a nationwide lockdown from 25th March onwards, by giving merely a four-hour notice. While the lockdown was initially envisaged for a three-week duration, it was extended on four occasions and continued  till 8th June, after which a roadmap was laid down for reopening different sectors of the economy. 

This approach of protectionism, which culminated in a nationwide lockdown, created a new kind of unanticipated crisis for the migrant workers in the country. As per the 2011 Census,  there were 453.6 Million Indians who were migrants - out of which around 70%  were female. Now, since the lockdown was imposed with only a four-hour notice, the migrant workers could not return to their hometowns – as transportation services were halted by the Central Government.

As transportation services had been halted completely, they were stranded in the cities without any source of employment and income, and were left estranged from their families. In order to provide them partial relief, the Central Government belatedly planned to provide them Shramik Special trains from the first week of May - through which the migrant workers could travel back to their hometowns. The Central Government in this regard claimed that 85% of the fare for the train service shall be covered by them. But this was later retracted, and the obligation on paying for the train services was transferred to the different State Governments.

The ensuing uncertainty resulted in a situation where migrant workers were asked to pay for their own train tickets. This was a travesty of justice as the migrant workers were left stranded and had no access to income solely due to the imposition of the lockdown, and not for any fault on their part. 

While providing transportation services to migrant workers, the Central Government made the Railways a pawn of harassment, instead of taking an active role in facilitating free train services. Under the transportation scheme, it was stated that trains can be supplied only through a joint request of both the origin state and the destination state, which again created multiple coordination issues between different State Governments.

The migrants were also requested to fill online registration forms to avail transportation facilities. Such a step was oblivious to prevailing ground realities, where most migrants cannot manage to afford a smartphone. This forced many migrant workers to walk back to their hometowns on foot, as they had no other alternative at hand.

As per an estimate, the cost of getting 6.5 crore inter-state migrants back to their hometowns would have been approximately Rs 4,200 crore. This amount could have been financed through the PM Cares Fund itself, which was also not effectively utilized by the Central Government to tackle this humanitarian crisis.

The Union Home Ministry also assured to establish more than 20,000 relief camps for over 660,000 migrants. However, despite numerous such promises by the State and Central Governments, many stranded workers were left without food and shelter, after having lost their primary source of income. Since most of the workers didn’t have access to regular food, government officials claimed that a  One Nation, One Ration Policy was being put in place.

However, most of these workers were unaware about the scheme, and the manner in which food was to be procured under it. Additionally, the Pradhan Mantri Garib Kalyan Ann Yojana - which aims to provide 5kg of rice or wheat per month to a family, also faced problems due to non-accessibility of ration cards and closure of fair price shops. Hence, very few workers availed of these food services, and many were left with no source of food.

This apathy of the Government in being dismissive of the group that forms the backbone of the economy has already made some migrant workers decide that they shall not return to the cities in  future for work, and shall prefer staying back in their villages. The migrants were penalized for no fault of theirs, and the Central Government failed to provide them with any kind of income support for the lockdown period - where most enterprises were forced to shut down. Even the Supreme Court failed to hold the Central Government accountable for this – and merely stated that the workers and the employers may ‘negotiate’ the extent of wages to be paid for the lockdown period.

On 20th June, the Prime Minister launched the  “Garib Kalyan Rojgar Abhiyaan” to create jobs for at least 25,000 migrant workers in 116 districts across States such as Bihar, which saw the return of a large segment of migrants. This program intends to develop rural areas that have been affected by reverse migration. Along with this, the Garib Kalyan Ann Yojana, which aimed to provide free food rations, has been extended till November. 

While we await the outcome of these belated measures, there can be no justification for the Central Government’s failure to anticipate the migrant workers’ crisis, and provide them with immediate food and income support.  The images and videos of migrant workers walking thousands of kilometers to reach their hometowns shall continue to haunt us for the years to come.

While we look to flatten our Covid-19 curve, let us remember that the sufferings of the working class is another curve that should be flattened on priority.

Encounter killings and 'speedy' justice - When rule of law takes a backseat

In what turned out to be a predictable end to a week-long saga, Kanpur gangster Vikas Dubey was killed by the UP Police in an ‘encounter’, while he was being ferried back to Kanpur after being arrested in Ujjain, Madhya Pradesh. As per the version of the Police, Vikas Dubey was killed after the car that was ferrying him overturned, following which he snatched the pistol of a Police Officer and tried to escape. On the previous day, Prabhat Mishra - an aide of Vikas Dubey, was also killed in an encounter.  The Police gave the exact same justification even in this case, by stating that the accused snatched a Police Officer’s pistol and fired at them, after which they had no option but to retaliate.

In December last year, 4 persons accused of rape and murder in Hyderabad were bumped off for the very same reason – that they snatched the guns of the officers, who had taken them to the location of the crime to recreate the sequence of events. The common thread in all these three instances is the purported justification given by the Police – that the accused snatched a weapon, fired, and tried to flee – which left the Police with no option but to retaliate.

This repeated narration of the same story has made it difficult to believe, with multiple loopholes existing in between. For instance, in Vikas Dubey’s case, vehicles of media channels that were following the Police cavalcade were stopped a few kilometers before the encounter spot – which raises suspicion as to whether the events were pre-planned.

However, I do not aim to discuss whether such encounters are fake or staged in nature, as many of us very well know the answer. Instead, I would like to draw your attention to the celebration and jubilation that occurs after these encounters, with claims being made that “speedy justice has been duly served”. While such extra-judicial killings are celebrated on the ground that speedy justice has been ensured, our Constitution is put in the backburner.

In our democracy governed by the rule of law, the role of determining punishment and sentencing (be it life imprisonment or death penalty) is a task of the judiciary, and cannot be usurped by any Police force. It is only in a Police State or in a military dictatorship where the Executive takes the law in its own hands, and such actions are antithetical to our democratic foundations.

We forget that in most cases, the Police force undertakes encounters as it is the most convenient option for them – which obviates the need to ensure a fair trial and safely keep the accused in custody. Such short-cuts are undertaken with the connivance of the State Administration, who may feel that bumping off a person accused of a heinous crime is an easy route to avoid the judicial process – which is fraught with delay.

In other words, the deficiencies of our criminal justice system is used as an excuse to justify such extra-judicial killings. But, this is exactly what perpetrates the problem. If the Police force and the Executive can themselves take the law in their own hands and decide as to who ‘deserves to die’ – then will there be any need to address the deficiencies in our criminal justice system?

Let us not forget that it took seven years for Nirbhaya’s parents to get justice, which only accentuated their ordeal. The remedy to this malaise lies in addressing the deficiencies of our criminal justice system, and not in doing away with due process altogether, or celebrating when our Police take short-cuts. As Article 21’s guarantee of procedural and substantive due process tells us, the means adopted are as important as the end result. There cannot be any trade-off between the two under our constitutional framework.

Finally, any justification for such actions also imbibes a sense of impunity in our Police force, which then leads to situations where innocent victims end up paying the price. The recent custodial killing of Jayaraj and Bennix in Tamil Nadu epitomizes this sense of impunity – where Jayaraj and Bennix were thrashed to death as they had ‘disrespected’ Police Officers after keeping their mobile shop open beyond curfew hours.  

Unless we raise questions against such extra-judicial killings, and all other forms of Police atrocities , the rot in our criminal justice system shall continue to run deep.

The ban on 59 China-based apps - Some questions to ponder

Background

Last week, the Information Technology Ministry of the Central Government banned 59 China-based mobile apps. This list includes popular apps such as TikTok, UC Browser, CamScanner and ShareIt. This ban was undertaken by invoking Section 69A of the Information Technology Act (‘IT Act’), and the Website Blocking Rules of 2009. Section 69A of the IT Act confers the Central Government the power to block public access to any kind of online information, for safeguarding the sovereignty and integrity of India, and the security of the State. The procedure for this blocking of public access is prescribed in the Website Blocking Rules of 2009, which state that in a situation of ‘emergency’, an interim ban on public access can be directed, without giving a hearing to the aggrieved party.

The IT Ministry also issued a Press Release, which enlisted the reasons for the ban. The main reason mentioned in the Press Release is that the enlisted mobile apps were compromising on aspects of privacy and data security - by transmitting user data to servers located outside India. Such a compromise of privacy and data security, was, according to the Press Release, prejudicial to the sovereignty and integrity of India. The Press Release only states that the ‘relevant provisions’ of the Website Blocking Rules of 2009 have been invoked, and does not precisely state the ‘emergency’ which justified banning the mobile apps without giving a hearing to their developers.

However, the ostensible reason for invoking the ‘emergency’ provision is the tense situation with China, at the Ladakh border. While the IT Ministry does not explicitly mention China in the Press Release, its intention to send a strong political message to Xi Jinping and the Chinese Communist Party establishment is but obvious. More significantly, the Central Government would also want to ensure that during a tense military situation at the border, the Chinese establishment does not resort to espionage, or cyberattacks against Indian computer networks.

Such a worry is legitimate in light of recent events across the globe - as a Chinese State-backed hacker group is suspected to be behind a major cyber attack that hit Australia in June. As the concerns over data security and privacy are based on solid grounds, it is important for the Central Government to precisely clarify whether its order is interim or permanent in nature.  As of now, it has only been reported in the media that the order is interim in nature, and that a Secretary-level panel of the Central Government shall hear clarifications from representatives of the app developers. At this juncture, let us refer to the stand taken by the Chief Executive of TikTok.

While the Chief Executive of Tiktok has stated that TikTok shall not honor any request by the Chinese establishment to share user data of Indians, such an assurance cannot be taken at face value. This is because China’s National Intelligence Law of 2017 requires all companies of Chinese origin to share data with China’s intelligence agencies, irrespective of whether they operate within or outside the country. To illustrate - TikTok, as a Chinese-origin company shall be bound to share all data demanded by Chinese intelligence agencies, even though it does not have operations in China. This National Intelligence Law is just one among the many methods through which user data can be transferred across the border.

This example highlights that the scope for unauthorized transfer of data to foreign servers existed even before the military stand-off at Ladakh broke out, and the Government’s response of raising questions of privacy and data security has been belated. Keeping this background in mind, I would like to raise two questions while this situation develops.

Two Questions

[1]. As the possibility of unauthorized data transfer to foreign servers existed even before the border standoff, what about personal data that has already been transferred? It is important for us to have an answer to this, as apps such as TikTok, Cam Scanner, and UC Browser were hugely popular, and downloaded by a majority of smartphone users. These apps may collect sensitive personal data of various kinds, such as data relating to religious and political beliefs, financial status, sexual orientation, etc. 

[2]. Along with Chinese-origin apps, there may also be a case of unauthorized data transfer by apps which have significant Chinese investment. Some popular apps which have a significant investment by Chinese companies are Swiggy, Zomato, Big Basket, Paytm and Ola Cabs. Some of these apps also have common investors. To illustrate, Chinese tech giant Alibaba has made significant investments in Paytm, Zomato and BigBasket. 

*(Incidentally, Alibaba also owns UC Browser, which is one of the 59 apps that have been banned.)

Most of us would have linked our Paytm ID in our Zomato account, which in turn would also have our bank account details. While we link this under an expectation of privacy, there does exist a definite possibility of unauthorized sharing of sensitive information of this nature. Hence, it is important to know whether apps that are backed by Chinese investment are engaging in unauthorized transfer of data to their investor companies. An answer to this question shall highlight whether the list of 59 apps chosen by the IT Ministry is exhaustive, and whether other apps that are engaging in unauthorized transfer of data have been excluded.

Along with this, there is also a larger issue that we need to address, relating to privacy and security of the data that is collected by smartphones. Our smartphones store a plethora of personal data, ranging from our fingerprints to bank account details. The Government must examine whether there exist backdoors through which sensitive personal data stored in our smartphones is being transferred and accessed in an unauthorized manner. This issue assumes significance as more than 70% of the Indian smartphone market share is held by companies such as Xiaomi and Oppo, which have their roots in China. Hence, while we focus on mobile apps, let us not forget the smartphone ecosystem as a whole.

Some of these issues shall be partly addressed once the draft Personal Data Protection Bill, 2019 is enacted into law – as the Bill lays down conditions of processing and foreign transfer of personal data. While we push for our long overdue data protection law (irrespective of its shortcomings), let us hold the Government to account on all matters of privacy and data security. The IT Ministry’s approach here can be contrasted with the approach it adopted after launching the Arogya Setu app, which was coercively pushed even before a robust data security infrastructure was created. The ban on 59 apps should be seen in this context, and must be supplemented by addressing other equally pressing concerns of privacy and data security.
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Update: On 27th July, the Central Government banned 47 additional apps - which were operating as clones or 'lite' versions of the 59 Chinese apps that had been banned earlier.