1. Justice Mishra likely to head NHRC

Plea to include member from marginalised groups rejected by selection panel

Former Supreme Court Justice Arun Kumar Mishra is likely to be the new Chairperson of the National Human Rights Commission (NHRC) after a high-powered recommendation committee proposed his name on Monday, a source informed The Hindu.

Former Chief Justice of the Jammu and Kashmir High Court, Mahesh Mittal Kumar, and former Director of the Intelligence Bureau, Rajiv Jain, had also been recommended by the high-powered panel as members of the NHRC, but the official notification is yet to be out until the filing of this report.

The selection panel consisted of Prime Minister Narendra Modi; Home Minister Amit Shah; Deputy Chairman of the Rajya Sabha, Harivansh; Lok Sabha Speaker Om Birla; and the Leader of the Opposition in the Rajya Sabha, Mallikarjun Kharge.

Mr. Kharge is learnt to have registered his dissent after the committee didn’t accept his suggestion to appoint a member from either the Dalit, Adivasi or minority communities. The Congress leader is learnt to have argued that since most complaints at the NHRC pertained to these socially disadvantaged groups, there should be at least one representative from these communities in the Commission.

When other members pointed out that the concerned Act on the NHRC did not make any specific provisions about any group except a woman member, Mr. Kharge is learnt to have pointed out that there was no specific bar in appointments. He then suggested that the panel meet again in a week’s time with more names from these communities. He recorded his dissent when the committee decided to go ahead with the shortlisted names instead of looking for fresh names.

For over five months now, the NHRC has been without a full-time head after Justice H.L. Dattu retired last December. A highly-placed source said while 12 names were shortlisted for the two vacancies, the shortlisted candidates for the position of Chairperson included three former Chief Justices of India (CJIs).

As a sitting judge of the top court, Justice Mishra, while addressing an international conference, had described Mr. Modi as an “internationally acclaimed visionary who could think globally and act locally”.

National Human Rights Commission (NHRC)

• NHRC of India is an independent statutory body established on 12 October, 1993 as per provisions of Protection of Human Rights Act, 1993, later amended in 2006.
• NHRC has celebrated its Silver Jubilee (25 years) on October 12, 2018. Its headquarter is located in New Delhi.
• It is the watchdog of human rights in the country, i.e. the rights related to life, liberty, equality and dignity of the individual guaranteed by Indian Constitution or embodied in the international covenants and enforceable by courts in India.
• It was established in conformity with the Paris Principles, adopted for the promotion and protection of human rights in Paris (October, 1991) and endorsed by the General Assembly of the United Nations on 20 December, 1993.

What are Human Rights? As per UN definition these rights are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.These are entitled to everyone, without any discrimination.

Background

• Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in Paris on 10 December 1948.
• It is a milestone declaration in the history of human rights which sets out, for the first time, fundamental human rights to be universally protected.
• Human Rights Day is observed every year on 10 December, which is the anniversary of the UDHR. In 2018, Human Rights Day marked the 70th anniversary the declaration.
• In due time the growing importance of strengthening national human rights institutions has been recognized and in 1991, a UN meeting in Paris has developed a detailed set of principles i.e. Paris Principles. These principles became the foundation for the establishment and operation of national human rights institutions.
• In pursuant to these principles, India has enacted the Protection of Human Rights Act, 1993, with a view to bring about greater accountability and strengthening of the human rights in the country.
• This act also authorized State Governments to establish State Human Right Commission.

The Human Rights Council The Human Rights Council is an inter-governmental body created by the United Nations General Assembly resolution on 15 March 2006.It has replaced the former United Nations Commission on Human Rights.It is responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them.It has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year. It meets at the UN Office at Geneva.The Council is made up of 47 United Nations Member States which are elected by the UN General Assembly.

Structure of the Commission

• NHRC is a multi-member body which consists of a Chairman and seven other members. Out of the seven members, three are ex-officio member.
• President appoints the Chairman and members of NHRC on recommendation of high-powered committee headed by Prime Minister.
• The Chairperson and the members of the NHRC are appointed for 5 years or till the age of 70 years, whichever is earlier.
• They can be removed only on the charges of proved misbehavior or incapacity, if proved by an inquiry conducted by a Supreme Court Judge.
• Commission also has five Specialized Divisions i.e. Law Division, Investigation Division, Policy Research & Programmes Division, Training Division and Administration Division.
• The chairman and the members of State Commission are appointed by the Governor in consultation with the Chief Minister, Home Minister, Speaker of Legislative Assembly and Leader of the Opposition in the State Legislative Assembly.

Functions and Powers of NHRC

• NHRC investigates grievances regarding the violation of human rights either suo moto or after receiving a petition.
• It has the power to interfere in any judicial proceedings involving any allegation of violation of human rights.
• It can visit any jail or any other institution under the control of the State Government to see the living conditions of the inmates and to make recommendations thereon.
• It can review the safeguards provided under the constitution or any law for the protection of the human rights and can recommend appropriate remedial measures.
• NHRC undertakes and promotes research in the field of human rights.
• NHRC works to spread human rights literacy among various sections of society and promotes awareness of the safeguards available for the protection of these rights through publications, media, seminars and other means.
• The Commission takes an independent stand while providing opinions for the protection of human rights within the parlance of the Constitution or in law for the time being enforced.
• It has the powers of a civil court and can grant interim relief.
• It also has the authority to recommend payment of compensation or damages.
• NHRC credibility is duly reflected in large number of complaints received every year and the trust reposed in it by the citizens.
• It can recommend to both the central and state governments to take suitable steps to prevent the violation of Human Rights. It submits its annual report to the President of India who causes it to be laid before each House of Parliament.

Limitations of NHRC

• NHRC does not have any mechanism of investigation. In majority cases, it asks the concerned Central and State Governments to investigate the cases of the violation of Human Rights
• It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-General of India) due to its incapacity to render any practical relief to the aggrieved party.
• NHRC can only make recommendations, without the power to enforce decisions.
• Many times NHRC is viewed as post-retirement destinations for judges and bureaucrats with political affiliation moreover, inadequacy of funds also hamper its working.
• A large number of grievances go unaddressed because NHRC cannot investigate the complaint registered after one year of incident.
• Government often out rightly rejects recommendation of NHRC or there is partial compliance to these recommendations.
• State human rights commissions cannot call for information from the national government, which means that they are implicitly denied the power to investigate armed forces under national control.
• National Human Rights Commission powers related to violations of human rights by the armed forces have been largely restricted.

2. As births decline, China to allow couples to have third child

Decision comes after the ‘two-child policy’ largely failed to boost birth rates

China will for the first time allow couples to have a third child, the country’s government said on Monday, in a further relaxation of family planning rules five years after a “two-child policy” largely failed to boost birth rates. The announcement followed a meeting of the 25-member Politburo, chaired by China’s President and Communist Party of China General Secretary Xi Jinping, “to hear reports on major policy measures to actively address the ageing of population during the 14th Five-Year Plan period (2021-2025)”, State media said.

The change comes less than three weeks after the release of China’s once-in-a-decade population census that painted an alarming picture of declining births. The National Bureau of Statistics said on May 11 that 12 million babies were born last year, the lowest number since 1961, a time when Mao’s China was in the midst of a four-year famine, and down from 17.86 million in 2016.

The census said China’s population was 1.41 billion in 2020, an increase of 72 million since the last census in 2010, reflecting a 5.38% growth in this period and a 0.53% annual growth. Forecasts say the population could peak in the next couple of years and most likely by 2025, when India will become the world’s most populous country.

Dire situation

Some Chinese demographers said the announcement on Monday, coming so soon after the census, suggested the situation could be more dire than the official numbers indicated. “Maybe it’s because the real population data is too scary,” Yi Fuxian, a demographer, told the South China Morning Post (SCMP). “Even if they have not published it, it probably frightened the decision makers.”

The census recorded 264 million in the age group of 60 and over, up 5.44% since 2010 and accounting for 18.70% of the population. Those in the 15-59 age group were 894 million persons, down by 6.79% since 2010 and accounting for 63.35% of the population. China’s workforce in the 15-59 age bracket peaked at 925 million in 2011, according to the Ministry of Human Resources and Social Security said previously. That number was down to 894 million in this census and would drop to 700 million by 2050.

Huang Wenzheng, a fellow at the Center for China and Globalisation, in Beijing, told official broadcaster China Global Television Network (CGTN) following the release of the census that the ageing crisis “might be the biggest challenge the Chinese nation faces in the next century.” It is, however, unclear if the new announcement may address the problem, at least if the past five years are any indication. China introduced a “two child policy” in 2016, but the wide consensus is that it failed to have the desired impact. Surveys carried out by Chinese media attributed financial pressures as one main reason. A 2015 survey by the government said 70% of respondents attributed financial reasons for choosing to not have many children.

An online poll on Monday of 31,000 respondents conducted by the official Xinhua news agency found 28,000 “would not consider at all” having three children, while 1,600 said they would, the SCMP reported. The poll was subsequently removed, the newspaper said.

The National Population Policy, 2000 (NPP 2000)

The National Population Policy was launched by the government of India with a broad aim of assisting the citizens with reproductive health care services that help the citizens in making voluntary and informed choices on family planning. 

Objectives of National Population Policy 2000

• To provide for basic reproductive and child health care services, and infrastructure in India.
• To provide advisory, informative healthcare personnel, contraception needs and supplies in the country.
• It aimed to achieve net replacement levels of TFR by 2010. It focuses on meeting reproductive health, maternal health, child survival, and maternal health needs of India.
• It also aims to reach a stable population by the year 2045.

To achieve this, the NPP 2000 set goals for 2010. These are highlighted below:

• Education of both boys and girls to be made free and mandatory until the age of 14, to increase child education and reduce the drop-out rate.
• To reduce Infant Mortality rate below 30 per 1000 live births; and MMR (Maternal Mortality Ratio) well below 100 deaths/100,000 live births.
• It aimed to immunize all children in India under the Universal Immunization Programme (UIP) against vaccine-preventable diseases.
• The Policy also aimed at encouraging the delayed marriage of girls. While the minimum legal age for girl marriage is 18, but favourably should be 20.
• To attain 80% of total deliveries in India with Institutions like hospitals and clinics. 100% of the personnel must be well trained and eligible for the same.
• To provide counselling and information services for contraception and fertility needs of couples.
• One of the aims of the NPP was to reduce and contain the spread of AIDS, RTI (Reproductive Tract Infections), and STDs (Sexually Transmitted Diseases).
• To prevent all communicable diseases for better maternal and child health.
• The NPP also looked to combine the Indian Systems of Medicine (ISM)—that includes Ayurveda, Siddha, Unani, Yoga, Naturopathy, and Homeopathy—for assisting the citizens in understanding reproductive and child health needs and services.
• To encourage families in adopting the two children principle.
• To match other social welfare programs to the goals of this policy to achieve societal acceptance of family welfare schemes.

To achieve these goals, the government sought to implement 12 nation-wide ideas or ‘strategic themes’. These are briefly listed as follows:

Widened program implementation

Women were encouraged to participate in decision making positions. For instance, the formation of rural Panchayat committees with women as the heads and members, to oversee the management, identify and provide for the reproductive healthcare facilities, child healthcare, etc. in villages.

To encourage the availability of basic healthcare services for couples, children, and women in rural areas. This is necessary to record the number of births, vaccinations, etc. in rural areas.

Women empowerment

To involve the participation of women in spreading awareness, providing necessary facilities to encourage women and curb maternal mortality, etc.

Provisions for Child health

To reduce infant mortality and child morbidity, services like post-delivery care, nutrition supplements, vaccinations, diagnosis and treatment facilities, etc. were sought to be provided adequately. 

Family Welfare needs

To strengthen family welfare and overall health, services like ambulance, improve the reach of these government schemes were to be managed.

To look after the reproductive needs of under-aided population groups like slums, tribal communities, adolescents, in awareness about reproductive health, sanitation, fertility, STDs, etc. The NPP also aimed at involving men in family planning.

The NPP aimed at diversifying the health care providers and involving private medical service providers in this scheme.

NGOs and private sector companies were pushed for converging with the government under this policy.

Provisions for research for the needs, manufacture, and supply of contraceptive options for citizens. 

Better healthcare services and support for the elderly section of the society was focused upon.

The policy aimed at extensive reproductive care, family planning, and contraception education and awareness programmes to be conducted all over India.

3. Saudi talks under way in ‘good atmosphere’: Iran

‘Aim to reach common understanding’

Iran’s Foreign Ministry said on Monday that the Islamic republic is continuing talks with regional rival Saudi Arabia in a “good atmosphere,” in the hope of reaching a “common understanding”.

Media reports last month revealed that Iranian and Saudi officials met in Baghdad in April, their first high-level meeting since Riyadh cut diplomatic ties with Tehran in 2016.

“Talks are still continuing in a good atmosphere,” Ministry spokesman Saeed Khatibzadeh said at a press conference. “We hope these talks can achieve a common understanding between Iran and Saudi Arabia,” he added.

Ties between the two countries were cut in 2016 after Iranian protesters attacked Saudi diplomatic missions following the kingdom’s execution of a revered Shia cleric.

The talks in Baghdad, facilitated by Iraqi Prime Minister Mustafa al-Kadhemi, remained secret until the Financial Times reported that a first meeting was held on April 9.

Mr. Khatibzadeh confirmed the talks on May 10, saying their purpose was “both bilateral and regional”, but stressed it was “too soon” to disclose any details. “De-escalation and (establishing) ties between two great Islamic countries in the Persian Gulf region is to the benefit of both nations,” he said at the time.

4. ‘Vaccination key to health of economy’

Economic impact due to spate of lockdowns across States not likely to be as bad as last year, says CEA

The economic impact of the second wave of the COVID-19 pandemic may not be very large at this point but curbing the pandemic through swift vaccination and strict COVID-19 protocols is imperative to revive economic activity, Chief Economic Adviser K.V. Subramanian said on Monday.

“Vaccination is important for the health of the people as well as the health of the economy… The economic impact is inextricably linked to the overall pandemic itself. The economy had recovered very well by March but then the second wave has moderated the momentum,” he said during a briefing on the state of the economy.

While the spate of lockdowns across States is beginning to hurt the economy, the second wave of the COVID-19 pandemic has peaked in early May and the restrictions imposed so far have been ‘asynchronous and heterogenous’ and hence the decline is not likely to be as bad as last year, the CEA said.

“There has been an internal assessment on the costs of the restrictions… Whether or not it (growth) will be in double digits or single digits, there is uncertainty. Some of the scientists are talking about the possibility of a third wave – we don’t know when it will be and what will be the impact. It would be speculative to tell you exact numbers,” Mr. Subramanian said, terming the Economic Survey and Budget’s GDP growth estimates for 2021-22 (11% and about 10.5%, respectively) as ‘conservative’.

‘Immense uncertainty’

“The caveat with everything related to the pandemic, is that estimates are subject to immense uncertainty given that the trajectory of the pandemic has been hard to predict even for epidemiologists,” Mr. Subramanian pointed out.

He said he expected manufacturing to do well this year, and non-contact-intensive services will also see an enhanced demand due to the feedback effects from manufacturing.

“For contact-sensitive services sectors to come back…, will depend on the path of the vaccination itself,” he said.

‘Impact of restrictions’

Referring to the moderation in several indicators over the past month, the Chief Economic Adviser said: “Clearly, the restrictions imposed by the States have had some impact, but as the wave seems to be on the decline, we do anticipate that these restrictions will progressively reduce and later be removed, which may help in bringing back economic activity.”

5. It’s time to define limits of sedition: SC

It grants relief to two Telugu channels

The Supreme Court on Monday said “it is time to define the limits of sedition” even as it protected two Telugu channels from any coercive action by the Y.S. Jagan Mohan Reddy-led Andhra Pradesh government for their reportage of the COVID-19 pandemic in the State.

A three-judge Bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens for airing grievances about the governments’ COVID-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders.

“We are of the view that the ambit and parameters of the provisions of Sections 124A (sedition), 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation,” the court noted in its order.

“This is muzzling the media,” Justice L. Nageswara Rao, another judge on the Bench along with Justice S. Ravindra Bhat, said about the manner in which A.P. had tried to “silence” channels TV5 and ABN.

“It is time to define the limits of sedition,” Justice Chandrachud said.

The court issued notice to the A.P. government and directed that “there shall be a stay on the State adopting coercive proceedings against the two channels”.

Sedition Law

• Historical Background of Sedition Law:
  • Sedition laws were enacted in 17^th century England when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
  • The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but was inexplicably omitted when the Indian Penal Code (IPC) was enacted in 1860.
  • Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence.
    • It was one of the many draconian laws enacted to stifle any voices of dissent at that time.

• Sedition Law Today: Sedition is a crime under Section 124A of the Indian Penal Code (IPC).
  • Section 124A IPC:
    • It defines sedition as an offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
    • Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.
  • Punishment for the Offence of Sedition:
    • Sedition is a non-bailable offence. Punishment under the Section 124A ranges from imprisonment up to three years to a life term, to which fine may be added.
    • A person charged under this law is barred from a government job.
      • They have to live without their passport and must produce themselves in the court at all times as and when required.
• Major Supreme Court Decisions on Sedition Law:
  • The SC highlighted debates over sedition in 1950 in its decisions in Brij Bhushan vs the State of Delhi and Romesh Thappar vs the State of Madras.
    • In these cases, the court held that a law which restricted speech on the ground that it would disturb public order was unconstitutional.
    • It also held that disturbing the public order will mean nothing less than endangering the foundations of the State or threatening its overthrow.
    • Thus, these decisions prompted the First Constitution Amendment, where Article 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.
  • In 1962, the SC decided on the constitutionality of Section 124A in Kedar Nath Singh vs State of Bihar.
    • It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
    • It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
  • In 1995, the SC, in Balwant Singh vs State of Punjab, held that mere sloganeering which evoked no public response did not amount to sedition.
• Arguments in Support of Section 124A:
  • Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements.
  • It protects the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State.
  • If contempt of court invites penal action, contempt of government should also attract punishment.
  • Many districts in different states face a maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution.
  • Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases.
• Arguments against Section 124A:
  • Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
  • Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition.
    • Right to question, criticize and change rulers is very fundamental to the idea of democracy.
  • The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country. There is no reason why India should not abolish this section.
  • The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretations to the whims and fancies of the investigating officers.
  • IPC and Unlawful Activities Prevention Act 2019 have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting national integrity. There is no need for Section 124A.
  • The sedition law is being misused as a tool to persecute political dissent. A wide and concentrated executive discretion is inbuilt into it which permits the blatant abuse.
  • In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments.

6. Editorial-1: Power play to bring the digital ecosystem to heel

While there are problems in the system, ill-considered regulation such as the new IT Rules is not the way forward

Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 imposes an obligation on significant social media intermediaries providing a messaging function, to ensure traceability of the originator of information on their platforms. A failure to implement this obligation can lead to intermediaries being held responsible for illicit content on their platforms. These rules have recently come into effect. Consequently, WhatsApp has filed a petition in the Delhi High Court alleging that the mandate for traceability violates the privacy rights of Indian citizens, by rendering WhatsApp unable to provide encrypted services.

In response, the Government has, through a press release, sought to question the substance and timing of WhatsApp’s petition. On scrutiny, however, it appears that the response is misconceived.

The Government primarily relies on the argument that: privacy is not an absolute right, and that the traceability obligation is proportionate, and sufficiently restricted. Notably, the new Rules mandate traceability only in the case of significant social media intermediaries that provide messaging services (i.e. those that meet a user threshold of 50 lakh users, which WhatsApp does), subject to an order being passed by a court or government agency and only in the absence of any alternatives.

While it is indeed true that privacy is not an absolute right, the Supreme Court of India in the two K.S. Puttaswamy decisions (of 2017 and 2018) has clarified that any restriction on this right must be necessary, proportionate and include safeguards against abuse.

On traceability as a feature

However, as we argue in a recent paper, a general obligation to enable traceability as a systemic feature across certain types of digital services is neither suitable nor proportionate. Additionally, the Rules lack effective safeguards in that they fail to provide any system of independent oversight over tracing requests made by the executive. This allows government agencies the ability to seek any messaging user’s identity, virtually at will. However, anonymity from the government can be important, particularly in contexts of journalistic source protection and for whistle-blowers. Therefore, deciding whether to remove anonymity requires application of an independent judicial mind.

In applying the Puttaswamy tests to the Rules, one must examine not just whether the weakening of encryption systems will lead to some law enforcement gains, but whether these are worth the costs involved. Thus, one must consider the impacts of such a measure on the general digital ecosystem in terms of the overall cybersecurity and privacy problems such an obligation could create. There is near universal consensus that mandating the presence of backdoors or weakening encryption generally — which a traceability mandate would do — would compromise the privacy and security of all individuals at all times, despite no illegal activity on their part, and would create a presumption of criminality.

Other means exist

In any event, the Government already has numerous alternative means of securing relevant information to investigate online offences including by accessing unencrypted data such as metadata, and other digital trails from intermediaries. Therefore, the present Rules attempt to shorten the investigative process, even though, as we argue in our paper, law enforcement is not supposed to be an entirely frictionless process. Frictionless processes lacking sufficient checks will merely incentivise fishing expeditions by government agencies.

Further, the surveillance powers of the Government are in any case vast and overreaching, recognised even by the Justice B.N. Srikrishna Committee report of 2018. Importantly, the Government already has the ability to access encrypted data under the IT Act. Notably, Section 69(3) of the Information Technology Act and Rules 17 and 13 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 require intermediaries to assist with decryption where they have the technical ability to do so, and where law enforcement has no alternatives. The newly notified Rules go well beyond current provisions in the law by seeking to punish relevant intermediaries for failing to adequately weaken encryption systems.

The Government’s press release appears to be well aware that this is in effect what would happen if the traceability mandate were to be imposed. However, it notes that it is the responsibility of intermediaries to find an alternative method to protect user privacy, with or without the use of encryption.

Scrutiny is a must

The press release also claims that the new Rules were introduced pursuant to consultation. However, this does not reveal the entire story. The traceability related provision in the draft version of the Rules released in 2018 faced significant opposition from numerous stakeholders, ranging from service providers, academia, and civil society organisations. The new traceability provisions are substantially similar, and carrying out a consultation merely to reject all the views that go against state interests is far from best practice. Ideally, and given the substantive changes made to the 2018 draft (including the addition of several entirely new parts such as those pertaining to regulation of digital news), the new Rules should also have been put through a period of consultation before being notified. . Ideally, the rules should also be accompanied by an explanatory memorandum explaining the rationale for regulation.

Of course, this entire discussion is notwithstanding the fact that the intermediary rules are not the manner or place to go about putting in place new substantive regulation to solve the myriad problems caused by the digital ecosystem. Indeed, the ability of the government to issue progressively more onerous obligations under the guise of “due diligence” requirements under Section 79 of the IT Act (which in essence, deals with the issue of take-down of illegal content) must be subject to judicial scrutiny.

Overall, however, it is clear that the move by the Government is part of a broader power play against foreign-based technology companies, and to generally bring the digital ecosystem to heel. While, undoubtedly, there are numerous problems in the digital ecosystem that are often exacerbated or indeed created by the way intermediaries function, ill-considered regulation of the sort represented by the new intermediary rules — which appear to have little basis in evidence or care for consequences –— is not the way forward. Indeed, the only truly democratic and relatively long-term solution would be for legislative change along multiple avenues, including in the form of revising and reforming the now antiquated IT Act, 2000.

Rishab Bailey is a technology policy researcher at the National Institute of Public Finance and Policy, New Delhi. Vrinda Bhandari, a lawyer practising in Delhi, was involved in challenging the Intermediary Guideline Rules 2021 before the Kerala High Court

7. Editorial-2: Ending encryption

Enforcing traceability on popular messaging apps will encroach into user privacy

Barely a day before the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 came into force, WhatsApp moved the Delhi High Court against the rules — specifically the one that mandates that a “significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order”. Given the specification that a “significant social media intermediary” is one with more than 50 lakh registered users, WhatsApp’s messenger service would clearly be affected. WhatsApp’s contention is that for compliance and traceability, it would have to break its end-to-end encryption service that allows messages to be read only by the sender and the receiver. Its argument is that the encryption feature allows for privacy protections and breaking it would mean a violation of privacy. The question to be asked is whether the traceability guidelines (by breaking encryption) are vital to law enforcement in cases of harmful content. A release by the Ministry of Electronics and IT has said that the traceability measure will be used by law enforcement as the “last resort” and will come by only in specific situations, such as “for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India… or child sexual abuse material, punishable with imprisonment….” The assertion suggests that this requirement is in line with the Puttaswamy judgment that clarified that any restriction to the right of privacy must be necessary, proportionate and include safeguards against abuse.

But the Government, as the law stands now, can already seek access to encrypted data under Section 69(3) of the IT Act, and Rules 17 and 13 of the 2009 Surveillance Rules that require intermediaries to assist with decryption when they have the technical ability to do so and when law enforcement has no other alternative. Besides, it can still seek unencrypted data, metadata and digital trails from intermediaries such as WhatsApp. The trouble with enforcing traceability is that without safeguards such as having any independent or judicial oversight, government agencies could seek any user’s identity on vague grounds and this could compromise the anonymity of whistle-blowers and journalistic sources, who can claim to be acting in the public interest. WhatsApp’s contention that “requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent… and fundamentally undermines right to privacy” is, therefore, not hyperbole. If anything, the Government needs to revisit its position on traceability commitments of intermediaries and instead revise the IT Act, 2000 in line with existing global best practices besides legislating the long-pending Data Protection Bill.

8. Editorial-3: Recognising caste-based violence against women

By repeatedly setting aside convictions under the PoA Act, courts bolster allegations that the law is misused

The horror of the gang rape of a 19-year-old Dalit woman in Hathras in 2020 is still fresh in our minds. Activists, academics and lawyers argued that the sexual violence took place on account of the woman’s gender and caste and that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) must be invoked.

On the heels of the Hathras crime came a new judgment of the Supreme Court (Patan Jamal Vali v. State of Andhra Pradesh) addressing the intersectionality of caste, gender and disability. In this case, the victim of sexual assault was a blind 22-year-old Dalit woman. The trial court and the High Court had convicted the accused for rape under Section 376 of the Indian Penal Code (IPC), and under Section 3(2)(v) of the PoA Act, and sentenced him to life imprisonment. The Supreme Court, in its judgment delivered by Justice D.Y. Chandrachud and Justice M.R. Shah, confirmed the conviction and the punishment for rape under the IPC but set aside the conviction under the PoA Act. On the one hand, this judgment is a huge step forward as the court used the opportunity to bring recognition to intersectional discrimination faced by women on the grounds of sex, caste and disability. However, by setting aside the conviction under the PoA Act, it is like many other previous judgments of the Supreme Court.

The intersectional approach

Let us focus on the positive aspects first. The Supreme Court, in a first, elaborated on the need for an intersectional approach, to take into account the multiple marginalities that the victim faced. It relied on well-known intersectional theorists such as Kimberlé Crenshaw who first coined the term ‘intersectionality’ and on the statement of the Combahee River Collective which addressed the intersectional discrimination faced by black women in the U.S. Using these sources, the court recognised that when the identity of a woman intersects with her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. It said we need to understand how multiple sources of oppression operated cumulatively to produce a specific experience of subordination for the blind Dalit woman. Placing special emphasis on making the criminal justice system more responsive to women with disabilities facing sexual assault, the court also laid down directions to train judges, the police and prosecutors to be sensitised in such cases.

But despite using an intersectional lens, the court set aside conviction under the PoA Act. The PoA Act was enacted to address atrocities against persons from SC and ST communities and was amended in 2015 to specifically recognise more atrocities against Dalit and Adivasi women including sexual assault, sexual harassment and Devadasi dedication. Section 3(2)(v) states that if any person not being an SC/ST member commits any offence under the IPC punishable with imprisonment of 10 years or more against a person on the ground that such a person is from an SC/ST community, he shall be punishable with imprisonment for life and with fine. This was amended in 2015, to change the phrase “on the ground that such person is a member of SC/ST” to “knowing that such person is a member of SC/ST”.

In cases of sexual violence against Dalit and Adivasi women, courts have almost consistently set aside convictions under the PoA Act. In 2006 in Ramdas and Others v. State of Maharashtra, where a Dalit minor girl was raped, the Supreme Court set aside the conviction under the PoA Act stating that the mere fact that the victim happened to be a woman who was member of an SC community would not attract the PoA Act. In Dinesh Alias Buddha v. State of Rajasthan (2006), the Supreme Court held: “It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.” In Asharfi v. State of Uttar Pradesh (2017), the court held that the evidence and materials on record did not show that the appellant had committed rape on the ground that the victim was member of an SC community. In 2019, in Khuman Singh v. State of Madhya Pradesh, a case of murder, again the court held that the fact that the deceased was a member of an SC community was not disputed but there was no evidence to show that the offence was committed only on that ground; conviction under the PoA Act was set aside. There are several precedents insisting on an unrealistic burden of proof. This issue needs to be referred to a larger bench to take a different view.

Burden of proof

In all these judgments, the court held that there was no evidence to show that the accused committed sexual assault on the ground that the victim was member of an SC/ST community. One is tempted to ask: what kind of evidence would that be? How would the prosecution prove in any given case that the accused had sexually assaulted the victim because she was Dalit/ Adivasi? The only evidence that can be led is that the victim was from an SC/ST community and that the accused was aware of that. When a woman is from a marginalised caste and is disabled, she faces discrimination due to her sex, caste/tribe and disability, all of which render her vulnerable to sexual violence. This is what intersectionality theory requires us to recognise.

In the Patan Jamal Vali case, the court using the intersectional lens recognises that evidence of discrimination or violence on a specific ground may be absent or difficult to prove. It agreed with the finding of the sessions judge that the prosecution’s case would not fail merely because the victim’s mother did not mention in her statement to the police that the offence was committed against her daughter because she was from an SC community. It also confirmed that it would be reasonable to presume that the accused knew the victim’s caste as he was known to the victim’s family. Despite such a nuanced understanding, the court held that there was no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the victim’s caste. It is unfortunate that intersectionality, which seeks to recognise the multiple grounds of marginalisation faced by women, was used by the court to state that it becomes difficult to establish whether it was caste, gender or disability that led to the commission of the offence.

Why would this matter, one might ask, if the punishment of life imprisonment was upheld? It matters because the repeated setting aside of convictions under the PoA Act bolsters the allegations that the law is misused and amounts to the erasure of caste-based violence faced by women. Further, as stated in the recent Parliamentary Standing Committee Report on Atrocities and Crimes against Women and Children, the “high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration”. This judgment was a missed opportunity for the court to use intersectionality to uphold the conviction under the PoA Act or refer the matter to a larger bench if needed. We need to stop hiding behind smokescreens of hyper-technicality of evidence and recognise caste-based violence against women when it stares us in the face. Else, our caste discrimination laws will be rendered toothless. If intersectionality theory mattered in this case, it should have influenced an interpretation of the PoA Act that reflects the lived experiences of women facing sexual violence.

9. Editorial-4: The Indian model of coexistence

Israel and Palestine will have to seek a solution through non-violence, and could take a leaf out of India’s book

The cycle of violence between the Israeli forces and the Palestinian public is neither the first nor likely to be the last of its kind. The Palestinians have been losing not only their lives and livelihood but also the very land for which this violence has been raging for over a century now. The territory in question is The Holy Land to the three religions of Abrahamic monotheism, viz., Judaism, Christianity and Islam. One can’t be a Jew or a Christian or a Muslim and deny that it is the Promised Land of the Beni Israel branch of the descendants of Abraham. The Al-Aqsa mosque in Quran is Solomon’s Temple, which was the first Qibla (direction of prayer) of the Muslims. The Islamic claim on Jerusalem comes only through its association with Judaism and Christianity.

A brief history

Britain renounced its Mandate over Palestine in 1948, paving the way for the United Nations to divide Palestine between the Jews and Arabs, giving them about 55% and 45% of the land, respectively. The Jews, meanwhile, had declared the establishment of the state of Israel for which they had been working for long. The Palestinians, who lacked the resources to conceive of a state, failed to form a state of their own in the land allotted to them. Instead, a coalition of Arab countries invaded the nascent state of Israel to nip it in the bud. Israel not only defeated the Arab armies, but also unleashed what the Palestinians call Nakba, an Arabic word which means holocaust. Israel destroyed about 600 Palestinian villages and expelled about 80% of Arabs from its territory.

In 1967, in the Six-Day War, Israel captured not just more Palestinian land but also Egypt’s Sinai Peninsula and Syria’s Golan Heights. During the Yom Kippur War of 1973, the Arabs came to realise that Israel is here to stay. But the Arab states, while washing their hands off Palestine, failed to impress the same realisation upon their Palestinian brethren, a sizeable number of whom remain committed to seeking a solution through counter-violence. Non-Arab Muslim countries, while being of no help to the Palestinians have been the greatest cheerleaders of the violent section of the struggle.

This vicious cycle of violence is not going to end unless there is realism on both sides. The Hamas should know that Israel will not give up on holding on to land it has held for years, and Israel should understand that total subjugation, expulsion or even decimation of Palestinians will not make it any safer. Both the sides will have to seek a solution through non-violence. A solution based on the common humanity of all stakeholders, one that is not riven by racial and religious schisms, needs to be explored. Secularisation of the discourse is an inescapable prerequisite for any workable solution. This is especially more applicable for the weaker side.

Accommodation of all

The Indian model of democracy and secularism, which accommodates religious, ethnic, linguistic and other diversities, could be a viable model for the peaceful coexistence of formerly antagonistic groups. The European model of the annihilation of natives in the Americas and Australia, last tried on the Jews in Nazi Germany, is not a solution, which we can morally countenance and practically resort to. India, on the other hand, evolved a unique model of accommodating the victors and the vanquished, without ever resorting to the latter’s decimation.

A modus vivendi has to evolve on the basis of hard realities, the first of which is that neither the Jews nor the Palestinians are going to vanish into thin air. The Palestinians missed the bus to form a state in 1948, and have missed many since then. Now, they are sparsely spread over the land in scores of non-contiguous pockets, making a cohesive state unviable. The two-state solution can be possible only if Israel frees the occupied territories and removes the Jewish settlements from there, an unlikely scenario in the foreseeable future.

If the two-state solution is nowhere in the offing, a single state after the Indian model, i.e., a secular, democratic and pluralistic state, may be the only feasible option. A nation state only for the Jews would be a relapse into the ghetto mode, with all its concomitant implications.

The Palestinian refugees have a right to return. That the altered demographics would impinge on the religio-racial character of Israel is not an argument, which behoves a modern democratic state founded on common humanity with equal rights and opportunities for everyone. It is true that a nation state belongs to the group, which constituted itself into a nation. Therefore, the group’s ethos would reflect in national life without it rubbing it in. A nation is an imagined community. As imagination expands, the foundations of the nation become deeper. For this, there could be no better model than India. Israel might not offer the right model of conflict resolution for India, but India presents a model of peaceful coexistence for Israel.