1. The amendments to the IT Rules, 2021

Why did the Ministry of Electronics and IT invite feedback to the draft amendments of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021? What are the functions of the new Grievance Appellate Committees?

The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) on October 28. The draft generated considerable discussion and comment on the regulation of social media in India.

This proposed amendments can be broadly classified into two categories. The first category involved placing additional obligations on the SMIs to ensure better protection of user interests while the second category involved the institution of an appellate mechanism for grievance redressal. Both have been notified to the Rules.

The amendments call for the institution of Grievance Appellate Committees (GAC). The committee is styled as a three member council out of which one member will be a government officer (holding the post ex officio) while the other two members will be independent representatives. The GAC is required to adopt an online dispute resolution mechanism which will make it more accessible to the users.

Trishee Goyal

The story so far:

The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) on October 28. In June 2022, MeitY had put out a draft of the amendments and solicited feedback from the relevant stakeholders. The draft generated considerable discussion and comment on the regulation of social media in India.

What are the IT Rules, 2021?

World over, governments are grappling with the issue of regulating social media intermediaries (SMIs). Given the multitudinous nature of the problem — the centrality of SMIs in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance — it is important for governments to update their regulatory framework to face emergent challenges. In a bid to keep up with these issues, India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021 that were primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.

What was the need to amend the IT Rules, 2021?

As per the press note accompanying the draft amendments in June 2022, the stated objectives of the amendments were three-fold. First, there was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms, second, to strengthen the grievance redressal framework in the Rules, and third, that compliance with these should not impact early stage Indian start-ups. This translated into a set of proposed amendments that can be broadly classified into two categories. The first category involved placing additional obligations on the SMIs to ensure better protection of user interests while the second category involved the institution of an appellate mechanism for grievance redressal.

What are the additional obligations placed on the SMIs?

The notification of the final amendments carry forward all the amendments that it had proposed in June 2022.

First, the original IT Rules, 2021 obligated the SMIs to merely inform its users of the “rules and regulations, privacy policy and user agreement” that governed its platforms along with the categories of content that users are prohibited from hosting, displaying, sharing etc. on the platform. This obligation on the SMIs has now been extended to ensuring that its users are in compliance with the relevant rules of the platform. Further, SMIs are required to “make reasonable” efforts to prevent prohibited content being hosted on its platform by the users. To a large extent, this enhances the responsibility and concomitantly the power of SMIs to police and moderate content on their platforms. This has been met with skepticism by both the platforms and the users given the subjective nature of speech and the magnitude of the information hosted by these platforms. While the SMIs are unclear of the extent of measures they are now expected to undertake, users are apprehensive that the increased power of the SMIs would allow them to trample on freedom of speech and expression.

Second, a similar concern arises with the other newly introduced obligation on SMIs to “respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21”. Given the importance of SMIs in public discourse and the implications of their actions on the fundamental rights of citizens, the horizontal application of fundamental rights is laudable. However, the wide interpretation to which this obligation is open to by different courts, could translate to disparate duties on the SMIs. Frequent alterations to design and practices of the platform, that may result from a case-to-case based application of this obligation, could result in heavy compliance costs for them.

Third, SMIs are now obligated to remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises. They have to remove such information within 72 hours of the complaint being made. Given the virality with which content spreads, this is an important step to contain the spread of the content.

Lastly, SMIs have been obligated to “take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency”. While there are concerns that ensuring “accessibility” may obligate SMIs to provide services at a scale that they are not equipped to, the obligation is meant to strengthen inclusion in the SMI ecosystem such as allowing for participation by persons with disabilities and diverse linguistic backgrounds. In this context, the amendments also mandate that “rules and regulations, privacy policy and user agreement” of the platform should be made available in all languages listed in the eighth schedule of the Constitution.

What are the newly-introduced Grievance Appellate Committees?

The cornerstone of empowering users of social media platforms is to design a robust grievance redressal mechanism that can effectively and efficiently address their concerns. Prior to the IT Rules, 2021, platforms followed their own mechanisms and timelines for resolving user complaints. The IT Rules uniformed this by mandating that all social media platforms should have a grievance officer who would acknowledge the receipt of a complaint within 24 hours and dispose it within 15 days. However, the performance of the current grievance redressal mechanism has been sub-optimal. First, as evidenced by the transparency reports of SMIs, such as Facebook and Twitter, there is no common understanding of what is meant by resolution of the complaint. For example, Facebook records only mention the number of reports where “appropriate tools” have been provided. These “appropriate tools” could just mean the automated replies pointing out the tools available on the platform that have been sent to the complainants.

As opposed to this format, Twitter records outline the number of URLs against which action has been taken after the receipt of a complaint.

Furthermore, transparency reports show that the number of user complaints continue to be quite low when compared to the content against which the platform acts proactively or is obligated to remove due to governmental or court orders. This may be because users are either not aware of this facility or find it futile to approach the platform for complaint resolution. It might also be because, even in cases where action has been taken on the content, there is no way to assess whether the complainant has been satisfied with the resolution of the complaint.

Moreover, the extant framework does not provide for any recourse if the complainant is dissatisfied with the grievance officer’s order. Possibly, the only course available to the complainant is to challenge the order under the writ jurisdiction of the High Courts or Supreme Court. This is not efficacious given that it can be a resource and time intensive process.

To remedy this, the government has instituted Grievance Appellate Committees (GAC). The committee is styled as a three-member council out of which one member will be a government officer (holding the post ex officio) while the other two members will be independent representatives. Users can file a complaint against the order of the grievance officer within 30 days. Importantly, the GAC is required to adopt an online dispute resolution mechanism which will make it more accessible to the users.

Interestingly, it is unclear whether this is a compulsory tier of appeal or not, that is will the user have to approach the grievance appellate committee before approaching the court. The confusion arises from the fact that the press note expressly stated that the institution of the GAC would not bar the user from approaching the court directly against the order of the grievance officer. However, the final amendments provide no such indication.

While this makes the in-house grievance redressal more accountable and appellate mechanism more accessible to users, appointments being made by the central government could lead to apprehensions of bias in content moderation.

Further, the IT Rules, 2021 do not provide any explicit power to the GAC to enforce its orders.

Lastly, if users can approach both the courts and the GAC parallelly, it could lead to conflicting decisions often undermining the impartiality and merit of one institution or the other.

2. The ambiguity of reservations for the poor: unconstitutional or not?

While the constitutional amendment by itself might survive the ‘basic structure’ test, the hardest test for governments will be the manner in which they give effect to the amendment. The definition of ‘economically weaker sections’ will be a major hurdle

On September 27, a Constitution Bench led by CJI U. U. Lalit heard multiple petitions against reservations based solely on economic criteria introduced by the Constitution (103rd) Amendment Act, 2019. After extensive hearings, the Bench reserved its judgment in the case. In this article dated January 22, 2019, Anup Surendranath tackles the idea that EWS reservations are unconstitutional.

The 103rd Constitution Amendment Act introducing special measures and reservations for ‘economically weaker sections’ (EWS) has been perceived as being obviously unconstitutional. This article is sceptical of such a reading and takes the view that a constitutional challenge to the amendment will take us into unclear constitutional territories. The strongest constitutional challenge might not be to the amendment itself but to the manner in which governments implement it. There is no foregone conclusion to a potential challenge and we would do well to start identifying the core constitutional questions that arise. To be clear, I am here concerned only with questions that arise within constitutional law.

Special measures

Article 15 stands amended enabling the state to take special measures (not limited to reservations) in favour of EWS generally with an explicit sub-article on admissions to educational institutions with maximum 10% reservations. The amendment to Article 16 allows 10% reservations (and not special measures) for EWS in public employment and does so in a manner that is different from reservations for Scheduled Caste/Scheduled Tribes and Other Backward Classes. The amendment leaves the definition of ‘economically weaker sections’ to be determined by the state on the basis of ‘family income’ and other economic indicators. Also critical to this amendment is the exclusion of SC/STs, OBCs and other beneficiary groups under Articles 15(4), 15(5) and 16(4) as beneficiaries of the 10% EWS reservation.

A good point to start the constitutional examination is the Supreme Court’s view on reservations based purely on economic criteria. Eight of the nine judges in Indra Sawhney (November 1992) held that the Narasimha Rao government’s executive order (and not a constitutional amendment) providing for 10% reservations based purely on economic criteria was unconstitutional. Their reasons included the position that income/property holdings cannot be the basis for exclusion from government jobs, and that the Constitution was primarily concerned with addressing social backwardness.

Basic structure doctrine

However, the decision in Indra Sawhney involved testing an executive order against existing constitutional provisions. In the current situation, we are concerned with a constitutional amendment brought into force using the constituent power of Parliament. The fact that we are not concerned with legislative or executive power means that the amendment will be tested against the ‘basic structure’ and not the constitutional provisions existing before the amendment. The pointed question is whether measures based purely on economic criteria violate the ‘basic structure’ of the Constitution? I do not think it is a sufficient answer to say that ‘backwardness’ in the Constitution can only mean ‘social and educational backwardness’. Citing the Constituent Assembly debates is not going to take the discussion much further either. It is difficult to see an argument that measures purely on economic criteria are per se violative of the ‘basic structure’. We can have our views on whether such EWS reservations will alleviate poverty (and they most certainly will not), but that is not really the nature of ‘basic structure’ enquiry. Providing a justification for these measures as furthering the spirit of substantive equality within the Indian Constitution is not very difficult.

Economic criteria (if seen as poverty) forms the basis for differential treatment by the state in many ways and it would be a stretch to suddenly see it as constitutionally suspect when it comes to ‘special measures’ and reservations in education and public employment. Poverty inflicts serious disadvantages and the prerogative of the state to use special measures/ reservations as one of the means to address it (however misplaced it might be as a policy) is unlikely to fall foul of the ‘basic structure’ doctrine.

A challenge to the amendment may lie in the context of Article 16 by virtue of shifting the manner in which reservations can be provided in public employment. Under Article 16(4), reservations for backward classes (SC/STs, OBCs) are dependent on beneficiary groups not being ‘adequately represented’ but that has been omitted in the newly inserted Article 16(6) for EWS. The amendment through Article 16(6) ends up making it easier for the state to provide reservations in public employment for EWS than the requirements to provide reservations for ‘backward classes’ under Article 16(4). In a sense that is potentially a normative minefield for the Supreme Court. On the one hand, it is confronted with the reality that ‘backward classes’ like SC/STs and OBCs are disadvantaged along multiple axes and on the other, it is now far more difficult for the state to provide reservations to these groups compared to the EWS. The response might well be that ‘representation’ is not the aim of EWS reservation and questions of ‘adequacy’ are relevant only in the context of representation claims like those of the backward classes under Article 16(4).

Questions and challenges

In many of the responses to the amendment, breaching the 50% ceiling on reservations has been cited as its greatest weakness. It is hard to see the merit of that argument because the amendment by itself does not push the reservations beyond 50%. While it might be a ground to challenge the subsequent legislative/executive actions, the amendment itself is secure from this challenge. But even beyond this narrow technical response, the 50% ceiling argument is far from clear. In Indra Sawhney , the majority of judges held that the 50% ceiling must be the general rule and a higher proportion may be possible in ‘extraordinary situations’. Fundamentally this argument stems from an unresolved normative tension in Indra Sawhney. While committing to the constitutional position that reservations are not an ‘exception’ but a ‘facet’ of equality, the majority in Indra Sawhney also invokes the idea of balancing the equality of opportunity of backward classes ‘against’ the right to equality of everyone else. When governments implement the EWS reservations and push quotas beyond 50%, the Supreme Court will be forced to confront this normative tension. If reservations further equality, what then are the justifications to limit it to 50% when the identified beneficiaries constitute significantly more than 50%? The answer to that question might lie in Indra Sawhney’s position that the constitutional imagination is not one of ‘proportional representation’ but one of ‘adequate representation’. However, as discussed above, if abandoning the ‘adequacy’ requirement per se is upheld for EWS reservations, the basis for a 50% ceiling becomes unclear.

While the constitutional amendment by itself might survive the ‘basic structure’ test, the hardest test for governments will be the manner in which they give effect to the amendment. The definition of ‘economically weaker sections’ will be a major hurdle because the political temptation will be to go as broad as possible and include large sections of citizens. But broader the definition, greater will be the constitutional risk. For example, if beneficiaries are defined as all those with family income of less than ₹8 lakh per annum, it must necessarily fail constitutional scrutiny. To justify that an individual ‘below poverty line’ and another with a family income of ₹8 lakh per annum belong to the same group for purposes of affirmative action will involve constitutional jugglery at an unprecedented level. But then, the history of our constitutional jurisprudence has prepared us well for such surprises.

3. Decentralise MGNREGS for better implementation, says govt. study

It calls for greater diversification of permissible work; flexibility should be given at the ground level to select the type of work as per broad categories; it also flags delay in fund disbursal and notes that wages were far below the market rate

An internal study commissioned by the Ministry of Rural Development has argued for decentralisation of the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), allowing for more “flexibility” at the ground level.

The Ministry recently made public the report of the sixth Common Review Mission, which surveyed seven States — Andhra Pradesh, Arunachal Pradesh, Karnataka, Nagaland, Gujarat, Jharkhand, Himachal Pradesh — and the Union Territory of Jammu and Kashmir in February to assess the implementation of all rural development schemes, including the MGNREGS.

“There should be a greater diversification of permissible works instead of listing the types of permissible works, broad categories of works may be listed out and flexibility should be given at ground level to select the type of works as per broad categories,” the study noted.

This is a problem also highlighted by activists and academics working in the field. “In the past few years, the fund management has been centralised instead of paying the gram sabhas an advance enabling them to decide the work they want to undertake. The gram sabhas can take into account the local conditions and the community’s requirement instead of chasing a target set for them,” said Professor Rajendra Narayanan of Azim Premji University, who co-authored a study on the role of the MGNREGS during the COVID-19 pandemic.

The internal study also flagged the frequent delay in fund disbursal, and to deal with it suggested a “revolving fund that can be utilised whenever there is a delay in the Central funds”.

The survey quoted various instances to underline this chronic problem. In Lower Subansiri district of Arunachal Pradesh, for example, the surveyors found that because of the delay in the material component, the beneficiaries ended up buying the construction material themselves to complete the projects. In Himachal Pradesh and Gujarat, the delay in wages was by three or four months and the material component by six months.

The study also noted that the MGNREGS wages were far below the market rate in many States, defeating the purpose of acting as a safety net.

At present, the minimum wage of a farm labourer in Gujarat is ₹324.20, but the MGNREGS wage is ₹229. The private contractors pay far more. In Nagaland, the wage is ₹212 per day, which does not take into account the difficult terrain.

In Jammu and Kashmir, the rate is ₹214 per day. This, the study noted, “is lower than what is offered by private contractors which can go up to ₹600-₹700 per day”.

Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA)

In 1991, the P.V Narashima Rao government proposed a pilot scheme for generating employment in rural areas with the following goals:

• Employment Generation for agricultural labour during the lean season.
• Infrastructure Development
• Enhanced Food Security

This scheme was called the Employment Assurance Scheme which later evolved into the MGNREGA after the merger with the Food for Work Programme in the early 2000s.

Objectives of MGNREGA:

The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) has the following objectives:

• Provide 100 days of guaranteed wage employment to rural unskilled labour
• Increase economic security
• Decrease migration of labour from rural to urban areas

MGNREGA differentiates itself from earlier welfare schemes by taking a grassroots-driven approach to employment generation. The programs under the act are demand-driven and provide legal provisions for appeal in the case, work is not provided or payments are delayed. The scheme is funded by the central government which bears the full cost of unskilled labour and 75% of the cost of material for works undertaken under this law. The central and state governments audit the works undertaken under this act through annual reports prepared by CEGC (Central Employment Guarantee Council) and the SEGC (State Employment Guarantee Councils). These reports have to be presented by the incumbent government in the legislature.

A few salient features of the scheme are:

• It gives a significant amount of control to the Gram Panchayats for managing public works, strengthening Panchayati Raj Institutions. Gram Sabhas are free to accept or reject recommendations from Intermediate and District Panchayats.
• It incorporates accountability in its operational guidelines and ensures compliance and transparency at all levels.

Ever since the scheme was implemented, the number of jobs has increased by 240% in the past 10 years. The scheme has been successful in enhancing economic empowerment in rural India and helping overcome the exploitation of labour. The scheme has also diminished wage volatility and the gender pay gap in labour. This can be substantiated the by the following data available at the official site of MGNREGA:

1. 14.88 crores MGNREGA job cards have been issued (Active Job Cards – 9.3 crores)
2. 28.83 crores workers who gained employed under MGNREGA (2020-21) out of which active workers are 14.49 crores.

Role of Gram Sabha in MGNREGS

• It lists down the works priority-wise w.r.t the potential of the local area
• It monitors the work executed within the Gram Panchayat
• It acts as the primary forum for the social audits
• It also works as a platform to resolve all workers’ queries related to any MGNREGA work

Role of Gram Panchayat

• It is authorized with the role to receive the job applications
• After receiving the applications, it is responsible to verify them
• All household are registered by the Gram Panchayat
• The MGNREGS job cards are issued by the Gram Panchayat
• It is responsible to allot work within 15 days from the application submission
• It prepares an annual report that covers the achievement of the scheme
• It holds Rozgar Diwas at every ward once a month

Role of State Governments in MGNREGS

The important roles of the state government in executing the MGNREGA scheme are:

1. It frames rules charting out state’s responsibility under the act.
2. It sets up the State Employment Guarantee Council.
3. State Employment Guarantee Fund (SEGF) is established by state governments.
4. It makes sure to dedicate Employment Guarantee Assistant (Gram Rozgar Sahayak), the PO and the staff at State, district, cluster and Gram Panchayat level; for the execution of the scheme.

MGNREGA – State Employment Guarantee Council (SEGC)

The State Employment Guarantee Council is responsible to advise state government for the implementation of the MGNREG scheme. Some important functions of SEGC under MNREGS are:

1. The suggestion of improvements in the execution of the scheme.
2. Evaluation and monitoring of the scheme.
3. To recommend proposals of the works to the central government.
4. To aware the districts about the scheme and its features.
5. To prepare an annual report to be submitted by the state government before the state legislature.

This law and the employment guarantee schemes which are part of its provisions are important from the IAS exam point of view. UPSC aspirants should read about this government scheme in detail as questions related to this topic are asked in the Prelims exam and in General Studies paper II. The questions for government schemes like MGNREGA are classified under Welfare schemes, and the topic has a significant overlap with topics like human development, poverty, and hunger.

4. Editorial-1: Sequence of implementation, EWS quota outcomes

The original intent of the reservation policy in newly independent India was to level the playing field for the most marginalised sections, those stigmatised and discriminated against on account of their birth into specific caste and tribal groups. While these groups were also economically deprived, that was not the main rationale for instituting compensatory discrimination in favour of these groups.

Over the decades, the instrument of reservation has expanded to include more groups under its ambit, leading to furious debates both about the general principle of affirmative action and about which groups deserve to be beneficiaries. These disputes have resulted in complex legal cases, with the rulings providing the nuts-and-bolts mechanics that guide the implementation of the reservation policy on the ground.

This article draws attention to a crucial impending implementation decision about the economically weaker sections (EWS) quota, and shows how the sequence of implementation would result to diverging outcomes.

The reservation system in India takes two forms: vertical reservation (VR), which until 2019 was defined for stigmatised and marginalised social groups (SCs, STs and OBCs); and horizontal reservation (HR), applicable to cross-cutting categories such as women, people with disability (PWD), domicile, etc. As long as the VR system was social group-based, no individual was eligible for multiple VR categories, since no individual can belong to multiple caste or tribal groups.

The 103rd Constitution Amendment Act in 2019, popularly known as the 10% quota for the so-called EWS, fundamentally altered the original raison d’être of reservations by opening VR to groups that are not defined in terms of hereditary social group identity (caste or tribe). EWS status is transient (that individuals can fall into or escape out of), but social groups are permanent markers of identity.

While this meant that in principle, an individual could belong to two VR categories (say, SC and EWS), the amendment explicitly removed individuals who are already eligible for one VR (SC, ST, or OBC) from the scope of EWS reservations. As a result of this exclusion, an individual could still be only eligible for at most one vertical category.

Exclusion of SCs, STs, OBCs from the scope of EWS reservation was immediately challenged in court on the grounds that it violated individual right to equality (that roughly corresponds to Articles 14-18 of the Indian Constitution).

On the last day of hearings at the Constitutional Bench of the Supreme Court, the following “compromise” proposal was made by G. Mohan Gopal: do not revoke the amendment but interpret the language of the amendment in a way that does not exclude SCs, STs, OBCs from the scope of EWS reservation.

Overlapping VR categories and ambiguity

Allowing for overlapping VR categories (such as SC and EWS, etc.) generates an important ambiguity under the current legal framework, most notably stemming from the ruling of the Indra Sawhney case ( 1992). Under this, any member of a reserved category who is entitled to an open-category position based on “merit” (examination) score should be awarded an open-category position, and not be slotted under a VR position. Technically, this implies that open-category positions must be allocated based on merit in the first step, and VR positions should be allocated to eligible individuals in the second step. This procedure is called “over-and-above” choice rule in the literature. This is to be distinguished from the “guaranteed minimum” rule which would guarantee a minimum number of positions to members of beneficiary groups, regardless of whether they enter through reserved or open (“merit”) positions.

When VR categories are mutually exclusive, i.e., no individual can be a member of multiple vertical categories, it is completely immaterial in what sequence vertical categories are processed in relation to each other. However, if individuals can belong to two vertical categories, the relative processing sequence of vertical categories becomes very important, as Sönmez and his fellow economist Utku Ünver show in their 2022 paper.

How will sequencing matter? EWS-first: Consider the scenario where EWS positions before other VR categories, immediately after the open category seats. In her 2019 paper with economist Rajesh Ramachandran, Deshpande shows that under the current income limit for EWS reservation, more than 98% of the population qualifies, i.e., almost everyone is eligible for EWS reservation. If EWS reservations are filled first, the outcome would be the same as treating EWS positions as open positions.

This would effectively end up making the EWS reservation redundant. Since the richest applicants are not eligible for EWS, the actual outcome would be slightly different, but not a whole lot as the richest 2% may not even apply to public institutions where quotas are applicable.

EWS-last: If EWS positions are allocated after all other VR positions are filled, this issue will not arise. Now, while all individuals with incomes lower than the EWS limit are equally eligible for EWS positions (which is still effectively all individuals), the system awards the EWS positions to eligible individuals who have highest merit scores. But since some of the higher score individuals from SCs, STs and OBCs would be admitted under their respective quotas, this sequencing will make EWS positions more accessible to members of forward castes.

On which sequence is better

The purpose of this article is to demonstrate that two routes imply very different policy outcomes. We are highlighting the fact that overlapping VR categories lead to a major ambiguity (or loophole) in the system. If the objective is to make EWS equally applicable to the current VR categories, then EWS-first should be adopted with the recognition that this sequencing will effectively convert EWS into what are currently open category positions. If the objective is to minimally interfere with the amendment, then EWS-last should be adopted with the recognition that this sequencing will still tilt the EWS category in favour of forward castes. Since the impact of these two routes will be vastly different, it would be best if this subtle aspect of EWS reservation is carefully evaluated and integrated into the implementation of the policy.

What if the current income limit of the EWS category is changed (lowered)? That would change the calculus somewhat since poorer individuals from all social groups (including non-SC-ST-OBC) would be eligible. In this scenario, the richer (above the presumed new income cut-off) SC-ST-OBC individuals will be eligible only for the social group-based VR positions. However, changing income limits is likely to open a whole new Pandora’s box, especially in the absence of reliable income data. Realistically, shifting the income cut-off for EWS seems unlikely.

Therefore, the court would be well-advised to consider the implications of the implementation routes and to make sure there are no ambiguities, i.e., no loopholes. Ambiguities in reservation rules have led to court cases, leading to long delays in filling up positions. Given the enormity of the unemployment situation, as well as the importance of addressing social cleavages, the urgency of working out an optimal implementation strategy cannot be overstated.

5. Editorial-2: A pathway to citizenship for Indian-origin Tamils

The Supreme Court of India has now posted the 232 petitions challenging the Citizenship (Amendment) Act (CAA) to be heard on December 6, 2022. However, there is another issue linked to the subject, i.e., the unresolved status of Indian-origin Tamils who repatriated from Sri Lanka. For over four decades, nearly 30,000 Indian-origin Tamils have been classified as stateless persons, based on technicalities. Given their genealogical link to India, the Government of India needs to consider extending citizenship benefits to them in accordance with Indian bilateral obligations and international humanitarian principles and international conventions.

Plight of Indian-origin Tamils

Under the British colonial government, Indian-origin Tamils were brought in as indentured labourers to work in plantations. They remained mostly legally undocumented and socially isolated from the native Sri Lankan Tamil and Sinhalese communities due to the policies of the British. After 1947, Sri Lanka witnessed rising Sinhalese nationalism, leaving no room for their political and civil participation. They were denied citizenship rights and existed as a ‘stateless’ population, numbering close to 10 lakh by 1960. As an ethno-linguistic minority without voting rights, this resulted in a double disadvantage till the two national governments addressed this issue.

Subsequently, under the bilateral Sirimavo-Shastri Pact (1964) and the Sirimavo-Gandhi Pact (1974), six lakh people along with their natural increase would be granted Indian citizenship upon their repatriation. Thus, the process of granting Indian-origin Tamils (who returned to India till around 1982) began. However, the Sri Lankan civil war resulted in a spike in Sri Lankan Tamils and Indian-origin Tamils together seeking asylum in India. This resulted in a Union Ministry of Home Affairs directive to stop the grant of citizenship to those who arrived in India after July 1983.

Furthermore, the focus of the Indian and Tamil Nadu governments shifted to refugee welfare and rehabilitation. Over the next 40 years, the legal destiny of Indian-origin Tamils has been largely intertwined with that of Sri Lankan Tamil refugees, and both cohorts have been relegated to ‘refugee’ status. This is because Indian-origin Tamils who arrived after 1983 came through unauthorised channels or without proper documentation, and came to be classified as ‘illegal migrants’ as per the CAA 2003. This classification has resulted in their statelessness and blocking of potential legal pathways to citizenship.

Overcoming statelessness

While constitutional courts have not had an occasion to deal with the question of statelessness, there have been two recent judgments (Madurai Bench of the Madras High Court, Justice G.R. Swaminathan), taking these issues head on. In P. Ulaganathan vs Government of India (2019), the status of citizenship of Indian-origin Tamils at the Kottapattu and Mandapam camps came up for consideration.

The court recognised the distinction between Indian-origin Tamils and Sri Lankan Tamils and held that a continuous period of statelessness of Indian-origin Tamils offends their fundamental right under Article 21 of the Constitution of India. The court further held that the Union Government has implied powers to grant relaxation in conferring citizenship and prescribed that a humanitarian approach, shorn of the rigours of law, should be adopted.

On October 11, the court held in Abirami S. vs The Union of India 2022, that statelessness is something to be avoided. The court further held that the principles of the CAA, 2019, which relaxes the conditions for citizenship for Hindus from Afghanistan, Pakistan and Bangladesh, would also apply to Sri Lankan Tamil refugees. As such, these judgments have provided categorial judicial guidance to the Union of India on how to utilise an expanded and liberal interpretation of the CAA, 2019 to overcome statelessness.

The situation of statelessness of Indian-origin Tamils is ‘de jure’, created from the failure in implementing the 1964 and 1974 pacts. De jure statelessness is recognised in international customary law. Therefore, India has an obligation to remedy the situation. In the case of the Chakma refugees, the Supreme Court (Committee for C.R. of C.A.P. and Ors. vs State of Arunachal Pradesh 2015) held that an undertaking made by the Government of India with respect to grant of citizenship inheres a right in the stateless or refugee population. As such, India has made repeated undertakings, through the 1964 and 1974 pacts, which have created a legitimate expectation among the Indian-origin Tamils and would entitle them to be granted citizenship.

Remedying statelessness is not a novel process in law. While dealing with a similar situation, in 1994, the United States enacted the Immigration and the Nationality Technical Corrections Act to retroactively grant citizenship to all children born to an alien father and citizen mother. Similarly, Brazil, through the Constitutional Amendment No. 54 of 2007 retroactively granted citizenship to children under jus sanguinis, which was earlier stripped by an earlier amendment, i.e., Constitutional Amendment No. 3 of 1994. Therefore, any corrective legislative action by the Government of India to eliminate statelessness should necessarily include retroactive citizenship for Indian-origin Tamils.

According to a recent report by the United Nations High Commission for Refugees, “Comprehensive Solutions Strategy for Sri Lankan Refugees”, there are around 29,500 Indian-origin Tamils currently living in India. As such, when the Union Government makes its case before the Supreme Court to extend citizenship to Indian-origin persons from Pakistan, Afghanistan and Bangladesh seeking asylum in India, it cannot deny Indian-origin Tamils their rightful pathway to citizenship.

6. Editorial: The gun and the pen

Stringent laws are only part of the solution to violent extremism

Prime Minister Narendra Modi’s recent observations at a conclave of State Home Ministers contained a possibly unintended explanation for why academicians, students and lawyers are languishing in prison on terrorism charges. He called for the elimination of all forms of Naxalism, be it of the gun-wielding variety or the kind that uses the pen “to raise international support” and “to mislead the youth”. The remarks came alongside his emphasis on how the Unlawful Activities (Prevention) Act had given an impetus to combating terrorism. In effect, he has conveyed a disconcerting message that the police would treat armed militants and intellectuals alike, if the Government suspects a concordance in their outlook. Considering that the UAPA has been frequently and even unfairly invoked in cases that appear to have no nexus with terrorism, Mr. Modi’s views raise a question whether his comments are a justification of sorts for the continued incarceration of many who do not seem to have indulged in any particular extremist act. Incitement to violence, especially mobilising support for armed insurgency, is indeed a grave offence, but unless there is a proven connection between the nature of the support given and an actual act of terror or a plot to commit one, it is difficult to treat the two things as one.

Recent judicial orders declining bail to activist Umar Khalid in the Delhi riots case, and Jyoti Jagtap of the Kabir Kala Manch in the Elgar Parishad case are good examples of how the police straddle the huge gulf between the nature of their participation in a protest or an event and an actual act of violence by invoking UAPA, and thus eliminating the need to have concrete evidence to show their involvement in a communal or Maoist plot. While this may highlight the potential for misuse of UAPA and the impediments to liberty found both in the law and in its judicial interpretation, it also has a distinct side-effect: the manipulation of political discourse in such a way that those who question the actions, methods and processes of the state that cause mass resentment are criminalised. It is in such a backdrop that the use of political catchwords such as ‘Urban Naxals’, a term that even Mr. Modi has used recently, should be seen. Far from being linked to any terrorist or Maoist conspiracy, the term is merely used to tarnish those with an alternative point of view. The Government arming itself with more stringent laws is only part of the solution to the threat posed by violent extremism. Looking for remedies to the underlying causes is more important than conjuring up conspiracies in the name of dismantling its support structures.