1. Some Raj Bhavans are on the war path

The Governor must be mindful of being a friend and a guide to his government, more so in Opposition-ruled States

Recent media reports about the confrontation between the Governors and the State governments, in Maharashtra and Kerala, have turned the spotlight on the rather delicate relationship between the constitutional head of the State and the elected government. In Maharashtra, for example, the situation was indeed bizarre insomuch as the Governor refusing to accept the date of election of the Speaker recommended by the State government. Consequently, the Assembly could not elect the Speaker.

The situation in Kerala has been no less bizarre. The State Governor having reappointed the Vice Chancellor of Kannur University in accordance with the law, made an allegation against the Kerala government that he was under pressure from the Government to reappoint the Vice Chancellor. The Governor confessed that he had done the wrong thing by yielding to governmental pressure. He has added that he does not want to remain the Chancellor any more, though he holds this position in an ex-officio capacity which means that he would have to remain the Chancellor as long as he is the Governor. But the Governor remains adamant.

The Governor levelling allegations against his own government is not a first-time development. In West Bengal this has been a regular feature. Similarly, non-acceptance of the advice of the Council of Ministers too has been witnessed in Rajasthan as well as Maharashtra again. Of course, there have been differences between Governors and Chief Ministers in the past too, but these have been rare occurrences. But the open confrontations now clearly cross the boundaries of what is constitutionally permissible behaviour.

With discretionary powers

The relationship between the Governor and Chief Minister has, even at the best of times, not been absolutely simple and tension free. It has something to do with the whole idea of the office of the Governor and its past history. In the colonial era, the Governor was the absolute ruler of the province who was answerable ultimately to His Majesty, the King. A closer look at the debates in the Constituent Assembly on the Governor would reveal that there were divergent views on the powers to be given to the Governor. In fact, there were members in the Assembly who wanted the Governor to be as powerful as the colonial-era Governors. Though B.R. Ambedkar was clear that the Governor should only be a constitutional head and the executive power should vest entirely in the elected government, he promoted the idea of vesting certain discretionary powers in the Governor. In this respect he was guided by the thinking that the State governments are in subordination to the Union government and, therefore, the Governor should be given discretionary powers to ensure that they act so.

So, ultimately, the Governor who emerged from the Constituent Assembly was one with certain discretionary powers prescribed by or under the Constitution unlike the President of India who has not been given any such powers. Further, Article 163 (Article 143 in the draft Constitution) became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (H.V. Kamath). This exact reproduction of the provision in the Act of 1935 has, to a great extent, introduced a vagueness about the actual powers of the Governor vis-à-vis the elected government in democratic India which was corrected only with the Supreme Court of India stating the law in unambiguous terms in Shamsher Singh (1974). From Shamsher Singh to Nabam Rebia (2016) the top court declared that the Governor can, in the exercise of executive power of the state, act only on the aid and advice of the Council of Ministers “…save in a few well-known exceptional situations”.

The Maharashtra case

The Maharashtra Governor’s refusal to accept the date of election of the Speaker goes against the principles of constitutional government. It must be stated here that the Constitution has not assigned any role to the Governor in the election of the Speaker under Article 178, which is exclusively the job of the House. It is only the House rule which says that the Governor shall fix the date. The date as such has no great significance. Under the procedure followed in all Assemblies, the government fixes the date and conveys it to the Secretary of the Assembly who forwards it to the office of the Governor for his signature. After the date is formally approved by the Governor — which he is duty bound to do — the members are informed about it.

Now the question is if the Governor does not approve the date, can the election be held? Fixing the date by the Governor is not of any constitutional importance; election by the House is the important thing. So, if the Governor stands in the way of the election, the only way open to the House is to amend that particular rule which empowers the Governor to fix the date. It can provide that the Secretary on receiving the date from the government shall notify the members of the same. The election can be held either through secret ballot or through a motion in the House as is done by the Lok Sabha. But it must be said that it could be for the first time in the history of free India that a Governor has refused to fix the date of election of the Speaker and, consequently, the election could not be held. The Maharashtra Assembly is now without a Speaker being in office.

In Kerala

The Kerala situation is even more curious. There, the controversy surrounds the reappointment of the incumbent Vice Chancellor of Kannur University. There was a suggestion from the State government routed through the Pro Chancellor who is the Minister for Higher Education for the reappointment of the incumbent Vice Chancellor. The Governor being the ex-officio Chancellor of the university and the appointing authority, accepted the suggestion and reappointed him. After some time, the Governor went public with a serious allegation that he had signed the order of appointment under pressure from the Government and that he had done the wrong thing by reappointing the Vice Chancellor under pressure.

It must be stated here that the Governor had acted perfectly in accordance with the law in reappointing the incumbent Vice Chancellor. Under the University Act, an incumbent Vice Chancellor is eligible for reappointment. Since the Act does not lay down any specific procedure for reappointment, the Chancellor was right in accepting the suggestion or the recommendation made from the Government. In fact, he or she can accept suggestions from any person including the Leader of the Opposition in the Assembly. The point worth noting here is that the Governor as Chancellor is not required to act on the advice of the Council of Ministers in the matter of appointment of Vice Chancellor and others in the university. He can act absolutely independently. He could also have rejected the suggestion from the Government.

The Kerala High Court has clarified this legal point in Gopalakrishnan vs Chancellor, University of Kerala. So the Governor of Kerala needs to apply his mind independently to the case of reappointment, evaluate the performance of the Vice Chancellor and fully satisfy himself about the merit of the appointee before signing the appointment order. It is presumed that he had done this. Therefore, it is baffling why he chose to go public and level serious allegations against the Government and incriminate himself in the process. Adding to the confusion, the Governor has divested himself of the ex-officio charge of Chancellor and declared that he will not be functioning as Chancellor. Needless to say, one cannot relinquish a charge which he holds in an ex-officio capacity unless he leaves his substantive post.

Detachment is the essence

These are very bizarre situations indeed. The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government. The Constitution does not allow him to be a parallel government; nor does it make him personally responsible for his actions as Governor. That such confrontations take place only in Opposition-ruled States shows that political expediency has overtaken constitutional propriety. Wading through the Constituent Assembly debates, one comes across these wise words of Pandit Thakur Das Bhargava, a conscientious member of the Assembly: “He (Governor) will be a man above party and he will look at the minister and government from a detached stand point”. Detachment is the essence of India’s ancient culture. But Pandit Thakur Das’s voice has ended up as a voice in the wilderness.

Governor

The Indian Constitution envisions a Parliamentary system of administration in the States, similar to that of the Centre. The Government of the States is dealt with under Part VI of the Constitution in which Articles 153 to 167 deal with the State executive. The Governor, the Chief Minister, the Council of Ministers, and the State’s Advocate General make up the State executive. There is no vice-governorship (in the state) comparable to the Vice-Presidentship at the Union level.

Role of Governor

The Governor is the State’s chief executive head. But, like the President, he/she is only a ceremonial head of State (titular or constitutional head).

In addition, the Governor serves as a representative of the Union Government. Thus, the Governor’s office serves a dual purpose.

Normally, each State has its own Governor, but the 7th Constitutional Amendment Act of 1956 made it easier to appoint the same individual to serve as Governor of two or more States.

Powers of Governor

The State’s Governor will have executive, legislative, financial, and judicial powers. He does not, however, have the diplomatic, military, or emergency powers like India’s President possesses.

Executive Powers

In the name of the Governor, the council of ministers exercises the executive functions. As a result, the Governor is simply a ceremonial head, while the Council of Ministers is the real executive.

• He/she is the State’s constitutional head and picks the majority party’s leader as the Chief minister.
• He/she can ask the Chief Minister for any information that he/she wants.
• The Governor appoints the State’s Attorney General, chairman, and members of the State Public Service Commission.
• He/she has the authority to recommend to the President that a constitutional emergency be declared in the State.
• As an agent of the President, the Governor has significant executive powers during the President’s administration in the State.

Legislative Powers

The Governor is part of the State Legislature and no bill cannot become a law until he/she signs it.

• He/she can withhold a bill and send it to the President for consideration.
• He/she can also dissolve the State Assembly before the expiry of its term on the advice of the Chief Minister or as directed by the President.
• He/she causes the annual Budget to be presented in the State Legislative Assembly.
• Judicial Powers
• The Governor appoints the district judges and is consulted in the appointment of the judges of the High Court by the President.
• He/she can, pardon, remit and commute the sentence of a person convicted by a State court.
• Financial Powers
• He/she causes the annual budget to be laid before the State Legislative Assembly.
• No money bill can be introduced in the State Legislative Assembly without the Governor’s prior approval.

Discretionary Powers

The Governor has the following discretionary powers:

• If no party receives an absolute majority, the Governor can choose the Chief Minister at his/her discretion.
• In an emergency, he/she can override the advice of the council of ministers and in such situations, he/she acts as the President’s agent and becomes the true ruler of the State.
• He/she utilizes the discretionary authority to submit a report to the President on the State’s activities.
• He/she can also withhold assent to a bill and refer it to the President for approval.

2. A Bill that could alter the mediation landscape

A spin-off from the Mediation Bill is its potential to help relieve some of the pressure on law enforcement agencies

The Chief Justice of India (CJI), N.V. Ramana, while speaking at the India-Singapore Mediation Summit in July 2021 (https://bit.ly/3F972Kt) had said that mediation should be made mandatory as a first step in dispute resolution and that a law should be framed in this regard. The context was the huge pendency of cases in India. In his speech called “Mediation for everyone: Realizing mediation’s potential in India”, he emphasised the point that a movement needs to be launched to popularise mediation as it was a cheaper and faster dispute resolution mechanism. Months later in December 2021, the CJI, while addressing the Curtain Raiser and Stakeholders’ Conclave of International Arbitration and Mediation Centre (IAMC) at the Hyderabad International Convention Centre, Hyderabad, said that courts should be the last resort for dispute resolution; therefore, one should explore the options of alternate dispute resolution.

Expressed in these laws

In India, though mediation finds legitimacy in some specific laws such as the Code of Civil Procedure, 1908, the Arbitration and Conciliation Act, 1996, the Companies Act, 2013, the Commercial Courts Act, 2015, and the Consumer Protection Act, 2019, there is no standalone legislation as yet. The Tamil Nadu Mediation and Conciliation Centre, an initiative of the Madras High Court and India’s first court-annexed facility with a mediation centre in every district, which was inaugurated in 2005 has significantly reduced the pendency of referred cases.

Bill scope

The Mediation Bill, 2021 (https://bit.ly/3qZwEV8), introduced in Parliament in December 2021, seeks to ‘promote mediation (including online), and provide for enforcement of settlement agreements resulting from mediation’. In case of civil or commercial disputes, a person must try to settle the dispute by mediation before approaching a court or tribunal. Disputes not fit for mediation inter alia include those relating to prosecution for criminal offences, disputes involving allegation of serious and specific fraud, fabrication of documents, forgery, impersonation and coercion. However, there are certain provisions in the Bill which may help in improving the law and order situation in a locality and/or encourage compounding of criminal offences.

First, Section 7 of the Bill says that courts will be competent to refer any dispute to mediation relating to compoundable offences or matrimonial offences connected with or arising out of civil proceedings between the parties. Second, Section 44 of the Bill provides for ‘any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality’, to be settled through community mediation. Any settlement so arrived at, however, shall not be enforceable as a judgment or decree of a civil court. Third, the provisions of the Act shall not have overriding effect, inter alia, on the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

It implies that if any dispute (as referred above) is resolved through mediation, it may lead to a compounding of criminal offence arising out of that civil or commercial dispute. Similarly, if any local dispute has the potential to create a law and order situation, and result in the registration of a criminal case or cases, those could be avoided through community mediation. It is true that many serious offences are the outcome of minor disputes which are either not tackled properly or left unattended.

Therefore, though the proposed law primarily intends to resolve civil and commercial disputes through mediation, it has ample scope to relieve some of the pressure on law enforcement agencies. The law to prevent the sexual harassment of women at the workplace has probably been kept out of its scope so that an internal or local complaint committee is able to take up conciliation and close the case locally without involving a third party and detailed procedure. The law on the maintenance and the welfare of parents and senior citizens has also been kept out of its scope as offences under it are cognisable offences.

Section 320 in the Code Of Criminal Procedure (CrPC) provides for the compounding of certain criminal offences which shall have the effect of acquittal of the accused. There are about 43 criminal offences, from body offences to property offences, which can be compounded by the victim, and about 13 offences (of comparatively greater gravity) which can be compounded with the permission of the court. Here, the policy of the law is to promote friendliness between the parties so that peace between them is restored. A case may be compounded any time before the sentence is pronounced.

Court’s view

The Supreme Court of India has held that if there is composition of an offence during investigation, the parties can either approach the court or the police. The police, on verification of the truth, genuineness and voluntariness of the composition, may record the statement of the victim and recommend to the Magistrate to accept the negative final report. The Magistrate after giving notice to the complainant can make an appropriate decision in the matter accepting the composition. In other cases, appropriate orders may be passed by the court, and leave granted to compound the offence. Thus, under both conditions, if a dispute is resolved amicably, including through mediation, it may result in its compounding under the CrPC. The number of offences which can be compounded may also be increased — particularly property offences. Keeping in view the recommendations of the Law Commission in its 243rd report, Section 498A of the Indian Penal Code, relating to cruelty by the husband or his relatives, can also be made compoundable. It may have far-reaching consequences in resolving matrimonial disputes.

The background

It is undisputed that many civil or commercial disputes are given the colour of a criminal offence and reported to the police so that they get resolved under the fear of arrest. Many criminal offences are a result of the fact that civil or commercial disputes could not be resolved amicably and in time. The police at times take minor cases lightly or reduce the seriousness of crime by converting a cognisable offence into a non-cognisable one. Some of these cases may become aggravated with time and assume serious consequences. Therefore, the proposed law of mediation, that has the mechanism of not only preventing the breakdown of law and order through community intervention but also the competence to smoothen the route to compounding of certain criminal offences, may ultimately relieve some of the pressure on the police also.

Draft Mediation Bill, 2021

The Ministry of Law and Justice has placed the Draft Mediation Bill, 2021 in the public domain to seek feedback and suggestions from all stakeholders.

Need of Mediation Bill

Strengthening of Alternative Dispute Resolution (ADR):

• The Government has been taking various policy initiatives for the promotion and strengthening of ADR mechanisms.
• It would facilitate quick disposal of disputes, outside of traditional court systems.
• Bringing a standalone law on Mediation is a continuation of the exercise.
• Unify the different enactments and rules and regulations related to Mediation:
• The laws on Mediation are contained in several enactments including different Rules and Regulations.
• It was necessary to ascertain the present statutory framework on mediation.
• The need was regularly felt for bringing umbrella legislation including amendments in the existing laws.

Aligning Indian Norms with International practices:

The Bill takes into contemplation the international practice of using the terms ‘conciliation’ and ‘mediation’ interchangeably.

Singapore Convention on Mediation:

India is a signatory to the Singapore Convention on Mediation.

Hence, it has also become expedient to enact a law in mediation on issues of domestic and international mediation.

Objectives of the Bill

• To promote, encourage and facilitate mediation especially institutional mediation for resolution of disputes commercial and otherwise,
• To enforce domestic and international mediation settlement agreements.
• To provide for a body for the registration of mediators, to encourage community mediation.
• To make online mediation as an acceptable and cost-effective process and for matters connected therewith or incidental thereto has been prepared.

Main Features of the Bill

The draft Bill proposes for pre-litigation mediation.

• At the same time, it also safeguards the interest of the litigants to approach the competent adjudicatory forums/courts in case urgent relief is sought.
• The successful outcome of mediation in the form of a Mediation Settlement Agreement (MSA) has been made enforceable by law.
• Since the MSA is out of the consensual agreement between the parties, the challenge to the same has been permitted on limited grounds.
• The mediation process protects the confidentiality of the mediation undertaken and provides for immunity in certain cases against its disclosure.
• The registration of MSA has also been provided with State, District, Taluk Legal Authorities within 90 days
• To ensure maintenance of authenticated records of the settlement.
• Provides for the establishment of the Mediation Council of India.
• Provides for community mediation.

Alternate Dispute Resolution Mechanisms

• Generally, it uses a neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute.
• It offers to resolve all types of matters related to civil disputes, as explicitly provided by the law.
• It is capable of providing a substitute for the conventional methods of resolving disputes.

Important Provisions Related To ADR

Section 89 of the Civil Procedure Code, 1908: Provides that opportunity to the people, if it appears to court there exist elements of settlement outside the court then the court formulate the terms of the possible settlement and refer the same for ADRs.

Acts dealing with ADR

• Legal Services Authority Act, 1987 (established Lok Adalat System)
• Arbitration and Conciliation Act, 1996

Various Modes of ADR

Arbitration:

• The dispute is submitted to an arbitral tribunal which makes a decision on the dispute that is mostly binding on the parties.
• It is less formal than a trial and rules of evidence are often relaxed.
• Generally, there is no right to appeal an arbitrator’s decision.
• Except for some interim measures, there is very little scope for judicial intervention in the arbitration process.

Mediation:

• An impartial person called a “Mediator” helps the parties try to reach a mutually acceptable resolution of the dispute.
• He/she does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves.
• It leaves control of the outcome with the parties.

Conciliation:

• It is a non-binding procedure in which an impartial third party, the conciliator, assists the parties in a dispute in reaching a mutually satisfactory agreed settlement of the dispute.
• It is a less formal form of arbitration.
• The parties are free to accept or reject the recommendations but if both parties accept the settlement document drawn by the conciliator, it shall be final and binding on both.

Need and Significance

• The inefficiency of the judiciary to deal with pending cases and clogging with long unsettled cases.
• Even after setting up fast track courts, the number of pending cases are still piling up.
• Delays in litigation should be mended by referring disputes to ADR for settlement, which would prove to be an effective counter to reduce pendency.
• These provide scientifically developed techniques to the Indian judiciary which helps in reducing the burden on the courts.
• Its motive is to provide social-economic and political justice and maintain integrity in the society enshrined in the preamble.
• ADR is founded in such Fundamental Rights, Article 14 and 21 which deal with Equality before Law and Right to Life and Personal Liberty respectively.
• It also strives to achieve equal justice and free legal aid provided under Article 39-A relating to the Directive Principle of State Policy (DPSP).

Also, the Malimath Committee Report (1989-90) underlined the need for ADR mechanisms as a viable alternative to conventional court litigation.

3. The best masks to ward off Omicron

Well-worn high-filtration masks such as N95 provide more protection than cloth and surgical masks

COVID-19 is an airborne disease, and Omicron is the most contagious variant of the SARS-CoV-2 virus so far. It’s more contagious than the Delta variant that swept India last year. But if we wear better-quality masks and wear them correctly, we can reduce the spread of this highly contagious virus.

All of us emit particles and tiny droplets while breathing, talking, singing, coughing and sneezing. When a person infected with COVID-19 interacts with another person who is uninfected, the virus can get transmitted as part of the particles and droplets exhaled by the infected person, which are then inhaled by the uninfected person.

If the infected or sick person wears a good mask, that reduces the risk to those around them. If the uninfected person wears a mask, that reduces the total number of particles (including virus-carrying particles) that they inhale and therefore reduces the risk to them from the infected person. Masks also help with particulate air pollution.

Masks should be used in indoor spaces you share with other people such as the office, hospitals or doctor’s offices, wedding halls, shops, classrooms, and places of worship. You should also wear your mask in crowded outdoor locations like the market or mall, and especially when taking the bus, taxi, airplane or train.

Types of masks

Over the last two years, most of us have worn masks of various types, including cloth masks, surgical or medical masks, and high-filtration masks with various designations — N95, KN95, KF94 and FFP2. What is the difference between these masks, and what works best against Omicron? Can they be reused? Where should masks be used?

A cloth mask reduces some emissions (especially larger droplets) from an infected person’s nose and mouth but offers little protection for the uninfected wearer as the material does not significantly filter small particles (unless it has a filter insert).

A surgical mask can be made of good, three-ply filtering material (though not all of them) but is not made to seal the face well. It leaves large gaps between the edges of the mask and the face, through which virus-carrying particles can be exhaled or inhaled. One way to improve the fit of a surgical mask is double-masking, i.e. wearing a cloth mask that can fit snugly on your face over a surgical mask, to reduce gaps.

But the best masks are those built to the American N95 standard or similar global standards (European FFP2, Chinese KN95, Korean KF94). When fitted properly, they filter out at least 95% (N95, KN95) or 94% (FFP2, KF94) of particles. It is best to avoid masks that have valves on them as they don’t filter exhaled air, which is important when the wearer is unknowingly infected.

High-filtration masks give everyone more protection from the Omicron variant than cloth and surgical masks. Everyone who can use these masks should use them, especially healthcare workers who are at risk of exposure and others who are at risk of severe COVID-19 infection (the elderly, people with diabetes, heart disease, etc.). While there was a shortage of such masks in the initial stages of the pandemic, manufacturers are now making N95 or equivalent masks in large quantities (for example, 3M has introduced the VFlex, a more affordable N95 mask than their popular Aura series, both of which are available on Amazon.in). Many other varieties are available with reputable online retailers. Reliable mask reviews can be found online.

A concern with high-filtration masks is their cost — the 3M VFlex is currently priced at ₹68 per mask (₹3,400 for a box of 50) on Amazon. While these masks can be used for a week with care, double-masking (a tight-fitting cloth mask over a three-ply surgical mask as described above) can be a good lower-cost alternative. Providing government subsidies to ensure that everyone can afford high-filtration masks would be the ideal solution.

Fit matters

But high-filtration masks by themselves are not enough. You need to make sure that the mask fits your face properly. In occupational health settings, an N95 mask is usually fit-tested, but this is not feasible for most people. But some simple rules can help improve fit.

The most common mask failure (other than not covering your nose or wearing it as a chin guard) is a loose or ill-fitting mask that lets virus-carrying particles escape outwards (for an infected person) or inwards (for the uninfected person). Cloth and surgical masks that are used repeatedly become loose and ill-fitting.

The mask should cover your mouth and nose. It should fit your face snugly at the edges, so the air you exhale or inhale only passes through the filtering material. The mask should also be moulded to the nose bridge — a plastic or metal clip is usually provided or built into the mask for this purpose.

The fitted mask is held in place usually with ear loops or headbands. Dual headbands are highly recommended as they allow a proper fit — one band below the ears around the neck and one above the ears at the crown of the head. Ear loops don’t provide a tight seal without straining your ears, unless you secure the loops behind your head with a clip or tight extension band. Once you wear the mask, the easiest test is to blow air outwards (perhaps after putting a mint in your mouth). If you feel the air on your face outside the mask edges, press that edge towards your face. Use the headbands or ear loops/clip to ensure that the mask fits snugly against your face.

Reusing masks

Can you reuse the mask? With some care, yes. N95 masks, in particular, are rated for their ability to filter a lot of dust as they are designed to be worn at places like construction sites. The mask will not get saturated even after a few days of normal (non-dusty) use, so it can be reused after it dries. A good routine might be to wear a high-filtration mask for a day, keep it aside in a dust-free, dry environment for 2-3 days (maybe inside a paper bag) and then use it again. And if the band or ear loop breaks or any part of the mask no longer seals properly, use a fresh mask.

All of us can do our bit to reduce the spread of the Omicron variant. Masking and vaccination are simple steps that can contribute to the overall pandemic response. So, if you can, please upgrade to high-filtration masks, get fully vaccinated, and stay safe out there.

4. Control rather than privacy

The Joint Committee report on the Personal Data Protection Bill has raised more questions than it has solved

In India, where the personal data of citizens are at the mercy of companies and government and where is no privacy law, the Puttaswamy judgment and the Justice B.N. Srikrishna committee report that led to the Personal Data Protection Bill of 2019 came as a ray of hope. But the Joint Committee report on the Bill has failed to provide a robust draft legislation ensuring the privacy of citizens. Instead, it has carved out an architecture for a surveillance state.

Infallibility of state

Under the Constitution, fundamental rights are enforced against the state and its instrumentalities and not against private bodies. The Puttaswamy judgment held that the right to privacy is a fundamental right. However, the report has divided the digital world into two domains — government and private — and is based on the presumption that the question of right to privacy emerges only where operations and activities of private entities are concerned. Clause 12 of the Bill provides exemptions for the government and government agencies and Clause 35 exempts government agencies from the entire Act itself. Clause 12, which says personal data can be processed without consent for the performance of any function of the state, is an umbrella clause that does not specify which ministries or departments will be covered. Further, the Bill says, “harm includes any observation or surveillance that is not reasonably expected by the data principal”. This means if you install any software in your computer and the software violates the principle of privacy and data get leaked, the complaint of the data principal will not be legally tenable as the defence will be that ‘once you have installed the software, you should have reasonably expected this level of surveillance’. The government can use these provisions as a means of control and surveillance.

If private entities can be given a transition time to comply with the Act, why should the same not be extended to government entities? Why should they be given blanket exemption instead? The Committee has failed to provide formidable firewalls to protect the privacy of individuals and has also carved out a mechanism for government control over personal data. The provisions are ultra vires of the judgment on privacy.

For compliance with the provisions of the Act, a data protection authority (DPA) has to be appointed. The Bill elaborates on the functions and duties of the DPA. It is doubtful whether a single authority will be able to discharge so many functions in an efficient manner. The terms and conditions of appointment of the DPA also raise concerns. Unlike the Justice Srikrishna committee report which provided for a judicial overlook in the appointments of the DPA, the Bill entrusts the executive with the appointments. Although the report expanded the committee, the power to appoint the panelists vests with the Central government. While ensuring the protection of citizens’ fundamental right, it is necessary that the authority entrusted with the responsibility should work independently. Clause 86 says, “Authority should be bound by the directions of the Central Government under all cases and not just on questions of policy”. This makes the DPA duty-bound to follow the orders of the government. This weakens its independence and gives the government excessive control. Further, the appointment of the authority violates the principle of federalism. There is internal data flow and the States are key stakeholders in the process. Even if the proposed central authority issues directions to allow processing of data on the grounds of ‘public order’, it is important to note that ‘public order’ is an entry in the State List. If the pith and substance of the legislation are related to the State, then it has to be monitored by the State Data Protection Authority.

Economic cost of non-personal data

One of the objectives of the Bill is to promote the digital economy. But by including non-personal data within the ambit of the Bill, the Joint Committee has put a huge compliance burden on the economy. This will hit the MSME sector and small businesses harder as technical processes involving data-sharing are very expensive. The government-constituted panel headed by S. Gopalkrishnan also opposed the idea of including non-personal data in the Bill. Mandatory data localisation, it is estimated, will squeeze the economy by 0.7-1.7%. This may also invite similar measures by other sovereign countries which will hamper smooth cross-border flow of data.

The report has raised more questions than it has solved. In its present avatar, the Bill is more about surveillance and control than privacy. At the time of passage of the Bill, loopholes must be plugged so that India can have a robust data protection law.

Personal Data Protection Bill, 2019,

The Joint Committee on the Personal Data Protection Bill, 2019, headed by BJP MP P.P. Chaudhary, has presented its final report on the upcoming bill in both Houses of Parliament on 16 December.

Key recommendations:

Remove the word ‘personal’ from the existing title of ‘Personal Data Protection Bill’. This is intended to reflect that the bill, in order to better ensure privacy, will also be dealing with non-personal data, such as personal data that has been anonymised.

Amend the section restricting the transfer of personal data outside India to say “sensitive personal data shall not be shared with any foreign government or agency unless such sharing is approved by the central government.

No social media platform be allowed to operate in India unless its parent company, which controls the technology powering its services, sets up an office in the country.

It proposes a separate regulatory body to be set up to regulate the media.

Jail term of up to 3 years, fine of Rs 2 lakh or both if de-identified data is re-identified by any person.

The word ‘personal’ ought to be dropped from the name of the Bill.

Central government may exempt any government agency from the legislation only under exceptional circumstances.

How do these recommendations compare with EU regulation?

The JCP recommendations on the Personal Data Protection Bill are in some aspects very similar to global standards such as European Union’s General Data Protection Regulation.

Similarities:

Consent: Users must have informed consent about the way their data is processed so that they can opt in or out.

Breach: Authorities must be notified of a breach within 72 hours of the leak.

Transition period: Two-year transition period for provisions of GDPR to be put in place.

Data fiduciary: Under EU law, a Data fiduciary is any natural or legal person, public authority, agency or body that determines purpose and means of data processing. In India, it also includes NGOs.

The committee has recommended the formation of a Data Protection Authority (DPA):

The Data Protection Authority (DPA) will be dealing with privacy and personal data as well as non-personal data.

Composition of DPA: The Chairperson and the members of the DPA shall be appointed by the Union government based on the recommendation of a selection committee chaired by the Cabinet Secretary.

Other members of the committee would be the Attorney General of India, the IT and law secretaries.

Nominated members: An independent expert and a director each from the IIT and the IIM will be nominated by the Centre.

5. The Light Combat Aircraft programme

What is the LCA development project? What other fighter jet aircraft programmes are being envisaged?

The LCA-Tejas was conceptualised in the year 1984. The indigenous single engine 4.5 generation multi-role fighter jet christened as ‘Tejas’ by then Prime Minister Atal Bihari Vajpayee in May 2003, has come a long way despite repeated delays and cost overuns.

Two decades since the first flight, in February 2021, the Defence Ministry signed a ₹48,000 crore deal with HAL to supply 83 LCA-Mk1A to the IAF. LCA achieved Initial Operation Clearance (IOC) in December 2013 and Final Operational Clearance (FOC) in February 2019. The IAF had earlier signed two contracts with HAL, for 20 IOC configuration aircraft in 2006 and for 20 FOC configuration aircraft in 2010. Both the deliveries have been delayed due to delays in the certification process.

HAL has to deliver the first three MK1A aircraft to IAF in 2024 followed by 16 aircraft per year for the next five years, according to the Defence Ministry. To ramp up production, HAL has already set up two additional assembly lines which are operational.

The story so far: According to the Chief Managing Director of Hindustan Aeronautics Limited (HAL), R Madhavan, HAL expects to deliver all Final Operational Clearance (FOC) variant aircraft to the Indian Air Force (IAF) in 2022 pending some systems from Israel, while the LCA-MK1A is expected to take flight in June this year. There is another 20 to 24 months of testing after which deliveries would begin with manufacturing activities going parallel to the testing.

The Light Combat Aircraft (LCA)-Tejas was conceptualised in the year 1984. Since the first flight of the LCA technology demonstrator in January 2001, the indigenous single engine 4.5 generation multi-role fighter jet christened as ‘Tejas’ by then Prime Minister Atal Bihari Vajpayee in May 2003, has come a long way both in terms of the maturity of the platform as well as the overall aircraft development programme despite repeated delays and cost overuns. In all, 123 LCA aircraft of various configurations are on order so far.

What is the status of the LCA programme?

Two decades since the first flight, in February 2021, the Defence Ministry signed a ₹48,000 crore deal with HAL to supply 83 LCA-Mk1A to the IAF. This includes 73 LCA Tejas Mk-1A fighter aircraft and 10 LCA Mk-1 trainer aircraft at the cost of ₹45,696 crore along with design and development of infrastructure sanctions worth ₹1,202 crore.

The MK-1A will have over 40 modifications over the MK1 variant including some major ones like a new Electronic Warfare system, Advanced Electronically Scanning Array (AESA) radar, Beyond Visual Range (BVR) missiles and network warfare system including Software Defined Radio (SDR).

LCA achieved Initial Operation Clearance (IOC) in December 2013 and FOC in February 2019. The IAF had earlier signed two contracts with HAL, for 20 IOC configuration aircraft including four IOC trainers on March 31, 2006 and for 20 FOC configuration aircraft including four FOC trainers on December 23, 2010. Both the deliveries have been delayed due to delays in the certification process.

The first IOC fighter aircraft was delivered in 2016 and the first LCA squadron No. 45 “Flying Daggers” in the IAF was formed in July 2016 with two aircraft. The first squadron is now complete and the second LCA squadron No. 18 ‘Flying Bullets’ was operationalised in May 2020.

What is the cost of the LCA development programme?

The Government had originally sanctioned ₹2,188 crore for Full Scale Engineering Development (FSED) —Phase-I programme to design and develop two Technology Demonstrators (TDs), and ₹5,777.56 crore for FSED —Phase-II Programme.

The objectives of Phase-II are fabrication of three Prototype Vehicles (PVs), establishment of production facility at HAL for production of eight aircraft per year and manufacturing and delivery of eight Limited Series Production (LSP) aircraft.

On the overall project cost, the Government informed Parliament in March 2020 that a total of ₹11,096 crore has been spent till date on the indigenous LCA and the Kaveri jet engine (now shelved) development programmes. Of the total amount, ₹9,063.96 crore was spent on LCA and ₹2,032 crore on the Kaveri Engine.

What is the way forward?

As per the contract, HAL has to deliver the first three MK1A aircraft to IAF in 2024 followed by 16 aircraft per year for the next five years, according to the Defence Ministry. To ramp up production, HAL has already set up two additional assembly lines which are operational. Some back end activities are also being finished at the moment, according to HAL.

The indigenous content in LCA is currently about 52% and HAL said it is looking at ways to increase it to 65%.

In addition, the LCA-MK2, a larger aircraft with a more capable engine is expected to roll out by year end or early 2023 following which it would take a year for its first flight. The LCA-MK2 brings significant capability enhancement to the LCA programme featuring new technologies, ability to carry heavy stand off weapons like Scalp, Crystal Maze and Spice-2000. It can also carry significantly higher payload, 6,500kg compared to 3,500kg by the LCA.

An ambitious fifth generation fighter aircraft Advanced Medium Combat Aircraft (AMCA), and a new Twin Engine Deck Based Fighter (TEDBF) to operate from the Navy’s aircraft carriers are being developed by the Defence Research and Development Organisation (DRDO) and Aeronautical Development Agency (ADA).

The AMCA is envisaged as a 25 tonne aircraft with internal carriage of 1,500kg of payload and 5,500kg external payload with 6,500kg of internal fuel with the roll out planned in 2024 and first flight planned in 2025, according to ADA officials.

The TEDBF is being designed based on lessons learnt from the Naval LCA programme and the first flight is planned in 2026. In addition to supplying to the IAF, HAL is aggressively pitching its helicopters and Tejas to countries in South East Asia and West Asia and LCA is in the contest in Malaysia. Stating that the price is competitive, Mr. Madhavan had earlier stated that each LCA MK1A jet would cost ₹309 crore.

6. The new microchip infused e-passports

What is the latest agreement between the MEA and TCS about Indian passports? What can be expected from PSP-V2.0?

The MEA on January 7 signed an agreement with TCS for the second phase of the Passport Seva Programme (PSP), termed PSP-V2.0.

Under this phase, new and renewed passports will be fitted with a microchip that will hold all biometric information regarding the applicants. The programme also plans to have a Data Centre, Disaster Recovery Centre and Government Secure Repository which would be networked with all the PSKs and POPSKs.

The public private partnership however, should address the issue of shortfall of Government employees in the passport offices across the country.

The story so far: The Ministry of External Affairs on January 7 signed an agreement with Tata Consultancy Services Limited for the second phase of the Passport Seva Programme (PSP), one of the several Mission Mode Projects (MMPs) of the Government of India. The latest agreement will facilitate the next phase of the PSP termed PSP-V2.0. The $1 billion agreement will focus on faster delivery of passports to the citizens and create a more effective integration between various wings of the Government like the MEA and the local police network that can work in harmony for verification of applicants and quick tracing in case of emergency situations.

What are the features of the new passport initiative programme?

The present passport application and processing continues to involve manual sections and these are expected to go digital in the new phase. The Ministry of External Affairs said that the PSP-V2.0 is a “continuation and enhancement” of PSP-V1.0. An official statement said that the new initiative is aimed at creating a digital platform that would be “transparent, more accessible and reliable” and that it would be backed by a trained workforce. This will create a state-of-the-art digital ecosystem, overhaul existing processes and integrate various wings of Government that are involved in issuance of passports. The issue of training of the employees in the new process is however, yet to begin which is expected to take some time.

What will be the nature of partnership with TCS?

Tata Consultancy Services according to the MEA will ensure “support functions” like “citizen interface, technology backbone, call centres, training and change management”. The Government will exercise “all sovereign and security related functions” in the process of issuing of passports. Strategic assets like Data Centres, Database and the application software will be owned by the Government and access would be controlled through biometrics. The programme also plans to have a Data Centre, Disaster Recovery Centre and Government Secure Repository which would be networked with all the Passport Seva Kendras and the Post Office Passport Seva Kendras (POPSK). The overall system would be connected to all the Indian diplomatic missions abroad and will allow monitoring and supervision through state-of-art Network Operation Centre, and Security Operation Centre . “The programme has recently been connected to more than 176 Indian Missions/Posts through Global Passport Seva Programme (GPSP), providing seamless delivery of passport services to Indian diaspora,” said the MEA in a statement.

The public private partnership however, is required to address the issue of shortfall of Government employees in the passport offices across the country. The announcement highlighted that the Government is gearing up for starting Seva Kendras in all the Lok Sabha constituencies of the country. But, according to the employees in the Passport division, there remain a large number of vacancies in the Government positions in these offices and a full spectrum “monitoring and supervision” will require more staff members from the side of the Government. Despite the Government’s ambitious expansion programme, these vacancies are yet to be filled.

What will be the new features of PSP-V2.0?

The new programme is expected to have technology upgrade including the use of latest biometrics technology, Artificial Intelligence, Advance Data Analytics, Chat-Bot, Auto-response, Natural Language Processing, Cloud Enablement. The newest feature under the PSP-V2.0 will be the issuance of the new generation of passports called e-passports. Under this, new and renewed passports will be fitted with a microchip that will hold all biometric information regarding the applicants. Sanjay Bhattacharyya, Secretary in MEA in charge of passport services, said in a social media message that the next gen e-passports will ease immigration process across the world and will also increase digital safety for the passport holders.

How different will e-passports be from the current passports?

Current passports are scanned at the immigration counters to reveal the travel record of the citizen using the same document and the e-passport is also expected to perform the same function. However, unlike the current passports, the e-passport users will have physical storage of their biometric data in a chip which will reduce risk of data leakage.

Is the public private partnership without any shortcoming?

The MEA-TCS collaboration has been a part of the passport process since 2008 and has helped in increasing digitisation of the complex process that requires multiple stakeholders across the spectrum of the vast Government network. However, it is understood that more harmony between them will help citizens acquire passports without delays.