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Daily Current Affairs 23.07.2020 (High Court, Jammu and Kashmir)

Daily Current Affairs 23.07.2020 (High Court, Jammu and Kashmir)

1. Set up a High Court for Puducherry

The administration must highlight the need to streamline expenses, the case volume and constitutional rights as factors

  • In 1962, when Puducherry was merged with India, the jurisdiction of the Madras High Court was extended to it. After several decades, in 2017, the Puducherry legislature unanimously resolved to have its own High Court, and the Madras High Court was informed on July 7, 2017. Prior to this, in April 2017, the Pondicherry Bar Association also passed a resolution seeking establishment of the High Court.
  • In August 2019, while addressing a State-level conference on legal services and Motor Accident Mediation Cells, Puducherry Chief Minister V. Narayanasamy said that “a Bench of the Madras High Court at Puducherry on the lines of the one set up in Madurai” was a felt need and sought the support of judges of the Supreme Court.

Sound reasons

  • So, why should there be the need for a High Court at Puducherry? The Puducherry government spends exorbitant sums of money towards expenses of the large High Court. With not much of a population, this amount can be reduced to less than a quarter of the amount spent with a much smaller High Court for Puducherry.
  • In fact, according to the Constitution, when a common High Court is established for more than one State, administrative expenses have to be paid only from the consolidated fund of the ‘State’ in which the principal seat of the High Court is situated. However, this provision is breached with respect to Puducherry which shares the disproportionately exorbitant expenses with Tamil Nadu. On the other hand, administrative expenses of a High Court at the Union Territory shall be drawn from the ‘Consolidated fund of India’ under the Constitution.
  • A Puducherry High Court, with four to five judges, can ensure quick action on pendency of matters of the High Court matters, at least at Puducherry. In the All India Judges Association And Others vs Union Of India (Uoi) And Ors., the Supreme Court observed that the “time has now come for protecting one of the pillars of the Constitution, namely, the judicial system, by directing increase, in the first instance, in the Judge strength from the existing ratio of 10.5 or 13 per 10 lakhs people to 50 Judges for 10 lakh people”. This was also discussed in the Law Commission of India Report titled ‘Arrears and Backlog: Creating Additional Judicial (wo) manpower’, in 2014.
  • However as of 2016, the ratio is only 12 judges for one million population. This ratio at Puducherry can be increased if a separate High Court with four to five judges is established.

A data comparison

  • The number of cases filed and disposed of at Puducherry in 2010 is four times higher than the numbers at Sikkim, Manipur and Goa (with High Courts) put together. Therefore, the size of population and territory is irrelevant. Bigger States have more judges and staff, smaller States have lesser numbers of these.
  • The data collected by this writer show that in terms of the number of cases filed in 2010, the figures are: Sikkim (1,117), Manipur (637), Goa (4,984) and Puducherry (24,159). In terms of the number of cases decided, the numbers are: Sikkim (1,174), Manipur (495), Goa (3,646) and Puducherry (24,336).
  • Similarly, the memorandum provided by the All India Bar Association to the Chief Minister in 2017 shows that the number of cases disposed from Puducherry (28,631 cases) is three times more than the number of cases (9,031 cases) disposed by four High Courts (Tripura, Manipur, Meghalaya and Sikkim) put together in 2016.
  • The presence of the Constitutional Court in the capital city acts as a check on the executive and legislature. Even the exercise of safeguarding fundamental rights involves travel, time and expenses. Several people often cite that litigants from western districts travel the long distance to Chennai. It defies logic why litigants from Puducherry need not be benefitted merely because other litigants are not benefitted, especially when the Constitution permits Puducherry to have its own High Court under Article 241.

Aiding Statehood demand

  • A High Court for Puducherry will also strengthen voices seeking Statehood. The Constitution enabled establishment of a legislature and Council of Ministers for certain Union Territories with the intent of providing them Statehood gradually. Out of the seven Union Territories originally placed under Article 239A, all except Puducherry were granted Statehood by 1989. Most Union Territories under 239A at least had Benches of High Courts when they attained Statehood. Tripura, Manipur, Meghalaya had Benches of the Gauhati High Court before they got their own High Courts. Interestingly, the Delhi High Court was established in 1966 before Delhi got its legislature in 1993.
  • Even a Bench of the Madras High Court as against a separate High Court at Puducherry is unfavourable because: Puducherry will still have to share the expenses of such a large High Court; judges might not prefer shuttling between Benches at Chennai, Puducherry and Madurai frequently; the protests against the setting up of the Madurai Bench a decade ago should be borne in mind. In fact, the presidential order establishing the Bench was challenged before the Madras High Court in 2004, just before commissioning the work; demand for a Bench of the High Court has always been met with stiff resistance from the Bar practising in the Court having jurisdiction. For instance, on December 12, 2019, Meerut MP Rajendra Agarwal pointed out in the Lok Sabha that “the U.P. Government had recommended a bench in 1955 but it’s the HC lawyers who always exert pressure not to allow the bench in Western UP”. Unlike Meerut, the advantage that Puducherry enjoys is that the Constitution enables Parliament to establish separate High Courts in Union Territories.
  • In March 2016, the Government of India had suggested to the writer that the establishment of a High Court will be taken up if the Puducherry government proposes the idea. However, the decision of the Puducherry legislature has still not been conveyed to the Central government.
  • Interestingly, though the 2017 resolution of the legislature seeks a High Court, authorities have on multiple occasions spoken of establishing a Bench of the Madras High Court. There is a popular notion that the establishment of a Bench of High Court is easier and economical as against the reality pointed out in this article. Therefore, the territorial administration should have clarity on this point.
  • The Puducherry government should now form a committee to prepare a comprehensive report and a draft Bill backing its proposal and forward it to the Central government. In this the nominated Lieutenant Governor and the elected Chief Minister must work in tandem.
Constitutional provisions related to High Court in India:
Article 214 provides that every State shall have a High Court, however,
Article 231 states that Article 214 shall not be a bar for constituting a common high court for two or more States.Only Parliament may by law establish a Common High Court for two or more States. This means that, unless Parliament by law establishes a Common High Court for two or more States, every State has to have a High Court, i.e., upon formation of a new State a new High Court is also formed.
Article 216 provides that every High Court shall consist of a Chief Justice and such other number of judges as the President may from time to time deem necessary to appoint.
Article 217 relates to appointment of HC judges.
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2. Are people in J&K citizens or subjects?

It’s nearly a year since they have had 4G Internet and the Supreme Court has done little to enforce its writ

  • The Internet is often spoken about as a great equaliser. Its evolution was meant to herald a more equal society. But the ravages wrought by COVID-19 have taught us that the web is also capable of creating new and more insidious barriers to basic goods. Across the world, despite the structural hurdles to access, the Internet has become indispensable to human freedom. School children take their lessons online, businesses cannot work without accessing the web, our courts have moved virtual, and even our leisure is inextricably bound by the system.
  • What this has also meant is that those without access to the Internet have suffered more than others. The pandemic has shown us a smidgen of just how reprehensible the digital divide is. There was a report, for example, of a student taking her own life, because of a lack of access to online school. Therefore, a staunching of the gateways to the web invariably strikes at the dignity of individuals.

A complete ban, and a challenge

  • Yet, the government feels no compunction in doing precisely just this in Jammu and Kashmir (J&K). Since August 4 last year, people in the region have not had access to 4G Internet. The authorities see the restriction, which was placed in the lead-up to the dilution of Article 370 of the Constitution, as unassailable. But by all means — even by the Supreme Court’s own concession — a complete ban of this kind is disproportionate. It impinges on the liberty of an entire populace. Yet the Court has done little to enforce its writ, to do what the Constitution demands of it: act as an independent check on majoritarian power.
  • To begin with, this move to restrict 4G Internet in the region was part of an array of measures limiting communications and movement. These moves were made ostensibly out of a concern for national security, with the aim of thwarting terrorism. The blockade though, imposed as it was indiscriminately on the whole region, was challenged in the Supreme Court, in Anuradha Bhasin v. Union of India (2020).
  • The petitioner there made two primary arguments. First, she pointed out that the government had refused to make public its orders blocking the Internet. This, she said, violated a basic tenet of the rule of law: that people have a right to know why their freedoms have been constrained. Second — and more substantively — she argued that empirical evidence demonstrated that there was no link between shutting down the Internet and the state’s objective of protecting security. Indeed, available materials pointed the other way: that the Internet was a valuable tool that could be used to counter the spread of incendiary rumours and fake news. Moreover, the government had at its disposal less restrictive options, such as the blacklisting of specific websites and targeted surveillance measures. It is unclear if these alternatives were even considered. Thus, the petitioner claimed that there was no justification for a blanket Internet shutdown that impacted a territory of eight million people, a vast majority of whom had nothing to do with terrorism.
  • It took the Supreme Court five months to rule on this petition. All the while, the blockade continued unabated. And when the decision did come, on January 10, 2020, it did little to mitigate the damage. The Court no doubt held that the ability to access the web had an instrumental bearing on a number of other fundamental rights, including the rights to free speech and freedom of business; and that therefore any limitation placed on the web must be necessary and proportionate to the goal that the State seeks to achieve. This meant that the government now had to produce the orders on the basis of which it was shutting down the Internet. But promising as this might have looked at first blush, the Court did not hold the government accountable. It simply didn’t test the blockade on the touchstone of the very constitutional principles that it said were applicable. Instead, it ordered a weekly review by a committee set up under the Temporary Suspension of Telecom Services Rules, 2017.
  • The aftermath of the judgment brought about some alleviative measures. The prohibitory orders were published, although a perusal of those showed that the reasons remained brief and cryptic (and sometimes contradictory). In time, a few websites, through a process of “whitelisting”, were made available for access. But the rest of the Internet was still out of bounds. Eventually, a few months after the verdict, 2G Internet alone was restored. But even the onset of the pandemic, which has shown us just how instrumental the Internet is in accessing critical services, didn’t lead to a lifting of the ban on 4G.
  • In response, a second challenge was mounted in the Supreme Court, this time by the Foundation for Media Professionals. This petition pointed out that it had been eight months since the web was restricted in J&K, and now the combination of the pandemic and a lockdown had made Internet deprivation even more unconscionable. Specific evidence was placed before the Court to show how 4G Internet was indispensable for adequate access to education, medicine, and to the courts, and how — without it — the people of J&K were placed at a significant disadvantage compared to the rest of the country.
  • The Supreme Court gave a ruling on May 11. Once again, it dodged the issue before it. Quite opposed to deciding on the validity of the government’s actions and its impact on rights, the Court wound up creating a new three-member special committee headed by the Union Home Secretary — an exercise wholly outside the legal framework — to take stock of things. The irony here speaks for itself. The executive that was responsible for restricting access to the Internet in the first place was now tasked with reviewing its own actions.
  • But there’s more irony to come. More than two months have passed since the judgment, but, at least ostensibly, no committee has been formed. And 4G Internet remains banned. Early in June, the petitioner again moved the Court, this time seeking to hold the government in contempt. After more than a month, the petition finally came up for hearing. In it, the government claimed that it had, in fact, constituted a committee whose decision, it said, it was ready to deliver in a “sealed envelope” to the Court. But even assuming this exercise has indeed been carried out, it still runs in the teeth of the judgment in Anuradha Bhasin, which demands a publication of orders restricting Internet access.

Transformation of basic rights

  • By the time the case comes up for hearing again, the government is expected to file an affidavit explaining itself. But what the Court surely must now see is that the Internet restrictions in J&K are fast approaching their first anniversary. Not only has its intervention thus far been enervated, in that it has failed to answer the constitutional questions at stake, but even the few directions that it has issued have not been complied with. In the process, basic rights have been transformed into government largesse. The question that the Court must now ask itself is, therefore, this: are the people of J&K subjects to be ruled over, or are they citizens who possess rights against the State?

3. ‘E-platforms must be sensitive to defence, privacy concerns’

Upcoming law to address data availability for development

  • All digital platforms need to be accountable and sensitive towards concerns related to defence and data privacy of citizens of sovereign countries, Union Minister Ravi Shankar Prasad said on Wednesday.
  • The Minister, who holds the portfolio for Law and Justice, IT and Telecom, was speaking at a virtual meeting of G20 Digital Economy Ministers.
  • The comments follow the Indian government’s move to ban 59 Chinese applications, including TikTok, Shareit, Mi Video Call, Club Factory and Cam Scanner, citing a threat to national security and sovereignty. The decision announced in June came amid border tensions between India and China in Ladakh. “Digital platforms need to be responsive, accountable and sensitive to concerns of sovereign nations as far as safety, defence and data privacy is concerned,” the minister said.
  • According to a statement, Mr. Prasad added that India was soon going to put in place a robust personal data protection law which will not only address data privacy-related concerns of citizens but also ensure availability of data for innovation and economic development.
  • “We all need to acknowledge… that the digital economy must go hand in hand with the data economy because data is the important component to accelerate the digital economy. We understand the issue of data innovation, of data cross flow, but we also need to acknowledge who has the sovereignty over data. Data must belong to the sovereign nation concerned, to protect the privacy of its people, to protect digital concerns for its people,” he said.
Data Protection Bill
The bill constitutes 3 personal information types:
Critical
Sensitive
General
Sensitive data constitutes or is related to passwords, financial data, health data, official identifier, sexual orientation, religious or caste data, biometric data and genetic data. It may be processed outside India with the explicit consent of the user.
Critical data will be characterised by the government every once in a while, and must be stored and handled only in India.
General data: Any data that is non-critical and non-sensitive is categorised as general data with no limitation on where it is stored or managed.    

Other Key provisions:
Data principal: As per the bill, it is the individual whose data is being stored and processed.
Exemptions:
The government is qualified to order any data fiduciary to acquire personal and non-personal/anonymised data for the sake of research and for national security and criminal investigations. Social media companies, which are deemed significant data fiduciaries based on factors such as volume and sensitivity of data as well as their turnover, should develop their own user verification mechanism.An independent regulator Data Protection Agency (DPA) will oversee assessments and audits and definition making.   Each company will have a Data Protection Officer (DPO) who will liaison with the DPA for auditing, grievance redressal, recording maintenance and more.The bill also grants individuals the right to data portability, and the ability to access and transfer one’s own data.The right to be forgotten: this right allows an individual to remove consent for data collection and disclosure.  

Why does data protection matter?
With a population of over a billion, there are about 500 million active web users and India’s online market is second only to China. Large collection of information about individuals and their online habits has become an important source of profits. It is also a potential avenue for invasion of privacy because it can reveal extremely personal aspects. Companies, governments, and political parties find it valuable because they can use it to find the most convincing ways to advertise to you online.Besides, presently, there are no laws on the utilisation of individual information and forestalling its abuse, even though the Supreme Court maintained the right to privacy as a fundamental right back directly in 2017.
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