WhatsApp moves Delhi HC against traceability clause in IT rules, calls it is unconstitutional
Introduction
Faced with a deadline to comply with the Indian government’s new rules for social media intermediaries, which needs them to make provisions for “identification of the first originator of the information”, Facebook-owned messaging platform WhatsApp has moved the Delhi High Court challenging this aspect of the new rules. The petition was filed on May 25, the final date of compliance alleging that the aforesaid clause is violative of a person’s right to privacy as enshrined in the Supreme Court judgment of KS Puttuswamy v. Union of India.
Whatsapp Arguments
The Whatsapp Spokesperson said that “Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy,”
He further added that “We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us,”
WhatsApp argues that “traceability inverts the way law enforcement typically investigates crimes”. “In a typical law enforcement request, a government requests technology companies provide account information about a known individual’s account. With traceability, a government would provide a technology company a piece of content and ask who sent it first,”
The post titled, ‘What is traceability and why does WhatsApp oppose it?’ says: “In order to trace even one message, services would have to trace every message. That’s because there is no way to predict which message a government would want to investigate in the future. In doing so, a government that chooses to mandate traceability is effectively mandating a new form of mass surveillance.”
Government Response
The Indian government said that it respects the “Right of Privacy” and has no intention to violate it when WhatsApp is required to disclose the origin of a particular message.
The statement released by the Ministry of Electronics and IT (MEITY) comes hours after the social messaging app filed a lawsuit in Delhi High Court challenging the government’s new digital rules saying the requirement for the company to provide access to encrypted messages will break privacy protections.
The statement added that “Such requirements are only in case when a particular message is required for prevention, investigation or punishment of serious offences such as sexually explicit content,” furthermore they said that, “The Government of India recognises that ‘Right to Privacy” is a Fundamental right and is committed to ensure the same to its citizens, Such requirements are only in case when a particular message is required for prevention, investigation or punishment of serious offences such as sexually explicit content,” the statement added.
However, it also added that as per all established judicial dictum, “no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions. The requirements in the Intermediary Guidelines pertaining to the first originator of information are an example of such a reasonable restriction.”
On this issue, IT minister Ravi Shankar Prasad has said, “the Government of India is committed to ensuring the Right of Privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security.” He also stated that “none of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact.”
Conclusion
The new 2021 IT Rules will now at least mandate reasons for such takedowns to be debated, and provided the three-tier grievance redressal mechanism works, it will provide material for the High Courts and Supreme Court to examine them, in the event Government actions are challenged. Intermediaries now have enhanced due diligence and monitoring burdens, and are also expected to continuously educate users on what can and cannot be posted. This will assist in establishing a trend of self-regulation, especially in relation to social media intermediaries, thanks to tools provided by artificial intelligence.
NEW SOCIAL MEDIA RULES TO CURB MISUSE OF SOCIAL MEDIA
Introduction
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”) fundamentally change the way the internet will be experienced in India. Most notably, the Rules now will bring government control rather than regulation over digital news platforms and OTT video content providers. Several requirements under them suffer from unconstitutionality and undermine the free expression and privacy for millions of internet users in India.
On Feb 25, these rules were notified in the official gazette as the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”. For convenience, let’s just call them the Intermediary Rules. The Intermediary Rules have replaced the Information Technology (Intermediaries guidelines) Rules, 2011 (or the 2011 Rules). In this post, we bring a much more in-depth and legal analysis of the Intermediary Rules breaking down the top five changes in each chapter that impact your digital rights.
Due Diligence Requirements for Intermediaries
The Rules came into effect on 25 February 2021. However, the provisions pertaining to due diligence requirements for significant social media intermediaries have been given a lead time of three months from the date of notification of the threshold of a significant social media intermediary (i.e. 25 February 2021) to implement the prescribed measures. Non-compliance with the provisions of the Rules may disqualify the intermediary from seeking exemption of liability under the IT Act and the intermediary may be liable to punishment under any law for the time being in force, including the IT Act and the Indian Penal Code 1860.
Furnishing information to the government: The Rules state that intermediaries must provide information for verification of identity or assistance to any lawfully authorised government agency for prevention, detection, investigation and prosecution of offences or for cyber security incidents, no later than 72 hours of receiving a written order.
Preservation of records: The Rules require intermediaries to preserve, maintain, and/or store the following information for 180 days: (a) any information that has been removed or access to which has been disabled under certain provisions of the Rules; and (b) user’s information regarding registration, after cancellation or withdrawal of such registration.
Disabling access: Intermediaries are not permitted to store, host or publish unlawful information which is prohibited under any law for the time being in force. In case such unlawful information is hosted, stored or published, the intermediary must remove or disable access to such information as early as possible, but within 36 hours of receiving a court order or being notified by a government agency.
Removal of/ disabling access to explicit content: The Rules require expeditious action from an intermediary to remove or disable, within 24 hours of complaint, access to any material exposing the private area of any person, material with any nudity or depiction of any sexual act or conduct, or impersonation in an electronic form. In addition, intermediaries must provide a mechanism for receipt of complaints from users to enable them to provide details in relation to such explicit content.
Grievance redressal: Under the Rules, intermediaries must prominently publish on website, mobile application or both- (a) the name and contact details of grievance officer and (b) the complaint mechanism. The grievance officer must acknowledge the complaint within 24 hours and dispose of it within 15 days and provide reasons to the complainant for any action / inaction.
Details to be published: Intermediaries must prominently publish rules and regulations, privacy policy and user agreement on its website, mobile based application or both. The users must be informed about types of information that are ‘objectionable’ which they shall not share, display, upload, etc. In addition to the types of objectionable information prescribed under the 2011 Rules, certain new types of information have been specified under the Rules. Therefore, intermediaries will have to consider revising the existing documents in this regard. Intermediaries must inform users at least once every year about (a) rules and regulations, privacy policy or user agreement and any changes thereunder; and (b) intermediary’s right to terminate user’s access or remove the non-compliant information from its platform in case of non-compliance with the rules and regulations, privacy policy or user agreement.
Other Diligence Requirements for Significant Social Media Intermediaries
Significance threshold: Social media intermediaries with fifty lakh (five million) registered users or more have been classified as significant social media intermediaries and are subject to additional due diligence requirements beyond those prescribed for intermediaries in general. However, the Government may require any other intermediary to also comply with the rules applicable to significant social media intermediaries if services of such intermediary impose a material risk to the sovereignty or integrity of India, security of the State, etc. While in practice this could prove to be more of an enabling provision for the Government, at this initial juncture it appears that even relatively smaller social media platforms, could be brought under the ambit of stricter compliances under the Rules.
Officers and contact address in India: All significant social media intermediaries are required to appoint:
Chief Compliance Officer;
Nodal Contact Person; and
Resident Grievance Officer,
each of whom are to be employees residing in India. The Rules also necessitate significant social media intermediaries to have a physical contact address in India published on its website or mobile application or both. These mandatory requirements for all significant social media intermediaries, not only has significant implications in terms of setting up infrastructure and deployment of resources and employees in India but may also have significant commercial and tax implications for such intermediaries. However, absence of a mandatory incorporation requirement does leave flexibility for foreign intermediaries who do not have an incorporated entity in India.
Active monitoring: In a departure from the 2011 Rules, significant social media intermediaries shall endeavour to deploy technology-based measures, including automated tools to identify information that depicts rape, child sexual abuse or conduct, or information that has previously been removed. The Rules also require maintenance of appropriate human oversight, and periodic review of such automated tools. The measures deployed are required to take into consideration the interests of free speech and expression, and privacy of users, including interests protected through the appropriate use of technical measures.
Compliance report: Significant social media intermediaries must publish a monthly report containing details of-
the complaints received;
action taken; and
number of links/ information removed or to which access is disabled,
pursuant to any proactive monitoring by using automated tools or any other relevant information as may be specified.
Identification of first originator of information: Significant social media intermediaries which provide messaging services will be required to enable identification of the first originator of information if required by a court order or an order passed under Section 69 of the IT Act. In case the originator is outside the Indian territory, the first originator in India will have to be identified. The Rules mention that the contents of the message are not required, but the identity of the originator is required to be disclosed.
Voluntary verification: The Rules impose an obligation on significant social media intermediaries to enable users who register for their services from India, or use their services in India, to verify their accounts by using any appropriate mechanism, including the active Indian mobile number of such users, to verify their accounts and to provide a visible mark of verification. However, it is specified that the verification cannot be used for any other purpose unless consented by the user.
Grievance redressal: The grievance redressal mechanism of a significant social media intermediary is required to enable tracking of the grievance/complaint through a ticket number associated with such complaint. The intermediary is required to provide reasons for any action/inaction. The proposed mandatory grievance redressal mechanism may entail considerable overhaul of the existing grievance redressal mechanism.
Removal of/disabling access to information: In case any objectionable information is removed by an intermediary on its own accord, following steps need to be taken –
ensure that prior to the removal/ disabling access, the user who created, shared, uploaded such content is notified of such removal/ disabled access along with reasons;
provide adequate and reasonable opportunity to the user to dispute the action and request for reinstatement of such access; and
resident grievance officer to maintain appropriate oversight over the dispute resolution mechanism.
RULES FOR OTT Platform & Digital Media
The government has called for a grievance redressal system for OTT platforms and digital news media portals as well. The government is also asking OTT platforms and digital news media to self-regulate and wants a mechanism for addressing any grievances.
While films have a censor board, OTT platforms will be required to self-classify their movies and content based on age. The content will have to be classified based on age appropriateness. The government wants the OTT players to classify films based on 13+, 16+ and those for adults and clarified it is not bringing any kind of censorship to these platforms.
There has to be a mechanism of parental lock and ensuring compliance with the same. Platforms like Netflix already have an option for a parental lock.
For publishers of news on digital media, they will be “required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media,” according to the government.
It also wants a three-level grievance redressal mechanism. This will include self-regulation by the publishers; self-regulation by the self-regulating bodies of the publishers and oversight mechanism.
The government wants digital media to appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.
There may be one or more self-regulatory bodies of publishers. According to the rules, this body “shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members.”
The body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
Further, the Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices and establish an Inter-Departmental Committee for hearing grievances.
Current Scenario
As per May 26, Indian microblogging platform Koo on Saturday said it has met the compliance requirements of the new guidelines for digital platforms.
A Facebook spokesperson noted that the company is working to implement operational processes and aims to comply with the provisions of the IT rules.
A Google spokesperson said the company has consistently invested in significant product changes, resources and personnel to ensure that it is combating illegal content in an effective and fair way, and to comply with local laws in the jurisdictions it operates in.
However, As per May, 26 both the companies have not yet accepted the rules laid by the central government.
On May, 26 WhatsApp moved the Delhi high court against the new rules announced in February for digital media companies, saying the requirement for them to adopt features such as traceability for identifying originators of messages violated the right to privacy under the Indian law and the company’s end-to-end encryption policy. It said the company does not believe traceability can be imposed in a way that cannot be spoofed or modified, leading to new ways for people to be framed for things they did not say or do.
Conclusion
The massive growth of digital platforms and social media in India has largely been fuelled by a moderate regulatory framework under the IT Act and 2011 Rules, with the online curated content space being largely unregulated. However, given the growing concerns around the information and content available over social media and content platforms across both, domestic, and foreign owned platforms accessible in India, detailed regulations for digital media from the Government were imminent.
With the digital space and technology constantly evolving world over, the regulatory framework for digital media will also develop further. Keeping this in perspective, it is imperative that stakeholders, policy makers, and Governmental bodies continue to engage in consultations and dialogue, to eventually achieve a regulatory landscape that is effective yet balanced for everyone.
COVID‐19 health emergency: Union response and federal concerns
For the first time since independence, India is facing a major health emergency in the form of the COVID‐19 pandemic. The decision to impose a nationwide lockdown by the Central Government using the powers under Section 6(2)(i) of the DMA has raised certain questions by legal experts. The notification issued by the Secretary, Ministry of Home to all the state governments on March 24, 2020, asked all state and UT governments to send daily reports on how they are implementing the lockdown. Since then, the MoHFW has been issuing guidelines on various precautionary measures to be taken by all state/UT governments. However, there is opposition to the constitutional and legal validity of issuing lockdown orders under the DMA. The opposition to the implementation of the lockdown by the Central Government is based on two grounds. First, the imposition of the lockdown of all activities in the states and directed the district magistrates, who otherwise take orders from state governments, to implement the lockdown during the COVID‐19 outbreak is against the spirit of the Constitution as both public order, and health and sanitation come under the State List.
The Central Government has formed the Inter‐Ministerial Central Teams (IMCT) under Section 10(2) of the DMA to conduct field visits in all states and UTs instead of forming an Inter‐State Council under Article 263 of the Indian Constitution. Secondly, there is a lack of fiscal and monetary help from the Central Government to the state/UT governments during this lockdown period. During this pandemic, the Central Government has taken the decision to control COVID‐19 and is largely dependent on existing legal tools like the EDA and the DMA. Safety and protection of lives is the prime goal of imposing a lockdown, and it was the only option for the country in attempting to control the virus as there is currently no vaccination. Narendra Modi, has been organizing video conferences with the chief ministers of respective state/UT governments along with other functionaries in the governments and taking their concerns and suggestions.
The decision to impose and then extend the lockdown three times was taken by the Central Government after consultation with the chief ministers. Regarding the fiscal and monetary help to federal units, the Central Government has initiated fiscal stimulus plans such as the Pradhan Mantri Garib Kalyan Yojana. Though the stimulus package is less than 1% of the GDP, there is space to do much more in the post‐lockdown period. The Central Government has to concentrate on strengthening the constitutional and legal provisions to face a future health emergency, keeping the basic structure of the Constitution intact.
There is a pertinent need to strengthen local authorities to deal with and address a pandemic situation with respect to testing, contact tracing, isolation wards, availability of personal protective equipment (PPE), and availability of data at the village level. There is a need for further financial transfers to local bodies more than ever in this situation. Finally, there is a lack of grievance redressal mechanisms in this act. It is vital that the citizens of this nation, when facing such unprecedented and challenging times, are provided with a framework to address their grievances at different levels.
Powers of Central Government
When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in 2 [the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]
(3)Penalty.—Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offense punishable under section 188 of the Indian Penal Code (45 of 1860).
(4)Protection to persons acting under Act.—No suit or other legal proceedings shall lie against any person for anything done or in good faith intended to be done under this Act
E) Section 188 of Indian Penal Code – “Section 188 of the Indian Penal Code prescribes punishment for disobeying an order duly promulgated by a public servant.” The above-mentioned law is for those defaulters who disobey the orders of the public servants and roan around aimlessly during the lockdown.
F) Section 144 of the Criminal Procedure Code “Section 144 of Criminal Procedure Code (CrPC) imposes power to the executive magistrate to restrict a particular or a group of persons residing in a particular area while visiting a certain place or area.” The most important preventive measure against corona is safeguarded by this section that restricts to a gathering of people and thus in a way supports social distancing.
H) Schedule 1 of the Essential services act provides a list of services in the category of essential that would we provided during the period of lockdown. The central government has allowed the flow of essential services during the lockdown thus it becomes extremely necessary for us to know what services are covered as essential in the act.
While there is a list of laws related to COVID-19, we as responsible citizens need to realize that these laws are made for our betterment only and if we realize the seriousness of the ongoing crisis there would be no need to implement strict laws against the defaulters. The defaulters here are not just risking their lives but the lives of the nation as a whole. Time and again we are told to stay quarantined yet the police have to work on double shifts to penalize the defaulters. It is high time we take COVID-19 as a very serious issue and cooperate with the government to help not make India the second Italy.
Need to amend / repeal the Colonial-era Laws
Three suggestions emerge from this analysis to strengthen India’s constitutional and legal mechanisms for facing COVID‐19 and similar future scenarios after our review of various acts and constitutional provisions. Firstly, there is a serious need to review the colonial era EDA. Secondly, the passing of comprehensive public health law covering various aspects of health, which provides the right to health to all citizens is needed. Lastly, there is a need to explore various options to include health emergency provisions in the Indian Constitution.
The act fails to define and categorize various kinds of diseases and the level of severity.
The act does not address the containment process and demarcation of zones based on severity levels; it simply prescribes the state’s role to restrict the movement of the individual.
The act does not mention the role of Panchayats and other local governments.
The act fails to mention the regulations of drugs and vaccines during an epidemic.
The act emphasizes controlling the spread of disease by ship, but there is no mention of air travel. Given modern realities, in which air travel far exceeds travel by ship, there is an urgent need for the provision of stricter screening measures needing to be taken at the airport and by airlines.
To strengthen the act, the following amendments are required:
The amendments related to identifying, testing, isolating, contact tracing, controlling, coordinating, and containing any epidemic are needed to make the EDA comprehensive to tackle any future health emergency.
Changes related to the insertion of the definition and categorization of various diseases and demarcation of areas based on severity levels are needed.
There is a serious need to clearly state the role of the Union for enhanced coordination with various state and local governments.
The establishment of quarantine facilities inside or near airports should be explored and included in the act.
Identification of the quarantine locations, which are geographically and scientifically advantageous to contain the pandemic, should be explored. These should be located in remote locations where there are naturally fewer inflows and outflows of people.
2. Need for comprehensive national public health law
The second suggestion is for the promulgation of a comprehensive national public health law. Though there have been attempts to establish a public health law—the Model Health Bill in 1955, updated in 1987, the National Health Bill in 2009, and the Public Health (Prevention, Control, and Management of epidemics, bio‐terrorism, and disasters) Bill 2017, these were not passed. In each of these cases, there was opposition from states, as health comes under state oversight. As discussed, States like Tamil Nadu and Madhya Pradesh have their own public health laws. There is a need to review various laws at the sub‐national level and also in different countries to strengthen India’s public health law. In Canada, the Public Health Agency of Canada Act in 2006 provides public health measures and emergency preparedness and response. At the federal level, the Public Health Agency of Canada (PHAC) is primarily responsible for “the promotion of health, prevention and control of chronic diseases, prevention and control of infectious diseases, and preparation and response to public health emergencies” . The Public Emergency Act and the Quarantine Act also empower federal units in Canada. In Australia, the National Health Security Act, 2007, establishes “structures and processes for preventing and responding to national health emergencies” in the country (Buchanan, 2015). England passed the Public Health (Control of Disease) Act of 1984, which protects the health of the public through a system of surveillance and action (Griffith, 2020). Closer to India, Singapore passed the Infectious Diseases Act (IDA) in 1976 and strengthened it during the global SARS epidemic in 2003 (Neo & Darius, 2020). Recently, Singapore also responded quickly and passed a temporary law—the COVID‐19 (Temporary Measures) Act 2020 (CTMA). Recently, the United States of America (USA) passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, to fund research and development of vaccines, as well as therapeutics and diagnostics. A comprehensive national public health law must take into consideration practicable provisions in various countries’ legislative responses to a health emergency and try to strengthen India’s public health law while keeping social, political, economic, cultural, and environmental factors in mind. The role of the Union is crucial in creating an environment for a comprehensive public health law by reviewing and addressing the concerns of the states.
The comprehensive public health law should include the following provisions to ensure health care to citizens:
The role of the Union, state, and local governments—panchayats and municipalities should be clearly defined without creating any conflicts.
The Right to Health should be explicitly mentioned in the Indian Constitution through this act and include provisions for strengthening the medical infrastructure.
An institutional mechanism that is able to establish a network with governments, research institutions, and health care providers should be included.
The act should clearly state various processes and mechanisms for tracing testing and treatment for controlling the epidemics through appropriate and timely interventions at national, state, and local levels.
Fiscal and monetary relief for states and local bodies during medical emergencies should be included.
Special protection should be given to health care and sanitation workers keeping in mind the social dynamics of society.
3.Heath emergency provisions in the Indian Constitution
As discussed, there are no health emergency provisions in the Indian Constitution. Recently, after the declaration of the pandemic, France enacted the Emergency Response to the COVID‐19 Epidemic Act (2020), in a speedy procedure on March 23, 2020, to contain and control the epidemic. According to the new Act. L3131‐12 CSP, of the French Constitution, states, “the State of health emergency can be declared (…) in the event of a health disaster endangering, by its nature and gravity, the health of the population” . Japan also invoked a health emergency provision on April 7, 2020 by revising the New Influenza Special Measures Act. Article 352 of the Indian Constitution empowers the President to impose an emergency “whereby the security of India or any part thereof is threatened whether by war or external aggression or armed rebellion.” However, a health emergency is not grounds for imposing a national emergency and restricting the movement of people. India should explore various options for inserting a health emergency provision into the Indian Constitution. There is a need to discuss widely inside and outside of the Parliament as emergency provisions impact the fundamental rights of citizens. There is opposition from pockets of society that lockdown is unconstitutional and there has been criticism of the excessive role of the Central Government in imposing the lockdown . On the other hand, there are Public Interest Petitions (PILs) filed in the Supreme Court to impose a financial emergency under Article 360 of the Indian Constitution. Clarity on the lockdown which restricts the movement of people will impact the fundamental rights enshrined under Article 19 (1)(d) to free movement throughout the territory of India and 19 (1)(e) to reside and settle in any part of the territory of India. Additional opposition to the lockdown order comes from the excessive role of the Central Government in imposing lockdown by declaring the health emergency as a subject of federal units. As COVID‐19 is highly contagious, virulent, and has no boundaries, the coordinated efforts of the union, state, and local governments are crucial in handling this pandemic. With a diverse population and opinions, imposing lockdown will certainly have implications on controlling the pandemic. What one should realize is the right to life, and personal liberty is more important than the freedom of expression during a pandemic situation.
Conclusion
The COVID‐19 pandemic has led to questions about many aspects in India—the quality of healthcare, the response of governments and institutions, and issues related to law and order. The constitutional and legislative framework should help in addressing these questions. The Indian Government effectively imposed the lockdown and reduced the number of cases, while at the same time certain lawmakers and legal experts questioned the constitutional legality of the lockdown and the response of the Government. Though the Central Government has implemented the EDA and the DMA, these are not sufficient to face the health emergency effectively given the dynamic nature of the disease. This paper has explored various options for bridging the gap and strengthening the constitutional and legal framework for addressing any future health emergency. These emergencies will give ample space to fill the lacuna in the legal framework, and allow our future generations to be better prepared for any type of health emergency.
Covid 19: Constitutional and legal framework of the management of epidemics and a need of Comprehensive Health care Law in India
INTRODUCTION
A new coronavirus that causes acute respiratory disease in humans was identified in Wuhan City, Hubei Province of China (WHO, 2020a) in late 2019 and is most commonly referred to as COVID‐19. Coronaviruses are a large family of viruses that cause respiratory infections ranging from the common cold to severe diseases like the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak and the 2011 Middle East Respiratory Syndrome (MERS) outbreak. The Novel Coronavirus (2019—NCoV), the cause of the current outbreak, is the seventh identified member of the family of coronaviruses that infect humans (Zhu et al., 2020). The outbreak in China has now spread across the globe and was officially declared a pandemic by the WHO on March 11, 2020. As of may 13, 2021, there are more than 2 crore confirmed cases and more than 2.5 lakh deaths in India.
There are numerous hotspots throughout the country, predominantly in urban areas. While the Government has now sealed the areas in these hotspots, the nation also implemented a 21‐day lockdown as a measure to curb the spread of the virus by breaking its chain on March 25, 2020, which was extended until May 3, 2020 by the Narendra Modi Government. As the virus is highly contagious, many countries have implemented similar lockdowns in an attempt to control the spread of the virus as there is currently no vaccination or approved treatment. India also completely closed all kinds of transportation. The COVID‐19 pandemic is a global medical emergency and requires immediate and stringent action by the Government to control human loss. Apart from medical preparedness, legal provisions play a significant role in managing and controlling the disease.
It is against this background that this paper focuses on identifying the present constitutional and statutory provisions in India that are available to face a health emergency like the COVID‐19 pandemic and identify possible areas for strengthening the legislative structure to face health emergencies in the future. This paper also stresses the need for comprehensive public health law for effective prevention, control, and management of pandemics. Largely, this paper is based on primary sources like laws, statutes, regulations, notices, and court cases related to health and health emergencies in the country. Various acts and laws that are included in this research are the Epidemic Disease Act, 1897 (EDA), the Disaster Management Act, 2005 (DMA) along with bills introduced in parliament and which have lapsed like the National Health Bill (2009) and the Public Health (Prevention, Control, and Management of epidemics, bio‐terrorism, and disasters) Bill, 2017 along with regulations, notices, and guidelines issued during the COVID‐19 crisis by the Central Government along with state governments.
Health‐related constitutional provisions
The constitutional and legal framework of the management of epidemics and health emergencies has been at the forefront of discussions and debates throughout and outside of the nation since the nationwide lockdown order. The Indian Constitution ensures the Right to Health for all without any discrimination. Article 21 in the Indian Constitution states explicitly the citizen’s fundamental right to life and personal liberty, which can be argued was violated as the country enacted a complete nationwide lockdown. Provisions related to health are mentioned in Part IV of the Constitution in terms of the Directive Principles of State Policy. Article 39(a) mentions the responsibility of the State to provide security to citizens by ensuring the Right to adequate means of Livelihood. Article 39(e) mentions the State’s responsibility to ensure that “health and strength of workers, men, and women and the tender age of children are not abused.” Article 41 imposes a duty on the State to “provide public assistance in cases of unemployment, old age, sickness, and disablement.” Article 42 makes provision to “protect the health of the infant and mother by maternity benefit.” Article 47 is about “raising the level of nutrition and the standard of living of people and improving public health.”
India is a union of 28 states and 8 Union Territories. There is a constitutional distinction between the working rights and responsibilities of the government bodies of the central government and the states and territories. The seventh schedule under Article 246 of the Indian Constitution deals with the division of powers between the Union and the States, and legislation can be made, respectively. The Seventh Schedule contains three lists: the Union List, the State List, and the Concurrent List. The Parliament can make laws on 97 items that are mentioned in the Union List, whereas the state legislatures can make laws related to the 62 items in the State List. The Concurrent List, on the other hand, has subjects over which both Parliament and state legislatures have jurisdiction on 52 items. However, the Constitution gives federal supremacy to Parliament on the Concurrent List items in case of a conflict. Both the Central Government and the states are empowered to make laws related to public health. Items related to public health are mentioned in all three lists of the Indian Constitution. Quarantine, including all issues related to seamen’s and marine hospitals and medical institutions, are mentioned in numbers 28 and 81 of the Union List. The states can make legislation related to “health care, sanitation, hospitals, dispensaries, and prevention of animal diseases” under item six of the State List. The Union and states can make laws related to the health profession and the prevention of the extension from one state to another of infectious or contagious diseases or pests affecting people, animals, or plants under entries 26 and 29 of the Concurrent List. The High‐Level Group (HLG), formed for the health sector by the 15th Finance Commission, recommended moving health subjects to the Concurrent List. It also recommended mentioning the “Right to Health” as the fundamental right.
The Right to Health is not explicitly mentioned in the Indian Constitution as is the Right to Education, but various judgments—Consumer Education and Resource Centre versus Union of India (1995), State of Punjab and others versus Mohinder Singh Chawala (1997) and Paschim Banga Khet Mazdoor Samity versus State of West Bengal (1996) included the Right to Health as part of Article 21 of the Indian Constitution (i.e., Right to Life, and the Government has a constitutional obligation to provide health facilities to citizens). Hence, the role of government at all three levels—Union, State, and local (panchayats and municipalities) level is crucial in providing healthcare to all citizens. However, “health emergency” is not part of the emergency provisions of the Indian Constitution. The Indian Constitution empowers the President of India to declare three kinds of emergencies: national emergency, state emergency, and financial emergency. A national emergency is imposed if the security of the country is threatened on the grounds of war, external aggression, or armed rebellion. A state emergency is imposed if there is a constitutional breakdown in the respective state. A financial emergency is imposed if the financial stability of the country is threatened. As imposing a lockdown or keeping strict measures to contain the spread of disease will impact citizens’ fundamental rights, there is a need to explore various constitutional methods to include health emergencies in the emergency provisions with proper consultations with various stakeholders.
Existing laws for facing health emergencies in India
1. The Epidemic Diseases Act, 1897 (EDA)
The Epidemic Diseases Act, 1897, which was enacted during the British colonial era, was promulgated to tackle the bubonic plague which broke out in the Bombay State (now Maharashtra State). The Act is 125 years old, with only four sections. The law is described as “extraordinary” but “necessary” by John Woodburn, the Council Member of the Governor‐General of India in Calcutta during the discussion on the bill introduced in 1897 and emphasized that people must “trust the discretion of the executive in the grave and critical circumstances’. Hence, any action taken on the grounds of epidemics must take into consideration all grave and critical circumstances. Such decisions may not be opposed by the general public for the “greater good” for all. The law was vital in containing other outbreaks in the country like Cholera (1910), Spanish Flu (1918–20), Smallpox (1974), Swine flu (2014), and the Nipah Virus (2018). The EDA is the only act that provides legal interventions in the case of a national or sub‐national epidemic. The first section gives the title and the extent of the implementation of the act. The second section deals with the power to take special measures and prescribe regulations during times of dangerous diseases by the central and state governments. Under section 2 of the act, the state government may take or empower any person to issue notices or regulations to be observed by people during the outbreak. Section 2A empowers the Central Government to take precautions and issue regulations for the inspection of ships and vessels and also to regulate any person who intends to sail. Penalties are included in the third section, and the fourth section covers the protection of persons acting under the act. The disobedience to the directions of public servants under the act is considered an offense and punishable under section 188 of the Indian Penal Code 45 of 1860 (i.e., imprisonment of 6 months and/or a fine of 1000 rupees).
On April 22, 2020, using the powers under Article 123, the Modi Cabinet issued an ordinance to amend the EDA, as there had been incidents of attacks on health care workers. The ordinance amended section 3 of the EDA. If anyone causes damage or loss to the property, then they may be punished with “imprisonment for a term of 3 months to 5 years and with a fine of Rs. 50,000/‐ to Rs. 200,000/‐.” In case of violence and physical attack on health care workers, they can be imprisoned “for a term of 6 months to 7 years and with a fine of Rs. 100,000/‐ to Rs. 500,000/.” In addition, “the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage to property.”
Telangana, a south Indian State, invoked the EDA by issuing a regulation called “the Telangana Epidemic Disease (COVID‐19) Regulation 2020”. The regulation empowers the Director of Public Health (DPH), the Director of Medical Education, all the District collectors, Commissioner of Police, District Superintendent of Police, and all Municipal Commissioners of Corporations in the State to take measures to control and contain COVID‐19. The regulation brings all hospitals, both public and private, under the purview of the regulations and directs them to report all cases to the State Integrated Surveillance Units and Collector of the District or the Commissioner of Corporations. The empowered officials can take action on persons who refuse to comply with the regulation under Section 188 of the Indian Penal Code. The regulation also prohibits the spread of misinformation on social media and in print media, and necessary action may be taken on violators. Hence, the State Government of Telangana emphasized keeping the institutional structures strong and powerful to contain COVID‐19.
Another south Indian State promulgated the Karnataka Epidemic Diseases, COVID‐19 Regulations, 2020, using the powers under the EDA. The regulations bar private laboratories from conducting COVID‐19 testing. All samples must be collected by the designated laboratory by the District Nodal Officer of the Department of Health and Family Welfare of the concerned district. The samples are collected according to guidelines issued by the Central Government. The interesting point of the regulation is that it makes the District Disaster Management Committee headed by the Deputy Commissioner the main authority for preparing strategies regarding containment measures at the district level. Similarly, many state governments have issued regulations according to their institutional setup and strategized their plans to counter COVID‐19.
Prior to the COVID‐19 pandemic, some state governments had their own public health acts or had amended the EDA to include certain provisions at the state level. The Madras Public Health Act, 1939 in the State of Tamil Nadu, is one example of comprehensive public health law at the state level. The act includes a Public Health Board being constituted at the state level that includes a Minister of Public Health, other coordination ministers, the surgeon general, Director of Health Services, Sanitary Engineer and other members nominated by the state government. The Board’s role is to advise the state government. The act also includes prevention, notification, and treatment of diseases. There is a similar act in the State of Madhya Pradesh, namely the Madhya Pradesh Public Health Act, 1949. In the State of Kerala, the Travancore‐Cochin Public Health Act, 1955 and the Malabar Public Health Act, 1939 are both in place in the case of any major public health issue. The Madhya Pradesh State Government is planning to combine both acts and bring them into a single act for covering the entire state. Compulsory provision of vaccinations is included by the state government of Himachal Pradesh under the Himachal Pradesh Vaccination Act, 1968. Bihar gave the state governments the power to make requests for vehicles during epidemics .
The EDA is not comprehensive and left to state governments to devise their own public health laws. However, only some state governments like Madhya Pradesh and Bihar have their own laws related to public health. Though the EDA has been invoked during the COVID‐19 pandemic by various state governments after directions from the Central Government, there is a need for an integrated, comprehensive, actionable, and relevant legal provision for the control of outbreaks in India. The EDA in the present form is not sufficient to face health emergencies like COVID‐19 as it is silent on technical and operational mechanisms of the control and management of epidemics.
2. Disaster Management Act, 2005
It was the Disaster Management Act under which the nationwide lockdown of 21 days was declared on March 25, 2020 by the Modi Government and was then extended until May 31, 2020. The DMA was enacted in 2005 with the objective “to provide for the effective management of disasters and for matters connected therewith or incidental there to.” The act consists of 79 sections and covers a wide range of issues like the establishment of the National Disaster Management Authority (NDMA), State Disaster Management Authority (SDMA), District Disaster Management Authority (DDMA), measures to be taken by the Governments during the disaster, penalties, and offenses of the violators. The NDMA was established under the act, and the Prime Minister is the ex‐officio Chairperson along with nine other members. Subsequently, a guideline on the Management of Biological Disaster 2008 was passed and currently the NDMA deals extensively with biological disasters and health emergencies.
There are certain sections in the NDMA that helped the Central Government to impose the lockdown and restrict all kinds of transportation in the country. Section 62 of the DMA gives powers to the Central Government to issue directions to all ministries or departments of the Government of India and state/UT governments. On 11 April 2020, the Central Government invoked section 69 of the DMA, which delegated the powers of the Home Secretary to the Secretary, Ministry of Health and Family Welfare for coordinating various activities among ministries and states/UTs. Unlike the other laws, this act “provides for an exhaustive administration set up for disaster preparedness.” Violators are punishable up to 1 year in jail or a fine or both under Sections 51 to 60 of the Act. The law describes the offense as obstructing any officer or employee from performing their duty or refusing to comply with directions. For the better execution of the national lockdown, numerous states likewise summoned section 144 of the Criminal Procedure Code (CPC).
One of the major issues with the DMA is whether epidemic or pandemic can be considered “disaster” as per its definition. Section 2(d) of the DMA States that: “Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man‐made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” One can interpret that a health emergency of the kind created by the COVID‐19 pandemic falls under “grave concerns,” but such interpretation will not serve any purpose in effectively managing the epidemic. There are intricacies and technicalities associated with the health emergency that is not covered by this legislation.
3. Other legislative provisions
Terms like “quarantinable disease” and “isolation,” have been defined under the Indian Aircraft (Public Health) Rules, 1954 as “yellow fever, plague, cholera, smallpox, typhus, and relapsing fever” and “when applied to a person or group of persons means the separation of that person or group of persons from other persons, except the health staff on duty, in such a manner as to prevent the spread of infection.” respectively. Along with these, it provides definitions of various other words such as “Health Officer,” “Infected Aircraft,” “Infected Area,” “Infected Person.” Similar restrictions are found under the Indian Port Health Rules, 1955, framed under the Indian Port Act, 1908, for the quarantining and isolation of passenger ships, cargo ships, and cruise ships. It further provides for the provision, which states that the Central Government has the power of inspection of any ship or vessel leaving or arriving at the port at any point of time which comes under its jurisdiction. Similarly, the provisions in the Livestock Importation Act, 1898, cover the issue of quarantine of animals to protect and maintain their good health. Where the word “Quarantine” means “to separate and restrict the movement of healthy animals which may have been exposed to a communicable disease to see if they become ill” while the word “Isolation” means “to separate the ill having communicable disease from those who are healthy.” Later, under the same act, Animal Quarantine and Certification Service Station was created for the same purpose. While the Drugs and Cosmetics Act, 1940 provides provisions related to public health on the grounds of availability of and distribution of vaccines and drugs during an outbreak of dangerous and infectious disease.
A Public Health Bill was introduced in 2009, but it was not passed because many states objected to it as health is a subject under the State List. The bill was extensively drafted and mandated health as a right and also recommended the establishment of a National Public Health Board. The bill also advocated for the convergence of various national, state, district, block, and village level planning and implementation authorities. The redressal and communication mechanisms were also clearly mentioned in the bill. The bill was introduced during the United Progressive Alliance (UPA)—II regime under Manmohan Singh as Prime Minister. Subsequently, in 2017, during the Modi government’s first term, the Public Health (Prevention, Control, and Management of Epidemics, Bio‐fear based oppression, and Disasters) Bill 2017 was introduced, but the bill ultimately faced the same fate as the previous bill. The 2017 bill clearly defines epidemics, isolation, quarantine, public health emergency, and social distancing. Section 3 of the bill gives powers to state/UT, district, and local authorities, whereas section 4 of the bill defines powers of the Central Government in giving directions. Penalties are also high when compared to other acts and bills. Section 14 (1) of the bill repeals the EDA.
The world around us is continuously evolving. The technology has laid down its foundations in every nook and corner of the world. In the present scenario of our country with ever-expanding technology ambiance, the admissibility of e-evidence has become the most germane issue. The advancement of technology brought a drastic change in the mode of communication of people.
Whatsapp chats, emails, text messages have become a prevalent mode of communication. Nowadays various electronic evidence such as DVD, hard-disk, SMS, mail site, etc is produced as evidence in court.
Applicability of law has to always resonate with technology advancement. The Indian computerized system began with the introduction of the Information Technology Act, 2000. This act inserted section 65A and 65B in the Indian evidence act 1872 which deals with the acceptability of electronic evidence in the court of law.
Meaning Of Evidence
The term evidence is defined under section 3 of the Indian evidence act 1872. Section 3 of the act includes the following
Every statement which the court allows to be made by witnesses pertaining to the matter under investigation, such explanations are said to be oral evidence
All documents including e-records produced in the court of law for its inspection, such documents are referred to be as documentary evidence.
Besides this, documentary evidence can be classified into two categories- primary evidence and secondary evidence. As per section 62 of the act, primary evidence means the original copy of the documents produced in the court for review. The legal definition of secondary evidence is given under section 63 of the act.
Secondary evidence is not the original document but those documents referred under section 63. It includes a copy of the original document, certified copies. Though a copy of a copy is not acceptable as evidence, those copies produced by mechanical process and copies of a copy compared with the original are admissible as secondary evidence.
Electronic Evidence
IT act 2000 was amended in the year 2016 to include digital/electronic evidence as admissible evidence. Section 2 (1) (t) of the above act gives the legal definition of the electronic record. The electronic record refers to data, data produced image or sound, and any document sent or received in electronic form or computer-generated electronic data. Electronic data that is transmitted or stored digitally is admissible under section 63 of IEA as secondary evidence.
Section 64 of the act mandates that the content of documents should be proved by primary evidence but section 65 lists few exceptions to it. Section 65 clause (a)(c) and (d) provides for the circumstances where secondary evidence pertaining to the documents is held to be admissible. As per section 65-A, the content of the e-record has to be proved according to the guidelines laid down in section 65-B.
Section 65A-B is special legislation different from the documentary evidence procedure laid down in sections 63 and 65. As per these sections, if the conditions listed below are complied by, then the data stored in electronic form which is printed/copied/stored or created by computer would be regarded as a document. Such documents would be admissible in the court of law without the need for an original copy or direct evidence.
Conditions for admissibility of computer-outputs are listed in section 65-B (2)-
The computer from which information of electronic record is obtained should have been regularly in use to save/process information for a regular activity carried by an individual having lawful control over it.
During feeding of information, the computer should have been working properly
Information in electronic-record should be of such nature that it is on a regular-basis fed into the computer during ordinary-activities.
Information contained in electronic-record should be a derivation or reproduction of the information stored/fed into the computer
Section 65-B(4) lists the conditions which need to be followed to record statement pertaining to the electronic record-
There has to be a certificate that recognizes the electronic record which contains the statement. That certificate –
Should describe the manner through which electronic-record is produced.
Mention all particulars of the device involved in such production
Should take care of conditions of Sec-65B(4)(explained above)
Signed by the responsible official which dealt with the operation of that device
Such certificate should also accompany the electronic record, for instance, computer printouts pertaining to which statement is sought to be given in evidence
Such safeguards need to be taken while dealing with electronic-evidence to ensure its authenticity.
Judicial Precedents Over Admissibility Of Electronic Records
The court in State (NCT of Delhi) v. Navjot Sandhu, dealt with the issue of admissibility of evidence of call records. The accused questioned the authenticity of the evidence and alleged that such evidence shouldn’t be held admissible as procedure laid down in section 65B clause 4 was not followed.
The court held evidence of call records to be admissible as they were taken from the computer by a mechanical procedure and certified by an official. The court observed that irrespective of following the conditions laid down in section 65B, a person is not proscribed to adduce secondary evidence under sections 63 and 65 of the Indian evidence act. The court held that merely because conditions of section 65B(4) are not fulfilled, that doesn’t bar adducing the same evidence under other provisions of the act.
Whether WhatsApp chats are primary evidence or secondary evidence?
In the case of Girwar Singh v. CBI, the court-appointed a committee to examine the veracity and authenticity of electronic evidence. It was found that the evidence submitted to the court was not a copy of the original document, but it was copied multiple times and on various devices. The court ruled that in this case, e-evidence was inadmissible.
Similarly, in the case of Vikas Garg v state of Haryana, the trial court relied on WhatsApp conversation to convict the accused of the offence of rape. Later on, Punjab and Haryana high court ignored the chats which were incontestable evidence of rape and abuse of the victim. Supreme Court stayed the bail application of the accused and the matter is still pending in the court.
Whether the condition of certificate u/s 65-B(4) mandatory?
Anvar P.V. Versus P.K. Basheer is one of the important judgments where the court discussed several issues regarding the admissibility of electronic evidence in the court of law. The court observed that secondary evidence stored in CD/DVD/drive is inadmissible u/s 65A and 65B unless it complies with the condition of the certificate mentioned in section 65-B (4).
Conditions mentioned in section 65-B(4) discussed above are necessary to comply to ensure the authenticity of the electronic evidence. The court further held that e-evidence submitted without certificate can’t be held admissible by oral evidence and not even by the statement of experts under section 45A of the act.
Electronic records could easily be affected, tampered with, changed, transposed, or damaged and so forth without such safeguards, the entire trial dependent on verification of electronic records can eventually lead to injustice. The court, in this case, ruled that secondary evidence of electronic evidence shall be entirely governed by section 65A-B of the act, and sections 63 and 65 have application in such cases.
In contrast to Anvar case the court relaxed the certificate condition of section 65-B(4) in case Shafi Mohammad v. Territory of H.P[5] in certain scenarios – a) when the device from which the document is produced is not in the possession of the party b) this condition being a procedural one could also be relaxed in the interest of justice.
The two contrasting positions regarding certificate were finally settled in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors[6]. The court held that the condition of the certificate mentioned under section 65B (4) is mandatory for secondary evidence of electronic data to be admissible in court.
The court further reasoned that this condition is redundant if the original document is itself produced. If the device in which the original information is first stored is brought in the court, compliance with the conditions of section 65-B (4) is not necessary.
Few conditions to be satisfied for admissibility of WhatsApp chats as secondary evidence
As held in various Indian high courts, WhatsApp chats are considered to be electronic evidence and are admissible in court if the following conditions are satisfied-
The receiver should have received the message.
Cell phones should not have been damaged.
The sender should have the mens rea to send those messages.
Significance of blue ticks
In SBI cards and payment services Pvt. Ltd. v. Rohit Jadhav the court observed that if blue ticks are seen over the messaging app, it would be conclusive proof that the receiver has received the message and it would be considered legitimate evidence.
In another case Shamsudin Bin Mohd. Yosuf v. Suhaila Binti Sulaiman, the high court held that even in the case where most of the communication takes place on WhatsApp,there was an oral valid agreement between the parties.
Conclusion
Whatsapp chats are admissible as secondary evidence in the court of law if certain conditions as discussed above are satisfied. The Judiciary’s stance over the admissibility of electronic evidence is to ensure its credibility and evidentiary value as such evidence could be easily damaged or tampered with.
This progressive stance of courts is the outcome of recognizing the nature of the e-record itself. Current legislation and precedents regarding the admissibility of electronic evidence present a myriad of issues that still remains unresolved. Issues pertaining to the procedure of preserving them, ascertaining their veracity, finding original authors, retrieving them, are still being debated and a progressive precedent in this penumbral area is awaited.
The jurisprudence over the admissibility of electronic evidence is still in its nascent stage even after two decades since the IT act of 2000 was passed. The applicability of laws should resonate with the development of technology. It is expected that in recent years the present lacuna in law would be addressed by amendments and progressive judgments.
Law is not an exact science. Its shades change depending on the context, differ from statute to statute. Background circumstances, and the expediency of the situation often influence the application of law.Two recent judgments on the issue whether a private car is a public place are examples. While the Delhi High Court held last week that a private car amounts to a public place in order to hold that wearing of a face mask is compulsory even when travelling alone, the Supreme Court held in an NDPS case yesterday that a private vehicle is not a public place.
Delhi High Court Ruling
In the Saurabh Sharma and others v Sub Divisional Magistrate (East) and others the Delhi High Court held that wearing of face mask is compulsory even while driving alone in a personal car. A single bench of Justice Prathiba M Singh held that a private vehicle will amount to a public place in the context of COVID-19 pandemic regulation. Referring to precedents, the Court said that the meaning of the term ‘public place’ changes from context to context.
The word ‘public place’, has to be interpreted in this case in the context of the COVID pandemic. To determine what constitutes a `public place’the manner in which the Coronavirus can spread is the crucial part”.
The Court also said that there is a possibility of the droplets released by a person while driving alone in a car infecting others who may enter the vehicle hours later. A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a public place and wearing of a mask there would be compulsory.
Private Vehicle did not become a “public place” under NDPS Act
On April 16, the Supreme Court held that a private vehicle is not a public place as per Section 43 of the Narcotic Drugs and Psychedelic Substances Act in the case Boota Singh v State of Haryana.
In this case, recovery was made from the accused while they were in a jeep at a public place. The high court held that the case of the accused would be covered by Section 43 of NDPS Act and not by Section 42. Section 42 deals with Power of entry, search, seizure and arrest without warrant or authorisation while Section 43 with power of seizure and arrest in public place.
Before the Apex Court, the accused contended that the vehicle in question was a private vehicle belonging to the accused and was not a public conveyance, though parked on a public road and therefore the case would not come under Section 43 but would be governed by the provisions of Section 42 NDPS Act. Since Section 42 having not been complied with at all, they were entitled to acquittal, they contended.
The Explanation to Section 43 stated: For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
The Supreme Court held that since the explanation only referred to “public conveyance” and not to private vehicles, the jeep involved in the case was not a “public place” coming under Section 43. Hence, the officers had to follow the procedure under Section 42 NDPS with respect to the recovery. The same having not been followed in this case so, the accused were acquitted.
The bench comprising of Justices UU Lalit and KM Joseph held that “The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression public place as explained in Section 43 of the NDPS Act.”
Difference between Section 42 & 43 of NDPS Act
Section 42
Section 43
Section 42
1. Power of entry, search, seizure and arrest without warrant or authorisation.
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
2.Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
Section 43
Power of seizure and arrest in public place.Any officer of any of the departments mentioned in section 42 may
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public
Drinking alcohol inside private car amounts to drinking in public place
In 2019, the Supreme Court held that consuming liquor in a private vehicle in a public place will attract the offence under the Bihar Excise Act, which prohibits alcohol. In this case Satvinder Singh Saluja v State of Bihar, the appellant were charge-sheeted under Section 53(a) of the Bihar Excise (Amendment) Act 2016 on the ground that they were found drunk inside a private vehicle. For seeking the quashing of the chargesheet, the appellant argued that Section 53(a), which punishes drinking in a public place, is not applicable as a private car is not a public place.
The SC rejected the first argument on the basis of statutory definitions of ‘public place’ under the Bihar Excise (Amendment) Act 2016 and Bihar Prohibition and Excise Act 2016. As per Section 2(17A) of the Bihar Excise (Amendment) Act “Public Place” means “any place to which the public have access, whether as a matter of right or not and includes all places visited by the general public and also includes any open space”.
According to the Court, the key word in the definition was “access”. Any place to which the public have access, whether as a matter of right or not, is a public place.
It observed that the public can have access to a private vehicle in a road. The Court noted that ‘ access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.
As per Section 2(17A) of the Bihar Excise (Amendment) Act “Public Place” means “any place to which the public has access, whether as a matter of right or not and includes all places visited by the general public and also includes any open space”.
According to the Court, the key word in the definition was “access”. Any place to which the public have access, whether as a matter of right or not, is a public place. It observed that the public can have access to a private vehicle on a road. The Court noted that ‘access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.” “When a private vehicle is passing through a public road it cannot be accepted that the public has no access. It is true that the public may not have access to a private vehicle as a matter of right but definitely the public have the opportunity to approach the private vehicle while it is on the public road. Hence, we are not able to accept the submission that vehicle in which appellants are travelling is not covered by definition of public place’ as defined in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, said the judgment authored by Justice Bhushan.
The bench further added that the omission of public conveyance in the definition of Section 2(17A) brought by the Bihar Excise (Amendment) Act, 2016 also indicates that the difference between public conveyance and private conveyance was done away in the statutory amendment. We, thus, cannot accept the submission of the learned counsel for the appellant that private conveyance will be excluded from the definition of public place’ as contained in Section 2(17A)”. The apex court also took into account the fact that the definition of public place’ under Section 2(53) of the Bihar Prohibition and Excise Act 2016 specifically included means of transport, both public and private.
The Kerala High Court has also held that drinking inside a private car at a public place will amount to an offence(Rajendran Pilai and others v State of Kerala This is because after the 2010 amendment to the Kerala Abkari Act, private vehicles parked in any public place were also treated as public places for the purpose of Section 15C of the Act, which prohibits drinking in public places.
Conclusion
Thus it can be concluded that the private vehicle is not a public place under the NDPS Act, but as far as other laws are concerned and the Covid Guidelines are concerned, it can be said that a private vehicle is a public place. Depending on the context, differ from statute to statute. Background circumstances, various deferred judgements have been given by the courts.
Waiting for the verdict | Reservations in promotions for SC/ST
Background
Nagaraj vs Union of India Case (2006)
The Supreme Court upheld the constitutional validity of reservations for SCs and STs to include promotions with three conditions:
Quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)
The facts about their inadequate representation
The overall administrative efficiency
What is Creamy Layer
The concept has its genesis in the Indira Sawhney Case (1992). Supreme Court asked the Government to define the criteria by fixation of income, property or status.
Currently creamy layer criteria is applicable to Other backward classes (OBCs) in reservation.
At present, Group A and Group B officers of both Central and State Government, Employees of Armed Forces and PSUs along with people earning more than 8 lakh per annum come under the purview of Creamy layer.
Center’s Contention about reservations in promotions for SC/ST:
The Center approached supreme Court that the verdict in the M Nagraj case put unnecessary conditions in granting quota benefits, as it affects the reservations in promotions for SC/ST. Thus, In Jarnail Singh vs Lachhmi Gupta Case (2018) Supreme Court allowed for grant of quota for promotions in the government jobs to SCs and STs without the need to “collect quantifiable data”. The court also asked the government to examine the possibility of introducing creamy layer for Scheduled Castes (SCs) and Scheduled Tribes (STs) by saying that if some sections bag all the coveted jobs, it will leave the rest of the class as backward as they always were.
It declined the demand to refer the case to a 7 judge bench to reconsider its 2006 Nagaraj judgement.
Now, the union government has urged the court to reconsider the ruling and refer the issue to a seven-judge Bench.
Arguments for applying the Creamy Layer concept to SCs/STs
Improved income and status: The creamy layer within the SCs and STs has improved socio-economic mobility and by that virtue does not face discrimination of similar intensity.
Article 335: It states that Affirmative action should be subject to the overall efficiency of Public Administration. Reservation in promotions may affect the merit-based culture of the organization.
Prioritizing most marginalized: Supreme Court in Jarnail Singh Case Judgement noted that the benefits, by and large are snatched away by the top creamy layer of the backward caste or class, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.
Arguments for not applying the Creamy Layer concept to SCs/STs
Discrimination within service: It is argued that there is widespread discrimination within services. For example, there are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service.
Not Anti-poverty programme: Reservation for Dalits is not to undo economic backwardness but as a remedy for societal discrimination based on untouchability. Thus, it may not possess a direct correlation with economic status.
Difference between OBCs and SCs: OBCs don’t face the kind and extent of discrimination faced by SCs. Generally, if OBCs manage to cross a certain economic threshold, the extent of social discrimination reduces substantially.
Way Forward
Consultative Approach: Reservation is a very sensitive topic, thus any decision on it should be in consultation with all the stakeholders.
Strengthening Other tools: like encouraging Dalit Entrepreneurship, providing loans (E.g. Stand-up India Scheme), Increasing awareness etc. can also indirectly improve the Socio-Economic mobility of Dalits.
Gujarat Control of Terrorism and Organised Crime (GCTOC) Act, 2019
On November 5, 2019 President Ram Nath Kovind given his assent. It was on 25th September, the NDA government cleared the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill, 2015 and sent it to President Pranab Mukherjee for his assent.
Contents
Background
Salient Features
Why this bill needs President’s assent?
Gujarat Government’s View
Is this law different from existing anti terror laws?
Why there is controversy?
Are states competent to make laws on National Security?
Background
The bill was initially introduced in 2003 in the Gujarat Assembly when Narendra Modi was chief minister of Gujarat. It was returned back earlier twice in 2004 and 2008 by then Presidents A.P.J. Abdul Kalam and Pratibha Patil.
The Then President Dr.A.P.J. Abdul Kalam didn’t Give His Assent Because Of Few Controversial Points Which Are Listed Below.
Delete Clause 16 – Clause 16 relates to the confession made before a police officer being admissible in court
Substitute the word “may” for “shall” after the words Special Court occurring in clause 20(2) and bring the proviso in line with the proviso to Section 43 D (2) of the Unlawful Activities (Prevention) Act(Amendment), 2008, – Clause 20 (2) deals with the extension of the detention period
Amend Clause 20(4) to bring it in conformity with Section 43 D (5) of the UAP (Amendment) Act – Clause 20 (4) deals with the powers of the court to grant bail.
Salient Features
Section 3 of this bill talks about various punishments for organized crime and terrorist activities. The punishment for any terrorist activity which may result into death of any person is death or life imprisonment; and a fine of Rs. 10 Lakh. The act provides varying amounts of punishments for persons related to any organized crime syndicate.
The bill makes provisions for attachment and forfeiture of property of a member of organized crime syndicate under Section 4.
It establishes special courts for trial of the terrorists under Section 5.
Section 14 of this bill says that evidence collected through the interception of wire, electronic or oral communication under the provisions of any other law shall be admissible as evidence against the accused in the Court.
Section 15 says that if the accused has any unaccounted property, it will be deemed to be or derived by his illegal activities. Further, if the accused has abducted any person, it will be deemed to be for ransom.
Section 16 of this bill is most controversial. This section makes confessions before police officers admissible in court as evidence against the accused.
Section 18 says that any movable and immovable property related to organized crime or terrorism is subject to forfeiture.
The bill provides immunity to the Police officers from legal action done in “good faith”. This provision appears to be draconian.
There is no bail and it extends the probe period from 90 days to 180 days.
Why this bill needed President’s assent?
Governor can reserve any bill (other than money bill) passed by assembly of a state for presidential assent on his discretion. Since this legislation has provisions overlapping with existent national laws such as Indian Evidence Act; the state needs president’s assent for such bill to become an act.
Gujarat Government’s View
This bill is drafted on the lines of Maharashtra Control of Organised Crime Act (MCOCA), 1999. The state government brought the bill over concerns regarding the organized criminal syndicates operating in the states whose activities may perpetuate in macro-terrorism.
Is this law different from existing anti-terror laws?
Not substantially. We have Maharashtra Control of Organized Crime Act (MCOCA) in place which had faced similar protests. Further, central acts UAPA (Unlawful Activities (Prevention) Act) 1967 and POTA (Prevention of Terrorism Act) 2002 in place to counter terrorism and organized crime in the country. Under GCTOC, the evidence collected through interception is admissible in court whether of wire, electronic or oral communication. The state government can seek permission for interception 10 days before trial. The MCOCA act has similar provisions though, the permission process is little difficult. In UAPA, the interception provisions and process are same as GCTOC.
Why there is controversy?
Any such stringent law faces opposition on account of human rights and fundamental rights. Those who oppose this bill say that it has draconian provisions which can be used suppress dissent. Since there is no bail and person can be detained for 180 days on the basis of phone records, this bill is susceptible to misuse by the government. If investigation recovers arm or explosives from accused or even his fingerprints from the site of incident court may draw adverse inference, unless proven otherwise.
Are states competent to make laws on National Security?
It has been argued that the Gujarat state assembly is not competent enough to make such a law on national security, which comes under purview of the union government. The Gujarat assembly has passed the bill backing it with the argument that “Public law and order” is a state subject. We note here that Article 245 and 246 of the Constitution along with seventh schedule demarcate the law making power of union and states. In the seventh schedule, it doesn’t expressly mention “terrorism” , however, Parliament has powers to make laws related to defense of the country. Also, the Union parliament has residual powers to make laws on matters not listed anywhere in seventh schedule. On the other hand, the state legislatures have exclusive powers to make laws on “public order”. Further, “criminal law” and “criminal procedure.” are concurrent subjects on which both union and states have power to make laws.
The arguments of those who oppose this act is that the state governments have power to make laws on public order so long it does not relate to national security; while the parliament should deal with the national security issues so long as it does not impinge on public order issues that have nothing to do with national security. We note here that the MCOCA act deals with the organized crime and not terrorism exclusively; and on this ground, Supreme Court held it constitutionally valid when challenged.
Conversely, the GCTOC defines terrorism as an “act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State …..”
Thus, this particular clause may come in future under Supreme Court scrutiny and may be strike it down as unconstitutional.
The Parliament of India has cleared the Citizenship (Amendment) Bill, 2019 that sought to amend the Citizenship Act, 1955, to grant citizenship to illegal immigrants from Pakistan, Bangladesh and Afghanistan, belonging to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians Religions, if they faced religious persecution there.
Salient features of Citizenship (Amendment) Act 2019:
Definition of illegal migrants: The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship. The amended provisions of the Act provides that the following minority groups will not be treated as illegal migrants:
Hindus,
Sikhs,
Buddhists,
Jains,
Parsis and
Christians
from Afghanistan, Bangladesh and Pakistan.
However, to get this benefit, they must have also been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government.
How is citizenship acquired in India and How does the Act seek to change the criteria for determining citizenship? In India, citizenship is regulated by the Citizenship Act, 1955. The Act specifies that citizenship may be acquired in India through five methods –
by birth in India,
by descent,
through registration,
by naturalisation (extended residence in India), and
by incorporation of territory into India.
The amended provision of the Act specifies that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship.
Citizenship by naturalization: The 1955 Act allows a person to apply for citizenship by naturalisation if he meets certain qualifications. One of these is that the person must have resided in India or served the Central Government for a certain period of time:
for the 12 months immediately preceding the application for citizenship, and
for 11 of the 14 years preceding the 12-month period. For people belonging to the same six religions and three countries, the Act relaxes the 11-year requirement to five years.
Thus, the Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.
Consequences of acquiring citizenship: The Act says that on acquiring citizenship:
such persons shall be deemed to be citizens of India from the date of their entry into India, and
all legal proceedings against them in respect of their illegal migration or citizenship will be closed.
Are the provisions of the Amended Act applicable across the country?
The Act clarifies that the amendments on citizenship to the specified class of illegal migrants will not apply to certain areas.
These are:
the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and
the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873. These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District. Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland.
How does the Amended Act change the regulations for Overseas Citizens of India?
The Act also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here. At present, the government may cancel a person’s OCI registration on various grounds specified in the Act. In case of a cancellation, an OCI residing in India may be required to leave the country.
The Amended Act adds another ground for cancelling OCI registration —
Violation of any law notified by the central government. However, the amended act does not provide any guidance on the nature of laws which the central government may notify. The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers. Therefore, the powers given to the government under the amended act may go beyond the permissible limits of valid delegation.
IS THE DIFFERENTIATION AMONG THE SPECIFIED CLASS OF ILLEGAL MIGRANTS AND ALL OTHER ILLEGAL MIGRANTS REASONABLE?
The Act makes only certain illegal migrants eligible for citizenship. These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states. This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the amended act, and may continue to be prosecuted as illegal migrants.
There are allegations that the amended act provides differential treatment to illegal migrants on the basis of :
their country of origin,
religion,
date of entry into India, and
place of residence in India.
Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so. The question is whether these factors serve a reasonable purpose to justify the differential treatment. Therefore, we need to check the Statement of Objects and Reasons (SoR) of the Act.
STATEMENT OF OBJECTS AND REASONS (SOR):
While the Statement of Objects and Reasons (SoR) in the Act reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, (however, no reason has been provided to explain the inclusion of Afghanistan). The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups. There are thousands of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis who have entered India after facing religious persecution in countries like Pakistan, Bangladesh and Afghanistan without any valid document.
FURTHER ALLEGATIONS :
There are allegations that there are other countries which may fit this qualification. For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion) and Myanmar (primacy to Buddhism), have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively. Therefore, we need to analyse the historical reasons surrounding the Act.
NEHRU LIAQUAT PACT:
An agreement between the Governments of India and Pakistan regarding Security and the Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan. The need for such a pact was felt by minorities in both countries following the partition, which was accompanied by massive communal rioting. In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.
Some excerpts from the Pact:
“The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the text of the Pact begins.
“Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively,”
Thus summarily under the Pact both the countries agreed as below–
Refugees were allowed to return unmolested to dispose of their property.
Abducted women and looted property were to be returned.
Forced conversions were unrecognized.
Minority rights were confirmed.
The Home Minister Shri. Amit Shah, while defending the bill said that while India protected its minorities, Pakistan failed to do so — and it was this wrong that the CAB would now correct. While equal rights are guaranteed to all minorities in India by its Constitution and under the doctrine of Positive Secularism, Indian Judiciary has allowed positive equality to Minorities. And despite that similar provision exists in the Objectives Resolution adopted by the Constituent Assembly of Pakistan, it has adopted State Sponsored Religion and the Constitution of both Pakistan and Bangladesh doesn’t give equal rights religious minorities. Therefore, religious minorities in Pakistan and Bangladesh, do not get equal rights and they are also religiously persecuted in these countries. Therefore, to finish the unfinished Agenda of Nehru Liaquat Pact, the Government of India has passed the Act to correct the historical wrong to persecuted minorities in Pakistan and Bangladesh, that were once the part of Undivided India. However, the reasons for extending the same treatment to minorities from Afghanistan are still unclear.
Conclusion:
India has to undertake a balancing act here. India’s citizenship provisions are derived from the perception of the country as a secular republic. In fact, it is a refutation of the two-nation theory that proposed a Hindu India and a Muslim Pakistan. Independent India adopted a Constitution that rejected discrimination on the basis of religion and the birth of Bangladesh undermined the idea that religion could be the basis of a national community. Also we need to balance the civilization duties to protect those who are prosecuted in the neighbourhood.
Muslims are not treated as a Residual Category in Citizenship Amendment Act 2019; they are equal stakeholders in the constitutional history of India. it is just that Muslims have got best protection under the respective constitutions of India, Pakistan and Bangladesh and therefore if still a section of Muslims illegally enters into India, they definitely cannot be termed as persecuted section of their respective country of origin.
P.S.
While religious persecution is a reasonable principle for differentiation, it may not be articulated in a manner that dilutes the republican and secular foundations of Citizenship in India, and anything in the Act that goes against constitutional morality that is liable to be struck down by the Constitutional Courts of India; and the issues surrounding the Reasonable Classification And Intelligible Differentia, are set to be decided by Hon’ble the Apex Court of India.
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