Author Archives: Praveen Dalal

The Private Shades Of Statehood Under Article 12 Of Indian Constitution

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThis article was first published by me in March 2005 when the traditional concept of Statehood as defined under Article 12 of Indian Constitution was undergoing metamorphism. The article explores the propriety and desirability of expanding the scope of the traditional concept of Statehood to private individuals in the changed environment of globalisation, privatisation and decentralisation. Now with projects like Aadhaar and Digital India, the need of a changed Statehood is imminent and imperative.

I. Introduction

The human beings cannot exist without their existence being recognised and accepted. That is why we all possess certain basic “Human Rights”, “Fundamental Rights” and “Constitutional Rights”. These rights safeguard, if not absolutely than partially, the interests that are natural with the existence of human beings. If these rights are violated, that violates and interferes with the very right to exist of the human beings. Thus, these rights have been given paramount importance and are recognised as sacrosanct and inviolable. These rights are safeguarding the interest of public at large; hence they deserve to be interpreted liberally and purposefully in favour of the right holders. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.[1]

The court in interpreting the Constitution enjoys a freedom, which is not available in interpreting a statute.[2] The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that fundamental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court.[3]

The horizons of constitutional law are expanding. Further, it is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.[4] We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind.[5]

 II. Selection Of Appropriate Constitutional Theory

The people concerned about constitutional law confront a large number of competiting constitutional theories, which offer conflicting accounts of how judges should interpret and apply the constitution. Firstly, some consider that the choice of a constitutional theory must be based at least partly on considerations that are external to the constitutional text. The written constitution by itself cannot determine the correctness of any particular theory of constitutional interpretation. Selection must reflect a judgment about which theory would yield the best outcomes, as measured relevant criteria.

Secondly, there is a surprising degree of implicit agreement among constitutional theorists about the criteria that a sound constitutional theory ought to satisfy. The theorist both widely and correctly recognise that the choice among the theories should be based on that theory which will best advance share goals by:

(i) Satisfying the requirements of rule of law,

(ii) Preserving fair opportunity for majority rule under a scheme of political democracy, and

(iii) Promoting substantive justice by protecting a morally and politically acceptable set of individual rights.

Thirdly, the theories should be judged by their likely fruits. To determine which theory would best promote ultimate goals, it is crucial to access what kinds of judicial decisions would likely be made if a particular theory were adopted. If this conclusion is accepted, the attraction of substantive theories becomes clear, but the allure of formal theories grows puzzling. The anticipated pattern of decisions depends not only a theory’s explicit tenets, but also on who our judges and justices are likely to be, and what values and perspectives they will bring to their decision-making. A constitutional theory should be chosen with this consideration in mind.

Fourthly, the question of constitutional theory are not optionals; they cannot be put off as merely academic pre-occupations, which have no necessary role in the work of judges and lawyers. Every constitutional argument reflects methodological assumptions. A judge who relies on identifiable assumptions in one case is properly subject to criticism if her arguments in another case reflect different, inconsistent assumptions. It would be naïve and misguided to choose a constitutional theory without regard to whether it would likely, on balance, to yield “good results”.[6] Thus, a theory that advances the public interest and is conducive for overall development of human beings should be adopted in its widest amplitude. The Supreme Court of India, in majority of cases, seems to have adoptive a purposive and updating approach, which has resulted in the creation of new Fundamental Rights and a much stronger protection of the existing ones. The doctrines of ” basic structure”, “absolute liability”, etc are some of the examples of a more constructive, purposive and updating interpretation of the Constitution of India.

III. Need For The Declaration

The need for the declaration of private persons[7] as State is immediate and compulsive in nature. This has arisen due to globalisation, privatisation and decentralisation. The traditional “welfare state functions” have now slipped into the hands of private individuals due to this phenomenon. The crucial “public interest” has also been transferred to these private persons as far as the transferred business is concerned. This is, however, not the end of the story. The duties and limitations by which the traditional State was bound are also, with necessary modifications, passed to the private persons. These duties and limitations, though not as stringent and rigorous as were meant for traditional State, are still in existence and are required to be followed by the “successors” of those welfare state functions. It is no doubt true that private individuals cannot be expected to play the role of “parents or guardians” of the nation, but certain minimum fair and reasonable obligations, commensurate with the basic Human Rights, Fundamental Rights and Constitutional Rights, have to be met reasonably. The welfare state requirements mandate that if the power and essential functions of a state are decentralized or delegated to private persons, they retain their mandates of welfare requirements, though in a modified form. For instance, if a public company, performing crucial public functions, is pravitised, then the successors are required to act justly, fairly and reasonably. An arbitrary, unreasonable or oppressive act of a “privatized public company” should be equally vulnerable to the challenges of unconstitutionality. Thus, the changed socio-economic conditions of India require a different outlook and this makes the declaration inevitable and essential. In this background we will consider the efficacy of declaring private persons as “State” within the meaning of Article 12 of the Constitution of India.

IV. Constitutional Justifications

The Constitution of India contains many express provisions, which shows that private persons are state within the meaning of Article 12. The following provisions of the Constitution, which requires a different “contextual application”[8] of Article 12, are relevant in this regard:

(1) Preamble- Most of the objectives specified by the Preamble have acquired a status of basic structure, which cannot be destroyed even by exercising the “constituent powers” of amendment U/A 368 of the Constitution. The Preamble may be invoked to determine the ambit Fundamental Rights and Directive Principles of State Policy. The Preamble, among other things, secures to its citizens:

(a) Social, economic and political justice,

(b) Liberty of thoughts, expression, belief, faith and worship,

(c) Equality of status and opportunity; and to promote among them all,

(d) Fraternity assuring the dignity of the individuals and the unity and integrity of the nation.

The concept of social, economic and political justice is incomplete if we ignore the availability of the protection of Fundamental Rights against private persons. It is improper to presume that only the State can violate the Fundamental Rights. There may be instances where private persons might violate the Fundamental Rights. The doors of justice should not be shunned merely because of a wrongly assumed hyper-technical plea that private individuals are not State within the meaning of Article 12. The concept of liberty of thought, expression, belief, faith and worship is equally susceptible to violations by private persons. For instance, liberty of thought or expression may be unreasonably curbed by not allowing even legitimate trade union movements like strike, demand of bonus, etc. The concept of equality of status and opportunity may be violated by not paying equal pay for equal work or by not paying the minimum or fair wages. Providing inhuman and discriminatory working conditions for them instead of the humane and statutorily prescribed conditions may violate the dignity of the individuals. It must be appreciated that nothing is more dangerous for the unity and integrity of the nation than a hungry and unsatisfied labour force, which has gone through all sorts of discriminations.

If a private person violates these benign prembulary mandates, then merely because he/it is a private person does not absolve him/it of the mandates of the Constitution of India. The constitution is not to be construed as a mere law but as machinery by which laws are made. A constitution is a living and organic thing which of all instruments has the greatest claim to be construed broadly and liberally.[9] Further, the Preamble is recognising the needs of humanity and the protection of basic Human Rights. That is why it has been declared to be a basic feature of the constitution that cannot be taken away by the executive, legislature or/and the judiciary. If this is the position then it is very difficult to appreciate how private persons can play with the prembulary notions. This cannot be the intention of the founding fathers of the constitution and that is why the protection of certain Articles in Part III is available against private persons as well. Even otherwise, assuming that there is a contrary provision in the constitution, for instance Article 12, which provides that private persons are not state, the Preamble and its mandates being the basic feature will override the same. This takes us to the evaluation of Article 12 for clarifying the position.

 (2) Article 12- Article 12 of the Constitution of India provides that, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. A careful analysis of the definition of State would reveal that there are two safeguards that have been adopted by the founding fathers of the constitution to make it “organic and flexible”. Firstly, the expression “unless the context otherwise requires” mandates that if the contemporary moral, social and economical notions and ideologies require a different outlook, then the definition of State has to be interpreted accordingly. Secondly, the expression “includes” denotes that an inclusive and not exhaustive definition of State has been provided. This means that the definition of State may include many more categories, which are not expressly mentioned in Article 12. The founding fathers of the Constitution were aware of the possible difficulties and the requirements that the nation would face due to changed socio economic conditions as well as the changed societal values and notions. Thus, the words of Article 12 are couched in an organic and flexible manner, so that the development and progress of India may not hamper. It must be noted that the historical context in which the doctrine of “State action” evolved in the United States is irrelevant for India. But the principle behind the doctrine that State aid, control, and regulation so impregnating a “private activity” as to give it the colour of state action is of interest to us to the limited extent to which it can be Indianised and harmoniously blended with our Constitutional jurisprudence.[10] Thus, even a private body may be a “State” within the meaning of Article 12.[11] Further, a private body, which is an agency of the State, is a State.[12] Thus, it is clear that there is nothing in Article 12, which prohibits the application of the provisions of that Article to private persons.

(3) Article 13- Article 13 of the Constitution provides that laws, whether pre-constitutional or post constitutional, inconsistent with or in derogation of the Fundamental rights shall be void to the extent of inconsistency or contravention. The main object of Article 13 is to secure the paramountcy of the Constitution in regard to Fundamental Rights. Thus, it should be given a purposive and meaningful interpretation and a hyper-technical interpretation ignoring the paramountcy of the Constitution in regard to Fundamental Rights should be avoided. A closer and detailed perusal of Article 13 would reveal that it is covering the “law making” organs of the Constitution. The executive, legislature and the judiciary can make laws while acting within their own spheres, though traditionally and constitutionally legislature is the main law-making agency. The judiciary can also make law, though in a limited sense only. Thus, if the judgment of a court is based on wrong legal parameters, then it can be said to be violative of Article 13 if it has the effect of violating any Fundamental Right(s). In such an eventuality, the Supreme Court can entertain a “curative petition” to remedy the wrong which has inadvertently perpetuated by it.[13] This fantastic judicial innovation is based on the premises that no person should suffer due to the mistake of the court. Similarly, an order passed by the court without jurisdiction is a nullity and any action taken pursuant thereto would also be nullity. A party cannot be made to suffer adversely either directly or indirectly by reason of an order passed by any court of law, which is not binding, on him.[14] Thus, it can safely be concluded that the application of Article 13 is confined to law making organs and not to other bodies, which have no power to make law. This mean that the extended meaning given to Article 12, resulting in inclusion of private persons as state, is not affected in any manner by the provisions of Article 13, since private persons cannot make laws(s) within the meaning of Article 13. Article 13 read with Article 12 gives an “extended and more extensive” protection to holders of Fundamental Rights because the perpetuator of the wrong is the almighty sovereign State. Hence, Article 13 operates against the sovereign law making organs only and not private persons. As far as private persons are concerned, their “acts and omissions are decisive” since they do not possess “sovereign law making power”. If we adopt any other interpretation than provisions like Article 17, Article 23, etc would be meaningless because these article provide protection against private actions. Alternatively, if Article 12 is extended by a purposive and meaningful interpretation, then Article 13 would be automatically extended to accommodate the same. Thus, instead of the words “law” the words “acts or/and omissions” can be substituted to make it workable.

(4) Article 17- Article 17 mandates that untouchability is abolished and its practice in any form is forbidden. Further, the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. A bare reading of Article 17 would make it clear it imposes an absolute ban on the practice of untouchability, enforceable against the sovereign organs of the State, its instrumentalities and even against private persons. This makes it clear that every time we deal with a Fundamental Right falling under Part III, we need not to consider Article 12 for deciding the protection limits of that Article. Even otherwise, the interpretation given to Article 12 and Article 13 would be in conformity with the letter and spirit of not only Article 17 but of the entire Constitution of India.

(5) Article 19- Article 19 provides to the “citizens” certain rights regarding freedom of speech, etc. these rights cannot be taken away by the sovereign organs of the Constitution, their instrumentalities and private persons. These rights are, however, subject to reasonable restrictions that make them compatible with public interest. A private person cannot curtail the legitimate freedom of speech and expression conveyed in the form of reasonable demands and industrial strikes by virtue of Article 19(1)(a) of the Constitution. If the industrial workers assemble peacefully and without arms and they are pressing legitimate and reasonable demands, after complying with the necessary requirements of law, then they cannot be denied this right of assembly by virtue of Article 19(1)(b) of the Constitution. Similarly, private persons cannot restrain the industrial workers from forming legal associations and union by virtue of Article 19(1)(c) of the Constitution. Thus, the protection of certain facets of Article 19 is also available against private persons. An argument may be advanced that Article 19 permits the “State” to make law to impose reasonable restrictions and if private persons are State within the meaning of Article 12, Article13, etc, than they can impose reasonable restrictions on the rights as mentioned above. This argument suffers from inherent weakness and an unappreciated fallacy. The context of the expression “State” and “law” u/a 19 diverts its applicability towards the “sovereign law making organs” and not to private persons, who have been declared to be State for the “limited purpose” of true and meaningful enforcement of the Fundamental Rights. Thus, the reasonable restrictions can be imposed only by the legislature on the behalf of private persons, which must be followed by both the workers and the private persons.

(6) Article 21- Article 21 of the Constitution mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. The ambit of Article 21 deserves to be expanded as far as possible because it is the most important Fundamental Right as provided under the Constitution. This requirement becomes absolute by the growing recognition of Human Rights as essential part of human’s life. Further, the procedure established by law must be just, fair and reasonable.[15] The expression “life” is of wide connotation and it is not confined to non-killing. It covers all sorts of hurts or injuries, both physical and mental, which have a “disabling effect” on the proper enjoyment of life. It is not confined to a mere animal existence with no element of human dignity attached to it. For instance, a private person cannot curb or eliminate the “welfare legislations” meant for poor labour force, either directly or indirectly. He has to comply with the provisions of the Minimum Wages Act, Payment of Wages Act, Factories Act, Workmen’s Compensation Act, etc. If a private person does not follow the provisions of these welfare legislations, then the labour force cannot have a “dignified human life”. It would be the wrong interpretation of the provisions of the Constitution, if private persons are excluded from the definition of State. It must be appreciated that the declaration of statehood is irrelevant when it comes to Article 21. This is because whether private persons are State or not, they cannot take away the right U/A 21. In fact, none can do so unless he/it has the backing of a procedure established by law. An argument may be advanced that for the violation of right to life or personal liberty, recourse to civil and criminal remedies can be had and there is no need of extending the scope of the provisions of Constitution in this regard. This argument, however, fails to appreciate a golden rule that “constitutional problems” can be solved only taking recourse of “constitutional solutions”. The Constitution of India, being the grundnorm, has the supremacy and absolute binding value. The provisions of the Constitution cannot be interpreted in the light of statutory provisions though the reverse is always required and is desirable. Further, there are certain remedies, which are peculiar to the Constitution only. For instance the “compensatory jurisprudence”, which is a part and parcel of “public law remedy”, necessarily requires the violation of Fundamental Right for the grant of compensation. If a hyper-technical view is adopted, then private persons will be excluded from the compensatory jurisprudence altogether. They may unreasonably violate various Fundamental Rights and still would not be liable for “exemplary compensation”, which is possible only for violation of Fundamental Rights. That is why the Supreme Court evolved the concept of “absolute liability”. If normal civil or criminal remedies are invoked in such cases, it will bring absurd results, as these remedies have their own limitations. Similarly, “Polluter Pays Principle” and other environmental concerns require that the polluter, who has violated the right to clean environment of people at large U/A 21 of the Constitution, should not only pay adequate compensation to the parties affected by his action but also bear costs for the restoration of the environment. Thus, private persons can be held liable for violating Article 21 of the Constitution, otherwise an absurd situation may arise, i.e. the sovereign organs and its instrumentalities cannot take away life or personal liberty but private persons can. Only the authorities empowered in this behalf by the sovereign organs of the Constitution and that also after following a just, fair and reasonable procedure can take the right to life or personal liberty. The context of Article 21 requires that that such a procedure must have the sanction and approval of the sovereign organs of the Constitution, i.e. executive, legislature or judiciary and the private persons have no Constitutional say in this regard.

(7) Article 23- Article 23 prohibits traffic in human beings and forced labour and the contravention of the same shall be an offence punishable in accordance with law. The language of the Article is general in nature and it covers private persons as well. Thus, the violation of Article 23 by a private person would attract the constitutional sanctions.

(8) Article 24- Article 24 of the Constitution prohibits employment of children below the age of 14 years in any factory or mine or engaged in any hazardous employment. The Supreme Court has issued elaborate guidelines to prevent child labour. These include a prohibition of child labour in hazardous employment. The court further directed that a child labour rehabilitation welfare fund shall be set up in which offending employer should deposit Rs. 20,000. Further, in place of the child, an adult member of such child should be given employment.[16] The Supreme Court has further issued directions as to education, health and nutrition and child labour.[17] It must be noted that a prohibition U/A 24 equally applies to private persons and there is no good reason to allow them to bypass it by adopting a hyper-technical approach.

(9) Article 32- Article 32(1) ensures the right to move the Supreme Court by appropriate proceedings for the enforcement of Fundamental Rights. Thus, the right to move the Supreme Court itself has been granted the status of Fundamental Right. The Fundamental Rights have been given a sacrosanct position under the scheme of our Constitution by the framers of the Constitution. The Supreme Court has been assigned the noble duty to protect the Fundamental Rights of the Indians.

If a Fundamental Right is violated, then not only the court has a power to provide appropriate remedy but also it is equally under an obligation to render justice by providing the remedy. Thus, even the Supreme Court has no power to deny enforcement of Fundamental Rights if the same are brought before the Supreme Court by appropriate proceedings. In the interest of justice, the Supreme Court has been kind enough to liberalise the procedural requirements for vindicating the Fundamental Rights. In exercise of its powers U/A 32 the Supreme Court can issue various writs like habeas corpus, mandamus, etc. For instance, a writ of habeas corpus can be issued, when a person complains of illegal custody or detention of an individual by a private person.[18] Similarly, the Supreme Court has the power to regulate private rights in public interest by legitimately exercising its powers.[19]

In Vishaka v State of Rajasthan[20] the Supreme Court held that the protection against sexual harassment at work place is available even against private persons. The court held that this protection originates from Articles 14, 15, 19(1)(g) and 21 of the Constitution of India. It is interesting to note that the decision was given even in the absence of any domestic law dealing with the protection against sexual harassment. In fact there have been instances where no violation of any specific Fundamental Right was alleged and yet the Supreme Court entertained a petition U/A 32 and granted the relief.[21] At this point of time, it would be apposite to mention that judicial review U/A 32 and 226 is a “basic feature” of the Constitution, which is beyond the pale of amendability.[22] Even the writ jurisdiction U/A 226 can be exercised against private persons.

This legal position has been clarified in Federal Bank Limited v Sagar Thomas[23] where the Supreme Court held that a writ petition U/A 226 might be maintainable against:

(1) The State,

(2) An authority,

(3) A statutory corporation,

(4) An instrumentality or agency of the State,

(5) A company, which is financed or owned by the State,

(6) A private body run substantially on State funding,

(7) A person or a body under liability to discharge any function under the statute,

(8) A private body discharging public duty or positive obligation of “public nature”.

Thus, a writ may be issued to a private person, as there may be statutes, which need to be complied with by all concerned including the private individuals and companies. In State of U.P v S.N.Kapoor[24] the Supreme Court held that the High Courts have power to entertain suo-motu public interest petitions and give appropriate decisions, even if initially the matter arose in writ proceedings filed by private persons. The court, however, made it clear that before that, the High Courts must frame the necessary issues and raise the appropriate question and then proceed to decide the same.

In the ultimate analysis it can be said that Article 21 and Article 32 form the backbone and lifeline of all other Articles. If we carefully analyse these two Articles, it becomes apparent that even if other Articles are not specifically mentioned in Part III, they are capable of being so declared from these two Articles. It must be appreciated that the philosophy and ideology of all other Articles are incorporated in Article 21, which can be enforced U/A 32. The Articles provided by Part III are mutually exclusive and they operate independently of each other. Thus, a purposive interpretation of the Article 21, which has been done in the past, can solve many of the problems, which were unforeseeable when the Constitution was enacted. The purposive and extended definition of “State”, covering private persons, is one of such requirement.

V. A Note Of Caution

The declaration of private persons as “State’ should not be guided by a mere “novel drive” or for the sake of fun only. It should also not be a base for a mere “academic discussion” or debate. Every discussion must be primarily guided by the “public interest” involved in it and it should not be undertaken in a casual manner. It should also be formulated in such a manner that the private persons come forwardly to voluntarily and readily accept it rather than feeling it to be imposed upon them. Thus, certain safeguards are essential, which define the parameters or guidelines, subject to which such a declaration can be made. It must be noted that these private persons also possesses certain Fundamental Rights, which are equally sacrosanct and valuable. This situation requires a benign trade-off between national interest on the one hand and the interest of private persons on the other. The following safeguards, which are not exhaustive by any means, should be adopted before declaring private persons as State:

(1) Sub serving public interest- The first and foremost safeguard for private persons is that the declaration should be made in public interests only and not for furtherance of private interests. A matter of “public interest” does not mean that which is interesting or gratifying curiosity or a love of information or amusement but that in which a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected.[25] The expression “public interest” or “probity in governance” cannot be put in a straightjacket. Public interest takes into fold several factors. There cannot be any hard and fast rule to determine whether an action was taken in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilised society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity.[26] These principles, though formulated and laid down in different context, can be safely applied with necessary modifications to private persons. The concept of justness, fairness, and reasonableness is, however, not the sole responsibility of the government and the government alone cannot be said to be the repository of acting in public interest. The private persons must also act in public interest while performing various public functions and duties.

(2) Public functions and duties- If the private persons are performing certain public functions or/and duties, then they can safely be regarded as State within the meaning of Article 12.

(3) Limited Statehood- The private persons, even after declaring them State, should not be equated with the ” traditional welfare State”. Further, the obligations cannot be more than those imposed upon traditional State. It must be noted that the declaring of an entity as State does not mean that it is a State for “all purposes”. Thus, for a purpose of wider application of the Fundamental Rights, State has to be defined liberally, but not for other purposes. This means that an employee of a “public corporation” may challenge the violation of his Fundamental Rights by the corporation but for that reason he does not become a State employee and cannot claim the protection of Article 311[27] or reservation benefits. Thus, if the status of government employee and the benefit of reservation cannot be claimed in public corporations, declared to be a State within the extended meaning of Article 12, then it would be unjustified to “impose” the same upon private persons.[28] Thus, the declaration of “Statehood’ should not be extended further “than ensuring fairness and reasonableness” on the part of private persons, while dealing with their employees or general public. The logical result should not be stretched to illogical and absurd consequences.

(4) Reconciliation of conflict of interests- The declaration of statehood of private persons should not lead to an irreconcilable confrontation of their Fundamental Rights on the one hand and the Fundamental Rights of general public on the other. It must be noted that the private persons also possess right to equality, the right to speech and expression, the right to trade or profession, the right to livelihood, etc which have to be equally respected and protected. Thus, in the zeal of declaring private persons as State, injustice to them should not be done.

(5) Basic structure- The declaration of statehood should also satisfy the requirements of basic structure doctrine, as it is the soul f the constitution and anything against it is per se void and unconstitutional.

(6) Incentives- The government should provide tax benefits and other concessions to the private persons, so that they voluntarily accept the responsibilities of statehood irrespective of any declaration originating out of a dispute or litigation.

(7) Transfer of rights- It would not be unjustified to demand that the rights enjoyed by the traditional State should also be transferred along with the obligations to the private persons. This makes the declaration of statehood more pragmatic, rationale, justified and fair.

(8) Minimum interference- The government should adopt the policy of minimum interference in the activities of private persons, which have been declared to be “State”. That minimum interference should be resorted to in the public interest only and not to advance the ideology or notions of the ruling party.

(9) Reasonable law- Any law made, for dealing with the private persons, which have been declared as “State”, should be just, fair and reasonable and must satisfy the requirements of principles of justice, equity and good conscience.

VI. Conclusion

If the Fundamental Rights can be enforced against the “traditional State, there is no good reason why they should not be enforced against private persons. The Fundamental Rights are sacrosanct in nature and they cannot be taken away either by the “traditional State” or private persons. So much so is the importance of these rights that they cannot be “waived” or “surrendered” even by the possessors of these rights.[29] Further, even in cases of non-fundamental rights, a person cannot waive his rights unless he is aware of it.[30] Thus, merely because the violators are private persons that do not mean that they cannot be enforced against them.

The ambit of Article 12 allows the inclusion of private persons under it. This requires that they must be engaged in some function, which is of vital public interest and not merely a private business activity. They must also be in a “dominant position” by virtue of their resources and means. Their actions must also be necessarily violation of Human Rights and Fundamental Rights. The concept of justice, equity and good conscience also assumes significance in this context. In the ultimate analysis the purpose of declaration as statehood should be restricted to bring fairness and justness in the actions taken by these private persons, while dealing with their own employees or with general public at large.

[1] U.O.I v S.B.Vohra (2004) 2 SCC 150.

[2] J.P.Bansal v State of Rajasthan, (2003) 3 SCALE 154.

[3] P.U.C.L v U.O.I, (2003) (3) SCALE 263.

[4] State of Maharashtra v Praful. B.Desai, (2003) 4 SCC 601.

[5] Justice Bhagwati in National Textiles workers union v P.R. Ramakrishanan, (1983) 1 SCC 228.

[6] Richard H. Fallon (Jr); “How to choose a constitutional theory” California Law Review, V-87: 535, Pp 538-539, (1999).

[7] The expression “persons” is used in this article to include natural as well as artificial entities, i.e. both human agency and corporate entities.

[8] Article 12 expressly mentions that the meaning of the expression “State” can be different than as mentioned in that Article if the context of the situation under consideration demands so.

[9] Goodyear India v State of Haryana, AIR 1990 SC 781, Para 7.

[10] M.C.Mehta v U.O.I, AIR 1987 SC 1086.

[11] Mahabir Auto Stores v Indian Oil Corporation, (1990) 3 SCC 752.

[12] Star Enterprises v City and Industrial Development Corpn of Maharashtra, (1990) 3 SCC 280.

[13] Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388.

[14] Dwarka Prasad v B.D.Aggarwal, (2003) 6 SCC230.

[15] Maneka Gandhi v U.O.I, AIR 1978 SC 597.

[16] M.C.Mehta v State of Tamilnadu, AIR 1997 SC 699.

[17] Bandhua Mukti Morcha v U.O.I, AIR 1997 SC 2218.

[18] Madhu Bala v Narendra Kumar, AIR 1982 SC 938.

[19] P. D. Shamdasani v Central Bank of India, AIR 1952 SC 59.

[20] (1997) 6 SCC 241.

[21] M.C.Mehta v U.O.I, AIR 1988 SC 1115.

[22] Kihoto Zachilhu, AIR 1993 SC 412.

[23] (2003) 8 SCALE 143.

[24] (2004) 8 SCC 630.

[25] Janta Dal v H.S. Chowdhary, AIR 1993 SC 892.

[26] Onkarlal Bajaj v U.O.I, (2003) 2 SCC 673.

[27] Sukhdev Singh Bhagatram, AIR 1975 SC 1331.

[28] Praveen Dalal; “ Constitutional perspective of caste discrimination”, (Under publication).

[29] Bashasharnath v C.I.T, AIR 1959 SC 149.

[30] M.P.Sugar Mills v State of U.P, AIR 1979 SC 621.

Aadhaar Has Created Serious Constitutional Anomaly. It Violates Fundamental Rights, Rule Of Law, Etc And Not Just Privacy Rights

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBConstitution of India is the supreme law of India that governs all other laws and activities of Executive, Legislature and Judiciary. None of them can go outside the limits prescribed by Indian Constitution. Part III of Indian Constitution confers invaluable and sacrosanct Fundamental Rights upon Indian Citizens and Person. Part III or any individual Fundamental Right cannot be abrogated or taken away by Executive, Legislature or Judiciary and Fundamental Rights remain inviolable.

The position is so firmly engraved into the Constitution that neither a normal law nor any Constitutional Amendments introduced by Parliament can change this position. Even if Supreme Court wishes to deviate from this position it cannot do so due to Constitutional Limitations imposed by Indian Constitution. So Fundamental Rights are immune from any type of tempering, dilution and abrogation, whether directly or indirectly.

In this background, we have to analyse the forced imposition of Aadhaar upon Indians. As Supreme Court is well aware of this position, a Constitution Bench of Supreme Court passed interim order restraining Indian Government from making Aadhaar mandatory. However, Indian Government continued its forced imposition and seeding of Aadhaar despite clear and unambiguous directions of the Supreme Court. Unfortunately, Supreme Court closed its eyes and ears towards this blatant Contempt of Court that it usually invokes even for borderline cases. In effect, Supreme Court helped Indian Government in violating Fundamental Rights of Indians by allowing continued use of Aadhaar on mandatory basis.

We now have a “Submissive Judiciary” that is very vulnerable to Executive interferences. Indian Judiciary has been so vulnerable only during physical emergency in the past and now during the “Digital Emergency” created by projects like Aadhaar, National Intelligence Grid (NATGRID), Central Monitoring System (CMS), CCTNS, etc. This digital emergency was inevitable as Supreme Court failed to fulfill its constitutional duties of protection of Fundamental Rights and Rule of Law.

Similarly, to facilitate Aadhaar dystopia and digital emergency, media is also playing a major role. Media is deliberately engaging in false reporting and creating fake news. Simple Supreme Court observations are often published as orders of Supreme Court. And genuine orders of Supreme Court making Aadhaar optional are twisted in favour of Aadhaar and Indian Government. In this digital emergency by government through Aadhaar, media was asked to bend but it started crawling.

We at Perry4Law Organisation (P4LO) wish to inform Indians that Aadhaar is absolutely optional for all purposes, including getting benefits of subsidy, direct benefit transfers (DBT), etc. This is the correct legal position even after the passing of Aadhaar Act, 2016, Finance Act or any other future law that may be passed by Indian Parliament. Government is misleading Indians that after the passage of Aadhaar Act, Aadhaar has become mandatory. That is not true as Aadhaar Act has not changed anything and Aadhaar is optional till the matter is decided by Supreme Court one way or the other.

The present legal and constitutional position mandates that Aadhaar is not mandatory for DBT, scholarships, healthcare services, government services, private services, welfare services, non-welfare services, bank accounts, mobile connections, obtaining ration, school children, college students or any other service that you can think of. Aadhaar is absolutely optional and any person, organisation, department, agency, etc, whether government or private, cannot ask for the same. If they/it ask for an Aadhaar, you can simply refuse it and give any other identity or know your customer (KYC) document like driving license, voter ID, ration card, government telephone or electricity bill (if accepted), etc.

This takes us to the litigation pending before the Supreme Court that it is deliberately delaying so that Indian Government can force maximum number of Aadhaar upon Indians. Supreme Court has been deliberately sitting upon Aadhaar issue and restraining from delivering judgments in a time bound manner to facilitate Indian Government in forcing Aadhaar. May be Supreme Court and Indian Government are hoping that this would result in a Fait Accompli situation. However, even after this unconstitutional support of Supreme Court, Aadhaar cannot be declared as Fait Accompli by Supreme Court. As Indian Government and Supreme Court are now aware of this “Constitutional Reality” and public outrage, the argument of Fait Accompli would not be raised.

So Indian Government and Supreme Court have devised another strategy in this regard. They would try to limit the arguments against Aadhaar to the aspect of “Privacy Rights” alone that is not acceptable. Aadhaar violates many Fundamental Rights under Part III and restricting its violation to an insignificant part of Article 21 (Privacy Right) is not acceptable. Supreme Court has to analyse the Unconstitutionality of Aadhaar from the perspective of all Fundamental Rights and Constitutional Rights violated by Aadhaar that includes Articles 14, 19, 21 and many other Articles of Indian Constitution.

Aadhaar would remain Unconstitutional even if the Government comes up with a law on Privacy as a statutory law can neither take away nor remedy a violative act of Government vis-à-vis Fundamental Rights. The core issue of Aadhaar before the Supreme Court is that it violates plethora of Fundamental Rights and not just Privacy. Violation of Privacy is just a sub set and insignificant part of disastrous violation of other Fundamental Rights and Rule of Law.

The truth is that Aadhaar has introduced a “Constitutional Anomaly” of gigantic proportions that our Government and Supreme Court want us to ignore and sideline. This “Constitutional Anomaly” can only be ignored if we ignore the very existence of Indian Constitution, Rule of Law and most importantly Indian Supreme Court. When the Supreme Court is incapable of protecting Indian Constitution, Rule of Law and Fundamental Rights, it ceases to be a “Constitutional Court”, much less “The Supreme Court”. Why do we need such a court at all if there is no “Separation of Power” between Executive, Legislature and Parliament? Executive imposed the Aadhaar and UIDAI; Parliament passed “Unconstitutional Money Bills” and Supreme Court helping Executive by sitting upon Aadhaar issues. Right now three organs of Indian Constitution are acting as if they are one and the same organ with no separation of power.

During the hearing of case of Section 139AA, as introduced by Finance Act, arguments touching Articles 14, 19, 21, etc were raised. As the Supreme Court restricted the hearing of Section 139AA to limited aspects only, not all arguments of unconstitutionality were made. But the hearing before the Constitution Bench cannot be restricted in any manner whatsoever and violation of every Fundamental Right and Constitutional Right can be argued for. Once argued, Aadhaar would be declared unconstitutional. This is the reason why Supreme Court has not constituted a Constitution Bench to hear about the constitutionality of Aadhaar. This delay in declaring Aadhaar as unconstitutional is only undermining the credibility and need of Supreme Court.

Now since Supreme Court is not willing to remedy the sufferings and violation of Fundamental and Constitutional Rights of Indians, it is imperative that Citizens themselves protect their own Fundamental Rights and Constitutional Rights. The starting point is to refuse enrollment for Aadhaar that is a complete failure so far. Despite Government claims of 99.9% enrollment, Aadhaar is not even 50% enrolled. A “Constitutional Body” can easily reveal this truth by eliminated bogus, duplicate, illegal and ghost Aadhaar numbers generated by UIDAI and its enrollment agencies. It is really surprising that Supreme Court blindly believes the lies of Indian Government regarding uses, benefits, enrollment percentage, savings, etc pertaining to Aadhaar. None of them is true and the entire edifice of Aadhaar is based upon lies, coercion, arm twisting and fooling Indian Citizens.

Even if you have been coerced into enrolling for Aadhaar, do not seed it with any government or private services including your bank accounts, mobile connections, school admissions, scholarships, etc. You must also block your biometric at the UIDAI website and deseed Aadhaar from services where it has already been seeded. Your Fundamental Rights empower you to block your biometric, deseed it from any service and even opt out of the Aadhaar system. Neither Government nor Supreme Court can prevent you from blocking of biometric, deseeding of Aadhaar and opt out of the Aadhaar system completely.

A little fight at this stage can save you and your children from becoming digital slaves of Indian Government forever. So have a spine and fight against Aadhaar whether it is supported by Executive, Parliament or even by Supreme Court.

Aadhaar Cannot Be Declared As Fait Accompli By Supreme Court Due To Truth, Fundamental Rights And Indian Constitution

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBAadhaar is one of the most controversial projects of Indian government. What makes Aadhaar controversial and dangerous is that it suffers on the fronts of constitutionality, civil liberties, cyber security, cost, technology neutrality, etc. This list making Aadhaar undesirable is long and its detailed analysis is beyond the scope of this article. What this article is trying to enunciate is that Aadhaar can never get the status of fait accompli.

So what is fait accompli? Fait accompli is a French term that means “an accomplished deed”. It is commonly used to describe an action which is completed before those affected by it are in a position to query or reverse it. A near English equivalent in certain usages is “a done deal”.

Some have expressed the fear that Aadhaar may be declared as fait accompli. However, this is not possible due to the constitutional safeguards that have been provided by Indian Constitution. Declaring Aadhaar as fait accompli would result in accepting that Indian Constitution, rule of law, fundamental rights, etc have ceased to exist. Supreme Court cannot afford to take that position as the first institution that would be affected by this declaration would be Supreme Court itself. Nobody would bother about Supreme Court in that situation because if Supreme Court cannot protect Indian Constitution and fundamental right, it is good for nothing.

Supreme Court is already behaving like a populist one if we analyse the recent negative constitutional developments. It has lost its legitimacy and credibility to a great extent due to its unconstitutional dealing of the Aadhaar episode. Everybody is aware that Supreme Court is deliberately stalling the proceedings so that government can trap maximum number of people for Aadhaar. If the guardian of Constitution and fundamental rights is failing the people of India, citizens are the last line of defense against government excesses and Aadhaar.

Aadhaar cannot be demanded by Indian government even for services falling under the Aadhaar Act till Supreme Court decides in its favour. That eventuality is not going to happen even if a single person is standing against unconstitutional and rule of law violating Aadhaar. We at Perry4Law Orgnisation (P4LO) are committed to fight against judicial, legislative and executive dystopia in India. People of India can always count upon Perry4Law Organisation as the last man standing against the Orwellian Aadhaar. We are committed to fight against the unconstitutional and evil Aadhaar till it is scrapped and the unconstitutionally collected biometric(s) are safely destroyed.

Now let us come back to the issue of fait accompli. Firstly, Indian government is systematically feeding lies to Indian citizens, media houses and even Supreme Court. Unfortunately Supreme Court is allowing Indian government to continue with its lying for the simple reason that Aadhaar can become omnipresent. But despite concerted efforts of Indian government, media houses and Supreme Court, Aadhaar may not have touched even 50% enrollment. So if Indian government and Supreme Court are telling you that 99% adults have enrolled for Aadhaar that is pure lie and nothing else. Do not believe in that lie without proper audit by a constitutional body keeping in mind dead people, duplicates, illegal Aadhaar, etc. So the core ingredient of fait accompli is missing i.e. Aadhaar is a major failure despite coercion, lies, arm twisting and support of Supreme Court of India. Till a constitutional body of strong and credible credentials come up with actual figures of Aadhaar enrollments, government lies cannot be taken on face value by Indian citizens and even by Supreme Court.

Secondly, even if 1% population of India remain outside the purview of Aadhaar, the same cannot be declared to be fait accompli as those people have not yielded to the arm twisting techniques of Indian government. They would still demand enforcement of their fundamental rights even after false government claims of 99% enrollment of Aadhaar. Supreme Court cannot deny providing protection to that 1% in any case.

Thirdly, Supreme Court has no power to even curtail, much less abrogate, fundamental rights of Indian citizens and residents. This is the reason why the Constitution Bench of Supreme Court was forced to issue an interim order that declared Aadhaar as purely voluntary and optional. The same interim order is still in force even after the passing of Aadhaar Act, 2016 and Finance Act. These two Acts have changed nothing as far as that interim order is concerned and Indian Citizens can quote the same while facing coercion, arm twisting and force to enroll or seed their Aadhaar. This is because no law can abrogate fundamental rights whether Supreme Court says it or not and interim order of Supreme Court is recognition of that constitutional reality. This constitutional reality cannot be ignored or bypassed by even the Supreme Court of India.

Fourthly, Supreme Court and Indian government cannot take advantage of their own wrongs. Indian government has adopted all the dubious means to make Aadhaar mandatory by even indulging in contempt of court. After contempt, Indian parliament introduced Aadhaar Act, 2016 as the money bill, whose constitutionality has already been challenged before Supreme Court. However, just like constitutionality of Aadhaar, Supreme Court is sitting upon the issue of deciding about the constitutionality of money bill enacting Aadhaar Act, 2016 as well. Supreme Court and Indian government have been engaging in gigantic and unconscionable abdication of constitutional duties.

Fifthly, this is the first time in independent India’s history that all the three organs of Indian Constitution i.e. Executive, Parliament and Judiciary have acted in complete harmony and concert to kill fundamental rights and rule of law in India. From executive order of launching Aadhaar project and establishing UIDAI to passing of the Aadhaar Act, 2016 as a money bill to sitting upon the issue of constitutionality of Aadhaar, all three have acted as if they are hand in glove.

So if Executive, Parliament and Judiciary are hell bent to destroy Indian Constitution, fundamental rights and rule of law, there is nothing wrong if citizens decide to ignore their decisions. This would result in chaos and anarchy but at least the myth about existence and continuance of Indian Constitution, fundamental rights and rule of law would be busted.

So Supreme Court cannot declare Aadhaar to be a fait accompli due to the truth, constitutional protections/fundamental rights and Indian Constitution. If it does, we are the last line of defense and we must do whatever it takes to protect our human rights and civil liberties.

Surveillance And Censorship Under Digital India And Aadhaar Regimes

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThe recent big profile political drama that we witnessed in the Lok Sabha and Rajya Sabha regarding Aadhaar has once again reminded us how vulnerable we are in India when it comes to Civil Liberties, especially the Civil Liberties Protection in Cyberspace. Aadhaar Bill was imposed upon Indians by introducing it as a “Money Bill” and thereby shielding it from the “Rajya Sabha Scrutiny” and abdicating “Parliamentary Democracy”. The only thing more disturbing than this “Negative Precedent” is the inaction and silence on the part of Hon’Ble President of India and Supreme Court of India. There is no reason why Aadhaar Project has not been declared “Unconstitutional” by the Supreme Court of India so far. Further, there would be no reason why Supreme Court of India would not declare the Aadhaar Bill as Unconstitutional and Void now when the intentions of Indian Government are very clear.

In these turbulent times, it is imperative that we need “Public Discourses” and “Debates” rather than shunning the same. We have been managing few web resources where we discuss critical issues about Indian Politics. We have rejuvenated one such Blog with the new title Internet, Mobile And Social Media Censorship In India By Twitter, Facebook, Google, Etc. It is covering Censorship and E-Surveillance issues existing in India for long. With the changed Socio-Economic and Political situation in India, it is essential that critical debates about controversial issues like Digital India, Aadhaar, National Intelligence Grid (NATGRID), Central Monitoring System (CMS), Internet Spy System Network And Traffic Analysis System (NETRA), E-Surveillance by Secret Wires, etc are discussed at this platform.

The worst scenario has been adopted by Narendra Modi Government by combining the Digital India and Aadhaar Projects. This has made Digital India the biggest Digital Panopticon of Human history. Similarly, the Government has clubbed Aadhaar with virtually everything ranging from Digital Locker, Passports, Birth and Marriage Certificates, Property dealings, Employment related issues, Public Distribution System (PDS), LPG, Scholarships, Domicile Certificate, Income Certificates, seeding with Bank accounts for Pensions, etc. This is despite the fact that Supreme Court of India has specifically ordered that Aadhaar is not mandatory for availing Public Services.

There is no second opinion that successive Indian Government(s) have been engaging in Illegal and Unconstitutional E-Surveillance. India is one of the few Countries where Phone Tapping is done without a “Court Warrant”. Further, with the introduction of Central Monitoring System of India, the scope for Judicial intervention has been absolutely ruled out. Cell Site Location based E-Surveillance is rampant in India with no regard to Privacy of those affected by the same. There is no Constitutional Lawful Interception Law in India as on date. To make the matter worst, we have no dedicated Privacy Law and Data Protection Laws (PDF) in India as on date. Any E-Surveillance Disclosure by companies like Vodafone is dumped inside the so called “Investigation Files” that are either not conducted at all or are not made public.

However, despite this some public spirited Citizens share their critical views and suggestions upon news websites, Blogs, Social Media platforms, etc. At this stage, Indian Government engages in “Censorship” of online contents in collaboration and active support of such Social Media websites. Technology Companies like Google, Microsoft, Twitter, Facebook, etc have been complying with Indian Government’s demands for Censorship and Data details form time to time. This is the reason why we have redesigned this Blog on Censorship and E-Surveillance. We have also opened dedicated page titled Censorship under Digital India that would report Censorship incidences by Social Media websites and Technology Companies from time to time. We are also managing the exclusive Techno Legal Centre Of Excellence For Protection Of Human Rights In Cyberspace (CEPHRC) that would support this Blog and other Public Interest oriented issues. Please visit us again for more details and articles on E-Surveillance and Censorship in India from time to time.

Human Rights Protection In Cyberspace Must Be Internationally Recognised

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBHuman Rights and Civil Liberties are witnessing a precarious time where the respective Governments of various Nations are least concerned about them. Governments and their Agencies are openly engaging in Illegal and Unconstitutional E-Surveillance and Eavesdropping. Since there is no clear cut “International Obligations” on the part of our respective Governments to the contrary, these Governments are absolutely free to do whatever they want. The only solace can be found in the form of the text approved by the United Nations regarding Right to Privacy in the Digital Age.

This situation is further made worst due to Conflict of Laws in Cyberspace that allows the Nations to adopt and use their own Policies regarding E-Surveillance and Eavesdropping. Take the example of India. There is nothing like Civil Liberties Protection in Cyberspace in India. On the contrary, India is one of the most Endemic E-Surveillance Nation of the world. India has been engaging in numerous Illegal and Unconstitutional E-Surveillance Project that also without any Parliamentary Oversight and Judicial Scrutiny. The Privacy Rights in India in the Information Age have no meaning as we have no dedicated Laws in the fields of Privacy and Data Protection (PDF).

As on date, Mass Surveillance in India is omnipresent. For instance, projects like Aadhaar, Central Monitoring System, Network and Traffic Analysis System (NETRA), National Intelligence Grid (NATGRID), National Cyber Coordination Centre (NCCC), etc are E-Surveillance Projects that are not supported by any Legal Framework and Parliamentary Oversight. In fact, Vodafone has confirmed that India has been using “Secret Wires” in the Telecom Infrastructure to indulge in E-Surveillance. Indian Department of Telecommunications suppressed the whole incidence with a mere assurance of “Investigation” that never took place. As per my personal information, no “Public Report” was made available in this regard by Indian Government so far.

Intelligence Agencies like GCHQ and NSA intercepted and stored webcam images of millions of innocent Internet users. The Command and Control (C&C) Servers of Malware FinFisher were found in 36 Countries, including India. There are also strong grounds to believe that India and United States are collaborating on Illegal and Unconstitutional E-Surveillance and Eavesdropping. There is an urgent need to take up the issues of Civil Liberties Violations at the International Level among various stakeholders.

A good initiative in this regard has been taken by the Hague Institute for Global Justice. The Hague Institute has constituted a High Level Commission known as the Commission on Global Security, Justice and Governance (PDF). The official website of the Commission states that Humanity is facing unique and growing range of challenges like political violence, environmental decay, cyber insecurity and cross-border economic shocks. These issues have global security and justice implications that need urgent attention but far exceed state and global institutional capacities.

To overcome this capacity deficit, The Hague Institute for Global Justice and the Stimson Center have convened a Commission on Global Security, Justice, and Governance. The Commission also brings together a select group of eminent statespersons and public intellectuals to draft and recommend reforms in this regard that would be considered during the 70th Anniversary Summit of the United Nations in September 2015.

This can be a good opportunity to consider and debate about Civil Liberties Protection in Cyberspace by various Nations. There is an urgent need to bring Transparency, Accountability and Parliamentary Oversight of the Illegal and Unconstitutional E-Surveillance activities of various Nations, including India.  The United Nations and its Affiliates/Agencies can play a pro active role in this regard.

I hope and wish that the Commission on Global Security, Justice, and Governance would consider all these issues so that Governments can behave in a “Responsible and Accountable Manner”.

E-Surveillance Projects Of India Need Parliamentary Oversight And Judicial Scrutiny

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThe National Intelligence Grid (NATGRID) Project of India is an intelligence related project of Indian Government that is intended to give Intelligence Agencies a “Centralised Access” to information of Indian Citizens/Residents. It is part and parcel of other Centralised E-Surveillance Projects of India like Central Monitoring System (CMS) Project of India, Internet Spy System Network and Traffic Analysis System (NETRA) of India, Crime and Criminal Tracking Network and Systems (CCTNS) Project of India, Aadhaar Project of India, etc. All these Projects are operating without any Legal Framework and without any Parliamentary and Judicial Scrutiny.

Although the BJP Government has not decided about the fate of National Counter Terrorism Centre (NCTC) of India yet it is supporting the NATGRID project. BJP seems to be following the Congress tradition of Non Transparency and Non Accountability regarding Law Enforcement Agencies and Intelligence Agencies of India. Conferring any sort of Legal Immunity upon such Agencies would further complicate the scenario.

It is not the case that BJP Government is not aware of these circumstances. However, BJP has preferred not to take any action in this regard and this may create serious “Constitutional Issues” in the near future. Indian Citizens, Organisations and Entities are also well within their “Constitutional Rights” to refuse to cooperate with these e-Surveillance Projects as a compliance with illegal demands of projects like NATGRID, CCTNS, CMS, NETRA, Aadhaar, etc would  make them liable for various Civil and Criminal Liabilities. Similarly, Privacy Rights in India and their violations would also raise serious “Legal and Constitutional Issues”.

Recently Banks in India refused Aadhaar based authentication for banking purposes. Reserve Bank of India (RBI) has also postponed the implementation of biometric authentication for credit card swipe machines and ATMs due to protest by Banks of India. Now Banks in India refused to give direct access to NATGRID Project of its Customer’s Details.

Indian Laws and Polices are heavily leaning in favour of Illegal E-Surveillance, Phone Tapping and Eavesdropping. For instance, there is an urgent need to repeal the Telegraph and Cyber Law of India. There is also an urgent need to formulate a Lawful and Constitutional Interception Law of India as Phone Tapping in India is widely done in an Illegal and Unconstitutional Manner. E-Surveillance Policy of India is also required to be formulated that can specify the modes, manner and scope of E-Surveillance in India.

The Telecom Policy of India and Telecom Security Policy of India must also be aligned with the Constitutional Protections and must be clean from E-Surveillance Oriented Approach. India’s International E-Surveillance Collaborations must be subject to “Constitutional Restrictions and Judicial Scrutiny”. India has been using Illegal E-Surveillance and Secret Wires to indulge in Surveillance related activities. Even the claim of investigation by Indian Department of Telecommunications (DOT) regarding Government Snooping Allegations by Vodafone proved to be a Sham and Façade only as no “Public report” has been shared by DOT and Indian Government in this regard so far. The matter seems to have been “Put Under the Carpet” forever.

Clearly Illegal E-Surveillance, Phone Tapping and Eavesdropping would continue to exist in BJP led regime and Indian Citizens must protect their Civil Liberties in Cyberspace and real space on their own.

Supreme Court Of India Must Immediately Declare Aadhaar Project As Unconstitutional

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4Any Government holds the Public Resources in a “Fiduciary Capacity” as a Trustee for the future generation. This is the gist of the Public Trust Doctrine that is frequently applied by Courts around the World while dealing with Environment and natural resources related issues. Can this Doctrine be applied to “Public Money”? I believe it should be made applicable to the hard earned Public Money as well that is given to our Government in the form of various Taxes.

Can Politicians misappropriate Public Money through corrupt means and deposit the same in foreign banks out of the reach of Indian Government? Can Indian Capital be kept out of the reach of Indian Government so that it is not used for Development and Reforms in India? Can Indian Government spend enormous financial resources upon Projects that have no Parliamentary Oversight and are actually violating the protections conferred by the Indian Constitutions?

We all know that the answers to these questions cannot be anything except No. Still all of these Evils and Corrupt Practices are happening in India. When the latest BJP led Government was formed, the Supreme Court of India directed it to Constitute and Notify a Special Investigation Team (SIT) to probe Black Money deposited in Foreign Jurisdictions. The same we promptly done by the Narendra Modi led Government and I really appreciate this “Alacrity and Commitment” of Modi. Now the SIT has been constituted and it has already started functioning.

On the one hand India has recovered $310 million from Finmeccanica helicopter deal while on the other hand a sum of Rs 2,039 crore has been granted in the budget for the Aadhaar Project. India terminated the helicopter deal in January 2014 citing a breach of integrity after allegations of bribery emerged in Italy against executives at Finmeccanica’s helicopter unit. Surprisingly, the Modi Government did not find anything wrong with the Aadhaar Project that has already consumed thousand of Crore of hard earned Public Money without any Parliamentary Oversight, Transparency, and Accountability.

Those who have wasted Crore of hard earned Public Money upon the Illegal and Unconstitutional Aadhaar project must be made answerable to Indian Courts as soon as possible instead of granting further funds to the Aadhaar. This is giving a “Negative Signal” that “Constitutional Norms” are just Paper Words and the Powerful are simply beyond the reach of “Rule of Law”. This is also giving an indication that Politicians are beyond the Scrutiny and Reach of Indian Courts. This is a “Dangerous Trend” that has to be stopped immediately by the Supreme Court of India.

The only solaced for the Modi Government is a promise to formulate Legal Framework for the Aadhaar Project. However, this promise must not face the similar fate as witnessed during the Congress led Government. Even if the Modi Government succeeds in formulating a Law for Aadhaar Project, the same must be Just, Fair and Reasonable. It should not be of the type suggested by the Congress Government as that would not pass the “Test of Constitutionally” before the Supreme Court of India.

The Aadhaar Project is suffering from many “Vices and Illegalities”. These include Civil Liberties Violations, Unconstitutional E-Surveillance Issues, Data security and Cyber Security Issues, Compulsory Nature of Aadhaar, Unaccountable Intelligence Agencies, Foreign E-Surveillance Threats, Telecom Security Issues, Integration with Surveillance projects like NATGRID, Unconstitutional Biometrics Collections, etc. All these aspects make the Aadhaar Project an Unconstitutional Project that was required to be Scrapped by the Modi Government.

The Illegality of Aadhaar Project has already been Challenged before the Indian Courts. The Supreme Court of India has even held that the Aadhaar Number/Card cannot be made Compulsory for availing Public Services in India. The Supreme Court has also prohibited UIDAI from sharing Biometric Data with Indian Government Agencies without Data Owner’s Consent. This may have prompted the Modi Government to suggest Legislation for Aadhaar.

Our readers can access the Interim Order of the Supreme Court at Unique Identification Authority Of India And Anr. v. Central Bureau Of Investigation, SLP (Cr) No(s).2524/2014 (PDF).

Among all this Chaos and Illegalities one this is very clear. The current allocation of Public Funds to Aadhaar Project by the Modi Government has been done at a time when there is neither a Parliamentary Oversight nor any Techno Legal Measures to protect Civil Liberties of Indians. Of course, this is a mere allocation at this time and it would be a totally different story if no fund is utilised till the “Constitutional Roadblocks” are removed by the Modi Government. Till that time the funds must be kept intact.

As per media reports, the UIDAI is planning to spend precious 30 Crore of hard earned Public Money on “Convincing Indians” that Aadhaar is a “Welfare Scheme Project”. This is absurd to even suggest much less accepted as Aadhaar has no “Welfare Elements” attached to it whatsoever. From its present form one can easily deduce that Aadhaar Project is a Draconian E-Surveillance Project that has been launched along with other E-Surveillance Projects like Central Monitoring System (CMS), Internet Spy System Network and Traffic Analysis System (NETRA), etc. The fact is that Indian Government, Aadhaar Project and UIDAI are hiding truth from Indians.

Obviously, the Modi Government would approach the Supreme Court of India to make the Aadhaar Number/Card Compulsory for availing Government Services in India. The scenario has already changed in India as Government Departments are insisting upon use of Aadhaar as the “Exclusive Identity” for availing various Schemes and Services from them. They are making Aadhaar Mandatory despite the “Clear Directions” of Supreme Court. This is not only violation of various statutory provisions but is also a “Contempt of Court” as the Supreme Court’s order is binding upon all Government Authorities.

No Government Agency, Authority or Department can dare to flout Supreme Court’s order unless it has backing of Indian Government either directly or indirectly. If Government Departments and Authorities are insisting upon Aadhaar despite Supreme Court orders and the Indian Government is not taking any “Strict Action” against such Government Departments and Authorities, this is a clear indication that the Modi Government is not interested in following the orders of Indian Supreme Court regarding Aadhaar Project.

It is high time for Indian Supreme Court to declare the Aadhaar Project Unconstitutional and scrap the same till it is in conformity with “Constitutional Norms”. It is equally imperative for the Modi Government to not waste even a single Rupee upon Aadhaar till it is clear of various “Infirmities and Illegalities”.

Narendra Modi Must Scrap Aadhaar Project As Well Along With The Cabinet Committee On UIDAI

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4The Aadhaar Project is the most “Obnoxious” and “Evil” Project that Indian Government has been pursuing till now. In my personal opinion, the very foundation of Aadhaar Project is based upon “Lies and Deception” and this Project should have been “Scrapped” long before. However, the previous Government not only deliberately kept this “Illegal and Unconstitutional Project” alive but also wasted crore of “Hard Earned Public Money” on a Project that is clearly Illegal and Unconstitutional.

I still hold the same opinion about Aadhaar Project, i.e. Aadhaar Project must be “Scrapped Immediately” by the new Government. The Truth is that Aadhaar Project has no “Welfare Elements” involved but it is a “Purely E-Surveillance Project” that is operating in great disregard to “Constitutional Rights” of Indian Citizens.

Fortunately, the Constitutional Validity of Aadhaar Project has been questioned in the High Courts and Supreme Court of India. The Supreme Court has even held that Aadhaar Card/Number cannot be made mandatory for availing public services in India. The Supreme Court has also prohibited UIDAI from sharing biometric data with Indian Government Agencies without data owner’s consent. Even a Parliamentary Committed rejected the proposed National Identification Authority of India Bill 2010 finding it “Inadequate and Unsuitable”.

What is surprising is that despite all these “Illegalities and Irregularities”, the previous Government did not deem it fit to scrap the Aadhaar Project. Now it is the “Constitutional Duty” of the Narendra Modi led Government to scrap Aadhaar Project as soon as possible. Both the Judiciary and Parliament have shown their “Displeasures” against Aadhaar Project and this is sufficient hint for the present Executive to scrap this Unconstitutional Project.

Prime Minister Narendra Modi has already scrapped all the Empowered Groups of Ministers (EGoMs) and Groups of Ministers (GoMs). Now it has been reported that Prime Minister Narendra Modi on Tuesday scrapped four Cabinet Committees, including one on Unique Identification Authority of India (UIDAI), as part of his efforts to minimise decision-making processes. The Prime Minister will also be reconstituting the Appointments Committee of the Cabinet, the Cabinet Committee on Economic Affairs, the Cabinet Committee on Parliamentary Affairs, the Cabinet Committee on Political Affairs and the Cabinet Committee on Security.

This is a “Bold and Good Decision” in the “Right Direction”. The next step should be Scrapping of Aadhaar Project of India as it is a “Remedy Worst than Malady”. Narendra Modi Government must get rid of burdensome projects like Aadhaar and save valuable financial resources for useful public projects alone.

Natgrid Project Of India Needs Techno Legal Implementation

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4With the new Government in power, National Security and Internal Security Projects and Initiatives were on the cards. However, none could have anticipated that they would be taken up so early. In some positive developments, the efforts to strengthen the Internal Security of India have already been started. The appointment of the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval was the most crucial step in this direction.

The present efforts to streamline the establishment and running of the National Intelligence Grid (NATGRID) Project of India is another step in this direction. As per media reports, the contractual term of NATGRID CEO Mr. Raghu Raman have come to an end as his tenure has not been extended by the Government. However, avoidance of the establishment of a National Counter Terrorism Centre (NCTC) of India is a major setback for India’s Internal Security. Similarly, Indian Cyberspace must also be protected on a priority basis that has been neglected for long.

The NATGRID Project of India is a very ambitious Intelligence Gathering and Processing mechanism. NATGRID Project of India has gone through numerous stages and finally it is ready to be rolled out. However, from the very beginning NATGRID Project has not been implemented in a coherent and systematic manner due to internal turf wars and bureaucratic hurdles.

There is no doubt that NATGRID Project of India is of tremendous importance for the National Security of India on the one hand and Law Enforcement and Intelligence Requirements on the others. In fact, NATGRID is an essential part of the Law Enforcement Technologies in India.

NATGRID Project of India is not by itself “Intelligence Related Project” but a Project to facilitate Law Enforcement and Intelligence related inputs. Its purpose is to transform raw intelligence information and inputs in a more meaningful “Intelligence Lead”.  The present times is a time of do or die for NATGRID Project. This is more so when its counterpart Crime and Criminal Tracking Network and Systems (CCTNS) Project of India is performing much better.

NATGRID may be a good platform for India to strengthen its Intelligence and Law Enforcement Initiatives. However, it cannot survive in the absence of “Political Will” to make it an effective and responsible tool. With the benefits of NATGRID come the issues of “Accountability and Fairness” in its operation. India must formulate adequate “Safeguards” before making NATGRID functional. NATGRID is an essential requirement for robust and effective Intelligence Agencies and Law Enforcement Functions in India. The only requirement is to ensure that its “Abuses can be Anticipated, Prevented and Remedied”. The NATGRID project must not die like the other projects handled by India from time to time. NATGRID would also require skilled workforce and for that Skills Development for Intelligence Workforce is need of the hour. This would also be required to perform Open Source Intelligence through Social Media Platforms and Internet.

However, above all we have to make necessary changes at the Policy and Legislation Levels. For instance, the National Security Policy of India and Telecom Security Policy of India must be Techno Legal in nature that must “Balance” the National Security and Civil Liberties Requirements in India. There must be “Severe Punishment” for Illegal Phone Tapping that is rampant in India. The Intelligence Agencies of India Need Parliamentary Oversight and the Intelligence Infrastructure of India needs Transparency and Strengthening. There should not be any “Legal Immunity” to Intelligence Agencies of India in the absence of Parliamentary Oversight and the system of “Using Executive Orders” to confer “Legitimacy” upon Intelligence Agencies must be abandoned as soon as possible by the Government.

Enough time has already been wasted for the implementation of NATGRID Project and it is high time to deliver results. Once this is successfully done, the way to constitute National Counter Terrorism Centre of India would also be clear. I hope and wish that NATGRID Project of India would be operational very soon.

Intelligence Agencies Of India Need Parliamentary Oversight

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBLaw enforcement and intelligence agencies of India are operating in a manner that cannot be considered to be legal and Constitutional in nature. The truth is that intelligence infrastructure of India needs transparency and strengthening. Privacy rights in India in the information age are blatantly violated that also with the aid of unconstitutional laws. Surprisingly India has no e-surveillance policy in effect and illegal e-surveillance projects like NETRA and Central Monitoring System (CMS) are openly operating in India with great disregard to our “Constitutional Norms”.

Firstly, there is an urgent need to repeal draconian laws like Telegraph Law and Indian Cyber Law. Secondly, there is a dire need to formulate dedicated telephone tapping law of India as soon as possible. Unfortunately, Indian Government is not serious about formulating a dedicated privacy law for India. Data protection and privacy rights in India are in real bad shape.

There is no second opinion that a lawful interception law is urgently needed in India. There have been some efforts in this direction in the form of a privacy law for India. It has been proposed that illegal phone tapping in India may attract Rs 2 crore penalties in future. However, before this provision becomes a part of any future law, the intelligence agencies of India have already expressed their apprehensions and reservations in this regard. Intelligence agencies of India are also demanding legal immunity against cyber deterrent acts without any transparency and accountability.

It is also true that the intelligence agencies of India are also not subject to Parliamentary Oversight that is need of the hour. This is more so when even the Right to Information Act, 2005 is not applicable to intelligence agencies and many law enforcement agencies of India. India “must reconcile” the civil liberties and national security requirements but the same is presently missing.

India’s own Projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), Internet Spy System Network And Traffic Analysis System (NETRA) of India, etc are violative of civil liberties protection in cyberspace. None of them are governed by any legal framework and none of them are under Parliamentary scrutiny.

If this is not enough, phone tapping in India can be performed as a “Purely Executive Act” without any “Procedural Safeguards”, including the absence of a “Judicial Scrutiny”. India is one of the few Nations where phone tapping can be done without a “Court Warrant” at the “Executive Level” itself.  The digital life of Indian citizens is not at all safe and is open to various forms of e-surveillance and eavesdropping. In the absence of support form Indian Government, self defence is the only viable option left before Indian citizens to safeguard their digital lives.