And now, NOTA!

Supreme Court's reasoning in the NOTA case, delivered today, appears to be strong on Article 19(1)(a) grounds.  But on other aspects, I find the following justifications, very weak:

* The provision of secrecy must necessarily extend to NOTA
*  Other countries have it.
*  Our law-makers have the right to abstain
* NOTA will increase voter participation in democracy, as voters can send a message to parties.
* Not having NOTA will lead to impersonation of voters, as dissatisfied voters may abstain.
* EC must create awareness about NOTA ( Does the Court expect the EC to tell the voters not to vote at all  any of the candidates, if they are dissatisfied? Considering that there will always be some grounds for dissatisfaction, will it not result in the negation of EC's primary responsibility to conduct and oversee elections - a basic feature of the Constitution?)

These are my initial impressions.  I am sure our readers will analyse the judgment further and share their perspectives in the coming days. 

The Delhi gang rape verdict

In a piece titled "A Capricious Noose" published on Bar and Bench, I analyze the Delhi gang rape sentencing verdict. In the first part of the piece I describe the broad contours of, and debates within, India’s death penalty jurisprudence. In the second part, I analyze the sentencing order in Ram Singh and argue that not only was the legal reasoning in the verdict flawed, but that the sentencing order serves as a window to larger concerns with the death penalty itself. 

The NSA in India: Time for an International Right to Privacy?

Today the Hindu has a major story based on information provided by Edward Snowden to the newspaper on the extent to which the NSA has targeted communications in India under its now infamous surveillance programs of electronic communications. The article claims that India was the fifth most targeted country of the NSA's efforts - in terms of data collected - over the time period shared by Snowden. This was ahead of even China (but behind Iran, Pakistan, and a couple others). Other recent revelations have shown that the NSA has engaged in in depth spying of U.S. allies like Germany and Brazil that at times seems to even look like borderline corporate espionage (although the U.S. denies the last claim fervently). 

The Snowden leaks have sparked heated debate, if not widespread outrage in the United States, as more and more stories come out that indicate the NSA has both a much wider range of capabilities than most Americans had previously believed and that these powers have been used on a large scale to collect different types of information about Americans' communications. (The Guardian has the best reporting I think on the NSA story - it can be found here.) In this debate in the U.S., the NSA's credibility and competence has been thrown into question. The FISA secret courts that were suppose to act as a check on the NSA to protect Americans' privacy do not seem to have been much of a check at all. The NSA - although seemingly quite competent at creating a system to collect the world's communications - has proven far less capable at maintaining command and control over its own administrators. Snowden was a NSA contractor that was able to sneak out of the U.S. with large amounts of top secret data without the NSA even seeming to realize. The NSA still does not seem to know exactly what he took. We do not know if there are other Snowdens out there, or could be in the future, who might use information they take for much less public-minded purposes than starting a debate (think insider trading, blackmail, or selling secrets to the highest bidder). NSA agents, perhaps predictably, have already been revealed to have used the NSA's surveillance tools to spy on love interests. 

The U.S. debate has largely focused on the extent to which the NSA spies on U.S. citizens in the United States. Yet, obviously this is missing a major point. The NSA is spying on the other 6.8 billion people on the planet with whatever discretion it sees fit. There are no FISA courts checking this spying. No need for a warrant. If your not American, in most cases the only thing preventing the NSA from reading your email is that, well, your email probably isn't that interesting and it takes resources to read emails.

So why should we care? Hasn't the U.S. government spied on other governments for decades? Don't other governments spy on each other and on the U.S. government? There's nothing new here - all is fair in international relations.

Yet, the NSA spying program seems different. Sure, in the past, countries sent a few spies into other countries, they tried to cultivate secret informants, maybe implant some microphones into the embassy of a foe, but by and large they didn't, and couldn't, spy on ordinary citizens in other countries. This has changed. The Americans, the British, the Chinese, and likely a few others can now engage in widespread electronic espionage targeting whoever they deem fit. They can much more easily gather information to blackmail citizens of other countries to take actions against the interests of their own government, they can engage in corporate espionage, and if it came to it they could use these powers in potentially paralyzing electronic warfare. And there is always the risk that this power could be hijacked by terrorists.

As more countries, with varying commitments to civil liberties, gain surveillance capabilities an immediate concern is that they will abuse this new power against their own citizens. A collection of over 250 NGOs including Human Rights Watch and several Indian organizations recently put out a statement of principles on how human rights should be applied to surveillance programs. These principles are applicable to the interception of both domestic and extraterritorial communications and worth reading.

I think what's important to see in this struggle for the protection of privacy and the regulation of communications is that it will have to be part of a global movement. Getting the balance right is not an easy problem to solve and it throws up many conceptual and logistical challenges. How do we frame who is a reasonable target for surveillance by a foreign government (or a domestic one)? How do we ensure some degree of transparency and accountability of governments' surveillance efforts? How do we create meaningful remedies against undue surveillance both domestically and across borders? How do we build privacy into the architecture of the web itself in a thoughtful and meaningful way? Yet, I think we are also uniquely up to solving these challenges. Despite all the genuine horrors and discouraging stories we see on the nightly news, the world has never been as peaceful, wealthy, or educated as it is today. It would be tragic if we decided at this moment in the world's history to set up surveillance states that spread distrust and paranoia, discouraged free speech and dissent, and threatened to undercut the social fabric of a world that so many have fought so hard to make an open and tolerant place.

(Update: The Hindu has another article out today on NSA snooping detailing how the NSA has not been just picking up meta-data on Indian communications, but "listening in" on Indian conversations at the highest levels of government - including discussions about politics and India's nuclear and space programs. The article points out that Indians, like all foreigners, have no recourse or protection from these intrusions by the NSA. It also suggests that some of the spying might be motivated by U.S. corporate interests. Despite their plausible?/self-serving? protests that they resisted the NSA's intrusions into their users privacy, U.S. tech companies already worry that the NSA scandal will cost them billions as non-American users become suspect of their products.  Revelations like these in India and Brazil may complicate trade more broadly between U.S. companies and other countries as governments fear that U.S. companies are gaining an unfair advantage through NSA spying - note: these accusations don't have to be true to have broader trade ramifications, such an improper commercial relationship just needs to appear plausible.)   

NUJS Law Review: Special Issue “Surveillance, Censorship & Indian Law: Mapping the Field”

The NUJS Law Review is pleased to invite contributions for its annual Special Issue for 2013-14 “Surveillance, Censorship & Indian Law: Mapping the Field”

A spate of recent events, such as the debate surrounding Section 66A of the Information Technology Act and the Intermediaries Guidelines under it, the calls against decriminalizing speech offences (such as sedition, obscenity or defamation) in both traditional and new media, the debate around the Central Monitoring System, the NAT GRID and CCTNS in India (and the Snowden affair globally) have thrown the effect of state action (including legislation) on the fundamental rights to free speech, privacy and due process into sharp relief.

This issue proposes to engage with key questions surrounding the state of speech and privacy rights in India, in light of existing and improving capacities of both state and non-state entities to engage in activities that restrict these rights. We welcome contributions engaging with state and non-state led censorship and surveillance arising across the Indian media, whether physical or virtual, and with the sufficiency and effectiveness of existing laws to govern them. Submissions may address censorship in any medium (press, broadcasting, film or new media) and surveillance of any type (whether of persons, physical property or of communications).

Information for Contributors
All contributions must be sent to the Board of Editors of the NUJS Law Review at nujslr@gmail.com on or before December 15, 2013.

Authors are welcome to write to the Board of Editors to check the suitability of their proposed papers prior to their submission of finished drafts by the Submissions Deadline.

IT Act Under Challenge

The blog of the Centre for Communication Governance over at NLU-Delhi has a nice roundup on recent challenges to the IT Act, which the Supreme Court has decided to lump together and hear in January. Relevant posts can be found here and here. Given how much both government restriction on internet freedom (think NSA) and the ability of the internet to be used to spread rumors or incite hatred has been in the news as of late this promises to be an important case worth watching closely.

Some thoughts on the Judicial Appointments Commission

As Nick points out in his post, the proposed Judicial Appointments Commission (“JAC”) has generated a great deal of debate. In this post, I make two arguments: first, irrespective of its composition, the JAC will not be able to substantially affect the structural independence of the judges of the Supreme Court of India; instead, the JAC will be able to affect the independence of High Court judges; second, in the light of the court’s history, it is highly unlikely that the JAC will fundamentally alter the character of the typical candidate appointed to the Supreme Court of India:

1. Independence of the Judiciary:

To my mind, irrespective of the composition of the JAC, the JAC will most likely not be able to affect the structural independence of the Supreme Court. It must be remembered that when a judge is appointed to the Supreme Court of India, s/he holds office not during the “pleasure” of the government (or the JAC) but during “good behavior” – a doctrine which predates even the constitution [“good behavior” was finally introduced in India formally under the Government of India Act, 1935, though it was a formal principle in the UK since the Act of Settlement in 1701]. A Supreme Court judge in India can only be removed for “proved misbehaviour or incapacity” [Art. 124]. Even under the Indian High Courts Act, 1862 (i.e., even during the British Raj), a judge’s compensation could not be altered to his disadvantage after his appointment. Under the constitution [Art. 125], a Supreme Court judge’s privileges and allowances can’t be altered to the judge’s disadvantage after his appointment. In short, a Supreme Court judge has security of tenure and reasonable security of compensation: two of the most basic features of judicial independence.

However, there are two ways in which a government can potentially interfere with the independence of a Supreme Court judge: first, by superseding independent judges (e.g. what was done to Justices Shelat, Hegde, Grover, and Khanna); second, by not giving independent judges post-retirement jobs. The establishment of the JAC will not make a difference to either of these two mechanisms. The “seniority norm” is a deeply entrenched part of our constitutional history since independence, and given what happened during the Emergency, it is unlikely that our political culture will ever allow any government (or a JAC) to supersede an independent judge again. Post-retirement jobs are anyway controlled by the executive government at the moment, so the establishment of the JAC doesn't make the judges of the Supreme Court any worse off on this count.

One might argue that if the JAC has a majority of executive members on it, it may be able to appoint “committed” or pliant judges to the Supreme Court. While this is possible, it is also true that most of the judges appointed to the Supreme Court of India before the collegium system came into being, were staunchly independent of the executive. After all, judges like Vivian Bose, Subba Rao, Hidayatullah, Krishna Iyer, and even H.R. Khanna, were not appointed under the collegium system.

In short, the JAC will not be able to affect the independence of the judiciary at the Supreme Court level. Debates about the JAC, therefore, should focus on how its establishment will affect the independence of High Court judges. This is because the JAC will be able to decide whether a High Court judge gets “promoted” to the Supreme Court – as such, it will have the power to penalize or reward an independent High Court judge, though it will not be able to penalize or reward an independent Supreme Court judge.

2. Composition:

Will the JAC make a radical change to the type of candidate one sees on the Supreme Court of India? I’m skeptical that we will see a tremendous change in the background of the typical candidate appointed to the Supreme Court after the JAC. In my thesis at Stanford (a summary is available here), I found that there were three informal eligibility criteria used to appoint Supreme Court judges: age, seniority, and diversity.

The first criterion is that a judge should be of the age of 55 or above in order to be appointed to the Supreme Court – this is entirely a product of the collegium system, and it might change under the JAC. Even so, the youngest judge to be appointed to the Supreme Court of India was Justice Bhagwati, who was appointed, before the collegium system, not in his 30s like Joseph Story, but at the age of 51. Therefore, even if the JAC is set up, we are unlikely to see judges appointed to the Supreme Court in their 30s or 40s, though we may start seeing judges occasionally being appointed in their early 50s once again.

The second criterion is that only High Court Chief Justices (or, in exceptional cases, the most senior judges of High Courts) are eligible to be appointed to the Supreme Court. The emphasis on seniority has become stricter under the collegium’s watch. Earlier, far fewer Supreme Court judges were High Court Chief Justices, but now, an overwhelming majority of Supreme Court judges are High Court Chief Justices. However, it is highly unlikely that the JAC will abandon seniority altogether. Even before the collegium system, judges who were elevated to the Supreme Court were usually relatively senior judges on their High Courts. For example, Justice A.N. Grover, a puisne High Court judge who was appointed to the Supreme Court in 1968, was third in seniority in the Punjab High Court [Gadbois, Judges of the Supreme Court of India, p. 134]. It is therefore likely that the JAC will continue to use seniority as a criterion in appointing judges, though perhaps not as strictly as the collegium uses it at present.

The third criterion is that judges should reflect the regional (and demographic) diversity of India. This is a criterion which predates the collegium. Even before the collegium came into being, judges on the Supreme Court came from the different regions of India (a judge is said to belong to the High Court where s/he was first appointed, irrespective of place of birth, residence, or mother tongue). Despite the coming into being of the collegium system, diversity continued to be a criterion for judicial appointments to the Supreme Court. The establishment of the JAC will not obliterate this criterion, though priorities on diversity may change, i.e. religion, caste, and gender might rise in importance. For example, we may see more Muslim judges being appointed to the Supreme Court in the coming years (where only 2 out of 50 judges appointed to the court in the 2000s were Muslim judges). 

However, the JAC might be able to change a few incidental features of the court’s composition. If the JAC is set up, for example, we may see a “bar judge” being appointed to the court, on occasion. Since Justice Santosh Hegde retired in 2005, no lawyer has directly been appointed to the Supreme Court of India. Even before the collegium came into being, however, only 3 out of more than 100 Supreme Court judges were lawyers directly appointed to the Supreme Court. Thus, while it is highly unlikely that we will see a substantial number of lawyers being directly appointed to the Supreme Court bench as a result of the setting up of the JAC, we may perhaps see one lawyer (perhaps two) being directly appointed to the Supreme Court in this decade. Under the JAC, we might even see a bar judge become the Chief Justice of India by the seniority norm (Chief Justice Sikri is the only such judge so far), though this is quite unlikely after the Kuldip Singh-Ahmadi episode of the court’s history. Likewise, the JAC may decide to appoint a “distinguished jurist” to the court: a result which the collegium system seems unlikely to deliver.  

In short, even if the JAC comes into being, it is highly unlikely that we will see 10 full-time law professors, transactional lawyers, or even practicing lawyers at the Bar, in their 40s, being directly appointed to the Supreme Court. My guess is that the fundamental character of the composition of the court will remain the same.

India Underreports Crime Because of Shortcoming in Published Data

Rukmini S has this piece in today's Hindu about how the National Crime Records Bureau systematically under reports crime in the country based on registered FIRs because it only tracks the principal offense. For example, in the Delhi rape case the incident was not tallied as a rape in national statistics, but only as a murder since this was the offence that carried the greater penalty. As a result, we don't really know how many rapes result in a FIR in the country - or for that matter how many robberies or kidnappings or other types of crime. The NCRB is quoted as saying they might improve the system in the future. The quote though sounded very vague and did not instill confidence that the NCRB is on top of this problem.

Part of the reason I think this article deserves special attention is that the shortcomings of statistical databases in India are rarely reported, but the numbers from these databases are frequently used in newspaper and other media reports to buttress important policy arguments. In my work on the Supreme Court I found numerous such instances of miscounting and categorization. A journal article I wrote on the workload of the Indian Supreme Court had to have several pages discussing the limitations of the data the Court collects. For example, thousands of Supreme Court admission matters are effectively counted twice - once as a defective unregistered matter and the second time as a cured registered matter. In the Supreme Court's Annual Report though they are all just lumped together under the category of admission matters. It's only if you dig more and are lucky enough to see the monthly statements on which the annual report is based that you discover this peculiar accounting method. However, the public - like in the case of the NCRB data - would have no idea how to correctly interpret the published data if they just read what the government releases.

Or take another example. The Supreme Court releases a publication called Court News which is suppose to give the public (and the government) the definitive accounting of the current status of the Indian judicial system. Every quarter it releases data on the institution, disposal, and backlog of cases in the Supreme Court, High Courts, and Subordinate and District courts. You will see these numbers (particularly the backlog numbers) quoted widely in the media. But what are they counting and not? You might think, well, they must be counting everything that's a matter somewhere in the judicial system. Well, yes and no. The issue is when it comes to tribunals. Thousands and thousands of cases go to all sorts of tribunals - tax, service, environment, etc. The trouble is that some of these matters are counted in the subordinate court numbers and others are not. Basically, if the administrative chain of command of the tribunal is to the High Court then it reports its numbers and they are eventually tallied in Court News under subordinate courts. If they don't report (administratively) to the High Courts, then these numbers are not counted anywhere in Court News. As a result, we don't really know how many cases are pending in the Indian judicial system because a whole bunch of matters are missing from these larger tallies in Court News and no one has gone around to collect them independently. But again, you wouldn't realize this from reading Court News.  

An even greater problem with the Court News data is that we don't know how many of these matters in the judicial system are even contested. In 1925 the British released the Rankin Committee report on the status of the judiciary in India. They found that, for example, only 10% of cases in the Bengal courts were contested. In the almost 90 years since, as far as I know, there has been no publicly available report on how many cases are contested or uncontested in India. It likely isn't that uncontested cases account for 90% of the caseload today as they did in 1925, but uncontested matters probably do account for a very large number of cases - think about all the uncontested traffic tickets or other minor cases that go through the lower courts with no challenge. The point is that one would need to know the number of contested vs. uncontested matters to have a general sense of what the workload of the courts are today. Even better would be to know when cases are being filed and how long it takes them to be resolved. Either way, this isn't available publicly.

Now I don't think that NCRB or the Indian Supreme Court releases data that is easy to misinterpret because they are trying to be malicious or fool the public. I think instead it's because those in government who collect data do so in a rote way. They are told to tally cases and pass them on to their superiors. Their superiors are often collecting data in whatever way was in place before they got to their position and they don't have the time or inclination to change the data collection systems. Over the years I have met several people within the system who have recognized these types of problems and are trying to make the necessary changes, but they are fighting institutional momentum and there are few rewards for them even if they do succeed.

Given the current and highly visible challenge India is facing with sexual violence, it makes news when a good reporter uncovers that the NCRB rape numbers are off because of an accounting issue, but the large majority of instances of fuzzy data released by the government won't grab widespread attention (I am under no illusion that the Indian media will suddenly find it a worthy story to report that the Indian Supreme Court has been sloppy in how it publishes data on admission matters). Yet, informed public debate requires data that is both reliable and understandable. As Vrinda Grover suggests in the Hindu article what is needed is greater transparency and access to the government databases on which publicly released data is based. India has a growing number of scholars who have the skills and inclination to sort through raw government data to see where errors or misinterpretations might be creeping into the publicly released results. It's time that such communities of scholars - and the public more broadly - are tapped for this task. It will go a long way in making government more legible and so more accountable.