Can artificial intelligence help reform Indian courts?

Source: Hindustan Times dated 29.11.2019

-- Ameen Jauhar (Senior Resident Fellow working on judicial reforms at Vidhi Centre for Legal Policy)

AI can aid judicial reform. But do remain cautious about abuse of big data sets, and biases in technology.

Minority Report was a classic Steven Spielberg sci-fi film. Employing tech-noir, the film exhibited a dystopian plot showcasing the dire pitfalls and consequences of predictive law enforcement. The movie conceived a futuristic technology, mixing psychics and premonitions, to pre-empt crime, with a suspect apprehended using a special department labelled, quite literally, “PreCrime”. Similar themes surrounding the deployment of intelligent machines to aid in law enforcement and criminal justice, which in turn go awry, have consistently featured in popular culture. These seemingly grandiose notions of artificial intelligence (AI) are rapidly finding themselves at play in real life.

The new Chief Justice of India (CJI), SA Bobde, has, in no uncertain terms, expressed the judiciary’s desire not to miss the AI bus. He has talked about the Supreme Court (SC)’s internal group of experts, currently working to determine avenues for deploying AI in our courts. Though the technology is novel, the focus is on the age-old, intergenerational crisis of excessive judicial backlog. With AI, the judiciary wants to experiment and deploy a transformative technology, which supersedes all its earlier efforts of integrating information and communication technologies in courts, under the e-courts project.

AI can potentially create unique technological applications to exponentially improve the efficiency of judges and lawyers. These interventions will go beyond merely identifying case status updates or finding the appropriate orders and judgments. The automation conceived through AI is far more sophisticated, allowing, for instance, judges to determine precise answers to their queries in a bail application, using a case-query tool. Rapid progression in machine learning and natural language processing techniques have opened the floodgates for newer tools.

While all this sounds fascinating, and gives life to hitherto fictional plots, there are considerable challenges underlying the deployment of AI-driven technology in Indian courts. For the judiciary, there are two immediate concerns, which warrant more deliberation and concrete governance frameworks.

First, there is the question regarding the collection and utilisation of big data. Machine learning inherently operates with large data-sets serving as fuel for the engine, informing the algorithm of the various correlations, patterns, and analyses of extensive and meticulous data sets. While the SC recognised the individual’s right to privacy in its landmark Puttaswamy judgment, the contours of this are amorphous. The vacuum of a statutory framework for data collection and protection renders the use of copious data sets susceptible to abuse.

The second issue, needing a finer and more pragmatic appraisal, is the presumed unbiased nature of an AI-driven tool. Among many exponents, there is a seeming consensus that AI in courtrooms can dispel the biases of judges. The problem with this reductionist conclusion is factual inaccuracy. For all its technological superiority, AI today is indeed afflicted by biases. An official report from the Obama presidency’s archives identified different types of biases, from the use of inaccurate, incomplete, or antiquated data sets, to the personal bias of programmers designing AI-driven tools, seeping into the final product. AI is, thus, vulnerable to existing biases, and given the extent of its usage, it has the capacity to perpetuate these systemically, if it is deployed in an unregulated manner.

The question then remains whether AI should be avoided in the courts or are there steps that can ensure the maximisation ofits potential, while minimising the detrimental fallouts. The answer must always be the latter.

To optimise the utility of AI in the Indian judiciary, there are four broad steps that must be taken. One, undoubtedly, the first-generation AI tools, as have been highlighted by the CJI in his media interviews, will prove to be a watershed. However, it is imperative that the process is iterative and incremental, yielding more sophisticated and diversified AI-driven technology for the Indian judiciary.

Two, to undertake this steady expansion, it is critical to facilitate the requisite user feedback through appropriate channels. These feedback loops must be supplemented with periodic, impact evaluation studies.

Three, as the AI industry is rapidly evolving, so must policies and governance frameworks for this technology to remain effective. Given its innate complexity, the use of AI must certainly be experimented only through an evidence-based and research-driven approach, and not through experiential intuition.

Four, a long-term transition into an AI-driven justice system requires all stakeholders to have a firm grasp over its technologies. Therefore, streamlining of training modules and workshops for evolving more sophisticated AI, must be effectuated simultaneous to its deployment in the courts. AI still remains uncharted territory. These steps will ensure its seamless integration and allow future generations to build on this edifice in the coming years.

A code for resolution: 3 years on Insolvency and Bankruptcy Code is learning from outcomes, growing stronger

Article in the Indian Express dated November 29, 2019 which is a commentary on the Insolvency and Bankruptcy Code by Soumya Kanti Ghosh (Group Chief Economic Advisor, SBI). Link to this article:

https://epaper.indianexpress.com/c/46300892

Coming: a Rulebook, Bill of Rights and 'Contract' for the World Wide Web

Article in the Indian Express dated November 27, 2019 regarding the coming changes in the functioning of the Internet in the form of a Contract by Shruti Dhapola. Link to this article:

https://epaper.indianexpress.com/c/46220745

The SC’s ruling on RTI is only a minor victory: The judiciary is often not transparent at the district court level, which is the first point of contact for most litigants

Source: Hindustan Times dated 26.11.2019

Vaidehi Misra and Shreya Tripathy (Both work on judicial reforms at the Vidhi Centre for Legal Policy)

On November 13, the Supreme Court (SC) held that the office of the Chief Justice of India is a public authority, and falls within the ambit of the Right to Information (RTI) Act.

A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi upheld the 2010 Delhi High Court verdict, and dismissed three appeals filed by the secretary general of the Supreme Court and the Central Public Information officer of the apex court.

While the ruling is being hailed as a victory by many, it is, at best, a minor one. For instance, the SC judgment does not make it mandatory for judges to disclose their assets proactively. Additionally, there are far more serious issues with judicial transparency, especially at the district-level judiciary.

The district courts are often the first point of contact with the country’s justice system for a vast majority of litigants in the country. Hence, it is critical that district courts comply with the requirements of the RTI Act. In our report, Sunshine in the Courts, we found major issues in the enforcement of the RTI Act at the district-level judiciary. These shortcomings must be rectified for greater judicial transparency.

For instance, the RTI Act’s Section 28 allows “competent authorities”, such as the high courts (HC), to frame rules to carry out the provisions of the Act. But the report found that four high courts (Gujarat, Karnataka, Madhya Pradesh and Patna) did not even have any RTI rules for their respective district courts. This makes it impossible for applicants to exercise the provisions of the RTI Act against these courts, significantly increasing the discretion of the respective public information officers.

The report also found that 13 high courts rules did not specify the names of authority for collecting the RTI fees, in case an application was filed with a district court. The failure to identify such authority makes it difficult for an applicant to pay the fee for the RTI application, when the payment is being made through instruments such as postal orders.

The RTI Act’s Section 4 also imposes an obligation on public authorities, such as district courts, to disclose and disseminate information about their functioning — budgets, expenditure-related data, and administrative procedures — on their e-court websites. But we found that only the district courts in Kerala, Punjab, and Haryana have made detailed disclosures on their websites, but mostly in English, and not in the local languages. The worst performers are Assam, Rajasthan, Madhya Pradesh, and West Bengal. In these states, not a single district court has made any kind of disclosure under the RTI Act on their websites.

We also conducted an analysis of the compliance of the HC with the RTI Act on the basis of four indices: Legality Index (which assesses the legality of the high court RTI rules vis-á-vis the RTI Act); Convenience Index (which assesses the extent to which the RTI Rules framed by the high courts make it inconvenient for citizens to file RTI applications); Practice Index (which assesses the practices used by the Public Information Officers of the high courts to respond to RTI applications); and Disclosure Index (which assesses the quality of disclosures made by the High Courts under Section 4 of the RTI Act). As expected, the performance of the HC differed with the indices. For example, the Madras High Court topped the legality index but performed poorly on the convenience index. The district courts in most states still have a long way to go in order to comply with the RTI Act. But there is a possible road map for reform.

First, high courts must explicitly clarify the rules governing the filing of RTI applications with district courts. Second, in order to make Section 4 disclosures accessible, they must be available in the local language, in addition to English. Finally, these disclosures should be clearly marked and easily accessible on the e-Courts website.

Maharashtra Only State With Law to Protect Scribes

Source: Economic Times dated 25.11.2019

-- Rahul Tripathi, New Delhi

Preident Ram Nath Kovind gives nod to Bill on violence against media

Even as the political slugfest in Maharashtra continues, President Ram Nath Kovind has given his assent to the Maharashtra Media Persons and Media Institutions (Prevention of Violence and Damage or Loss to Property) Bill, 2017, one of the first laws in the country which ensures protection for journalists.

The Bill, passed by the Devendra Fadnavis government, has been pending for two years with the Centre and recommends punishment up to three years or a fine of up to ₹50,000 or both in case of attack on mediapersons on duty. Acts of violence against mediapersons will be treated as cognizable, nonbailable and cases under this law will be investigated by an officer not below the rank of DySP/ACP.

The law cautions on the filing of false complaints by a mediaperson for which he/ she can be tried and given a similar punishment. Chhattisgarh and Bihar, where several mediapersons have come under attack in the past, are also mulling a similar legislation for the safety of journalists.

As per the Maharashtra legislation, the offender shall be liable to pay compensation for damage or loss caused to the property of the mediaperson or the media house as determined by court. The assailant would be liable to reimburse the medical expenditure incurred by the mediapersons in the attack.

According to the World Press Freedom Index 2019, India dropped two places on a global press freedom index to be ranked 140th out of 180 countries in the annual ‘Reporters Without Borders’.

When SC reviews a decision?

Article in the Indian Express dated November 25, 2019 regarding the circumstances under which Review Petitions are moved and admitted by Supreme Court by Apurva Vishwanath. Link to this article:

https://epaper.indianexpress.com/c/46138995

Forced celibacy a violation of fundamental rights: Madras HC (Raises Compensation To Paraplegic Man From ₹5L To ₹63L)

Source: Times of India dated 25.11.2019

Forced abstinence from sex is a violation of fundamental rights under Article 21 of the Constitution, the Madras HC said while raising 12-fold the compensation awarded to a man who became a paraplegic after an electric post under repair fell on him while he was walking down a Chennai road in 2008.

N Ananda Kumar was 26-years-old at the time of the accident, which damaged his spinal cord and left him with 100 per cent disability.

The Chennai civic body had appealed against the Rs 5 lakh compensation awarded by a single-judge bench of the high court and asked for the case to be referred to a civil court. The division bench of Justice N Kirubakaran and Justice P Velmurugan, however, dismissed the appeal, saying the civic body’s negligence not only left Ananda Kumar wheelchair-dependent but also destroyed his chances of getting married. The bench held that the victim remained a bachelor against his wish because of paraplegia and was deprived of marital pleasure and bliss. Terming this a violation of human rights, the court cited medical literature to emphasise that forced abstinence has negative health consequences.

The bench suo motu enhanced the compensation to Rs 63.26 lakh, saying the reason for a court’s existence was to do justice and not to direct parties involved in litigation to approach various forums — in this case, a civil court.

In the appeal, counsel for the city corporation had argued that the contract to repair the electric post was outsourced and there was no negligence on the part of the civic body. It said Ananda Kumar was “carelessly” walking down the road while speaking on his cell phone. “Had he avoided speaking on the cell phone, and had he noticed the work being carried out, the accident could have been avoided,” the counsel said.

The original verdict by a singlejudge bench had noted that the accident occurred because of improper welding carried out by the corporation, not the electricity board. “It was not only the contention of the victim, but also of the electricity board that there was negligence on part of the corporation and improper welding caused the accident,” the bench noted.

Labour Code Bill. 2019 decoded

Article in the Indian Express dated November 22, 2019 regarding the Industrial Relations Code Bill, 2019 (amendment in Labour laws) by Aanchal Magazine. Link to this article:

https://epaper.indianexpress.com/c/46036024

Labour laws: A step forward - the government has done well by pushing through reforms

Source: Hindustan Times dated 22.11.2019

India moved a step closer to reforming its complicated and antiquated labour laws with the Union Cabinet passing the industrial relations code on Wednesday. This is the third of the four codes into which the government categorised 44 labour laws. One code, on wages, was passed by Parliament in the last session. Another, on occupational safety, health and working conditions is with a parliamentary panel. That leaves the code on social security. The Labour Code on Industrial Relations allows companies to hire workers on contract, but ensures that contractual workers are treated on par with permanent ones. It also puts in place a mechanism for speedier settlement and redressal of labour disputes.

The code has two salient aspects. The first is that the government has walked back a proposal to give flexibility for companies or units that employ up to 300 workers to fire them or even close shop without seeking its permission. The current ceiling for this is 100. However, the code has measures in place to protect the interests of nine states (including heavily industrialised ones such as Haryana, Gujarat, and Maharashtra) that have laws in place allowing this; labour is a concurrent subject which means both the Centre and the states can make laws on it. Interestingly, the government approved fixed-term employment contracts last year, but with no state signing off on the rules through a law, it remained largely on paper. Wednesday’s decision makes it part of the so-called model law, which means it is now mandatory for the states to follow it, which will be welcomed by industry. At the same time, the law, as finance minister Nirmala Sitharaman stressed, ensures that these contractual workers are treated the same was as permanent ones.

For decades now, there’s been talk of crucial second generation reforms needed to boost growth and make it easier to do business in India. Labour reforms fall squarely within that definition. Coupled with the recent move to reduce corporate tax, especially for new manufacturing units (a new unit will effectively pay tax at the rate of 15%, which is competitive anywhere in the world), this could attract more domestic as well as foreign companies to invest in factories in India.

What is IPRS, the artists' body that has gone to police against Yash Raj Films?

Article in the Indian Express dated November 21, 2019 regarding the Indian Performing Rights Society by Mohamed Thaver. Link to this article:

https://epaper.indianexpress.com/c/45987515

Defend the woman’s autonomy, right to choose: In theory, India’s position on abortion is progressive. In practice, the law is flawed and punishes women

Source: Hindustan Times dated 20.11.2019

-- Anubha Rastogi (Lawyer and Member of Pratigya Campaign Advisory Group) and Raunaq Chandrashekar (Public Policy Consultant)

The MTP Act ignores the socioeconomic implications of childbirth, placing women under intense physical, mental, and social duress.
India’s progressive stance on abortion is not practical as it doesn’t allow women the autonomy to decide. The subjectivity of the Medical Termination of Pregnancy (MTP) Act, inconsistent enforcement, and a tendency for enforcers to absolve themselves of responsibility have resulted in a redundant system. The legal system has failed to address what is a matter of human rights. Our analysis of 194 writ petitions heard by the Supreme Court (SC) and the high courts between June 2016 and April 2019, filed by women seeking medical termination of their pregnancy, identified several systemic issues that lead to unpredictable and inconsistent outcomes. The length of the gestation period and the opinion of the medical boards were common themes in cases of rejection. Neither factor considers the petitioner’s medical report or the rejection’s impact on the woman beyond the subjective interpretation of the Act.

In the 20 cases overseen by the SC, MTP was permitted in 15 instances and rejected in five. All these cases involved pregnancies that had crossed 20 weeks. Of the five cases rejected, two pregnancies were due to rape, one of whom was a minor. In the case of the minor, the SC relied on the opinion of the medical board that a continued pregnancy was safer than termination. In the second case of rape, where the gestation period exceeded 36 weeks, the court denied the MTP request. It’s important to note here that the doctor had earlier denied the woman MTP on account of her being HIV positive, despite the fact that she was only 17 weeks into the pregnancy — which is well before the 20-week limit set by the court. It forced her to go to the high court — which again rejected the plea — and then to the SC, by which time, the gestation period had reached 36 weeks. The three other rejections were cases of foetal abnormalities, in which the court’s decision, again, was driven by the opinion of the medical board.

The Act treats MTP as a public health issue, focusing more on its impact on family planning and potential criminal proceedings against medical professionals, while ignoring women and their right to choose. By giving medical professionals the space to be discretionary, the law often allows doctors to deny requests even before the permissible 20 weeks if the request is not accompanied by a court order. An inefficient process easily takes these cases past the prescribed gestation period, causing distress. The reliance on medical boards is another sticking point. Women who approach the court tend to do so armed with a medical opinion, and since the concept of the medical board was never part of the Act, their influence on the decision-making process makes things complicated.

The problem with the Act is one of both legality and legitimacy. There have been multiple instances of attributing personhood to the foetus, as evidenced by the use of phrases like “life of the foetus”, opening up the implementation to moral subjectivity. The guidelines to implement the law must be more explicit and consistent across states, minimising the scope for discrimination masquerading as discretion. Furthermore, there is a clear need for the Act to keep pace with the times, an attribute it lacks on many counts. It cannot continue to prioritise the decision of the registered medical practitioner (RMP) based on outdated standards of medical risk that override every technological advancement that has reduced the risk associated with MTP. By adopting a narrow definition of physical health, the Act, in some instances, also ignores the socioeconomic implications of childbirth, placing women under intense physical, mental, and social duress. The Act also contradicts the SC’s recognition of a woman’s autonomy regarding her body, privacy, and live-in relationships.

Given the advancements in technology, the restrictions on the term should be increased to 24-26 weeks. More importantly, cases under 20 weeks should be inadmissible in court and directed to registered medical professionals, with provisions for legal action in the event of refusal. Noting the trauma associated with assault, MTP must be available to all pregnancies in these circumstances, irrespective of the constraints in the Act. A discussion about women empowerment should be accompanied by a thorough assessment of the subjects’ rights. By taking a medical stance at the cost of a legal perspective, the courts are denying women a facility that should be easy to access and easier to implement.

Restoring the stature of the Court: CJI Bobde has to instil faith among judges, the legal fraternity and citizens in the justice system

Source: Hindustan Times dated 20.11.2019

-- Madan Lokur (Retired Judge, Supreme Court of India)

Chief Justice SA Bobde has assumed the office of the Chief Justice of India (CJI). While wishing him all the best, it must be said that he has an unenviable task ahead, principally to restore the credibility and stature of what is incorrectly described as the most powerful court in the world. Unless this concern is urgently addressed, the cascading effect will be the death knell of the independence of the judiciary.

Theodore Roosevelt said of Justice Oliver Wendell Holmes Jr, after he decided against the view canvassed by the president, “I could carve out of a banana, a judge with more backbone than that.” A few recent judicial verdicts and administrative decisions seem to suggest that some of our judges need to show some backbone and spine, particularly in dealing with issues of personal liberty — no one can be thrown in jail without any effective remedy, and kept there because of information passed on to the judges in a sealed cover, or because there is no time (except perhaps to copy-paste), or because of misinformation, or because a person is safer in jail.

The Supreme Court and the high courts are sentinels on the qui vive, but so are all the courts down to the magistrates. If the transfer of judges of the constitutional courts can even be contemplated for their bona fide (maybe incorrect) understanding of the law in granting relief, what can an accused expect of a mere magistrate or sessions judge? Judges at all levels must, therefore, be given the confidence that they will not be “punished” for an honest decision, even if that decision is incorrect. Even the Supreme Court is fallible. The outgoing CJI stated in a press release: “I chose to belong to an institution whose strength lay in public confidence and trust earned not through good press, but through our work as judges on the bench.” The question to be asked is the cause of the erosion of public confidence and trust in the justice delivery system, and whether the citizenry can continue to have any confidence and trust in a judiciary that tends to bend, but not yet crawl?

Dispelling muted apprehensions within the legal fraternity, and the fear of raids and arrest of lawyers and the citizenry by a caged parrot and its first cousin, will infuse that confidence. Justice Bobde must also instil faith in all judges that they will be fully protected in the discharge of their duties, without fear or favour, and restore faith in “we the people”, that their personal liberty will be preserved and protected by the judges according to law and the Constitution.

An equally important task before the new CJI is to keep open the channels of communication between the judiciary and the lay public. Transparency is not a like a pendulum. Disclosures on appointment of judges through resolutions of the collegium swung from one end a few years ago to a virtual non-disclosure in the recent past. A balance has to be struck and a free and frank discussion must take place among the judges.

Soon after the transparency decision was taken, the CJI declined to entertain any discussion on the subject since he knew best, but later realised the need for circumspection. Transparent appointments are critical to the independence of the judiciary, and with the recent decision bringing the office of the CJI within the ambit of the Right To Information Act (and by necessary implication the office of the Chief Justice of every high court), careful thought must be given to the selection procedure and regulated disclosure, rather than a swing from being noisy judges to silent ones. Controversial administrative decisions by the collegium have disappointed many, and have led observers to believe that an unseen hand is behind some of them. Perhaps the appointment of a media adviser or a spokesperson might be necessary, and would also eliminate selective leaks and rumours.

Finally, the perennial problem of vacancies needs to be addressed. Let’s accept the fact that 400 vacancies in the high courts, and 4,000 vacancies in the district courts, can never be filled without compromising quality and continued violation of standards and benchmarks, as we have seen in the recent past. Do we really need so many judges? A few years ago, there was an across-the-board increase of 25% in the number of positions of high court judges. How was this percentage arrived at? Whatever be the analysis, the fact is that those vacancies have not yet been filled up with the overall vacancies hovering around 40%.

Nowadays, self-respecting lawyers are disinclined to accept an offer of judgeship for three reasons — delays in processes by the governments concerned, unpredictability in the decisions of the Supreme Court collegium, and the possibility of transfer for “the better administration of justice”, whatever that might mean. Doesn’t our justice delivery system deserve better? And can the new CJI deliver?

The new CJI has time on his hands and he should not let it slip by, but tackle these and several other issues with utmost urgency, dispassionately and with the assistance of all stakeholders. He will not get a second chance.

Top film production house in royalty row

Source: Times of India dated 20.11.2019

The economic offences wing (EOW) has booked Yash Raj Films (YRF) Pvt Ltd, its chairman and managing director Aditya Chopra, his brother Uday Chopra and others for criminal breach of trust and failing to pay royalty amounting to Rs 100 crore to several music composers and writers since 2012.

EOW was acting on a complaint filed by Sheetal Madnani of the Indian Performing Rights Society (IPRS), a professional body representing composers, lyricists and music publishers registered under the Copyright Act and Copyright Rules, and which collects royalty on behalf of authors and composers. IPRS's main charge is that YRF has been collecting royalty from licensed users of music since 2012 but hasn’t been passing them on to composers or lyricists.

An EOW officer said a preliminary enquiry (PE) was conducted before an FIR was registered. TOI made phone calls, and sent messages and emails to the communications department of YRF, but there was no response even 24 hours later.

The complainant’s statement to the police read: “The settled legal position is that while the production house can monitor and collect royalties for sound recordings and its own (equal) share of exploitation of lyrics and musical compositions, it cannot collect royalties on behalf of authors/music composers, which is the sole and exclusive domain of IPRS and no one else.”

The FIR was registered at the Amboli police station, and then transferred to EOW, a police department that probes financial crime. The complainant alleged that YRF had collected huge amounts of royalties from various platforms and had illegally diverted the same through unknown channels for personal gain. The complainant claimed that IPRS had documentary evidence in the form of an exchange of letters between it and YRF, clarifying its position as a copyright society that is the only entity authorised to collect and distribute royalties on behalf of its members.

The complainant added that YRF has, in order to create a ‘smokescreen’, been giving “miniscule” and “arbitrary” amounts of royalties to certain authors and composers. “Additionally, realising that its acts are illegal, the production house is now engaged in coercing authors and music composer members of IPRS to execute additional agreements in an attempt to cover its illegal activities that include having collected 100% royalties, including those due and payable to authors in the past.”

IPRS has collected royalties from two TV broadcast platforms, but it has not been able to collect royalties from telecom platforms, radio and other music streaming platforms in respect of authors’ share or royalties for the production house’s works, the complainant stated.

EOW is probing the case under section 409 (criminal breach of trust by public servant, or by banker, merchant or agent) of the Indian Penal Code and four other sections of the Copyright Act.

Bringing transparency to the courts: The SC’s order on the RTI will make the judiciary accountable, within certain boundaries

Source: Hindustan Times dated 15.11.2019

Yashovardhan Azad and M Sridhar Acharyulu (Former Central Information Commissioners (2013-2018))

The Supreme Court verdict bringing the office of the Chief Justice of India (CJI) under the ambit of the Right to Information Act (RTI) has been widely welcomed. It sends a strong signal to all democratic institutions to adhere to the twin principles of transparency and accountability underlining the RTI Act. It has upheld the earlier decision of the Delhi High Court (HC) that the apex judiciary consisting of the CJI and other justices as per Article 124 of Constitution of India, besides the office of CJI, is a public authority covered under the RTI. The order is expected to infuse the administrative systems with substantive element of transparency, within the judiciary. The decision also sends across a message to the public offices to take off the veil of secrecy and facilitate more disclosure.

The issue arose from a request by Subhash Chandra Agrawal for information about the number of judges who filed their annual assets details to the CJI voluntarily. The Central Information Commission(CIC) ordered disclosure, but the Central Public Information Officer (CPIO) in the office of apex court preferred a writ in the Delhi HC. The matter went before the full bench of HC of AP Shah (CJ), Vikramjeet Sen and S Muralidhar JJ, who concurred with the CIC. It held that that the administrative wing of judiciary should be transparent and furnish information held by office of CJI, if not hit by the exemption-clauses in Section 8. On January 10, 2010, Justice Shah had said that judicial independence was not a judge’s privilege but a responsibility cast upon him.

After staying the operation of Delhi HC order, the case was not taken up for hearing for a number of years. When the appellant sought to know the status, file notes were shared which revealed that, each time, it was directed to be posted after vacation or before a new CJI.

Finally, the bench headed by Justice Gogoi has given a comprehensive judgment on the entire RTI Act. Justice NV Ramana and Justice Dhananjay Chandrachud wrote separate but concurring judgments.

The SC’s affirmation of the HC judgment has wider implications and is a clear signal to infuse transparency in all high institutions. The bench said that transparency does not undermine judicial independence, while Justice Ramana added “…Right to privacy and Right to information go hand in hand. None can take precedence over the other”.

There is also a word of caution that the judiciary must be protected from surveillance through the RTI. Justice Chandrachud said that, in any given case, the information officer should weigh the public interest and employ the principle of proportionality. He also added that “the question is of drawing a line. In the name of transparency, you can’t destroy the institution”.

Having said that the CJI’s office is an integral part of public authority, though not a separate entity under section 2(h), the bench has remanded the information requests back to the SC’s CPIO for “reconsideration”, and to decide whether to give information or not. The judgment explains how disclosure or denial can be carved out of the provisions of the RTI Act, adhering to its true spirit and contextual limitations found from definitions and exception clauses. Requests have to be decided after a very careful consideration of a whole range of issues, balancing disclosure with privacy.

What is extremely significant is the fact that the constitutional bench has accepted the will and wisdom of Parliament to bring the judiciary into the realm of accountability legislation. It is also a thumbs up for the RTI regime, since, of late, it appeared to be at the receiving end in recent times. Voices from some quarters were also being raised that while the SC was advocating transparency in all spheres, the decision in its own case was pending. Now, civil society can hope that transparency will remain the mantra for good governance in all the three estates - judiciary, executive, legislature.

The judiciary carries the trust of the people and is accountable to the people. It is a unique wing of constitutional governance, with authority to review the decisions by the President, Prime Minister or chief ministers and legislatures both at centre and states. It is the real guardian of the fundamental rights of the people. Hence an endorsement from the bench headed by CJI will give fillip to people’s quest for transparency and accountability.

Finally, being a party to the litigation before the bench, the SC has just not confined itself to the disclosability of the information sought but has gone ahead to explain the nuances of various provisions of information rights. Though the appeals were nine-year-old, the judgment has added a significant precedent to the new information jurisprudence. In fact, the judgment is reiteration of section 2(h) of RTI Act, which defines and expands the definition of public authority. The examples and explanations however, including indicative illustrations culled out by judiciary, might possibly expand the restrictions and reduce the scope of transparency to a certain extent.

The judgment will also bring back in focus the rules recently made by the government under RTI (amendment) Act 2019, which alters the tenure and salary structure of Information Commissioners at the Centre and in states.

Respond to the cyber intrusion, within law

Source: Hindustan Times dated 15.11.2019

-- Gunjan Chawla (Technology and National Security Programme Manager at the Centre for Communication Governance, National Law University, Delhi). She was a judicial fellow at the International Court of Justice in 2017-18.

An invasion of sovereignty is not the same as an act of war. India should take cautious countermeasures.

The news of cyber intrusions into the Kudankulam Nuclear Power Plant, and the Indian Space Research Organisation (Isro) shook the cyber security apparatus. Pukhraj Singh, a cybersecurity expert, tweeted about the incident after alerting the authorities. In his opinion, the intrusion constituted a casus belli in the Indian cyberspace, meaning, an act or situation that provokes or justifies a war.

The factual matrix of this cyber “attack”, however, does not add up to a situation where a sovereign nation may justifiably go to war, in the conventional sense of the term.

In his analysis, Singh is correct to point out the absence of a cyber deterrence strategy, which permitted the malware to linger in protected systems for months after they were first detected. But I disagree with his advocacy for a departure from “rules-based war fighting”, towards “pre-emptive, extrajudicial maneuvering” within the adversary’s battle space.

Inviting as it may seem to follow in the footsteps of former US official, Richard Danzig’s, “defend forward” doctrine, it is apparent that this position advocates action that is overtly illegal in international law. The so-called “right to pre-emptive self-defence” is a creation of American warfighting doctrine and is not a norm of customary international law (CIL).

Due to the hybrid nature of cyber operations and international legal norms in their current form, governments all over the world are grappling with “below-the-threshold” operations in cyberspace. The use of military force is prohibited for States, who remain the principal subjects of the international legal order. According to the United Nations Charter provisions that are also considered CIL norms, a nation State may lawfully resort to the use of force in the exercise of its inherent right to self-defence against an ‘armed attack’ by another state.

According to the Tallinn Manual 2.0, a cyber intrusion or attack is considered an armed attack if its physical manifestations cause damage or consequences that are similar, or at least comparable, to the use of kinetic force. Without physical damage, a cyber theft of data in the eyes of international law, even by a State, does not amount to an armed attack and no right to use kinetic military force in self-defence arises.

However, this does not imply that there is no remedy against what is clearly an invasion of the country’s sovereignty and a dangerous intrusion into our critical information infrastructure. We can lawfully take cautious countermeasures against such intrusions to ensure that the intrusion ceases and leverage domestic laws and institutions to crystallise India’s position on international law norms that we consider non-binding.

The Tallinn Manual is neither a binding document, nor universally considered to be the definitive expression of CIL norms. Yet, it is a valuable resource to identify rules where India’s interests in cyber space demand interpretations that depart from Western interpretations tailored to serve Western interests. India has the prerogative to object to the application of a rule at odds with our national security interests.

Despite speculations that the malware caused the power plant to shut down, the government has maintained that it was due to a mechanical issue. Similarly, some have insinuated that the presence of the malware in Isro systems was temporally proximate to the unsuccessful landing of Chandrayaan–2. However, no such statements have been forthcoming from the government.

Without physical damage or disruption, the harm caused at this stage appears to be exfiltration of data, which falls within the domain of espionage. Espionage, while illegal in domestic law, operates in a grey zone in international law, where it is neither legal, nor illegal. Singh illustrates how a cyber espionage operation can be quickly weaponised into a destructive kinetic attack, depending on the attacker’s intent. However, the same is true of operations that embed spies and covert operatives in foreign territory. Without identifying the attacker, one cannot speculate their intent.

Technical attribution efforts have led to the North Korea-based Lazarus group. However, Singh asserts that false flag operations are all too common, and deeper digging could unearth unusual suspects. He adds that our response must be premised on “full-spectrum cyber attribution”, but this is only possible by carrying out a full-scale investigation that can reveal with some degree of certainty, the identity and affiliations of the intruder. Unless such attribution efforts conclusively point towards a State actor, the intrusion can be treated an act of cyber terrorism, defined under Section 66F of the Information Technology Act, 2000. Depending on the information exfiltrated, offences under the Atomic Energy Act, 1962 can also be made out. If an FIR is registered under these provisions, the National Investigation Agency (NIA) would be charged with this investigation. Such an investigation would be an opportunity to strengthen our counter-intelligence capabilities in cyberspace.

However, the investigation of these acts by the NIA risks exposing fault lines that go deeper than the overlap between various institutions, blurring the line between military and civilian responses to cyber intrusions.

In order to pivot our national security doctrine around cyber offence and defence, we need to legitimise the nation’s intelligence apparatus by law, so that it may act as the bridge between the civilian and the military dimensions of cyber operations. This will serve a dual purpose — first, to clarify the scope and extent of authority of our intelligence agencies within and outside our borders, and second, to provide opinio juris on the legality of state practices considered essential to protect India’s sovereignty. Let us heed the Research & Analysis Wing’s motto: The law protects when it is protected.

The speed of justice

Article in the Indian Express dated November 14, 2019 regarding the performance of Fast Track Courts by Bibek Debroy (Chairman, Economic Advisory Council to the PM). Link to this article:

http://epaper.indianexpress.com/c/45725146

'Judicial independence doesn't mean insulation of judges from rule of law'

Article in the Indian Express dated November 14, 2019 regarding the opinion of Justice D. Y. Chandrachud about 'placing the basis for selection and appointment of Judges in public domain' by Ananthakrishnan G.. Link to this article:

http://epaper.indianexpress.com/c/45724822

SC opens itself: Office of CJI under RTI Act

Articles in the Indian Express dated November 14, 2019 regarding the SC judgment bringing the CJI Office under RTI Act by Ananthakrishnan G. Links to these articles:

http://epaper.indianexpress.com/c/45724209

What bringing CJI's office under RTI means
Article by Shyamlal Yadav:

http://epaper.indianexpress.com/c/45719497

Activists hail SC’s order on CJI office: Ex-info commissioner says unfortunate that it took 10 yrs

Source: Hindustan Times dated 14.11.2019

Transparency activists on Wednesday welcomed the Supreme Court’s decision on bringing the office of the Chief Justice of India under the ambit of the Right to Information Act, saying that the apex court has reiterated the established position in law in the matter.

“I welcome the decision of the constitution bench to reiterate the established position in law that the CJI is a public authority under the RTI Act,” said Venkatesh Nayak, head of access to information programme, Commonwealth Human Rights Initiative, an NGO.

In a landmark verdict, a bench headed by Chief Justice Ranjan Gogoi upheld the 2010 Delhi High Court verdict that the office of the Chief Justice of India comes within the ambit of the RTI law and dismissed the three appeals filed by Secretary General of the Supreme Court and the Central Public Information Officer of the apex court. The top court said that only names of judges recommended by the Collegium for appointment can be disclosed, not the reasons.

Cautioning that RTI cannot be used as a tool of surveillance, it held that judicial independence has to be kept in mind while dealing with transparency.

On court’s remark that RTI cannot be used as a tool of surveillance, Nayak said: “It is extremely unfortunate that an observation has been made that RTI can be a tool for surveillance on the judiciary. Surveillance has unfortunately been equated with transparency that is required under a law duly passed by Parliament.”

Former information commissioner Shailesh Gandhi also hailed the decision. “It is a very good decision of the SC... It is unfortunate that it has taken 10 years. The CIC has upheld this. Delhi HC had also upheld this. Now, the SC has upheld this. You need to be accountable for your work... ”

‘Ruling is a milestone’

Subhash Chandra Agarwal, the Right To Information activist who fought a 12-year-long battle to ensure that the highest office in judiciary is answerable to people, termed the Supreme Court’s decision on Wednesday a “milestone” in the fight for transparency in public offices.

On Wednesday, the apex court upheld the Delhi High Court’s 2010 verdict and said that CJI is a public authority and falls within the ambit of RTI.

“This is a landmark judgment and will prove to be a milestone in the era of transparency. The apex court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment,” the 69-year-old activist said.

Agarwal said a resolution passed by the apex court in 2007 had prompted him to file an RTI demanding information.

“As per the resolution, the judges had to declare their asset to the respective chief justice of the SC or High court.I had filed an RTI the Supreme Court demanding copy of the resolution and information about whether judges were declaring their assets or not. While I got a copy of the resolution, there was no information provided for my second query,” said Agarwal.

Referring to the Wednesday’s order, Agarwal said that this will go a long way in ensuring transparency in public offices.

“We have been fighting for transparency in the system. Public offices should be covered under Right to Information Act. This should set an example for government bodied which are resisting to be brought under the RTI Act,” said Agarwal.

Door to greater transparency for courts is now shut

Alok Prasanna Kumar (Senior Resident Fellow, Vidhi Centre for Legal Policy)

While accepting that the office of the Chief Justice of India (CJI) is subject to the Right to Information Act, 2005 and dismissing appeals against a Delhi high court judgment to that effect, a Constitution bench of the Supreme Court (SC) has firmly slammed the door shut on greater transparency for the courts.

What I have just said may seem patently contradictory, but I believe this is the only way to make sense of what is in essence a contradictory judgment in the Central Public Information Officer (CPIO), Supreme Court of India v. Subhash Chandra Agarwal case. First, the context. The respondent, Agarwal, asked what now seems a fairly innocuous question — do judges of the SC declare their assets as they undertook to in accordance with a 1997 resolution? That this question was itself so strenuously resisted tells you something about the court’s approach to transparency then and now. Even after the Central Information Commission and two benches of the Delhi high court agreed that the CJI’s office should be required to answer this question, it is only now, more than 10 years later that a definitive answer has come from the court: yes, it must.

Two other instances where he sought information from the CJI’s office on judicial appointments but was denied have now been sent back to the CPIO to take a fresh decision. Such a finding is no doubt welcome as also holding that simply answering this question breaches no privacy or confidentiality of judges. However, the meat of the matter lies in the contents of the asset declarations and crucially, the information relating to appointments to the higher judiciary. Here, the majority judgement authored by justice Sanjeev Khanna (on behalf of himself and CJI Ranjan Gogoi and justice Deepak Gupta) shirks from making a definitive finding on these matters. The court retreats from laying down any rules or law. It only outlines very broad principles, attempting to balance transparency, privacy, accountability and judicial independence that offer little guidance and much confusion to any future CPIO asked to divulge information.

Not that the need to draw a balance is not valid -- privacy is a fundamental right and judges don’t lose it simply by virtue of their office. What was incumbent on the court was to lay down, as a matter of rule, what sorts of information is to be released in “public interest” and what needed to be kept confidential. No one disputes that judicial independence needs to be balanced with concerns of transparency and accountability. However, to leave it to only the mechanism of Section 6 of the RTI Act means that each request for information from the CJI will likely involve long and expensive litigation. As the judgement has not laid down what sorts of information about judges can be released proactively, any applicant must approach the CPIO who, if the information relates to a judge, will ask the judge if she has any objections to the request for information and then accept or deny the request. It would be a brave CPIO who would disagree with a Supreme Court judge’s request to not make information public, whatever be the reason.

What makes the judgement even more paradoxical is that while the court acknowledges that judicial independence may actually be strengthened by greater transparency, it hesitates to take that logical step and mandate that certain kinds of information may be released to the public without any fear of transgressing boundaries.

Even as regards information about judicial appointments, the judgement obliquely mentions the collegium’s recent decision to stop publishing details of candidates rejected for appointment and without offering any opinion on whether it was right or wrong.

Justice DY Chandrachud’s partly dissenting opinion, however, does go the extra step, calling for the collegium to at least list out the criteria on the basis of which appointment decisions are to be made. However, he too toes the line of the majority judgement when it comes to the question of laying down a rule and leaves it to the discretion of each CPIO deciding a case.

While upholding and accepting the Delhi high court’s conclusions is not wrong in any way, the Constitution bench has missed a golden opportunity to take the conversation on transparency forward and firmly lay down the law. A ruling on law from the bench was especially necessary since even the progressive measures undertaken by past CJIs, to release judges’ assets declaration data and collegium resolutions, have been rolled back by their successors in secrecy, with little or no notice to the public. It is tragic that this judgment which had an opportunity to set the standard for transparency in India’s judiciary chose instead to shun the light.

‘Judge selection norms must be made public’

Source: Times of India dated 14.11.2019

-- Dhananjay Mahapatra

As part of a five-judge Constitution bench led by CJI Ranjan Gogoi which ruled that the CJI’s office is amenable to RTI Act, Justice D Y Chandrachud made a remarkable suggestion — frame quantifiable norms for selection of persons for appointment as judges of the HCs and SC and make them public.

Justice N V Ramana, also part of the five-judge bench, sounded caution by observing that in name of transparency, “right to information should not be allowed to be used as a tool of surveillance”.

Justice Chandrachud addressed a long pending grievance from most quarters that the collegium of SC judges headed by the CJI, which recommends to the Centre names for appointment of judges to the constitutional courts, functions in a translucent manner to invite a tag of arbitrariness to its decisions.

This was reflected in the October 2015 judgement of another five-judge SC bench, which had struck down National Judicial Appointments Commission as intrusion into judicial independence.

Justice Chandrachud said the basis for selection and appointment of judges to higher judiciary must be defined and placed in the public realm. “Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision-making at all levels within the judiciary and government,” he said.

“There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated for elevation to higher judicial office, particularly with regard to merit, integrity and judicial performance. Placing criteria in public domain would fulfil mandate of Section 4 of the RTI Act, engender public confidence and provide a safeguard against extraneous considerations entering into the process,” he said.

Justice delayed is justice denied

Source: Hindustan Times dated 13.11.2019

Harish Narasappa (Lawyer and Partner at law firm Samvad Partners and Co-founder of DAKSH, a civil society organisation that was involved in the making of the IJR 2019)

Reformation Efficient management of judicial time, scientific listing of cases based on the stage they are at and appointment of full-time judicial administration cadre to provide support to the judiciary can reduce the number of pending cases

Justice is one of civilisation’s foundational goals. It is therefore imperative for the judiciary to perform its duty properly for any society to continue its pursuit of peace, harmony and progress. Unfortunately, the Indian judiciary, despite its many successes, suffers from severe structural problems that prevent it from functioning properly. The judiciary’s travails, specifically those relating to delays and backlog are well documented and don’t need repetition. However, it is only in the last few years that these structural problems have been better understood empirically thanks to the availability of better data.

It is now possible to assess, in a fairly detailed manner, the judiciary on parameters such as budgets, human resources, workload, diversity, infrastructure, and trends over the years. We can also accurately diagnose the pendency and backlog problem not only at district and taluka level but also at court complex levels.

We know, for example, that while pendency is a nationwide problem, it varies vastly from state to state, with the average pendency being anywhere in the range of two years to nine years in the district judiciary, as the India Justice Report 2019 reveals. We need to work on the problems that lead to delay on a daily basis, by increasing certainty of outcome in each hearing and avoiding burdening a judge in a manner that encourages adjournments. On an average, a district judge has about 50-60 cases listed before him each day. It is impossible to meaningfully hear such a high number of matters, and therefore at least 40 of these cases will be adjourned by the judge without any significant movement. This happens every day in each court across the country throughout the year. Naturally, there will be delay and backlogs at the end of the year. It is these daily problems that magnify over time and transform into structural problems crippling the functioning of the institution.

Today, it can take nearly 20 years if a case goes all the way from the subordinate court to the high court and then the Supreme Court. Twenty years means multiple generations of litigants, enormous cost and frustration — a case taking this long to be resolved is symptomatic of an inefficient and ineffective judicial system; any ‘justice’ delivered after a span of 20 years would be bereft of its true meaning. There are many problems that this process creates. First, judges, particularly those in the superior courts are dealing with cases from the previous decade and not today’s pressing issues. Second, the judiciary and the legal system at large, is inherently favouring the illegal actions of one party at the cost of violating the rights of the other. Further, a prolonged legal battle will have the effect of encouraging such illegal actions not only by the parties involved but across society, which in the long term lead to an erosion in the faith of people to get timely justice.

From a larger perspective, judicial delays also lead to uncertainty regarding laws and their application — the ongoing case in the Supreme Court regarding the application of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 and the determination of compensation thereunder has practically halted land acquisition litigation in the country. Cases related to land acquisition in the subordinate courts remain pending for six years on average and are a category of cases that take the most time to be resolved in court.

How then must the judiciary proceed to ameliorate the effects of delay? Foremost would be to efficiently manage judicial time. Listing an optimal number of cases to be heard on a daily basis is vital to ensuring that judicial time is not spent on unnecessary adjournments and that lawyers are prepared for their cases knowing that they will be heard with certainty. Courts must work towards better case management frameworks to ensure that cases are scientifically listed taking into consideration the stage of the cases and the amount of time they would require to be heard. The Delhi high court recently took the lead on this through a pilot project in the district judiciary; the results of the project show that it is possible to decide cases in a short time frame with better case and judicial time management.

A critical reform required is the need to appoint a full-time judicial administration cadre. Internationally, judicial administration is seen as being ancillary to the work of judges and is carried out by dedicated and specialised personnel to help judges efficiently perform their judicial duties. The establishment of a dedicated and trained cadre to provide support to the judiciary through case management, assistance with budgeting, handling administrative tasks, and ensuring maintenance of court infrastructure will go a long way in enabling the judiciary to focus on the administration of justice. Currently, judicial administration is essentially managed by judges themselves. This is not only unsustainable, but also unfair to judges whose primary skill and responsibility is to decide cases.

The most critical mantra is to embrace technology with vigour. Many of our court rules and processes were conceived of in the 19th century and need a thorough overhaul as they have become a hindrance to the delivery of justice. We should change these processes to meet today’s societal realities, particularly to harness technology in the better delivery of justice.

To implement these reforms requires dedicated and full-time leadership both at the Supreme Court and at each of the high courts.