How the new CFIUS laws can hit Indian tech firms

Source: Hindustan Times dated 28.01.2020

-- Benjamin Schwartz (Senior Director, Chertoff Group. He previously served as the India Director in the Office of the US secretary of Defence, and at the US-India Business Council)

Policies in tech, infra, data businesses will allow the US government to take action against ‘critical’ technologies.

The United States (US) department of treasury has released new rules, governing investment into the US that Indian executives, especially in the technology, infrastructure and data sectors, ought to study carefully. The US is India’s largest trading partner, and over the last decade, Indian businesses have more than doubled their investment into the US, with foreign direct investment approaching $10 billion annually. This increased investment comes with an increased need for businesses to be sensitive to the unique regulations of both countries, especially when those laws reflect a major change in policy.

Such a change will go into effect on February 13. In 2018, in a rare instance of bipartisanship, the Congress granted new powers in the form of expanded authority and increased resources to the Committee on Foreign Investment in the United States (CFIUS). This body is charged with repelling what’s seen as unprecedented threats to American technological leadership. For at least a decade, there has been growing evidence that America’s military competitors — most notably China — are directing investments into the US in a manner that could serve political and national security objectives rather than purely commercial ends. Unfortunately, this has brought into suspicion a broad range of transactions, including well-intentioned business deals that could inadvertently provide foreign adversaries tools to compromise US national security.

The new CFIUS regulations are a historic expansion of the authority, intention and capability of the US government to scrutinise foreign investment. It directs regulators to examine transactions that grant influence to foreign entities through board seats, access to non-public sensitive information, and management of technology deemed to be critical to US national security — a very broad set of parameters. For the first time, there is no minimum threshold of investment to define “foreign control” such that an investment of even less than 10% can trigger government action.

This is due, in large part, to the fact that long gone are the days when America’s cutting-edge technology is produced primarily in government-funded research centres. Today, technology is resident in private hands that are open to transactions that maximise profit. So, CFIUS will now scrutinise such transactions among businesses that produce, design, test, manufacture, fabricate, or develop technologies deemed to be “critical”; or own, operate, manufacture, supply, or service “critical” infrastructure; or maintain or collect personal data judged to be “sensitive” and a “threat to national security” by the US government.

These new regulations move money in a manner that can have a major financial impact on unprepared businesses. Consider the example of an average $500 million merger or acquisition by a foreign firm of a US health care IT company. Such a transaction would likely include:

• $1.5 million in legal fees (for the merger and acquisition, due diligence, and so on)

• $7 million in investment banking fees

• $2 million in C-suite executive and management time (at least)

• $1 million in miscellaneous expenses (accounting, tax, consultants, etc.)

So that’s $11.5 million just to get the deal closed. Now if this deal wasn’t structured with CFIUS compliance in mind, a company could face $1-2 million in legal and crisis management/public relations expenses to defend the unwinding and convince the public that there has been no wrongdoing.

Yet, while substantial, this cost would likely pale in comparison to the loss in enterprise value caused by business disruption. Assume the company has $50 million in profit and is valued at 10 times its profit with projected growth of 10%. Now, as a result of the disruption, negative press, and turnover from employee departures, the company loses 10% of its profit and growth slows to 8% causing its valuation to decline to say 9x instead of 10x. The business is now worth $405 million, instead of $500 million. A $100+ million has just vanished.

As more Indian companies look to conclude deals in the US in the technology, infrastructure or sensitive data business, there is good reason for executives from the C-suite down to pay attention to these new policies and structure transactions with CFIUS in mind. For good or ill, it’s going to be part of the price of doing business in America’s booming economy.

Kesavananda Bharti to Babri Masjid: Top SC verdicts

Source: Hindustan Times dated 28.01.2020

-- Murali Krishnan

The history of the Supreme Court of India is directly and inextricably linked to that of the Constitution. The latter came into effect on January 26, 1950. The apex court, which derives its independence and remit from the Constitution, came into being two days later, on January 28, 1950. It completes its seventieth year of existence today.

In these 70 years, the court has delivered several important judgments. Here’s a subjective listing of a few:

AK Gopalan v State of Madras (May 19, 1950) : This was the first case which gave the court the opportunity to explore the right to life and liberty under Article 21 of the Constitution. The court ruled against communist leader Gopalan, who was detained in a Madras prison, holding that Article 21 contemplates only procedural fairness. Hence, life and liberty can be taken away by a law which has been passed by Parliament and the court cannot look into whether the law itself is fair or not.

Champakam Dorairajan v State of Madras (April 9, 1951) : The court held that a government order prescribing reservation in engineering and medical colleges in the state of madras was violative of Article 29 of the Constitution. Article 29 states that no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them. The fall out of this judgment was the first amendment to the Constitution. By way of this amendment, a new clause (Clause 4) was inserted in Article 15. This change protected laws made by government providing reservations to SC and ST communities in educational institutions.

Golaknath v. State of Punjab (February 27, 1967) : The court held that a constitutional amendment made by Parliament in exercise of its powers under Article 368 is a “law” within the definition of Article 13(2) of the Constitution. This effectively meant that parliament cannot amend the Constitution to take away or abridge Part III of the Constitution which lays down fundamental rights.

Kesavananda Bharati v. State of Kerala (April 24, 1973): This is arguably the most famous judgment delivered by the Supreme Court . A bench of the Supreme Court comprising all the 13 sitting judges by a wafer thin majority of 7-6 overruled its judgment in Golaknath and held that a constitutional amendment is not “law” within the meaning of Article 13(2). This meant that the parliament could amend any part of the Constitution including Part III which lays down fundamental rights.However, this power came with the rider that it should not impinge upon the “Basic Structure of the Constitution”. What would constitute Basic Structure was left open-ended for the court to interpret.

ADM Jabalpur v. SS Shukla (April 28, 1976): This is widely considered as black day in the history of Indian democracy as a Constitution Bench of the highest court of the land, by a majority of 4:1, upheld the detention of citizens and political leaders belonging to opposition parties. The court was considering a presidential proclamation which was issued during emergency. The presidential order said that during the emergency, the right of a person to move any court for enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution shall remain suspended. The court upheld the same and held that while a proclamation of emergency is in operation, the right to move High Courts under Article 226 for a writ of Habeas Corpus challenging illegal detention by state will stand suspended.Justice HR Khanna dissented holding that Article 21 cannot be the sole repository of all rights. He ruled that sanctity of life and liberty existed even before the Constitution. Justice HR Khanna’s dissenting judgment in which he appealed to “the brooding spirit of law” and “the intelligence of the future” earned him legendary status but he lost the post of CJI to justice MH Beg who superseded him.

Maneka Gandhi v. Union of India (January 25, 1978) : The Supreme Court overruled its 1950 decision in AK Gopalan and expanded the scope of Article 21 by holding that the “procedure established by law” under Article 21 must be “fair, just and reasonable, not fanciful, oppressive or arbitrary”.

Minerva Mills v. Union of India (July 31, 1980) : In this key judgment delivered after the emergency, the court struck down many constitutional amendments made by the Indira Gandhi government during emergency. It employed the “basic structure doctrine” to hold that Parliament’s power to make Constitutional amendments is limited and it cannot be used to weaken fundamental rights. The Court also held that fundamental rights under part III of the Constitution override “Directive Principles of State Policy”.

Indra Sawhney v. Union of India (November 16, 1992): This was one of the most important judgments on reservation. The court upheld the Mandal commission’s recommendations to provide reservation for other backward classes in government jobs but excluded the so-called “creamy layer” from availing such benefits. The court also ruled that total reservation for SC/STs, OBCs and others should not exceed 50%. Further, reservation for economically poor among forward castes was struck down by the court.

Supreme Court Advocate on Record Association & Anr. v. Union of India (October 6, 1993) : The current system of appointment of judges to the high court and Supreme Court through the collegium system was devised in this case popularly known as the Second Judges case. The top court ruled that the opinion of the Chief Justice of India will have primacy over the opinion of the executive with regard to the appointment of judges.

IR Coelho v. State of Tamil Nadu & Ors. (January 11, 2007): In this judgment, the Court expanded the scope of basic structure doctrine, holding that any law inserted in the Ninth Schedule on or after April 24, 1973 (date on which Kesavananda Bharati judgment was pronounced) can be subject to judicial review and will be struck down if it violates the basic structure doctrine.

National Legal Services Authority v. Union of India (April 15, 2014) : In a landmark judgment, the court held that transgender persons should be recognised as the third gender. They have all constitutional and legal rights as any other person in the country.

Justice KS Puttaswamy v Union of India (August 24, 2017) : A nine-judge bench ruled that right to privacy is a fundamental right under Article 21 of the Constitution.

M Siddiq v. Mahant Suresh Das (November 9, 2019): A five-judge bench of the court brought an end to the contentious Ayodhya dispute by awarding the 2.77-acre disputed land to Ram Lalla Virajman, the child deity while granting five acres of land to Muslims at an alternative site for construction of a new mosque. The court also asked the government to set up a trust to oversee construction of the temple and manage the disputed site.

The importance of an independent judiciary

Source: Hindustan Times dated 28.01.2020

-- Madan Lokur (Retired Supreme Court Judge)

The freedom of the judiciary, and the top court, has been sought to be compromised on several occasions in the past. But it has always bounced back.

In The Federalist No. 78 (14th June, 1788) Alexander Hamilton explained the rationale of the people of the United States (and now by extension, we the people of India) ordaining and establishing an independent judiciary in the Constitution. He said: “There is no position which depends on clearer principles, than that every act of delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do, not only what their powers do not authorise, but what they forbid.” This passage is the key to understanding the role of an independent judiciary in a republican democracy.

The independence of the judiciary has been sought to be compromised on several occasions in the past. But it has always bounced back. Will it do so once again?

The first few years of our Republic saw the spectre of supersession in the appointment of the Chief Justice of India but the Supreme Court judges stood firm and the thought banished. Judgments were delivered declaring some laws as unconstitutional. Some of these declarations were nullified by Parliament by amending the Constitution to validate laws and regulations and, indeed, place some of them beyond judicial scrutiny by introducing the Ninth Schedule in the Constitution. The Supreme Court took this in its stride and continued to stand as a beacon of hope for many, particularly in matters relating to the recognition and enforcement of fundamental rights guaranteed by the Constitution.

The establishment believed, mistakenly, that by virtue of its powers, it could do not only what was not authorised but what was forbidden. The commitment of the Supreme Court to the Constitution led to the theory of committed judges. The establishment believed that the appointment of judges committed to its philosophy would be amenable to legislative changes. Matters came to a head in the early 1970s when the Supreme Court was called upon to decide whether the Constitution was plasticine in the hands of Parliament. Fortunately, the Supreme Court reminded the representatives of the people that they are not superior to the people themselves. This reminder was achieved through the judgment in Kesavananda Bharati’s case which enunciated what is now part of constitutional folklore -- the basic structure doctrine.

The high point of the independence of the judiciary was followed by the Emergency. During this period, the independence of the Supreme Court reached its nadir. Through its decision in the ADM Jabalpur case (Justice Khanna dissenting) the Supreme Court virtually suspended Article 32 of the Constitution, which guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. BR Ambedkar described this article as the soul of the Constitution and the very heart of it. Ironically, many judges in the high courts saved the day for the independence of the judiciary -- perhaps, they were made of sterner stuff.

Post the Emergency and two supersessions in the appointment of the Chief Justice, the Supreme Court rebounded with constitutional justice and human rights taking centre stage. Public interest litigation made the establishment accountable as never before and the people came to appreciate that they were the principals and masters, not the deputies or servants and that they were superior to their representatives. Elected governments in the States could no longer be overthrown by the establishment by merely invoking Article 356 of the Constitution and the political executive was made to appreciate that it was prohibited from doing not only what was not authorised by the Constitution, but what was forbidden. This allowed human rights to gain considerable importance; draconian preventive detention laws were interpreted with compassion so that continued detention without trial became a rarity. All this while, the Supreme Court endeavoured to maintain its independence from the establishment and I daresay it succeeded.

The second decade of the new millennium saw a renewed attempt to contain the independence of the judiciary with the passage of an amendment to the Constitution incorporating the National Judicial Appointments Commission for recommending the appointment of judges. This amendment was declared unconstitutional by a 4:1 majority by the Supreme Court on the ground of violation of the basic structure of the Constitution which recognized the independence of the judiciary. This effectively confirmed the collegium system of recommending the appointment of judges. That’s when the fire started.

Over the years, we are witness to the establishment rejecting, for slim and sometimes undisclosed reasons, the recommendations made by the collegium and sometimes sitting on them. We have also seen the collegium passing resolutions that are hard to believe, let alone rationalise. There is considerable criticism of the collegium system but no one has suggested a better alternative that ensures the independence of the judiciary or suggested returning to the pre-collegium days and handing back the power of recommending and appointing judges to the establishment in consultation (not concurrence) with the Chief Justice of India. The solution today is only to tweak and strengthen the collegium system through dialogue, and this is urgent.

We are also witnessing judgmental fluctuations by the Supreme Court, perceived by many as succumbing to the pressures of the establishment in its core function. What has happened to the independence of the judiciary, they ask? Is the sentinel on the qui vive surrendering its obligation to preserve and protect the rights of the people? Unfortunately, a few even recall ADM Jabalpur. Only time will tell but admittedly, recent trends are quite disturbing and the light at the end of the tunnel is getting dimmer. Unless these trends are arrested, law students of the future will be studying a different Constitution, with or without a Republic.

Safeguarding free speech from threats is important

Source: Hindustan Times dated 28.01.2020

-- Madhavi Goradia Divan (Additional Solicitor General of India)

REASONABLE RESTRICTIONS: The enumeration of specific subjects in Article 19(2), on which the freedom of speech could be restricted, kept a check on excessive inroads into the right

When early drafts of the fundamental right to freedom of speech were put before the Constituent Assembly, members protested that the right was “riddled with so many exceptions that the exceptions have eaten up the right altogether.”

The framers of the Constitution drew from the example of the Irish Constitution by providing specific subjects on which the state could make law to restrict the freedom of speech. This was markedly different from the US Constitution, under which the freedom of speech was not mottled with exceptions, and was “absolute”, at least on the face of it.

There was a lively debate before the Constituent Assembly on what the permissible exceptions should be. Eventually, when the Constitution came into force on January 26 ,1950, the only grounds on which the fundamental right to freedom of speech and expression could be restricted were “libel, slander, defamation, contempt of court or any other matter which offends against decency or morality or undermines the security of or tends to overthrow the state.” Notable exceptions which found themselves in earlier drafts but got dropped in the end, were “sedition”, “public order”, “class hatred” and “blasphemy”.

Only a few months into the republic, the newly minted fundamental right to freedom of speech and expression under Article 19(1)(a) was put to test. The restrictions under Article 19(2) were invoked by three state governments to clamp down on select publications.

In Bihar, the government cracked down on a provocative political pamphlet. The high court rejected the state’s contention and that view was upheld by the Supreme Court in State of Bihar v Shailabala Devi.

In Madras, the state banned Crossroads, a communist weekly published by Romesh Thapar who was famously critical of many of Prime Minister Jawaharlal Nehru’s policies. The Supreme Court struck down the ban and the law under which it was issued, holding that nothing short of a threat to “overthrow the state” could justify a restriction on the freedom of speech under Article 19(1) (a). A breach of order of a purely local significance could not meet the test. This was followed in Brij Bhushan’s case, where the court struck down a pre-censorship order on the Organiser, a weekly run by the Rashtriya Swayamsevak Sangh.

Upset by the rulings, Nehru wrote to the then law minister BR Ambedkar, expressing a need to amend the Constitution to contain subversive activities. But on the floor of Parliament, Nehru justified the need for an amendment, not on a political ground but a “moral” one.

This was curious given that the occasion for the amendment was the three unfavourable rulings. Taking the moral high ground he said, “It has become a matter of the deepest distress to me to see from day to day some of these news sheets which are full of vulgarity and indecency and falsehood day after day not injuring me or this House much , but poisoning the mind of the younger generation, degrading their mental integrity and moral standards.”

In a speech which acquires special relevance in times of rampant and reckless fake news about seven decades later, he complained that “from the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false.”

The first amendment to the Constitution in 1951 expanded the exceptions to the freedom of speech to eight from what were originally four. Public order, security of the state, incitement to an offence and friendly relations with foreign states were the new insertions. One redeeming feature was that the subjects of restriction were prefixed with the word “reasonable”.

In 1963, a new ground was added: “in the interests of the sovereignty and integrity of India”. But despite the increased subjects of curtailment, seven decades of working the Constitution tell us that the enumeration of specific subjects in Article 19(2) on which the freedom of speech could be restricted, actually kept a check on excessive inroads into the freedom of speech. The addition of the word, “reasonable” helped to reign in the restrictions, even on the eight permissible grounds. Each restriction was required to meet the test of proportionality. The enumeration of restrictions, once condemned as eating up the right altogether, have emerged, somewhat paradoxically, as its protector.

In the landmark judgment Shreya Singhal v Union of India, comparing Article 19(1)(a) with its American counterpart, Justice Rohinton F Nariman held that while under the Indian Constitution, the right could be curtailed only on the eight grounds specified under Article 19(2), the American Constitution was not constrained by such limitations and the restrictions could travel beyond, so long as there was a “clear and present danger” to a competing right. The belief that the freedom of speech under the American Constitution was absolute was therefore, a misnomer.

Article 19(2) is organic enough to take care of challenges that might not have been envisaged so many years ago. At the forefront of civil liberties in recent times, is the right to privacy. Now recognised as a fundamental right, privacy concerns need to be balanced with the freedom of speech. Article 19(2) does not specifically mention privacy. But it does mention “decency and morality” as exceptions to free speech, and these exceptions are not limited to affording protection only against obscenity – they are broad enough to make space for privacy, an important “moral” value in any decent civilised society.

In Kaushal Kishor v Union of India, the Supreme Court, usually a staunch and steadfast guardian of the freedom of speech from the early days of the republic, decided to refer to a bench of five judges the question of whether the freedom of speech could be curtailed on grounds beyond those specified in Article 19(2), and whether Article 21, which has been stretched to include everything from the right to sleep to the right to a toilet can be invoked to introduce further curbs on the freedom of speech.

While the right to life and personal liberty under Article 21 in its many resplendent avatars, is vital, so is the freedom of speech and expression. We, in India chose to adopt the Irish template and consciously departed from the American one. The framers of our Constitution were careful to minimise the restrictions in Article 19(2), while seeking to ensure that all the social values which need to be protected from reckless speech found place in Article 19(2). Articles 19(1)(a) and 19(2) strike a good balance between protecting both free speech and other competing rights. There are grave dangers in opening a back door for inroads into Article 19(1)(a), particularly through a right as elastic as Article 21. Article 19(2) draws a Laxman Rekha and it is important, in the interests of free speech to stay well within that threshold.

Preamble embodies Constitution’s vision

Source: Hindustan Times dated 25.01.2020

-- Anurag Bhaskar (Jindal Global Law School, Sonipat)

 The content of the Preamble not only embodies events that predate the adoption of the Constitution, but also incorporates citizens’ experiences over the past 70 years

The Preamble manifests the vision of the draftspersons of the Constitution. In adopting it after the draft Constitution was approved, the Constituent Assembly ensured that the Preamble exhibited conformity with the provisions of the Constitution. Yet, the content of the Preamble traces its origins to even before the task of drafting the Constitution began. The foundations of the Preamble were laid down in the Objectives Resolution moved by Jawaharlal Nehru before the Constituent Assembly in December 1946.

The purpose of the resolution was to “proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution”, which would secure “to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith worship, vocation, association and action”, among other goals. Seconding the resolution, one member remarked that equality was “its underlying theme”. Another member supporting the resolution firmly believed that the Indian Republic would “be both democratic and socialist”. The resolution was enthusiastically supported by most of the members and was adopted in January 1947.

Later, Nehru pointed out that Objectives Resolution could be adopted with certain changes as the Preamble.

The drafting committee headed by BR Ambedkar felt that the Preamble should be restricted to defining the essential features of the new State and its basic socio-political objectives and that the other matters dealt with in the resolution could be more appropriately provided for in the substantive parts of the Constitution.

The committee modified the content of the Objectives Resolution to formulate the Preamble, while clarifying that it followed the spirit and, as far as possible, the language of the resolution. The Committee adopted the expression “Sovereign Democratic Republic” instead of “Sovereign Independent Republic”, as it considered independence to be implied in the word “Sovereign”. The committee introduced a clause on “Fraternity” to emphasise upon the need for fraternal concord and goodwill in India, which was specifically greater than ever, after the Partition.

The draft Preamble, as it is in current form, was tabled before the Constituent Assembly in October 1949. One member sought to include “In the name of God” in the beginning of the Preamble. The Assembly rejected the proposed amendment. Another member argued that inclusion of God would amount to compulsion of faith and violate the fundamental right to freedom of faith. Another member stated that invoking the name of God in the Preamble would resemble “a narrow, sectarian spirit, which is contrary to the spirit of the Constitution.”

The Assembly adopted the Preamble as presented by the Drafting Committee.

The Preamble recognises and proclaims that the Constitution has its root, its authority, and its sovereignty, from the people. “Sovereign Democratic Republic” reflects the establishment of a democratic form of government, where ultimate power is vested with the public and exercised through universal adult franchise. Commenting upon this aspect of the Preamble, Acharya Kriplani observed that “democracy is inconsistent with caste system”, and that we must do away with castes and classes. “Justice, social, economic and political” symbolises the commitment of the framers to put an end to status quo of inequalities and historical injustices and to replace fundamental wrongs with fundamental rights. As Kriplani remarked, “Liberty of thought, expression, belief, faith and worship” can only be guaranteed on the basis of non-violence and mutual respect for each other.

“Equality of status and of opportunity”, in Ambedkar’s words, means absence of glaring inequalities and discrimination in the society. The expression “to promote among them all” is linked with “Fraternity”. Ambedkar defined “Fraternity” as “a sense of common brotherhood of all Indians” and “an attitude of respect and reverence towards fellow men”, which give “unity and solidarity to social life”. The principles of liberty, equality and fraternity would ensure dignity of each individual, thus leading to unity of the nation. Ambedkar considered liberty, equality and fraternity to be forming “a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy”.

The addition of the words “Socialist” and “Secular” into the Preamble by the 42nd constitutional amendment during the Emergency in 1976 did not alter its nature or identity. It merely provided a label to what was already in existence. There are three key points in support of this contention. First, in support of Nehru’s Objectives Resolution, one member explained that the content of economic democracy and rejection of the existing social structure reflected through the phrases “justice, social, economic and political” and “equality of opportunity” represent the socialist aspect of the Resolution, without providing it with an open label. These phrases were later adopted into the Preamble. Second, by rejecting inclusion of any phrase on God in the Preamble, the Assembly adopted a secular document instead of a sectarian one. Third, the Preamble embodies the philosophy of the Constitution, which is reflected through its provisions and the basic structure. As Justice DY Chandrachud held in one of his judgments, the addition of the word “secular” solidified the basic structure of the Constitution, which enshrines secularism in the fundamental rights chapter.

The Court has often engaged with interpretation of the Constitution by relying upon the vision and values contained in the Preamble. While the flourishing of a constitutional order demands an active institutional role of courts, it also requires a responsive participation of the citizenry. The response of the citizens to their elected representatives has a powerful role in giving a meaning to the words of the Constitution. The content of the Preamble not only embodies events which predate the adoption of the Constitution, but also incorporates the citizens’ experiences in the unfolding of the Constitution over the past seventy years. The hopes and aspirations of the people enshrined in the Preamble have sustained due to years of practice, effort, and experience to make society work with those values. The recent events of claiming the Preamble and the Constitution by the citizens as their very own resemble a path towards the professed collective destiny of India.

Constitution to SC: How the federal doctrine evolved

Source: Hindustan Times dated 24.01.2020

-- M. P. Singh (Professor Emeritus, University of Delhi)

Pursuant to its size and diversity, India has never been effectively managed from one place and one law. Definitely at the entry of the East India Company in the country, the Mughal emperor Jahangir ruled it from Agra through Subhadars and Dewans in subhas (provinces) spread over the Mughal Empire.

The British also did the same as they started acquiring territories in the country, maintaining their monopoly over the administration. The natives started demanding their participation in the administration from the closing days of the 18th century, which was conceded initially in 1909, given some effect in 1919, and again later in 1935, though it always remained defective in one respect or another.

As the British rule started nearing its end by 1940 and the Muslim League started demanding a separate state, the Cabinet Mission announced a complex plan in 1946 providing for a federal structure comprising a Union of India of Provinces and the Indian states in which the Union would have the power to deal with only the subjects of defence, foreign affairs and communication with ancillary power to raise the finance for these subjects.

The Constituent Assembly elected under this plan adopted an Objectives Resolution for the making of the Constitution on those lines, assigning only three subjects to the Union while the rest were left for the states.

While initially the process of making the Constitution started on these lines, on June 3, 1947, the Viceroy declared the partition of the country into two independent dominions. The declaration removed all shackles on the Constituent Assembly, which decided to have a federal constitution with a strong central government and states with enumerated powers. Following this decision, constitutional adviser BN Rau was asked to prepare a draft of the Constitution, which he did diligently and placed before the drafting committee in October 1947. Article 1 (1) of the draft read: “As from the date of commencement of this Constitution ‘India’ shall be a Federation.”

Working on the draft, the drafting committee of the Constituent Assembly changed Article 1 in its draft to read: “India shall be a Union of States.” It converted all references to Federation or Federal to Union except references to Federal Court.

In his covering letter presenting the draft to the President of the Constituent Assembly, BR Ambedkar wrote, “It will be noticed that the committee has used the term ‘Union’ instead of ‘Federation”. Nothing much turns on the name, but the committee has preferred to follow the language of the preamble to the British North America Act, 1867, and considered that there are advantages in describing India as a Union although its Constitution may be federal in structure.”

After the commencement of the Constitution in 1950, constitutional scholars struggled to find the true nature of the Constitution from unitary to federal to quasi-federal, cooperative federal, etc.

When for the first time the issue was raised in the Supreme Court in 1962, by a majority of 6 to 1, it held that it was not true to any federal scheme while the dissenting single judge strongly argued that it was federal. Later, a majority of judges in the Kesavananda Bharati case in 1973 included federalism as part of the basic structure of the Constitution; in the SR Bommai case in 1994 and in a number of cases since then, the court has held that federalism is part of the basic structure of our Constitution.

The SR Bommai case related to the power of the Centre to dismiss the duly elected government of a state, if the President “is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.”

As we all know, the satisfaction of the President is the satisfaction of his council of ministers at the Centre consisting of a party or a coalition of parties, which may be opposed to the party in power in the concerned state. Just to get that opposition party government dismissed, the council of ministers may give wrong information to the President, who cannot do more than asking the council of ministers to reconsider their decision. If on reconsideration, the council sticks to its original position, the President has to approve the decision of the council.

However, following the Bommai case, the Supreme Court, as well as some of the high courts, have invalidated dismissal of state governments after asking a test of the strength of the political parties in the state on the floor of the state assembly and restored the dismissed government to its position.

This is a development based on the principle of democracy, which besides being one of the basic features of our Constitution is also one of the three strands of a seamless web that, according to Granville Austin, the Constitution creates along with social revolution and unity of the nation.

If democracy stands above federalism in our Constitution and a majority of the states pass resolutions in their legislative assemblies against the Citizenship (Amendment) Act, can the Supreme Court ignore this fact and not hold that the law is against the basic structure of equality and secularism and therefore, unconstitutional and void ab initio? If the doctrine of basic structure applies to invalidate executive action since Bommai, it must also apply to legislative act with greater force, as has been held by the Supreme Court in more than one case.

Distribution of powers between the Centre and the states and the kind of federal structure it provides or conceives is not the sole basis for the validity of a law or executive action. Equally, if not more important, are the issues relating to the fundamental rights and foundational principles that constitute the basic structure of the Constitution. Some of them are expressed in the Preamble of the Constitution whose reading is being recommended and promoted by the current government. If the government means what it says or recommends, it must abide by what the Constitution and its Preamble say and prescribe. If it does not so abide, it must be deemed to be acting against or in violation of the Constitution. Let us hope all governments, current and future act strictly according to the Constitution, and not even in slight violation of it.

Protect Right To Privacy: Petition to make social media traceable strips the privacy right of all meaning

Source: Times of India dated 24.01.2020

-- Mishi Choudhary (Legal Director, Software Freedom Law Centre, New York) and Eben Moglen (Professor of Law and Legal History, Columbia Law School)

A current proceeding earlier before the Madras high court but now transferred to the Supreme Court of India threatens fundamental harm to the freedom of expression on the internet, not only in India but elsewhere in the world. The pending petition seeks to require that Facebook make all WhatsApp messages traceable to their originator through the linkage of identity information (mobile phone or, perhaps, Aadhaar numbers) to all messages exchanged.

It should hardly be necessary – given the Supreme Court’s judgment in Justice KS Puttaswamy and Anr vs Union of India and Ors which confirmed that we have a fundamental right of privacy – to say that this petition must be dismissed as an affront to our basic constitutional freedom.

But technology is hard and law around it complicated, therefore, sweeping statements about terrorism and nationalism are made by counsels in court forcing the judges to become experts in matters far beyond most people’s expertise. They are expected to not only understand the intricacies of technology but also ensure innovation is not curtailed, all along addressing the fear mongering of new uses of technology.

Facebook is also entirely justified in objecting that it could not possibly satisfy such an order without fundamentally compromising the architecture of WhatsApp not only in India, but also throughout the world. WhatsApp is a credible communications system because it provides “end to end” encryption of the messages it carries, ensuring that Facebook itself cannot read the contents of our communications. Facebook can, it is true, determine the identity of any message’s sender and recipient, but if A sends to B a message that B then forwards to C, because Facebook cannot see the content of the messages it cannot tell that what B sent C was originally written by A. The demand for traceability is therefore a demand that Facebook compromises the security of all communications it handles.

By now, many of us are accustomed to observing technologists who find law challenging and lawyers who understand no technology and policy makers who are expected to know it all but are usually lost balancing several competing interests. Most law officers for the government assisting the court nonetheless inform the court that if only Facebook understood its technology as well as they understand it, everybody would see at once that down is up, light is dark and left is right.

To give an example of how hard an intersection of law, technology and policy can get: this petition is supported by filing of academics including renowned names from IITs. We have great respect for them and others who are really trying to assist matters here but cannot find gold keys where none exist. One such submission says that Facebook can be required to add the identity information of each message originator to the message itself before it is “end to end” encrypted, allowing every communication to be traced back through the chain of forwarding to its original source.

Thus, A sends a message to B which is “tagged” as coming from A. B decrypts the message, and forwards it to C, who receives it with the included “tag” identifying A, and decrypts it in his turn. If C finds the message “disturbing”, he can then complain to law enforcement authorities with A’s identity in hand. The submission says that this does not require Facebook to compromise encryption. That’s narrowly true: Encryption is formally undisturbed, but the privacy encryption designed to protect is destroyed anyway.

Obviously this mechanism destroys A’s privacy, if for example she didn’t want her message to B forwarded and is now being pursued by the government at the behest of C. According to the submission this is no problem, because A has a remedy: B has broken an implicit contract with A by forwarding the message over A’s implicit objection, violating a relationship of trust which (he says) must have existed between A and B in the first place.

But this advice ignores how law operates. Government here orders an unconstitutional invasion of privacy, directing F to destroy the privacy of A, as well as other intermediate recipients of A’s message. But though A’s right against government has been vitiated, that has been theoretically replaced by a private action against B.

From the lawyer’s point of view, this is preposterous. Unconstitutional action is not acceptable just because a party harmed by the state can potentially bring a contract action against some non-governmental private party. Also, if you have ever dealt with the Indian legal system, saying go to court if you are worried about privacy in this age is the most ineffective way of getting any relief.

Many well-intentioned observers have pinned all their hope on the recently tabled Personal Data Protection Bill, 2019, to protect citizens from the ever broadening reach and greed of companies and other entities for our data. While India does need such a law urgently, in no way can this address the problems being presented by this case where all citizens’ privacy and security is held ransom to check the notoriety of a few malicious players.

In our view, the Supreme Court should reaffirm that the fundamental right of privacy under Article 19 recognised in Puttaswamy protects both the secrecy and the anonymity of our personal communications, and prevents GoI or its courts from ordering technological intermediaries to breach those rights on its behalf. The government’s law officers should be required to tell the Supreme Court whether they wish to stand behind this witch’s brew, or whether the technologies of totalitarianism are unacceptable in the world’s largest democracy.

BN Rau: An idealist and a staunch constitutionalist

Source: Hindustan Times dated 21.01.2020

-- Arvind Elangovan (Associate Professor of History at Wright State University in Dayton, Ohio)

Rau not only played a vital role in the Constituent Assembly but also embodied a constitutional temperament to address pressing political problems of the day.

In the chronicles of the Indian Constitution, it is usually rare to see the name of Sir Benegal Narsing Rau (1887-1953) mentioned with any prominence. There are at least two good historical reasons for the same. Firstly, Rau was a bureaucrat, a distinguished one, and as such played a vital role in the administrative machinery but mostly away from the public eye. Secondly, and perhaps more importantly, after independence, the dominant story of the Indian Constitution was written fundamentally as a story of successful Indian nationalism.

In such accounts, the roles played by political leaders assumed importance, and the scope for recognising a bureaucrat like Rau remained severely limited. Nevertheless, it is important to educe Rau’s life and work, not simply because he played a vital role in the Constituent Assembly, the body that met between 1946 and 1949 to frame India’s Constitution, but also because he was perhaps the best example of someone who consistently embodied and exhibited a constitutional temperament to address the pressing political problems of the day.

This was remarkable since Rau embraced the idea of constitutionalism much before a formal Constitution was adopted in India. He laid the groundwork for the idea that the British constitutional structure in India that largely aided the interests of Britain could be translated and transformed to serve the needs of an independent India. This transformation and translation from the colonial to the postcolonial required a fundamental ability to view the nature and possibilities of the Constitution beyond its colonial origins.

While Rau was certainly not singular in viewing the potential of the constitution (Dr. B R Ambedkar was another), he was definitely at the forefront, which is a compelling reason to remember him, however briefly, as we mark the completion of 70 years of the Indian republic.

Rau was born on February 26, 1887 at Karkal in the district of South Kanara in southern India. After completing his education in Madras and at Trinity, Cambridge, Rau cleared the tough civil services examination in 1909 and, in fact, secured the 16th rank.

Rau’s career began in a most unusual way, and his constitutional outlook was immediately visible when he received his posting in his home province, in Madras. Quite strikingly, he refused to serve in Madras. As he explained to the civil services commissioner, “Dear Sir, In regard to the province to which I have been assigned I beg to inform you that I have friends or relatives in almost every part of the Madras Presidency and also that my father possesses lands in the same province. It has been pointed out to me that in these circumstances it might be very difficult for me to perform my duties unhampered. I shall therefore be very thankful for a reconsideration of my case; and should it be possible, I request that I may be assigned to Burma.” Following this extraordinary request, Rau was transferred to Bengal.

Rau’s inclination towards constitutional matters was clear early on. He developed a keen interest in legislative and constitutional matters, which led to him being appointed as the Legal Remembrancer and Secretary to the Government of Assam in the Legislative Department and Council.

From 1935 onwards, Rau was at the centre of the major constitutional developments in India. By 1946, Rau was one of the more sought-after constitutional experts by all the major Indian political parties and the British government. With the establishment of the Constituent Assembly in 1946, he was a natural choice to be appointed as the constitutional advisor. In his final years, Rau became a truly global figure where he represented India in the United Nations and finally served as a judge in the International Court of Justice at The Hague.

He passed away on November 30, 1953 in Zurich, Switzerland. On his death, the former diplomat Girija Shankar Bajpai wrote in this paper, “By his death, Law and Learning have lost a person of outstanding stature.” India’s first Prime Minister Jawaharlal Nehru paid tribute to Rau in the Lok Sabha by describing him as the “perfect civil servant.”

Throughout Rau’s distinguished career, then, one can find fine instances of his constitutional temperament at work, whether it was in the numerous notes and memoranda he drafted as a civil servant, the many reports he authored as chairman of enquiry commissions, his judgments when he served on the Calcutta high court, or his speeches at the United Nations, to mention only a few.

Citing two instances in this regard would be helpful.

The first instance can be seen when Rau was appointed as an Officer on Special Duty (OSD) in the Viceroy’s Reforms Office to enable the implementation of the Government of India Act passed in 1935. As readers would recall, the act required the British government to transfer the running of provincial governments to Indian representatives elected by the people of those provinces. Once appointed, however, Rau found that in practice the various departments of British government in the provinces were somewhat reluctant to transfer such authority.

At issue was a central contradiction of the British Empire, one that the postcolonial theorists such as Homi Bhabha have extensively written about, namely that in order to maintain control of India, Britain had to transfer some sovereign authority to Indians, but every such transfer continually undermined the basis of the empire itself. In response, as OSD, Rau through various notes and memoranda written over a period of two years, argued that the 1935 Act had to be considered as a constitution and not as a piece of ordinary legislation.

As such, only by embracing the constitutional basis of its colonial authority could Britain resolve this conundrum. Even as Rau was working within a colonial administration and faced the political imperative of the empire to violate its own constitutional basis, he deployed constitutionalism to challenge this violation and set the stage for an argument for eventual complete transfer of sovereignty to India. Indeed, as we know, the 1935 Act became the basis of independent India’s Constitution adopted in 1950.

The second instance can be seen in Rau’s interventions amidst the politically volatile contest between the Indian National Congress and the Muslim League on the question of partition and negotiation with the colonial government on the question of independence.

Back in the Reforms Office at the request of then Viceroy Archibald Wavell (1883-1950), Rau began drafting a series of documents containing constitutional drafts to address the vital demand of the Muslim League for Pakistan. Amid continuing tensions, Wavell repeatedly encouraged MA Jinnah to meet with Rau, especially on the question of the working of the Constituent Assembly. After a meeting on September 18, 1946, and in response to the questions posed by Jinnah, Rau wrote a detailed note to Jinnah on September 22, 1946.

While in the letter Rau sought to convince Jinnah about the fairness of the Constituent Assembly, he underscored the same by saying, “A Constitution is only a means to an end, when by working together as a team, various parties realize that the ends are common, there will be little difficulty in agreeing upon the means.” Rau ultimately believed that the aims of addressing the socio-economic problems of the day would be common to both the Congress and the League. Hence, working together in the same government would be far more beneficial than separating.

After partition, Rau’s constitutional interventions demonstrated his marked interest in addressing the socio-economic problems of development. Interestingly, in Rau’s constitutional imagination, the Directive Principles assumed a much more prominent role than Fundamental Rights; the office of the President, he suggested, needed to be vested with additional discretionary powers to act in the event of a major breakdown of law and order in the country; and the basis of citizenship had to be as broad and inclusive as possible (as the scholar Ornit Shani has reminded us), to mention only a few.

Importantly, for Rau, while politics could fuel the process of representation in the Parliament, the actual task of running the government and the state machinery should not be unduly influenced by politics.

Rau’s work as the constitutional advisor proved to be enormously helpful to the Constituent Assembly. His expertise in not only British constitutionalism but also the working of constitutions from around the world greatly helped the members of the Constituent Assembly to find ready reference for various constitutional provisions. Indeed, a striking feature of the draft constitution that Rau produced for the members was the notations on the margins that indicated the origins of such provisions from other countries. This was one of the ways in which the framing of the Indian Constitution was not only a national enterprise but became fundamentally global in nature. Thus, Rau’s role was critical and vital in enabling India’s transition from a colony to an independent state through the Constitution.

Rau’s vision, however, was idealistic.

In the real world, as it were, politics played a defining role in both the making of the Indian Constitution and its working in independent India. But Rau’s interventions, evident in times of great political crises, especially ones motivated by intense partisanship (as in during the 1935 Act or at the time of independence and partition), suggest the remarkable palliative possibilities of constitutionalism. Today, the question for us is whether we will continue to privilege the politics of constitutionalism or will we allow the ideas of the founding document to constitute our politics. In Rau’s life and work, we find a clear answer.

Right to Free Speech

Article 19(1)a states: All citizens shall have the right to freedom of speech and expression;

Article 19(2) imposes reasonable restrictions on the exercise of right.. in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to offence

Whether you spend Saturday evenings at a stand-up comedy show where the performer roasts the PM or Opposition leaders, or stay at home to chuckle at your favourite political cartoon, it is Article 19 (1) that you have to thank

15 remarkable women who helped shape India’s future

Source: Hindustan Times dated 20.01.2020

-- Dhamini Ratnam and Dhrubo Jyoti

Eleven of 15 women members of Constituent Assembly. special arrangement/meera velayudhan

By 10.45 am on December 9, 1946, the Constitution Hall in New Delhi’s Rafi Marg was filled with towering political figures from across the country.

Wearing overcoats and shawls, they sat in neat rows and applauded when Sachchidananda Sinha — one of the oldest parliamentarians at the time — took the chair to inaugurate the first meeting of the Constituent Assembly. Thunderous applause followed after Sinha, quoting Urdu poet Iqbal, exhorted all to be guided by “wisdom, toleration, justice and fairness to all”. Then, all of them shuffled into lines to sign the register against their names: 192 men and 15 women.

The demand for a body to form the Constitution was an old one but the absence of universal adult suffrage meant that the representation of marginalised groups, especially women, was low.

Most of the 15 women who made it to the CA were upper caste, upper class and literate – only one was Muslim and another Dalit. The then United Provinces sent the highest number – four – followed by Madras state with three. Together, they contributed around 2% of the total volume of debate in the CA, according to an analysis by the PRS Legislative Research, with G Durgabai (Madras), Begum Aizaz Rasul (United Provinces) and Renuka Ray (West Bengal) speaking the most. “Their interventions were about varied freedoms, non- discrimination, equality, liberty, core principles underlying the Constitution and about citizenship in a new nation,” said Meera Velayudhan, president of the Indian Association for Women’s Studies and daughter of Dakshayani Velayudhan, the only Dalit woman member.

At 34, Dakshayani was one of the youngest and most remarkable members of the CA.

Hailing from the oppressed Pulaya caste in Kerala, Dakshayani was the first in her community to attend school and college – she was India’s first Dalit woman graduate -- and to wear an upper cloth.

A close associate of MK Gandhi, she married her husband Velayudhan – also a CA member -- in Wardha’s Sevagram Ashram. But her inspiration also lay in the writings of Bhimrao Ambedkar, and she edited an Ambedkarite publication in Madras.

Her most powerful intervention came on the abolition of untouchability in November 1948. “The working of the Constitution will depend upon how the people will conduct themselves in the future, not on the actual execution of the law. So, I hope that in course of time there will not be such a community known as Untouchables,” she said.

Another remarkable member was Rasul, born to a branch of the ruling family of Malerkotla who became one of the few women to win in the 1937 election. Rasul was key in pushing Muslim members to give up the demand for a separate electorate.

“If that principle that the majority should not discriminate against any minority is accepted, I can assure you that we (Muslims) will not ask for any reservation of seats,” she said in November 1948.

The debates provide a glimpse of the concerns of the time. Constitutional scholar Madhav Khosla points out that the issue of representation was one that the Assembly debated a great deal about. While reservation on the basis of religion was rejected, reservation on the basis of caste was adopted.

On the issue of reservation for women in elected bodies, the sentiment seemed to be unanimously opposed.

Hansa Mehta, a member from Bomabay, categorically rejected reserved seats, quotas or separate electorates. “We have never asked for privileges. What we have asked for is social justice, political justice and economic justice,” she said in December 1946.

Niraja Gopal Jayal, a professor at Jawaharlal Nehru University, pointed out that while the section on fundamental rights was meant to be gender neutral, matters pertaining to social rights of women were placed in the chapter of Directive Principles – which is not enforceable in courts.

Many of the women, including Ray, Mehta and Rajkumari AmritKaur (Central Provinces) were in favour of a Uniform Civil Code, which nevertheless did not get passed. The issue of a civil law that overrides personal laws in favour of a common set of rules remains a contentious one, even today.

Many of the women members went on to have illustrious political careers after Independence. Rasul became the social welfare minister in Uttar Pradesh and was also elected to the Rajya Sabha. Durgabai was elected to Parliament and later became a member of the Planning Commission. Ray served as a member of both the West Bengal assembly and the Lok Sabha.

Sucheta Kriplani went on to become the country’s first woman chief minister, when she succeeded Chandra Bhanu Gupta in the 1960s in Uttar Pradesh. Other well known members included Sarojini Naidu (the first woman to be appointed as the governor of a state), Kaur (who founded the All India Institute of Medical Sciences) and Vijaya Lakshmi Pandit, (who was elected as president of the United Nations General Assembly in 1953). Dakshayani concentrated on social work, organising a conference of Dalit women in 1977 and working among sweepers in Delhi.