Union Of India Research Articles

Right to Privacy and Rule of Law in India

The term “Privacy” is used frequently in ordinary language as well as in philosophical, political and legal discussions, yet there is no single definition or analysis or meaning of the term that is comprehensive to give the full idea of privacy. The concept of privacy has broad historical roots in sociological and anthropological discussions about how extensively it is valued and preserved in various cultures. One of the most cherished human rights is right to privacy. It is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. In general parlance privacy is the ability of an individual or group to seclude them or information about themselves and thereby reveal them selectively. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. It is right to be let alone. It’s a negative right imposing negative duty on the rest of the world. In the context of India the position of law on right to privacy was clarified by Supreme Court in Justice K Puttaswamy v. Union of India, here court held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of the Constitution. However, this is not an absolute right but interference must meet the three fold requirement of (i) Legality; (ii) the need for a legitimate aim and (iii) proportionality. Mean to say that right to privacy shall be asserted and enjoyed in accordance with rule of law. We can define the society of law, or the rule of law, as an arrangement in which the individual is able to plan his own life by adhering to rules by which he will avoid all penalties enforced by law. Such a definition entails several assumptions. It assumes generality that rules lay down general standards of conduct for all citizens equally. It assumes that the rules will be stated with sufficient clarity, that there is little or no question what forms of behavior are permitted or prohibited by the rule. It assumes that the rules are coherent, that is, that there is an established hierarchy to determine which rules govern in cases of conflict and that there are not conflicts in the rules governing the same situations. It assumes that the rules are backed by authoritative enforcement, that there is governmental structure responsible for determining cases of conflict under the rules. In the present paper the author intends to explain the relation between Right to Privacy and Rule of Law. Further effort is made to explain how realization of right to privacy in India is difficult in the absence of certain basic aspects of rule of law in relation to right to privacy. Also it is emphsised that absence of certain aspects of rule of law vis-à-vis right to privacy strikes at constitutionalism.

APPLICATION OF EXCLUSIONARY RULE AND INTERPRETATION OF RIGHT TO PRIVACY BY INDIAN JUDICIARY

This research is conducted analysing the judgment of the nine-bench Supreme Court decision in Justice K.S. Puttaswamy (Retd) V. Union of India with specific reference to the Doctrine of Fruit of Poisonous rule (Exclusionary rule). This rule has been held to be an intrinsic part of the Right to privacy by the various court all across the globe in many jurisdictions. The conflict in front of the court, the way courts have dealt with such conflict and the need to address such conflict. This paper talks about the historical perspective of this doctrine, views taken by the Indian courts prior to the judgment rendered in K.S. Puttaswamy, the views taken post-K.S. Puttaswamy, the departure from the consequentialist approach and the positive and negative implication of this doctrine. A specific reference has been made to the 94th Law Commission Report, which gave the recommendation to insert a new provision in the Indian Evidence act.

Union Carbide Corporation vs Union of India

The Union Carbide Corporation applied to the Supreme Court concerning S. 155 of the CPC, in a claim for damages made by the Union of India against the order of the Bhopal District Court, on behalf of all the claimants under the Bhopal Gas Leak Disaster Act, 1985. The Union Carbide Corporation, and the Union of India, both filed discrete appeals in the Supreme Court against the judgment of the Madhya Pradesh High Court, both of which were heard simultaneously. Damages were sought on behalf of sufferers of the Bhopal gas leak disaster. The Court examined the prima facie material to quantify the damages, and also the question of domestication of the decree in the United States for execution. It scrutinized the question regarding the number of damages that would be “just, equitable and reasonable” for an over-all settlement. The Court referred to the M.C. Mehta v Union of India[1] case, in which it was held that the measure of damages payable had to be correlated to the magnitude and the capacity of the enterprises because such reimbursement had to have a damper effect.

The state and the patriarch: rewriting Charan Lal Sahu, Rakesh Shrouti, Rajkumar Keswani, Nasrin Bi and others v. Union of India (1990) 1 SCC 613

ABSTRACT In this contribution, as part of the Indian Feminist Judgement Project, we reconsider the decision of the Supreme Court of India in the Charan Lal Sahu case that followed the Bhopal gas leak tragedy. We present a dissenting opinion on the case, finding that the law empowering the State to supplant the victim-survivors as plaintiffs was unconstitutional. Alongside, we offer a brief commentary on why this finding comports with what a feminist judge on the bench might have decided. We consider a variety of ways in which feminist criticism of the majority decision might proceed, and how this criticism informs our rewriting. We also consider a set of persistent questions about feminist judging, and ways in which our rewriting, in turn, might be subject to further feminist objections.

In The Wake Of Equality – The Realization of The Rights of Transgender Persons in India

The right to recognition as a person before the law is guaranteed in numerous international human rights conventions, and is a fundamental aspect of affirming the dignity and worth of each person. Legal gender recognition is also an essential element of other fundamental rights including to privacy, to freedom of expression, to be free from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely. The transgender community in India were an ignored segment of the society and faced deep and pervasive discrimination, despite protection under various provisions of the Constitution. In April, 2014, Supreme Court in its landmark judgment of NALSA v. Union of India (hereinafter the NALSA judgment) ushered in the recognition of various civil and political rights of the transgender community. The genesis of this recognition lies in the acknowledgment of equal worth of every person and the right of choice given to an individual which is the inseparable part of human rights. This article understands the terminology ‘transgender’ in Indian context by assessing the interpretation of the hon’ble Supreme Court of India in various judgments. Further, it studies the process of recognition of the rights of the transgenders in India inclusive of a timeline from past to present. Thereafter, this article elaborates the gains of the transgenders in India from the beneficial legislations enacted for their upliftment and emphasizes on the Transgender Persons (Protection of Rights) Act, 2019.

CHANDRACHUD V. CHANDRACHUD: UNDERSTANDING THE SCOPE OF INTERPRETATION OF STATUTES THROUGH THE FATHER

In the broader picture, Interpretation of Statutes donnes a rather infinitesimal scope to its applications in the practical judicial setup of the nation. Be it the Constitution or the plethora of laws that are passed by the parliament to run the nation and govern its various stratum, interpretation plays a dominant role in getting the same to percolate down to the grass-root level. Benjamin N Cardozo has very famously theorized a lot of what the scope of interpretation of statutes entails and has even streamlined major theories to deduce the process of derivation used by judges to draw out conclusions in various cases. These postulations, although not expressly, find themselves being effectuated via various judges and the same can be deduced upon closer inspection of the wordings of the judgment a judge chooses to articulate while delivering the same. These processes of reasoning by judges vary in their applications and lead to consequences that have been intended by the legislature or rather furthered by the principles of justice, equity and good conscience, the three pillars of a just society. Through the course of this paper, we analyse two major judgments, Sowmithri Vishnu v. Union of India and Joseph Shine v Union of India. Both cases were instituted challenging the constitutionality of section 497 of the Indian Penal Code, that criminalise the act of adultery. The former case, adjudged by Justice YV Chandrachud upheld its constitutional validity whereas the later one adjudged by Justice DY Chandrachud decriminalised the section. Adjudging the interpretative paths taken by the two judges in light of Cardozo’s understanding of Interpretation provides unique insight into the workings of the judicial minds and how time influence the scope of the same. The variance in judgments delivered by father and son presents as an important ground to understand the role of interpretation of statutes and its applications in the world while also helps map out a certain evolutionary process that may be attributed to the scope of interpretation in light of various societal factors that also affect it.

REFOULING ROHINGYAS: THE SUPREME COURT OF INDIA'S UNEASY ENGAGEMENT WITH INTERNATIONAL LAW

The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.

Double Jeopardy for Guarantors: An Analysis of Lalit Kumar Jain v. Union of India

Double Jeopardy for Guarantors: An Analysis of Lalit Kumar Jain v. Union of India

Digital Data Protection & The Right to Privacy

There have been various technological innovations and updates that have highlighted the ambiguities in the law. While data privacy is not mentioned explicitly in any legislation, the Supreme Court of India in Justice Puttaswamy v. Union of India have interpreted privacy with the Right to Life and Personal Liberty under Article 21. The paper will discuss the controversy of data protection and privacy by using WhatsApp's 2021 Privacy Policy which accesses the user's metadata from business accounts for commercial purposes. The paper will also discuss the role of a state actor in data protection whilst discussing the Aarogya Protocol for the Aarogya Setu App. The Aarogya Setu App is essentially collecting sensitive information without the informed consent of the user. The paper will highlight the shortcomings of the Information Technology Act, 2000, along with the 2011 and 2021 IT Rules. The paper makes a comparative analysis with the General Data Protection Rules in the EU. The GDPR has imposed hefty fines on multinational companies that were in breach of the privacy laws. Thus, the GDPR is a deterrent in preventing the misuse of sensitive personal information within and outside their territory. Similar legislation to the GDPR in India is the Personal Data Protection Bill 2019, which is still pending before the Joint Parliamentary Committee. Thus, the paper will analyze the violation of the Right to Privacy under Article 21 and the need to strengthen the data protection regime.

Demarginalizing the intersection of caste, class, and sex

This article examines two decisions of the Supreme Court of India: Vishaka v. State of Rajasthan, which formulated a set of directives for the prevention of sexual harassment of women at workplaces; and the National Legal Services Authority v. Union of India, which recognized “third gender” persons and directed the state to provide them with affirmative action. Within a wider application of human rights and fundamental rights that are guaranteed in the Constitution of India, both these court decisions relied on a nondiscrimination category of sex. This article recovers the underpinnings of caste and class that are latent, obscure, and omitted in these decisions. The conceptual framework of “intersectionality” is useful in making this recovery, and for showing the application of intersectional approaches toward more transformative formulations of law reform and judicial outcomes.

ADM Jabalpur v Shivkant Shukla: Critical analysis

Habeas Corpus is amongst from one of the most important cases which was well recognized by the name of ADM JABALPUR Case and is often termed as a black spot on the Indian Judiciary. This particular judgment marked serious doubts on the Supreme court as guardian and protector of the constitutional rights of the citizens of this country. Later, the judiciary has realized its fault in this judgment and made a vast change in the direction to encourage the protection of the fundamental rights of the individuals especially Art.21 of the Constitution of India and upholding the rights regime by introducing Maneka Gandhi v Union of India. Moreover, whatever ruling stated in Maneka Gandhi case by Justice P. N. Bhagwati is not the new law, in fact, it was already stated by J. Khanna, who has sacrificed his golden career for the fraternity of the institution and of course, for the nation. He maintained the dignity of judicial conduct and maintains a robust and independent judiciary and upholds the rule of law. Besides, over 40 years after the SC darkest hour, a nine-judge Bench in K. S. Puttaswamy v UOI (AIR 2017 SC 4161) condemned the decision in the infamous Habeas Corpus case. Justice Chandrachud, who, incidentally, is the descendant of Justice Y. V. Chandrachud expressly, overruled the ADM Jabalpur case. Finally, the judiciary has attempted to bury the darkest chapter of its own history.

Criminalisation of Triple Talaq: Dissecting the Constitutional and Socio-Legal Aspects

Talaq-e-biddat has been a source of severe oppression and injustice for Muslim women. The practice results in the unilateral breakdown of a marriage at the whim of the husband. The judicial trend has evolved against the practice since the courts have, at several occasions, declared the practice to be unacceptable with certain qualifications. In Shayara Bano v. Union of India, the Supreme Court conclusively struck down this practice. Subsequently, the Parliament came up with the Muslim Women (Protection of Rights on Marriage) Bill, 2017 which declared the practice as void and illegal. The Bill also makes the practice a non-bailable and cognizable offence and provides imprisonment of three years for the same. The authors critically examine the bill and conclude that criminalising an act of private nature would have adverse repercussions on the institution of marriage. Although the Bill might prohibit triple talaq, it seems highly improbable that it would effectively achieve its objective of protecting the rights of married Muslim women at the same time. The authors suggest an alternative scheme which would achieve the objective of the Bill while overcoming its limitations.

An Understanding of Surrogacy: A Legal Analysis in Indian Context

Surrogacy is a term used for the cases where couples who are unable to have a child rely on another woman who acts as a surrogate mother to carry their baby. Surrogacy was first introduced in the year 1980. And was legalized in India in the year 2002. But as the year progressed the GOI noticed some flaws and misuse of Commercial surgery. Observing this ICMR introduced some regulations to prevent the exploitation of surrogacy. As the years progressed several amendments were made to the bill. In the year 2015, the Government of India banned the practice of commercial surgery and also barred the foreign nationals, NRI’s from participating. According to a survey from the UN in the year, 2012 India was declared as the “World Capital of Surrogacy” and was known as the Cradle of the World. The iconic case of “Baby Manjhi Yamda vs. Union of India” where travel documents for a baby of Japanese parents who was conceived and born by an Indian surrogate mother revealed several flaws in the surrogate bill which further led in the several regulations of the act. In the latest Surrogacy Regulation Bill the key points focused were on facts such as the term defining infertility was revised and the process of commercial surrogacy was banned only a close relative of the couple would be eligible to become a surrogate mother and also post-delivery 36 months was defined where the couple needed to care of any medical complications that arose from the pregnancy of the surrogate mother. Even after all the amendments in the bill, India has still a long way to go to curb the presence of malpractices and misuse of surrogacy.

Doctrine of Basic Structure: A Critique

It is generally claimed that the doctrine of basic structure (hereinafter, doctrine) was ‘invented’ by the Supreme Court of India in Keshavananda Bharati Sripadagalvaru Case on April 24, 1973. The Paper argues that this claim is unfounded as worst and misinformed at best. Genesis of this doctrine is traceable to the US Supreme Court in Mitchell v. Palmer (1919) and the lecture of a German Professor, Dietrich Conrad at Faculty of Law, Banaras Hindu University, Varanasi in February 1965. Pakistan Supreme Court in Fazlul Quader Chowdhry v. Mohd. Abdul Haque (1963) has also talked about this doctrine. This paper seeks to trace the historical development of the doctrine of basic structure through academic writings and case law. Further, an attempt will be made to answer three questions. First, whether the amending power of Parliament is absolute. Second, whether there is a clarity as to the basic constituents of the basic structure of the Constitution. Third, whether the basic constituents are static or dynamic. For the sake of convenience, this paper has been divided into IV Parts. Part I gives an outline of the paper. Part II makes an attempt to trace the development of doctrine by discussing Shankari Prasad v. Union of India (1951); Sajjan Singh v. State of Rajasthan (1964), I. C. Golakhnath v. State of Punjab (1967), and Keshavananda Bharati (1973). Part III discusses the aftermath of Keshavananda Bharati by covering I. R. Coelho v. State of Tamil Nadu (2007), Pramati Educational and Cultural Trust v. Union of India (2014) and Supreme Court Advocates-on-Record Association v. Union of India [NJAC judgment] (2015); and ends with the answer of the above questions and conclusion in Part IV.

The politics of saving Muslim women in India: Gendered geolegality, security, and territorialization

In this paper, we critically approach the idea of “saving Muslim women” by examining two prominent judgments by the Supreme Court of India and their attendant debates: Mohammad Ahmed Khan vs. Shah Bano Begum and Others 1985 AIR 945, popularly known as the Shah Bano judgment and Shayara Bano vs. Union of India And Others WP(C) No.118 of 2016, popularly known as the Triple Talaq (divorce) judgment. Using the frameworks of feminist geopolitics, femonationalism, and feminist geolegality, we analyze the debates around the Shah Bano and Triple Talaq judgments, looking at how the state employs and often usurps the narrative of gender equality and women's rights for its own purposes. We highlight how laws ostensibly for the protection of Muslim women (and the discourses that surround them) have the effect of strengthening the Hindu nationalist state, and furthering masculinist state building and territory making. By focusing debates on the categories of Muslim men and women, the law becomes a means to resolve the “problem” of Muslims in India.

‘Social Distancing’ before COVID-19: Interrogating the Universalisation of Caste-Based Discrimination and Its Horizontality in Race

Caste has always infiltrated the public life and has been a constant social identifier. Caste has moved beyond occupation to social function. Two hundred million of India's lowest castes have been subjugated to consistent discrimination. In this context, lakhs of Dalits have been forced to do manual scavenging, which is an egregious form of caste-based discrimination in labour. It is discrimination based on descent and is symptomatic of institutionalised social, legal, political and structural barriers. The contours of caste cross national borders as diasporic communities in the United Kingdom (UK) and United States (US) have shown direct signs of caste prejudices, thereby making it a global concern. There have been debates in the past whether caste can be correlated with other forms of discriminations, such as those based on race in countries like the UK and US. However, the result has been a long list of contested literature. In this paper, I argue that redressal of caste-based discrimination requires concerted international efforts by different countries, and a dialogue with the jurisprudential aspect of anti-racism agenda may add as a strong imperative against caste-based discrimination. Using the case studies of Safai Karamchari Andolan v Union of India (2014), Tirkey v Chandhok (2015) in the UK and ongoing Cisco case in the US (2020), the universalism of caste is emphasised upon and how it poses novel challenges for the equality regime. Recognition of caste as an aspect of the race on analogous ground of inherited unequal status would be a step forward towards the realisation of substantive equality. The experience of caste in India and the United Kingdom would be useful to understand caste in international law normatively and descriptively. I argue that while caste and race are conceptually different, they are axiomatic manifestations of an analogous system of inherited status. I propose that the interpretation of race as an entity subsuming discrimination arising out of caste will help nudge the governments to address it systematically and with full force beyond semantic sophistry in both India as well as United Kingdom.

Impact of COVID-19 on the Stressed MSMEs Sector in Goa.

Like a lightning bolt, COVID-19 stuck humanity and caught every one in disbelief. Unprepared to face such an unprecedented and deadly virus, nations are grappling to find a solution and assure the masses, who are gripped in fear and uncertainty. The MSMEs known as the backbone of Indian economy. MSME sector employing total 40% of the country’s workforce with almost 50% of exports and contributing close to 30% of India’s GDP is struggling to survive. This sector had suffered three blows earlier with the demonetisation, the GST, the burden of the economic slowdown and feels entirely derailed in the post lockdown scene. The shares of MSMEs related to export from during 2018-19 was 48.10 percent. Goa the younger State of the Union of India was liberated from the Portuguese in December 1961. After Goa attained its statehood in May 1987, the economic growth increased further and in particular, good progress was made in the manufacturing sector. MSME sector is very much important for moving towards a faster and inclusive growth of the State. Covid-19 has brought the whole MSMEs Sector to its knees as it can not be business as usual for sure. COVID-19 pandemic has taken a severe toll on the goan economy and has already affected the livelihood of the goan enterpreneurs. This research paper gives insights and implications of COVID-19 on the MSMEs Sector in Goa suggesting suitable remedial measures to grant sustenance and support to the goan enterprises.

Court on Kashmir Issue

The Supreme Court of India, in Anuradha Bhasin v Union of India (2020 Indlaw SC 21), the Court opens the Pandora’s box to the apparent challenges against any arbitrary decision of the government by ignoring the key principles laid down in it.

Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian State of Assam

The State of Assam in the Union of India has a peculiar history of the movement of people from across India’s international borders into Assam. There is no credible way to arrive at specific numbers. Arrival of people in Assam has become a point that has been abused by those in power to utilise local sentiments regarding the dilution of ‘Assamese culture’. This article briefly discusses the timelines leading up to the preparation of the Assam’s National Register of Citizens that presently excludes approximately 1.9 million residents. The citizenship status of those excluded is to be determined by Foreigners Tribunals (‘FT’) functioning under the Foreigners Act, 1946 — a post-Second World War and pre-Constitution legislation whose validity is also in doubt. This article examines the Foreigners Act, 1946, as well as the constitution and performance of the FTs with reference to the yardsticks of the rule of law and constitutional values. Towards this end, the article analyses the law discernible from the judgments of the Indian Courts as well as some judgments of the Assam High Court and the FTs. It concludes by stating that the framework of adjudication by FTs is not able to keep up with the promise of effective adjudication under the Constitution of India. It calls for an urgent need for academic scrutiny of all aspects of the citizenship verification process in India.

Indira Sawhney v. Union of India

Indira Sawhney v. Union of India