Gist of EPW September Week 3, 2018 – Part 2

The Economic and Political Weekly (EPW) is an important source of study material for IAS, especially for the current affairs segment. In this section, we give you the gist of the EPW magazine every week. The important topics covered in the weekly are analysed and explained in a simple language, all from a UPSC perspective. 

Topics covered in this article:

  1. When Supreme Court Judgments Are ‘Set Aside’

  2. The Emergence of the Personal Data Protection Bill, 2018

 

When Supreme Court Judgments Are ‘Set Aside’

Context

  • In the last five weeks, three controversial judgments of the Supreme Court have been “set aside” by a combination of legislative action and subsequent judgments.
  • In August, the judgment in Subhash Kashinath Mahajan v State of Maharashtra (2018), which had issued certain problematic directions in the context of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) was overturned by Parliament amending the legislation to explicitly state that the directions in the judgment will have no effect.
  • Earlier this month, the constitution bench of the Supreme Court in Navtej Singh Johar v Union of India (2018) read down Section 377 of the Indian Penal Code (IPC), 1860 to decriminalise consensual homosexual acts between adults, holding Suresh Kumar Koushal v Naz Foundation (2014), which had “re-criminalised” homosexuality, to have been decided wrongly.
  • After that, the Supreme Court in Social Action Forum for Manav Adhikar v Union of India (2018) modified the directions issued in Rajesh Sharma v State of Uttar Pradesh (2017) concerning the investigation of offences under Section 498-A, effectively cancelling the most wide-ranging ones.

What is Section 498A of IPC?

  • It is related to dowry related cases. It says – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.
  • Cruelty by husband or his relatives, covered under Section 498A of Indian Penal Code (IPC), makes up the largest chunk of all crimes against women
  • The charge, often leveled by a wife against her in-laws in cases of dowry harassment, accounts for over 30 per cent of all crimes against women.
  • Cases under Section 498A was found to have the lowest conviction rate — merely 12.1 per cent — among all cases of crimes against women

 What is the issue around 498A?

  • The Supreme Court said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.
  • Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code”.

 How Judgments Were ‘Set Aside’

  • To be fair, there is nothing unusual about Supreme Court judgments being rendered null and void by subsequent actions. It is well-recognised, legally, that Parliament always has the power to change the law or remedy a legal defect that was the basis for a Supreme Court judgment.
  • Likewise, the Supreme Court has, on many occasions, held prior judgments to have been incorrectly decided on the law.
  • Of the three, the first to go was the judgment in the Mahajan case. Protests had broken out across the country, spearheaded by Dalit communities which saw this judgment as a direct assault on the struggles of Dalits to lead lives of dignity. The PoA Amendment Bill, 2018 nullifies the directions in the judgment, which mandated a preliminary enquiry by the police before registering a first information report under the PoA Act and the seeking of higher authorities’ approval before any arrests were made under the act. The amendment also removes the possibility of anticipatory bail for offences under the act.
  • In the Johar case, a five-judge constitution bench confirmed what had been stated earlier in the Puttaswamy case, that the judgment in the Koushal case was completely wrong in its understanding of the law and the Constitution insofar as it re-criminalised homosexuality under Section 377 of the IPC. Curiously, the Supreme Court did not list the pending curative petitions that had questioned the correctness of the conclusions in the judgment in the Koushal case after the review petition had been dismissed.
  • Lastly, in the SAFMA case, in a petition seeking to modify some of the directions in the judgment in the Sharma case, the Supreme Court went ahead and recalled one direction entirely (relating to the creation of committees) and diluted the others. The Court noted that while some of the directions really flow from previous judgments and parts of the Code of Criminal Procedure, 1973 itself, the direction to set up committees that will decide whether the police must investigate a case relating to Section 498-A are held to be beyond the Court’s powers.

Wrongness of Three Judgments

  • More than just being wrong in law, what stands out in the Koushal, Sharma, and Mahajan cases is the institutional failures that they represent.
  • On one level, how they did what they did was problematic. In the Koushal case, a two-judge bench of the Supreme Court ended up deciding some of the most important questions of interpretation of the Constitution without reference to a five-judge constitution bench, as mandated under Article 145(3) of the Constitution itself.
  • The judgments in question repeatedly use the language of human rights and fair trials to justify their directions and orders.
  • There is nothing on record to show that somehow just Section 498-A IPC or the PoA Act are uniquely misused laws.
  • Yet, that does not stop the Court from extending its sympathies only to those who fall within the ambit of these two laws.
  • While research over the years has shown that Dalits, Adivasis, Muslims, and those belonging to economically and socially weaker groups form the bulk of the victims of the worst excesses of the criminal justice system, the bench of Justices never felt the need to protect them in any of the criminal cases they heard.

Institutional Implications

  • What the Koushal, Mahajan, and Sharma cases represent is not just the specific wrongs of the benches that heard them, but the institutional failings of the Supreme Court: That it is no longer a court which functions as a constitutional court, but just another court of appeals which hears a few constitutional matters once in a while.
  • This has implications not just in the kinds of cases it takes up, but how it hears and disposes of them. That the Supreme Court prioritises its appellate function over its constitutional functions means that a vast majority of cases are heard and decided by a two-judge bench.
  • This means that there is little debate or discussion in deciding such cases, giving the impression that the Supreme Court is not really an institution, but a collection of judges who decide cases with little reference to other judges or established precedent.

Conclusions

  • While the Supreme Court deserves kudos for the correctness of its judgment in the Johar case and for limiting the damage that the directions in the Sharma case might have caused, the deeper institutional concerns remain.
  • As the “weakest branch” of government, the judiciary’s credibility rests on its ability to follow procedure and decide on cases in accordance with the law and constitution.
  • A court with broken processes and the tendency to be selective about the finality of its judgments is unlikely to enjoy much credibility.

 

The Emergence of the Personal Data Protection Bill, 2018

What is it?

  • Up until now, privacy laws in India offer little protection against misuse of your personal information. The transfer of personal data is currently governed by the SPD Rules (Sensitive Personal Data and information, 2011), which has increasingly proved to be inadequate.
  • The proposed Data Protection Bill 2018 essentially makes individual consent central to data sharing. The report notes that the right to privacy is a fundamental right. Unless you have given your explicit consent, your personal data cannot be shared or processed. Of course, this also means that the onus lies on you to make an informed choice.
  • Next, the draft bill also states that any person processing your personal data is obligated to do so in a fair and reasonable manner. In other words, your data should be processed only for the purposes it was intended for in the first place.
  • Failing to meet these provisions can cost companies dear, with the bill laying down penalties that can go up to ₹15 crore or 4 per cent of a company’s total worldwide turnover.

Existing Approaches to Data Protection

  • BN Srikrishna committee talk about broadly three approaches to data protection that exists
  • US – US follows a laissez-faire approach and does not have an overarching data protection framework. In the US, there is no single, comprehensive federal (national) law regulating the collection and use of personal data. It has system of federal and state laws and regulations which at times overlap
  • EU – EU has recently enacted the EU GDPR, which has come into force on 25 May 2018. This replaces the Data Protection Directive of1995. It is a comprehensive legal framework that deals with all kinds of processing ofpersonal data while delineating rights and obligations of parties in detail.
  • China – China has approached the issue of data protection primarily from the perspective of averting national security risks. Its cyber security law, which came into effect in 2017, contains top-level principles for handling personal data.

Issues/challenges

  • Amendment in existing 50 laws/ regulation would be a tough task for Government
  • Amendment in RTI and Aadhar act may dilute the existing laws
  • Critics says inclusion of provision of bill treating violations as criminal offences along with fine and compensation is excessive and would impact the enforcement mechanism greatly.
  • The storage of one copy of personal data in India will impose additional cost to companies
  • Under the bill all financial data has been classified as sensitive personal data which may be detrimental to Financial institutions
  • Restriction on cross border flow of data may prove detrimental in era of digital global economy

Conclusions

  • The Personal Data Protection Bill, 2018, is a landmark document in many ways. It represents significant progress towards a comprehensive data privacy regime, one that is lacking and increasingly urgent in India.
  • It is important to strike a right balance between digital economy and privacy protection
  • Government must incorporate suggestions from various stake holder over the draft bill before finalizing the bill
  • Privacy should not be used to undermine government transparency. Data protection law should be framed such that it does not make government opaque and unaccountable
  • Despite some deficiencies, it introduces a series of obligations that go a long way in holding corporate and state power accountable for their use of personal data.
  • Finally, at a moment where personal data is increasingly the lifeblood for both modern economy and politics, the bill’s provisions mandating national storage of data reflect the ambition of both Indian business and government to stake their claim.

For more EPW articles, read “Gist of EPW”.