Virag Gupta practices at the Supreme Court of India. He is a former IRS officer and has worked with Ernst & Young
ELECTIONS 2019 have focused around issues of core reform and for good governance in a ‘New India’. The incoming government will thus face gargantuan challenges to fulfil the ambitious promises made, which can only be done through long-haul reform in our legal framework. The Modi government had initiated this process by complying with the Orders of the Supreme Court. The Special Investigative Team on Black Money, the Special Committee on Interlinking of Rivers are decisions that the Government was forced to take.
The Government tried to control the hand which forced it to take these decisions but was checkmated with the National Judicial Appointments Commission being held unconstitutional. Resultantly, the Collegium system of appointment looks to have become a challenge that the Government is happy to shy away from. However, on the flip side, India’s ranking in the Ease of Doing Business saw a jump as the Parliament enacted the Insolvency and Bankruptcy Code, which has also been affirmed by the Apex Court. NDA enjoyed a brute majority in Lok Sabha but required the help of Opposition in Rajya Sabha. The composition of the Upper House is unlikely to change in a short time. It was interesting to see the Constitution Amendment Bill for reservation for economically weaker sections was passed within two days, but some other laws faced stiff opposition. To get the Upper House out of the picture, the Government labelled the Aadhaar Bill as a Money Bill. The Supreme Court too affirmed the aspect of Aadhaar being a Money Bill, albeit with dissent from Justice Chandrachud.
Good governance needs a solid foundation of the rule of law. Law is effective when it is easy to understand and easy to find. It takes tough decisions to do that. In the election season, Telugu Desam Party chief Chandrababu Naidu has called Election Commission morally bankrupt and ineffective. The election reforms must be the first on the agenda of a new government for which various recommendations are made by the Law Commission and Election Commission. Will the newly-recruited Joint Secretaries from the lateral entry make their mark, and deliver on the following challenges?
The term of the 21st Law Commission ended on 31st August 2018. For the last eight months, we do not have any body to examine the laws and suggest changes. The 21st Commission too took some unusual steps like issuing a questionnaire on personal laws but failed to take it forward. The new Law Commission will have to look into the fact that most of its recommendations – sedition, simultaneous elections to the Lok Sabha and to the state legislatures, personal law -- are yet to be accepted by the Government.
INTERNET, SOCIAL MEDIA & DATA PROTECTION
The Government released the Draft Intermediary Rules, 2018, which has been described by the social media platforms as an existential threat. The rules mandate big companies to set up companies in India and have a nodal officer for 24x7 support with the Government. They have been asked to have in place systems for removal of illegal content from their platforms. Reports also came that the Government is seeking traceability of a message in WhatsApp. Later revelations in the British newspaper, The Guardian, revealed that Facebook had lobbied with politicians across the world, including India, to delay countries from having a data protection law. In India, the Government had promised the Data Law by 2017, but two years later, comments are being sought on the Justice Srikrishna Committee Report. A comprehensive data protection law is a must in this age. Otherwise, what good is a fundamental right to privacy?
E-COMMERCE IN DIGITAL INDIA
E-Commerce is the highlight in Digital India, but India still relies on conventional systems for employment. The changes in the E-Commerce sector by the Government was a bold step. The Government mandated diversification in sales across platforms.
For instance, Cloudtail cannot sell only to Amazon. This step was a continuation from the earlier rule, which prohibited certain holding structures in subsidiary companies. The result has been an undying condemnation from the US companies as well as the Government. The business of Walmart and Amazon is huge, and this issue could well become a flashpoint in Indo-American trade relations.
CHALLENGE OF RESERVATION
The masterstroke of 10 per cent reservation on the basis of the economic quota has not found much space in the election campaign. The government has supported reservation in promotions for Scheduled Caste and Tribes, with Supreme Court clearing the decks for the same.
Similarly, demand for reservation in promotions for Other Backward Classes and Economic Weaker Sections is sure to crop up. The Lokpal Act of 2013 saw fruition in 2019 when Justice PC Ghose was appointed the Chairman of the Lokpal Committee. The Lokpal Committee in itself brought in a reservation of a different kind. Minimum 50 per cent of the members of the Lokpal Committee must be women, belonging to a minority, other backward classes or scheduled caste or tribe. As Lokpal is essentially a judicial authority, this unique reservation mechanism could gain traction in the mainstream higher judiciary as well.
Is a solution possible in the Court or outside it? The Supreme Court appointed Mediation Panel is working to find one and is regularly holding talks. BJP fuelled news of an imposed solution through an Ordinance, but all such talk fell flat. Nirmohi Akhara has claimed that Ram Janmbhoomi Nyas is based upon a fraudulent trust deed. An application seeking an enlargement of Mediation Panel and shift of venue to Delhi is also pending before the Apex Court. With a gag order in place, the news is not trickling by, but Ayodhya is surely ticking.
SPECIAL STATUS AND ART. 370
Is it time for Armed Forces Special Powers Act to be reviewed? What about Article 370 and 35A? The Government has desisted from stating anything in the Supreme Court. Assembly Elections in Jammu and Kashmir are likely to be held after the General Elections. Any elected State Government will be free to put its stand before the Apex Court. Or as the BJP has promised in its manifesto, will 35A and 370 be erased by a Connotational Amendment? It will be a long legal summer.
Goods and Services Tax has been criticised for having structural problems. Despite this, the Central Government has been able to smoothly run GST Council through coordination, the number of BJP Governments in the States, as well as the fact that there have been very few cases of penal action. However, with time, the belligerence may increase. Some states have seen a shortfall in revenue, while the feeling of contributing more than one’s share to another’s kitty may soon arise. The structural challenges in the GST will require amendments to the Constitution as well as the Act. Five years later, there will also be changes in revenue sharing mechanisms between Centre and State, which will require amendments in law.
RESERVE BANK CIRCULAR AND CRISIS OF NPA
The quashing of the RBI circular, directing mandatory insolvency proceedings by banks came as a shock to the Reserve Bank as well as the Government. Much of the non-recoverable loans of banks is in the infrastructure sector, which includes construction and power. The power companies had argued before the Court that Rs. 34,044 crores of their NPAs were due to non-payment of dues by DISCOMs, delayed response of the regulators, government policy changes and a failure to fulfil commitments by the government. With the circular now gone, the RBI is in the process of drafting another, albeit without the fundamental flaws the previous one had. Will this stand judicial scrutiny?
CINEMATOGRAPH ACT & CENSOR BOARD
PM Narendra Modi, the biopic, was slated to be released in the middle of the election. The last-minute clearance by the Censor Board, a hearing in the Supreme Court days before the release, and a stay on publication by the Election Commission added to the drama. But what would have been the result if the producer had released the film on YouTube? Has the biographical web-series, “Modi - The Journey of a Common Man” released on the OTT platform Eros Now faced even comparable regulatory challenges? This is illustrative of the dichotomy of content regulation online and offline created by the inadequacy of the Cinematograph Act in the internet age. The Cinematograph (Amendment) Bill, 2019 is pending with the Standing Committee of the Rajya Sabha. In the present age, there is a larger debate on censorship as well as the need of censor board.
FEDERALISM IN INVESTIGATION
The parent law, i.e. the Telegraph Act and the Information Technology Act give powers to both Centre and States. Can the States no longer intercept communications? Or can they intercept only telephone communications? In the smartphone age, this would render interceptions meaningless. A tussle between Centre and States has started. The Ministry of Home Affairs brought out a notification under the Information Technology Act, mentioning the agencies that have been authorized for interception of messages over computer networks. The challenge to this snooping order is pending before the Supreme Court, and the Government has stated that only these agencies are now authorised to make interceptions.
SUPREME COURT A CONSTITUTIONAL COURT?
The Supreme Court is the highest Court of the land and hears thousands of matters each year. The Supreme Court of the United States hears less than one hundred matters in a year. Our Supreme Court has Division Benches, causing a difference of opinion on a point in the same Court, the US Supreme Court sit en-banc. Congress in its manifesto has talked about restricting the Supreme Court to deciding questions of constitutional importance. It has promised to establish a new Court of Appeal, which will hear matters coming from the High Courts. Interestingly, the present Attorney General, who has been appointed by the NDA Government had earlier suggested the Court of Appeal. If the Congress comes to power, will it do so? Will the BJP take its Attorney General’s advice and do what the Congress has promised? Unlikely.
VACANCIES IN COMMISSIONS AND TRIBUNALS
The Cyber Appellate Tribunal has remained headless since its inception. The National Human Rights Commission barely has any members left. The appointments in the Central Information Commission were forced through by the Apex Court. Chief Justice of India Ranjan Gogoi has stated that there is no dispute that most of the Tribunals are not functioning. Himachal Pradesh BJP Government has questioned the need of an Administrative Tribunal in the State, and wants the cases to be heard directly in High Court. A number of Tribunals have been merged, but justice delivery has remained abysmally slow. The incoming Government must pay serious heed to tribunalisation and realize that justice delivery is at the core of faith in government, which is rather at a discount these days.
POLICE REFORMS- LAW AND ORDER
POLICE REFORMS- LAW AND ORDER The Supreme Court in Prakash Singh case has time and again directed the government to implement police reforms. The government in its laxity, and perhaps compulsions, have not been able to achieve much on this front. Expenditure on policing is just 0.7% of India’s GDP. The law and order situation in India is rather abysmal and brings disrepute to the country. The Global Peace Index Report of 2018 estimated that in 2017 crime and violence cost India 9 per cent of its GDP ($806 billion), directly (in terms of expenditure) and indirectly (in terms of loss of productivity). For the country to improve, policing will require a major overhaul and immediate consideration of the incoming government.
India was 142 in the Ease of Doing Business Rankings in 2014. In 2018, India was ranked 77. This performance was achievable due to a number of factors such as the methodology of rankings, laws in place, the performance of legal systems, and enforcement of laws. Prime Minister Modi has spoken about doing away with 1500 obsolete laws.
If India improves upon mechanisms to register property, pay taxes, enforce contracts, and resolve insolvency, it will spearhead its rise in the rankings. What if the results throw up a fractured mandate? Legislating will surely become a tough affair.