Category: Publications

The COVID-19 pandemic has had significant impact in the way we all live and conduct our private and professional lives including among the legal fraternity of India. Following the imposition of the 21-day lockdown, starting with the Supreme Court, many High Courts and subordinate courts have suspended work for the next three weeks or have notified minimal sitting. Therefore, under the prevailing circumstances of social-distancing and minimising physical contact, the key consideration is how can the judicial system still operate effectively and ensure timely delivery of justice?

It is universally accepted that an independent, timely and fair delivery of justice in a society is vital to the functioning of democracy as it provides critical check-and-balance against the function of the executive and the legislatures.   On the 19^th March 2020, the importance of the court systems as an important part of the public service was articulated by the Chief Justice of England and Wales when he stated as follows: 

“We have an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing…..”

The Supreme Court of India has endeavoured to continue hearing cases with limited sittings during the week. Similarly, other High Courts such as Madras, Kerala, Chandigarh and Calcutta have notified special sittings in a limited capacity to attend to urgent matters. 

Virtual Courts in India

Interestingly, in a deviation from regular practice, the High Courts of Bombay and Karnataka issued notifications adopting virtual courts using video conferencing facilities on 17 March 2020 and 21 March 2020. These are timely developments, despite having been driven by COVID-19 situation, to utilise the advances in the information and communications technology to deliver justice at a crucial time and under unprecedented circumstances.  The Supreme Court, through its Secretary General Sanjeev Kalgaonkar, on 23 March 2020, also notified the use of “Vidyo” app for facilitating hearings via video-conferencing of urgent matters from the designated Court premises and even held trial runs for the same. It is believed that upon request by Senior Advocate Dr Abhishek Manu Singhvi, the Court was willing to extend the video-conferencing facilities even to the offices of counsels. 

Virtual Courts in U.K

Many other countries have been using video and audio enabled hearings, in which one party is connected remotely to a conventional court hearing and facility to conduct many routine administrative hearings in criminal, family and civil matters for the past 15 to 20 years.  In England and Wales, pursuant to The Access to Justice Act 1999 the range of hearings include criminal remand, bail and sentence hearings, family and civil court interim hearings.   In addition, more recently, pursuant to section 28 of the Criminal Evidence Act 1999 of England and Wales, provides for pre-recorded cross-examination to be shown as evidence in trial in cases involving vulnerable or intimidated witnesses. These are part of what is known as “special measures” to enable a victim to give evidence in criminal trials and was subject of detailed guidance by the Court of Appeal in the case of R v PMH [2018] EWCA Crim 2452.  

Pros and Cons

Clearly, having video and audio enabled hearings are beneficial as it saves significant court costs in terms of building, staff, infrastructure, security, transportation costs for all parties to the court proceedings especially transfer of prisoners from jails.   The use of video and audio enabled hearings have also faced significant legal and practical problems including admissibility and authenticity of the evidence received through the video and/or audio transmissions, the identity of the witness and/or individuals subject of the hearings, the confidentiality of the hearings.   The practical issues have been wide ranging and different including poor quality of internet connection, poor and outdated the audio and video equipment, power cuts, inability to establish connection at the agreed time, inability for multi-party to partake especially involving interpreters and vulnerable witnesses.   So, it is crucial to have good infrastructure for audio-video enabled hearings to be effective and successful, which often involves significant investment in Court and IT infrastructure.  

It is important to note that the use of Virtual Courts is completely distinct and different from video and audio enabled hearings for specified matters. Critics of Virtual Courts in the United Kingdom have argued that it is contrary to the fundamental tenets and principles of open justice which is part of the common law as well being enshrined under Article 6 of the European Convention on Human Rights, as it may not be possible for the public to participate in the proceedings.  

COVID-19 and Beyond

Across the world, we are witnessing lockdown of public and private services in an attempt to deal with the COVID-19 pandemic. However, in such extraordinary circumstances, the role of the judiciary is even more vital to the survival of democracy. In a letter to his colleagues on 24 March 2020, the Chief Justice of the Republic of South Africa, Mogoeng Mogoeng, has emphasized that the courts “have to stay open in case members of the public want to bring one challenge or another in relation to the constitutionality or validity of the measures being implemented”. The United Kingdom is bringing in emergency legislation, The Coronavirus Bill (2020), to expand the use of the video and audio link to variety of different proceedings including allowing the public to participate in court and tribunal proceedings through audio and video, so to alleviate any concerns as to the issues of open and fair justice. 

In this context, the notifications issued by the High Court of Karnataka and Supreme Court are welcome and extremely important steps in these unprecedented times. During the lockdown period, it is crucial for the constitutional courts to be open and accessible, using IT-enabled virtual courts, in order to nurture confidence among the litigant public. Going forward, it needs to be considered carefully by the Supreme Court of India and Law Commission of India, whether relevant rules and code of procedure in the High Courts as well as in the lower courts can be amended so that video and audio enabled hearings can be take place for the benefit of the public even beyond the COVID-19 lockdown period.   

Manuraj Shunmugasundaram (Advocate) & Muthupandi Ganesan (Barrister-at-Law, UK and Advocate)

Ganesan and Manuraj Legal LLP (http://gmadvocates.in/) 

Link to the Article: https://www.barandbench.com/columns/litigation-columns/time-for-india-to-embrace-virtual-courts

References:

The impact of Covid-19 is being felt across the world and a variety of institutions, including judicial fora, have advocated urgent steps to contain the spread of the infection. With the Supreme Court taking the lead in implementing mitigatory measures to reduce the risk of infection and introducing heightened screening processes in its premises, other courts and tribunals have followed suit. Directions have been issued by various courts and tribunals in this regard which come into effect immediately. While the intent behind these directions are beyond doubt, there is a serious concern whether they are in accordance with law and established procedure. 

The National Company Law Tribunal (NCLT) has published a notice dated 15.03.2020 through its Registrar, Shiv Ram Bairwa. The notice, which is said to have been issued “with approval of Hon’ble Acting President, NCLT“, satisfies the principle of independence of judiciary, as articulated in Article 50 of the Constitution of India. There is also sufficient scientific and empirical evidence to implement social distancing measures. Therefore, the notice cannot be faulted for placing restrictions on over-crowding.  However, on closer look, there is a serious concern which requires careful scrutiny. 

The notice goes on to provide an overarching direction that NCLT benches “may take up matters which require urgent hearings on request made by the concerned parties”. Subsequently, and problematically, it attempts to enter the judicial thicket by further directing that “to rest of the matters, from 16.03.2020 to 27.03.2020, keep giving adjournments”. This is precisely where the notice changes colour from being an Administrative Order to one with strong judicial overtones. 

The difference between an Administrative Order and a Judicial Order has been dealt with on numerous occasions by the Supreme Court of India. In the case of Shankarlal Aggarwal And Ors vs Shankarlal Poddar And Ors  (1963), the court opined as follows:

“.. we conceive that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court.”

The view of the courts has been that any determination on the rights of parties involved in a legal dispute i.e. lis would necessarily be a judicial order or decision. It would necessarily follow that an order of adjournment of proceedings directly affects the rights of the parties; and therefore, can only be made on the judicial side and, consequently, is wholly a judicial order. Therefore, any direction to “keep giving adjournments” ought not to be given on the administrative side of a judicial institution and as such, would not be in accordance with law. 

In an extreme scenario, such an administrative order, in the form of a notice, cannot set a precedent for future directions to, say, cancel all bail applications or dismiss all Habeas Corpus proceedings in a hypothetical situation of national security emergency. 

In the case of Shanti Bhushan vs Supreme Court 2018, the court recalled the words of Mr. Justice Holmes in Northern Securities Co. v. United States, 48 wherein he had said: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These 

immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”

There is no doubt that we are witnessing an unprecedented global pandemic situation and that all institutions have been pressed into service to assist. However, we need to exercise caution when directions such as this are issued where the difference between the judicial and administrative sides are unclear that we end up entering the judicial thicket.

Manuraj Shunmugasundaram

Advocate, Madras High Court

Link to the Article: https://www.livelaw.in/columns/covid-19-administrative-orders-for-adjournment-are-problematic-153966

The untimely and mysterious death of Ramkumar, accused in the Swathi murder case, has posed uneasy questions of the criminal justice system in the country. If the Swathi murder case gave rise to serious concerns about women safety, the Ramkumar case has people wondering about safety  in police custody. Even if one were to go with the official version of events, that Ramkumar committed suicide whilst in state custody by biting a live electric wire, it then raises significant and alarming questions as to the regime that currently operates within prisons.  Any ability for a prisoner to access live electric wire is contrary to the guidance in the Prison Manual and there can be no relief for the police and prison authorities who seem to have been wholly negligent in ensuring the safety and well being of a high-profile detainee. 

Less than three months ago, the entire state was shocked by the audacity of the daylight murder of 24-year old Swathi. An unrelenting media spotlight and soaring public concern saw the police launch a man-hunt which zeroed in on Ramkumar. The dramatic arrest was marked by controversy with the police claiming that Ramkumar had attempted suicide with the help of a blade. Ramkumar’s family counter-claimed that the police slit his throat to prevent him from speaking out.

In the following days, reports suggested that the police had enough circumstantial evidence such as cell-phone tower markers, discovery of murder weapon and CCTV footage to charge Ramkumar. Yet, nearly 80 days later, the police have not filed the chargesheet in court. As of now, Ramkumar was a person held in judicial custody against whom charges had not been filed and no court had taken cognizance of. Simply put, it has been the word of the police against that of Ramkumar so far; thus Ramkumar was a mere ‘suspect’. It is in such circumstances, that the unfortunate death of Ramkumar has once again raised the issue of custodial safety. In cases of such custodial deaths, there is always a Magisterial Inquest as per Section 176 of the Criminal Procedure Code. The powers under this Section allow the Magistrate to record evidence, examine the body and even allow the relatives of the deceased to be present during the inquiry. It is said that the Magisterial Inquest has already begun and evidence is being collected from prison authorities and government doctors. 

The Magisterial Inquest provides an alternative mechanism of inquiry into custodial deaths, where police inquiry may seem prejudiced. However, in countries such as United Kingdom, there are separate and independent judicial investigation into custodial deaths by the system of Coroners Inquest, where a Coroner (usually a qualified Advocate and/or medical practitioner) will fully investigate the circumstances surrounding a death in custody. The Coroner’s Inquest process in the UK, under the Coroners and Justice Act 2009, is in essence a very similar process to court litigation, where the Coroner is assisted by a randomly selected jury to consider the ‘cause of the death’ in custody. The Coroner and the Jury can give a wide ranging verdict including death by natural causes, suicide, accident or misadventure, lawful killing and unlawful killing. Such proceedings are brought in the public interest as independent judicial proceedings administered and financed by the Government. When a person dies while in state custody in the United Kingdom, there is an additional requirement to conduct a ‘right to life’ investigation – as per Article 2 of the European Convention on Human Rights – to determine whether the state and its agents have ‘failed to protect the deceased against a human threat or other risk’. In some cases, this is complemented by an independent investigation by a Prison and Probation Ombudsman, who investigates the death with a view to considering the lessons to be learnt from the incident.  

In the Indian context, the system of Coroner’s Inquest was in vogue in a very limited manner in the Bombay and Calcutta Presidency areas under the British rule. While deciding a recent case, Social Jurist vs Union of India 2007, the Delhi High Court had sought the advice of the Law Commission of India whether a suitable model of Coroner’s Inquest could be used across the country. In response, the Law Commission, in its 206^th Report, recommended the use of Coroner’s Inquest and setting up of Coroner’s offices across the country. With an ever increasing number of custodial deaths, it may be time for the Government to consider enacting legislation to set up Coroner’s offices to expertly deal with such cases in a time-bound and transparent manner. Such a system could help establish judicial uniformity across the country and ensure that the necessary medico-legal expertise is available in dealing with such cases. 

While the conspiracy theories surrounding Ramkumar’s death may go away after the report of the Magisterial Inquest, the larger issue of custodial deaths needs to be addressed. Nearly 12,000 cases of custodial deaths have been reported in the five years between 2007 and 2012. Upon hearing these numbers, the Supreme Court in 2013 expressed its dissatisfaction in the measures taken by Centre and State governments with regard to increasing instances of custodial deaths and torture. In the UK, the system of an Inquest as well as an investigation by the Prison and Probation Ombudsman provides an opportunity for the relatives to fully understand the circumstances surrounding the death of the loved ones and brings the State, Prison and Police authorities accountable for the actions and omissions. A system of Coroners may be one of the reforms to the criminal justice system in India which may help curb custodial deaths and inspire public confidence in the actions of the state and its law enforcement agencies.  

Authors:

Manuraj Shunmugasundaram is a lawyer at the Madras High Court

Muthupandi Ganesan is a Barrister-at-Law in the United Kingdom

References:

Sec 176 of CrPC: https://indiankanoon.org/doc/1056026/

Law Commission 206^th Report: http://lawcommissionofindia.nic.in/reports/report206.pdf 

SC – Number of custodial deaths: http://timesofindia.indiatimes.com/india/11820-custodial-deaths-in-five-years/articleshow/26283098.cms 

Link to the Article: https://timesofindia.indiatimes.com/blogs/tracking-indian-communities/why-we-need-coroners-to-probe-custodial-deaths/

Constitutional high offices must evolve guidelines to discharge their duties in a time-bound manner, safeguarding the will of the people.

Recently, the Tamil Nadu Legislative Assembly passed a resolution seeking to provide for a timeframe for Governors to act on the bills passed by the State Legislature. The motivation behind such a resolution was that the Governor of Tamil Nadu R.N. Ravi had withheld assent to as many as thirteen bills passed by the Legislative Assembly. Last week, the Supreme Court of India, while disposing a case filed by the State of Telangana against Governor Dr Tamilisai Soundararajan, remarked that Governors should not sit over Bills indefinitely. Taking this sentiment farther, the idea of constitutional punctuality need not be restricted to gubernatorial offices alone. All constitutional high offices including those of the President, Speakers and Judges must suo moto evolve guidelines to discharge duties in a timebound manner. 

In the resolution passed on 10 April 2023, the Tamil Nadu Legislative Assembly urged the Union Government and President to advise the Governor to decide on the bills passed by the State Legislatures within a reasonable time period. The resolution, proposed by Chief Minister MK Stalin argued that it was important to protect the sovereignty of the Legislatures and, ultimately, safeguard parliamentary democracy. 

Subsequently, the Chief Minister Stalin wrote to his counterparts in other opposition ruled States and encouraged them to pass similar resolutions in their Assemblies. So far, the Chief Ministers of Delhi, Kerala, and West Bengal have expressed their support for the resolution and its underlying principles. In the case of Telangana, the State had even filed a Writ Petition seeking direction from the Supreme Court to the Governor to decide on the Bills, passed by the Assembly, in a timely manner. It would be fair to say that time has come to design a new constitutional architecture that would regulate sovereign privileges to deliver on the demands for a timebound constitutional delivery mechanism.  

Evolving Constitutional Scheme

When the Constitution was adopted, in the consequence of the independence from British rule, some of the sovereign functions were retained, for sake of continuity in governance. As such, there was no time limit fixed for various authorities to discharge duties that arose out of the Constitutional scheme. It may be understood that the drafters of the Constitution, in their contemporaneous wisdom, expected Raj Bhavans to be nominated with those who are renowned for statesmanship and beyond the confines of political partisanship. 

Article 200 of the Constitution limits the options before the Governor to give assent to the Bill sent by the legislature or withhold assent or reserve a Bill for the consideration of the President. The nub of the issue is that Governors have wrongly understood the function to grant assent to have endowed them with some discretionary responsibility. However, the words used in the Constitution as well as a composite reading of the debates in the Constituent Assembly when this portion of the Constitution was deliberated and, subsequently, adopted portrays an altogether different interpretation. 

The original draft Article 175 moved for discussion in 1948 read as follows:

“Provided that where there is only one House of the Legislature and the Bill has been passed by that House, the Governor may, in his discretion, return the Bill together with a message requesting that the House will reconsider the Bill..”

While moving the amendment to this Article on 30 July 1949, Dr. B.R. Ambedkar says that there “can be no room for a Governor acting on discretion” and recommends to remove the phrase “the Governor, in his discretion”. Therefore, the final Article, adopted by the Constituent Assembly and embedded into the Constitution explicitly negates any discretionary power. This position has been fortified by a seven-Judges Bench of the Supreme Court in Samsher Singh vs State of Punjab (1974), wherein it was held the discretion of the Governor is extremely limited and even then such actions may act in a manner that is not detrimental to the interest of the state. Furthermore, the Supreme Court held that Governor shall only act on the aid and advice of the Council of Ministers.

Moreover, a simple and plain reading of the Article also highlights how it is some others have misunderstood the withholding of assent to mean holding back the Bill, an act which is colloquially referred as pocket veto. There is nothing farther from political and literary reality. The straightforward understanding of withholding assent means to return the Bill and not to hold back. The problem is accentuated as there is no time-limit prescribed to return the Bill and as such, Governors are unaccountable to the principles of time-bound governance. 

Time-bound Governance

In the United Kingdom, there has been no royal veto since 1708 when the assent to Scottish Militia Bill was vetoed by Queen Anne. Whereas in the United Staes of America, there is a time limit of ten days for the President to give assent or veto a bill. If the President does not sign or vetoes the bill within this time, it automatically becomes an Act. If the President vetoes and returns the bill to the Congress or Senate, then both the chambers of the Congress must override the veto for it to become a law. 

Over time, matters involving inexplicable delay in exercising powers by various authorities have been brought under the ambit of judicial review by constitutional courts. The Supreme Court, in Keisham Meghachandra Singh vs. Hon’ble Speaker (2020), issued a writ of mandamus to the Speaker of Meghalaya Legislative Assembly to decide on the disqualification petitions under 10th Schedule of the Constitution within a period of four weeks.  

When the case filed by the State of Telangana against the Governor, the Supreme Court found it fit to highlight the spirit of Article 200. While disposing the case on 24 April 2023, the Chief Justice of India’s court acknowledged that the words in Article 200 “as soon as possible after the presentation of the Bill” meant that constitutional authorities such as the Governor must appreciate the constitutional content and should necessarily bear this in mind. It would be appropriate for various constitutional authorities such as Governors exercising powers under Article 200 and Speakers acting as quasi-judicial tribunals under Tenth Schedule evolve strict timeframes and avoid unnecessary delays. Only such an approach will advance the constitutional scheme and safeguard the will of the people exercised through the legislatures. 

Manuraj Shunmugasundaram

DMK Spokesperson and Advocate practising before the High Court of Madras.

(Inputs for this article was provided by Arun P.S.)

Link to the Article: https://www.thehindu.com/opinion/lead/the-importance-of-constitutional-punctuality/article66800908.ece

Over the last two months, authorities in the United States of America (“US”) and India have issued orders limiting the access and downloading of TikTok, a mobile application owned by ByteDance Ltd.. While the nature of the orders differ, the rationale seem to be articulated by the two Governments in a similar fashion. ByteDance has adopted a conciliatory stand in India requesting for a meeting with the Union Minister of Electronics, Information and Technology. In contrast, the Civil Action moved by ByteDance before the US District Court for the District of Columbia has provided valuable insights into the legal issues that may be brought before Indian courts of law in due course.

Also Read – “Microsoft Blues”: A Call For Regulatory Shift & Invoking No Fault Liability

US and TikTok

On 6 August 2020, President Donald Trump issued an ‘Executive Order on Addressing the Threat Posed by TikTok’ (“Executive Order”) wherein he sought to prohibit certain transactions “with ByteDance” or “its subsidiaries”. The Executive Order accuses TikTok of censoring content on behalf of the Chinese Communist Party. It also makes direct allegations against the Chinese Communist Party of accessing “personal and proprietary information” of US citizens through TikTok, which has been downloaded over 175 million times in the US. Holding that such actions may potentially allow China to track locations, build dossiers for blackmail and conduct corporate espionage, the Executive Order is justified as action to protect national security.

Also Read – Need For Policy-Driven Digital Rehabilitation In India

Interestingly, the Executive Order also quotes a press release of the Government of India’s Ministry of Electronics and Information Technology wherein they asserted that TikTok and other Chinese mobile applications were “stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India.” The Press Statement, referred by in the Executive Order, was issued on 29 June 2020 when 59 mobile apps were banned by the Government of India. Subsequently, on  2 September 2020, another 118 mobile apps were banned, on nearly identical grounds.

Also Read – Applicability Of Section 17 To Foreign Seated Arbitrations

India and Ban of Mobile Apps

The Government of India banned 177 mobile apps using Section 69A of The Information Technology Act (“Section 69A”) which empowers the Central Government to block public access to any information hosted in any computer resource. The term “Computer Resource” is defined to include computer, computer system, computer network, data, computer data base or software. The definition does not include mobile phones which falls within the ambit of “Communication Devices”.

Also Read – Genetic, Environmental, Legal Challenges Of Antisocial Personality Disorders In Criminal Justice System

This gives rise to the question whether the Central Government has power under Section 69A to ban applications exclusively accessible through mobile phones. It is clear that power granted under this section can only be exercised over information hosted in a computer resource and not on a mobile phone. The legislative intent in distinguishing between computer resource and communication devices may be understood by referring to Section 66B and Section 66D of the said Act which treat computer resources and communication devices as two separate and exclusive instruments. When Section 69A was introduced by an amendment to the Information Technology Act (“IT Act”) in 2008, mobile applications were not as prominent as they are now and therefore, it is entirely conceivable that the legislature did not intended the provision to be applied as it had been in the June and September orders.

What Section 69A does permit is that the Government can prohibit access to mobile applications as long as they are part of the internet and during their availability on the App Marketplace, prior to their download onto a mobile phone. It is trite that once an application is downloaded into the memory of a mobile phone, it ceases to be information hosted by a computer resource and becomes something which is hosted through a communication device. Therefore, the issuance of the June and September orders of the Government to prohibit mobile applications may be outside the scope of Section 69A.

Test of Reasonableness and Bona Fides

While the actual orders banning the mobile apps are yet to be made public, much of our understanding has been drawn from the two Press Releases issued by the Central Government. The Press Release of 2 September 2020 cites surreptitious data sharing as one of the reasons for issuing the banning orders. When the Government is yet to ensure passage of the Data Protection Act, pending before the Parliament for nearly a year, the seriousness of the Government with regard to data protection will need to be assessed. Furthermore, such a vehement response was nowhere to be seen when the Facebook-Cambridge Analytica data controversy broke out.

Another issue calling the bona fides of the June and September orders is that of their timing. On 15 June 2020, news broke out about clashes between Indian and Chinese soldiers at the Galwan Valley and exactly 14 days later, the Central Government issued the first order. Another skirmish was reported on 30 August 2020, which was also followed by the second order, only two days later.

Therefore, the actions of the Central Government provide the appearance of a reaction to the border skirmishes between the countries rather than a bona fide effort to protect personal data of its citizens. This is further cemented from the fact that the People’s Republic of China had enacted the National Intelligence Law of the People’s Republic of China which requires citizens and organisations to assist and cooperate with the state intelligence work back in 2017. As much of this information has been in public domain, the Central Government cannot claim to have woken up to the potential threats after three years.

Furthermore, the orders do not ban a number of the other applications linked with Chinese companies such as the PUBG (which is still available as computer application) and other applications belonging to the Ali Group continue to be available for download. The Central Government has not provided any clear inputs on how the 177 mobile apps were chosen and what was the exact security threat posed by them individually. As such, we are led to believe that all 177 mobile apps have potential security threats and possess risk of data theft without understanding their individual capabilities.

Finally, Section 72A of the IT Act penalises the disclosure of information without consent of the person concerned. As such, this provision would be better suited to protect data theft and any unauthorised transmission of sensitive personal information. There is no explanation as to why the Central Government did not initiate proceedings under this section or why Section 69A was preferred. Such actions may also have be weighed on the benchmark of doctrine of proportionality as laid down in the Justice (Retd.) Puttaswamy vs Union of India case to understand whether the least restrictive action was taken to curtail fundamental rights in a matter of public interest.

Possible Judicial Outcomes

On 27 September 2020, the United States District Court of the District of Columbia (“US Court”) granted a Preliminary Injunction on the motion moved by TikTok Inc against implementation of President Trump’s Executive Order. While doing so, the US Court considered the balancing between equities and public interest. The US Court held that though the US “government has provided ample evidence that China presents a significant national security threat” there is no specific evidence with regard to the threat posed by TikTok. The US Court also doubted the actions of the US Government as to “whether the prohibitions are the only effective way to address that threat”.

There has been no legal challenge, as a judicial review of the two orders, mounted by the mobile apps against the orders, as yet, in Indian courts. The law in India also allows for reasonable restrictions of fundamental rights on the grounds of security and sovereignty of the country. So, the Central Government may have a better case to argue under public interest than their US counterparts. However, the order of the US Court has certainly provided an insight into how such a legal battle may play out in the Indian courts.

Views are personal.

(Manuraj Shunmugasundaram is an Advocate & B. Thiyagarajan, is a Trainee Advocate)

Link to the Article: https://www.livelaw.in/columns/the-untenable-tiktok-ban-165434

Sovereignty is subject to constraints

The UN High Commissioner for Human Rights, Michelle Bachelet, filed an application seeking to intervene as amicus curiae in the pending litigation in the Supreme Court against the Citizenship (Amendment) Act, 2019. That the case has attracted the attention of the international human rights agency is a matter of concern for the Indian government. On the other hand, the intervention may enable the Supreme Court to read in public international law principles in determining the constitutionality of CAA. Ultimately, this would assist in laying down the law on concepts of sovereignty in addition to determining the obligations of a nation-state to the international community at large.

The application

The application is based on the belief that the High Commissioner’s intervention will provide the Court “with an overview of the international human rights norms and standards with respect to State’s obligations to provide international protection to persons at risk of persecution in their countries of origin”. This application stands out for a number of reasons. First, this is a voluntary application rather than at the invitation of the Supreme Court. Second, she accepts that India is a state party and signatory to various international conventions including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Culture Rights which contain important non-discrimination clauses, including on the ground of religion. India is obliged, under international law, to ensure that migrants in its territory or under its jurisdiction receive equal and non-discriminatory treatment regardless of their legal status or the documentations they possess.

In response, the External Affairs Ministry argued that “no foreign party has any locus standi on issues pertaining to India’s sovereignty”. The High Commissioner has filed similar amicus curiae briefs on issues of pubic importance before a range of international and national judicial fora. However, this intervention, if permitted, would serve as a precedent for a number of future applications. It would also provide an opportunity for the Supreme Court to lay down the law on whether such applications interfere with national sovereignty.

Sovereignty as responsibility

International Court of Justice judge James Crawford defines sovereignty as, among other things, the “capacity to exercise, to the exclusion of other states, state functions on or related to that territory, and includes the capacity to make binding commitments under international law” and states that “such sovereignty is exercisable by the governmental institutions established within the state”. The Preamble to the Constitution lays out the position, wherein the people of India have resolved to constitute Indian Republic into a sovereign and not just any one authority. As such, the courts (judiciary), the government (executive) and elected legislatures (legislature) are equally sovereign authorities. No one can claim exclusivity over sovereignty. Furthermore, Article 51 (c) of the Constitution directs the State to “foster respect for international law”.

According to the International Commission on Intervention and State Sovereignty, “national political authorities are responsible to the citizens internally and to the international community through the UN”. Therefore, it is trite that an authority’s right to sovereignty is not unfettered. It is subject to constraints including the responsibility to protect its citizenry and the larger international community. Furthermore, Article 14 extends the right to equality to all persons, which is wider than the definition of citizens. Even illegal immigrants shall, consequently, be treated by the government in a manner that ensures equal protection of Indian laws. It is hoped that the Supreme Court will conclude that the intervention is necessary as the Court would benefit from the High Commissioner’s expertise in public international law principles.

Manuraj Shunmugasundaram is an advocate (Madras High Court) and DMK spokesperson & Muthupandi Ganesan is Barrister-at-Law, U.K.

Link to the Article: https://www.thehindu.com/opinion/op-ed/not-an-unfettered-right/article31136495.ece