📰 Reforming India’s digital policy
The country needs to attract FDI and advance its goal of becoming a $5 trillion economy
•With COVID-19 continuing to extend its reach globally, economic growth has plunged, and the competition for foreign investment is intensifying, spurred on by national campaigns to shift supply chains and the urgent necessity to reverse recessionary trends. Foreign direct investment (FDI) is falling and the immediate picture for many countries is not looking pretty. The United Nations Conference on Trade and Development just released its latest World Investment Report and projected that FDI to developing Asian economies could drop by as much as 45%.
•One sector that is expected to buck this trend is digital services. Now more than ever, it is clear that digital services have become critical to every 21st century economy. Quite literally, digital services are filling gaps when national or global emergencies interrupt more traditional modes of commerce. Digital services enable access to and delivery of a wide array of products across multiple sectors, from healthcare to retail distribution to financial services.
•Even in the midst of the COVID-19 pandemic, investments in digital services continue to flow at record levels globally, outpacing investment in nearly every other sector. India is an ideal destination for increased FDI flows in the digital services sector and offers undeniable potential for innovative homegrown start-ups not least because of its huge and increasingly digitised population. However, Indian government policies will be key determinants in how quickly and at what level the Indian economy attracts new investment, fosters Indian innovation, and expands its exporting prowess.
Three pending measures
•Currently, there are three pending reform measures under consideration that are likely to affect India’s growth trajectory in digital services for years to come — the Personal Data Protection Bill (PDPB), the e-commerce policy, and the Information Technology Act Amendments. Approaches in these regulatory reform efforts seem to emphasise a focus on protecting the domestic market for domestic companies and prioritising government access to data. It may be difficult to reconcile these approaches with India’s strong interest in promoting data privacy, protecting its democratic institutions, and encouraging FDI and India’s position as a global leader in information technology. Understandably, there is uncertainty about when these changes will be completed and implemented.
•Also, the course of the India-U.S. trade relationship is uncertain, as signs of progress are continually interrupted by setbacks in the form of new restrictions.
•The bilateral relationship is an important factor in realising the potential for greater trade and investment in digital services. The strategic relationship has been growing, reflecting how their historic ties have evolved over time. Where the relationship has lagged is with respect to trade. India and the U.S. are yet to conclude negotiation on a bilateral trade agreement that could address some digital services issues, and the U.S. just initiated a “Section 301” review of whether digital services taxes in 10 countries constitute “unfair” trade measures, including India’s equalisation levy.
•As India resumes its efforts to put into place a new architecture for digital services and as it pursues opportunities to attract new investment, the government and stakeholders might consider the full range of implications for the long-term. How might new policies affect India’s ability to attract foreign investment? How might these policies promote innovation through increased competition and create an environment that is friendly towards homegrown start-ups? Ultimately, what policies can best advance the objective of becoming a $5 trillion economy?
•India will be host of the G20 nations in 2022, and it appears clear that post-COVID-19 international cooperation and approaches to good governance in the digital sphere will be top-priority initiatives. The steps India takes now could well establish itself as a true global leader.
The arbitrary ban on 59 web services undermines legal processes and democratic norms
•Earlier this week, on June 29, a dramatic press release was issued by the Ministry of Electronics and Information Technology (MEITY) directing a ban on 59 smartphone applications, many of them web services. This includes TikTok, a popular social media platform; the UC Browser, a preferred web browser for low budget smartphones; and CamScanner, which is used to convert images into shareable documents. In one fell swoop, this singular act of web censorship in India has impacted more people than ever before. Beyond the geopolitical and economic impact of this ban, concerning questions arise as to its legality and the measure’s impact on democratic norms.
•The first concern arises due to the lack of transparency in website blocking. Prior to adverting to the legal provisions that provide for the government to issue such directions for blocking, let us look at the press release. Even prior governments have made press releases such as when, in August 2012, a decision was made to block around 245 webpages to prevent disinformation that purportedly was causing the exodus from Bengaluru of Indians belonging to the north-eastern part of the country. The relevant order mentioned several grounds, such as defence and integrity of India, public order and even security and privacy of users. The directive was premised on specific recommendations by the Indian Cyber Crime Coordination Committee at the Ministry of Home Affairs, reports received by our premier cybersecurity body, CERT-In, and debates in Parliament.
Lack of examination, debate
•This time, recommendations by the Ministry of Home Affairs appear to have been a pivotal document. The Ministry’s assessment may not have been technically examined or debated on the floor of the house. Hence, the need for disclosure of these recommendations gains primacy.
•Further, more importantly, the legal order by itself has not yet been published or been made publicly available. Disclosure of this order is necessary because the nature of the action of blocking impacts the right not only of the owners of these smartphone applications, but the public’s fundamental right to receive information. Here, the facts as they stand are that the only publicly available document available at present is the press release which, by itself, is not a substitute for a legal order.
Imperative for disclosure
•The imperative for disclosure becomes clearer on a joint reading of the Shreya Singhal (at Para 109) and Anuradha Bhasin (at Para 152(a)) judgments. The first concerned the constitutionality of Section 66A under which the Supreme Court, while upholding the blocking powers of the government, reasoned that the writ remedies would always be available to an aggrieved person. Hence, to approach a High Court in a writ, the petitioner would require the availability of the legal order. This need for public disclosure prior to placing any restriction on Internet access (of any scope or nature) has been expressly directed when the Supreme Court examined the scope of the telecommunications shutdown in Jammu and Kashmir. Here, citing a solitary rule from the process devised by the government won’t be of much assistance.
•Second, proceeding to the more substantive aspects of the action, it seems to contain fairly obvious flaws. The first is with respect to the adherence to the prescribed power under Section 69A of the Information Technology Act, 2000 that permits the blocking of information that falls within specific grounds that need to be invoked when it is “necessary and expedient”.
•Further, the process for this is required to be created under the second sub-clause for which the government made the Website Blocking Rules, 2009. While the principal power and the rules are far from perfect, larger questions do arise from the press release by MEITY. The first is that the so-called “ban” has been imposed without any form of pre-decisional hearing. Such a process would have required a show-cause notice to be served, offering the aggrieved party a detailed opportunity to defend itself; this would have been followed by a detailed legal order. This process can only be exempted when there exists an emergency; however, there is little in the press release to indicate whether this was indeed an emergency and, if yes, what its specific cause was.
No mention of ‘China’
•For those who may state that the ban was necessary due to China’s aggression along the border, or specific threats to our cybersecurity, the word, ‘China’ is not even mentioned within it. This becomes more curious because there appears to be a group determination of the 59 applications. Each application is distinct in its operation; many of them come from different companies and developers. Hence, if the basis of the grouping is an economic reprisal against China, the text of the order does not state any such thing.
•Several other minor defects exist; however it is more important to focus on the larger point about the necessity to maintain legality.
•The principle of legality is inherent to a republic that is governed by laws and not the whims of powerful individuals in high office. It is the hallmark of a democracy that laws are validly enacted and do not violate fundamental rights. To circumvent them to reach a convenient goal would amount to undermining the constitutional framework of India.
•Today, there are two concerns which must be legitimately addressed through legislation. The first is connected with privacy and data protection where the Union Government’s record has been poor. A watered down version of a Data Protection Bill is pending before a parliamentary committee and awaits enactment.
•The second is to commence an exploration into whether investments and operational control pose cybersecurity concerns or intersect with sectors of foundational and emerging technologies. This may be done through legislation and creation of an institutional process that may draw inspiration from the Committee on Foreign Investment in the United States. Both these measures will suitably empower the government to act within the bounds of law and act as per evidence to reach the goals they so desire. This will be without resorting to ad-hoc actions that create a worrying precedent and expansion of state power over the Internet and technology businesses.
•Forsaking our democratic values is too high a price to pay if the goal is to neuter the designs of an aggressive single-party state. To protect individual liberty and national interests, India must proceed with caution and remember the age-old adage, of being careful of whom we hate, for we may end up just like them.
📰 Striking a blow against Assam’s inclusive ethos
The State’s language law points to a homogenised nationalism overtaking minority linguistic and cultural aspirations
•The Assam government recently decided to promulgate a law to make the Assamese language compulsory in all schools, both public and private, including the Kendriya Vidyalayas, from Classes I to X. The State Governor has already given a formal assent to the Cabinet’s decision. However, the law will not be applicable in Barak Valley, Bodoland Council and other Sixth Schedule areas, where Bengali, Bodo and other indigenous languages will take precedence. The ‘Assamese nationalists’ are of course happy. Some are even demanding for it to be made compulsory in the exempted areas. However, none of them is talking about what effects it will have on communities such as the Misings, Deoris, Rabhas and the other smaller tribes and their mother tongues.
Data and politics
•Statistical data have often been used as a tool to construct the linguistic hierarchy and homogenisation in a region. This in turn becomes an element crucial for constructing and stabilising the regional political economic hegemonies. We have seen that happen in north India with the census-driven communal split of Hindi-Urdu, presuming Muslims to be Urdu speakers, while Hindus to be Hindi speakers. Crucially, this politics marginalised languages such as Magadhi, Awadhi, Bhojpuri, Garhwali with their rich literary and linguistic traditions as mere dialects of the Hindi language. And this was a political number game to ensure the dominance of Hindi and Hindi-Hindu elites, nationally.
•A similar approach is also evident in Assam. Census data are often used to portray a ‘danger’ to the Assamese language — the ‘infiltration’ of Bengali-speaking communities is considered to be the primary reason. The number of Assamese speakers as per the 2011 Census comes to 48.38% of the population. In 1971, the percentage of speakers was at 60.89%. So, it seems the number of Assamese speakers considerably declined in these four decades. But this data need to be looked at empirically. It has to be noted that most tribal communities speak Assamese but return their own respective languages as their mother tongues. For example, in the Mising tribe, which I belong to, a large majority speak Assamese. This is not because of school education, but mainly because of the fact that Assamese is the dominant market language, at least in the Brahmaputra Valley.
Impact on tribal languages
•The imposition of Assamese has had adverse effects on tribal languages, especially on those which do not enjoy any constitutional protection. Tribal languages are generally on a steady decline. For instance, while the Mising tribe reported a rate of increase of 41.13% in the number of speakers in the 2001 Census, by 2011 it was merely 14.28%. Similarly, the Deoris which reported a decadal increase of 56.19% in the 2001 Census, the increase percentage by 2011 had declined to 15.79%. It is to be noted that only the Dibongiya clan of the Deoris now speak the language. The Rabhas community provides for a more curious case. The community reported an increase of 18.23% in the number of speakers in the 2001 Census. By 2011, the number of speakers had decreased to -15.04%, almost completely obliterating the language. Other tribes such as the Sonowal-Kacharis and Tiwas have almost completely lost their languages.
•Tribal communities since long have been demanding linguistic and territorial protection and attention from the State government. On October 30, 1985, the government of Assam, in response to a long struggle by the Mising community, through a gazette notification introduced the Mising Language as an additional subject in Classes 3 and 4 in the Mising-dominated areas.
•Also, additionally, it was to be the medium of instruction at the primary level. The Assam government was supposed to take up various tasks such as appointing Mising language teachers, translating books into Mising, and also introducing Mising textbooks. But only 230 teachers were appointed till 1994, after which the whole process came to a halt. Further, the agreed upon clause of introducing Mising as the medium of instruction never took off.
•Tribal communities have always resisted attempts of forced homogenisation. It was in response to the Official Language Bill in 1960 that the Khasi along with other tribal communities started protesting, ultimately leading to the formation of Meghalaya. The Bodo movement for autonomy also finds its roots in this bill. Tribes have often highlighted that the ‘Assamese nationalism’ discourse was narrow and rarely included other communities. However, tribes such as the Misings, Deoris, Rabhas, etc. have still consistently supported the Assamese movement against the imposition of Bengali language or Hindi in Assam. But in turn they now find themselves consistently marginalised, with their linguistic and cultural heritage derecognised by the State and the hegemonic forces.
The CAA factor
•The anti-Citizenship (Amendment) Act (CAA) movement could have been a point of departure in the ‘Assamese Nationalism’ discourse. During the course of the movement, a new definition of ‘Assamese indigenous’ was seen emerging. This definition was inclusive of tribal and other non-Assamese communities and was based on domicile rather than language alone. Demands were raised for protection of indigenous land, culture and languages during the course of the struggle.
•However, at the core of the movement, was also the fear of infiltration that the CAA bill promoted. Such fear and insecurity have an immanent tendency to straitjacket heterogeneous aspirations and scuttle the inclusive nature of the movement. The government is in fact manipulating this element of fear by raising linguistic nationalism to weaken the inclusive and anti-hegemonic build-up in the anti-CAA movement in Assam. The timing of the government’s decision to bring in a law making Assamese mandatory in schools clearly exposes its intentions. It was first announced in January 2020.
As a job requirement
•Adding to this, the Home Minister of Assam states that the government is also mulling over a separate legislation which will make only those who learned Assamese till their matriculation suitable for government jobs in Assam. These moves are clear indications of a non-inclusive homogenised Assamese nationalism taking precedence over the inclusion of minority linguistic and cultural aspirations. Such a move alienates various linguistic identities such as those of tribes such as the Misings, Deoris and Rabhas, etc. and limits the definition of ‘Axomiya’ to just the speakers of the language. By bringing in such a law, the State government is seeking to overcome the legitimation crisis that its support to CAA had created.
•While the tribes acknowledge the threat that infiltration poses to local languages and culture, they are also wary of the Assamese hegemony and homogeneity. This law will only increase the marginalisation of these communities, triggering social conflicts once again. It is time for progressive sections in Assam to go beyond the politics of fear and assert the inclusive ethos of Assam.
📰 Police reform and the crucial judicial actor
The lesson from Thoothukudi is that constitutional courts must attempt to change the practices of magistrates
•Here we go, again. The newest episode of sensational brutality has gripped public imagination. Righteous indignation abounds on social media and the press. Underneath that gloss, grief and agony probably crowd out every other emotion. At my vantage point as someone working in the criminal justice system, the only emotion that the seemingly senseless act of violence inside a police station in Thoothukudi, Tamil Nadu, evokes, is of extreme weariness. How many more times must powerless citizens suffer the blows of a lathi or a baton, the kicks of patent leather boots, be violated by the “wooden rollers” around their private areas, not to mention spending hours inside a police lockup, all as a part of an “investigation” by police searching for “truth”?
Judiciary as beacon
•This fatal violence by state actors is a cruel reminder of just how little unshackling has happened in the domain of policing to free this essential public sphere from the demons of its heritage and become an active participant in sustaining a democratic polity and not a colony. As always, when the conversation veers in this direction it becomes natural to look towards the judiciary as the source of hope and action, and it is unsurprising to know that the Madurai Bench of the Madras High Court has taken notice of the Thoothukudi violence on its own and is “closely” monitoring the situation.
•The Madras High Court acted in the best traditions of constitutional courts in India, which have often passed various directions to try and ameliorate the problem of police violence. So much so that scholars have called the Supreme Court of India as the only institution working towards police reforms in the Indian state. This acclaim largely comes from the top court’s interventions in the 1990s through cases such as Joginder Kumar v. State of UP [AIR 1994 SC 1349] and D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] , where guidelines were passed to try and secure two rights in the context of any state action — a right to life and a right to know. Through the guidelines, the Court sought to curb the power of arrest, as well as ensure that an accused person is made aware of all critical information regarding her arrest and also convey this to friends and family immediately in the event of being taken in custody. It took a decade, and in the form of amendments, as the Code of Criminal Procedure (Amendment) Act, 2008 to give statutory backing to these judicial guidelines; it remains part of the law today.
•The Supreme Court went even further, and perhaps too far, in the case, Prakash Singh v. Union of India [(2006) 8 SCC 1] , where it pushed through new legislation for governing police forces to be passed by States across India. A key component of the new legislation was a robust setup for accountability that contemplated a grievance redress mechanism. That it took reportedly 11 years for the State of Tamil Nadu to actually implement Prakash Singh (a law passed in 2013 but only given effect in 2017), and that several States remain in contempt of the Supreme Court’s judgment, give some insights into how seriously the issue of police reform ranks in the scheme of things for governments.
•Judicial concern with police violence is also witnessed in a different manner — judicial support for “scientific” investigations. The support and fascination for techniques such as narcoanalysis, ensuring video recording of investigations, passing orders for installing closed-circuit television cameras inside police stations, all comes from a place of grudging acceptance by courts about how often police employ physicality to obtain evidence. Through technology, then, the hope is to reduce a need for interacting with the body as a source of evidence, and to gradually delegitimise and dismantle a set of archaic practices reliant upon the use of force as a means to extract the “truth”.
Systemic failures
•Constitutional courts have seemingly tried to change our reality of police brutality for well over two decades. Yet, we are still here, with some reports (of course, not by the state) suggesting that across India there are as many as five custodial deaths a day. While this is undoubtedly a product of continued institutional apathy towards the issue of police reform, I would argue that it is also clear enough evidence that the judiciary’s approach of simply passing directions and guidelines, has proven to be a failure, and that it is the ordinary magistrate, and not the constitutional court, who is the judicial actor wielding real power to realise substantial change in police practices.
•There is a reason why the judiciary is commonly called the weakest branch: All the noble intentions in the world cannot help transform the mere words of a court order into reality. This needs money and a power of immediate implementation, neither of which courts have. In fact, the gap between the highest court and the lowly police officer in India has been demonstrated through studies which show how despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police. Rather than expend energies in only passing more guidelines, constitutional courts must seriously contend with the concrete cases that come their way and expose how hard it is for a common man to get justice against police violence, either through compensation claims or prosecutions.
Culture of impunity
•At the same time, constitutional courts must shed the institutional baggage which often leads to them protecting the supposedly vulnerable morale of police. This tendency was on display when the Madras High Court reportedly saw the Thoothukudi incident as the result of a “few bad apples” ruining a system’s reputation. That, with due respect, is to be unable to see the wood for the trees — it is the culture of impunity that all the apples experience which leads the few to wield the baton with such fatal vigour. Rather than minimise, perhaps it is time to consider sanctions at a larger scale and impose monetary penalties at the district level, to drive home the message that the erring actions of one officer must be seen as a failure of the force itself.
•Finally, constitutional courts could strike an inspired move by reorienting their guidelines to try and change the practices of magistrates, over whom they exercise powers of superintendence, as opposed to other non-judicial actors. For it is the local magistrate before whom all arrested and detained persons must be produced within 24 hours, and thus becomes the point of first contact for a citizen with the constitutional rule of law that Indians take so much pride in. The Thoothukudi incident has brought to fore what appears to have been inexcusable lapses by the magistrate. It is tragic that the laxity apparently on display there in remanding accused persons to further custody (both the police and judicial), is not the exception but the norm, in my experience.
•The overworked magistrate, struggling with an ever-exploding docket, is very often in a rush to get done with the “remand case”, rather than treat an arrested person with the care and the consideration that she deserves and is entitled to. This is not the fault of the magistrate but the crystallisation of a systemic failure which constitutional courts are indirectly responsible for, and could do much to change.
