📰 Defence Ministry notifies second negative import list
209 items now on ‘positive indigenisation list’ for local procurement.
•The Defence Ministry on Monday notified the second negative import list — now renamed as the ‘positive indigenisation list’ — of 108 items that can now be only purchased from indigenous sources. The new list takes the total number on the list to 209. It is planned to be implemented progressively with effect from December 2021 to December 2025, the Defence Ministry said.
•“The second list lays special focus on weapons and systems which are currently under development/trials and are likely to translate into firm orders in the future. Like the first list, import substitution of ammunition which is a recurring requirement has been given special focus,” a Ministry statement said.
•The ‘second positive indigenisation list’ comprises complex systems, sensors, simulator, weapons and ammunitions like helicopters, next generation corvettes, Air Borne Early Warning and Control (AEW&C) systems, tank engines, medium power radar for mountains, Medium Range Surface to Air Missile (MRSAM) weapon systems and many more such items to fulfil the requirements of Indian armed forces, it stated.
•The second list has been prepared after several rounds of consultations with government and private manufacturing industry confederations to assess future capabilities of Indian Industry which will be able to meet requirements of the armed forces, the statement said.
•“Not only does the list recognise the potential of local defence industry, it will also invigorate impetus to domestic Research and Development by attracting fresh investment into technology and manufacturing capabilities,” it said.
•The list also provides an excellent opportunity for ‘start-ups’ as also Micro, Small and Medium Enterprises (MSMEs), the statement said.
•Towards this, the Ministry, Defence Research and Development Organisation (DRDO) and Service Head Quarters will take all necessary steps, including hand holding of the industry, to ensure that the timelines mentioned in the list are met, “thereby facilitating an environment for Indian defence manufacturers to create world class infrastructure, assist in the government’s ‘Make in India’ vision to make India self-reliant in defence and develop the capabilities for defence export in the near future,” it added.
•As part of efforts to boost the domestic defence industry and promote defence exports, last August, the government notified first ‘positive indigenisation’ list comprising 101 items. The Ministry is also soon expected to put out the final version of the ‘Defence Production and Export Promotion Policy (DPEPP) 2020’, the draft of which was released last August for public feedback.
📰 It’s time to define limits of sedition, says SC
Court protects 2 Telugu channels from any coercive action by Andhra govt for their reportage of COVID-19
•The Supreme Court on Monday said “it is time to define the limits of sedition” even as it protected two Telugu channels from any coercive action by the Y.S. Jaganmohan Reddy-led Andhra Pradesh government for their reportage of the COVID-19 pandemic in the State.
•A three-judge Bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens for airing their grievances about the governments COVID-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
•“We are of the view that the ambit and parameters of the provisions of Sections 124A (sedition), 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation,” the court noted in its order.
•“This is muzzling the media,” Justice L. Nageswara Rao, another judge on the Bench along with Justice S. Ravindra Bhat, said about the manner in which Andhra Pradesh had tried to “silence” channels TV5 and ABN.
•“It is time to define the limits of sedition,” Justice Chandrachud said. He pointed out that the Court had categorically told the States not to initiate penal action against the critics of COVID-19 management measures in an April 30 order.
•Justice Chandrachud referred to how, in an earlier suo motu hearing, he had wondered whether sedition charges would be launched against a news channel, which had published photograph of two persons throwing the body of a COVID-19 patient into a river from a bridge in Uttar Pradesh. “I had this case [Andhra] in mind when I said that,” he said.
•The court acknowledged the argument that the media was well within its rights to air critical programmes about a prevailing regime without attracting sedition.
Notice to A.P. govt
•The court issued notice to the Andhra Pradesh government and directed that “there shall be a stay on the Respondents [the State] adopting coercive proceedings against the two TV channels”.
•TV5, represented by senior advocate Shyam Divan and advocate Vipin Nair, and ABN Andhrajyothi argued that the sedition FIR against them was an “unfortunate assault”. The State had accused them of sedition for reporting news about the pandemic in an “unbiased manner”.
•“Merely because the content of the news reported in an unbiased manner is critical of a government or not to its liking, it cannot be said that the news outlet has committed an act of sedition or inciting hatred. To do so would be directly contrary to the freedom of Press,” ABN, represented by Guntur Pramod Kumar, said in the petition.
•TV5 said the “vague” FIR had a chilling effect on free speech in the media.
•“The attempt of the FIR is to create a chilling effect for news channels in the State, so that every news channel is wary of hosting any content which is critical of the government. By filing a vague FIR and abusing the process of law, the State intends to silence its critics and the media,” TV5 said.
Plea for contempt proceedings
•Both channels urged the Supreme Court to initiate contempt proceedings against the senior officials of the State government for violating the April 30 order of the Supreme Court to “immediately cease any direct and indirect threats of prosecution and arrest to citizens, who air their grievances”.
•Here the Andhra government had “gone one step ahead” to penalise the media, the channels said.
•The FIR, registered by the CID, alleges that a conspiracy is afoot against the government.
•TV5 said it had aired critical remarks made by the ruling YSRC party MP K. Raghurama Krishnam Raju about the State’s handling of the COVID-19 crisis. This had irked the government. Mr. Raju himself is in custody for sedition and has already approached the apex court for bail.
•“The State government is hell bent to suppress the right to freedom of speech by obstructing the media coverage on the management of Covid-19 in the State. While the State is witnessing a record number of cases, the focus of the Government is to mask the reality and to spread false propaganda,” the petition said.
Court raises doubts about Centre’s deadline for complete immunisation.
•The government on Monday claimed it will inoculate the “entire eligible population” by 2021-end, only to be barraged with questions from the Supreme Court about the efficacy of its policy, which allows the Centre to procure just 50% of the vaccines while leaving the States to buy their own.
•The court also challenged the differential vaccine pricing policy, saying “there needs to be one price for vaccines across the nation”.
Digital divide
•A three-judge Bench led by Justice D.Y. Chandrachud also asked the government to “please wake up and smell the coffee” about the farfetchedness of an illiterate villager from rural India crossing the “digital divide” to register for COVID-19 vaccination on the COWIN portal where slots disappear in the blink of an eye. Justice Chandrachud said the government should be aware of the ground realities in ‘Digital India’. Vaccination policy today is entirely exclusionary of the rural areas, the court said.
•One of the judges on the Bench, Justice S. Ravindra Bhat said he had received distress calls from across the country from people unable to register on COWIN. The court asked why the marginalised section should not be treated on par with people having co-morbities for early vaccination.
•The virtual hearing, however, began on a positive note with Solicitor General Tushar Mehta assuring that “on vaccination, as per our estimate, from the domestic market and Sputnik V, we expect the entire eligible population to get vaccinated by the end of this year”.
•Mr. Mehta said the government was in talks with other manufacturers like Pfizer. If the discussions succeed, the government would be able to advance its deadline for completing the immunisation drive. The Solicitor General said he would file an affidavit with the latest updates.
Queries dual pricing
•But the court highlighted the difference in vaccine prices between the Centre and the States. When the Centre can purchase vaccine in bulk for ₹150 per dose, the States have to pay ₹300 to ₹600. Justice L. Nageswara Rao, on the Bench, asked why even the two vaccines — Covaxin and Covishield — were differentially priced.
•“What is the rationale for this dual pricing policy? Why is the Centre procuring at a lower price and what has the Centre fixed its vaccine purchase at 50% and left the States to their own devices?” Justice Bhat asked.
•Justice Chandrachud said some States and municipal corporations had gone ahead and floated their own “global tenders” to buy vaccines.
•“We want to know if the policy of the country is that all States are on their own to supply tenders,” Justice Chandrachud asked the Centre.
•“Article 1 of the Constitution says Bharat is a Union of States. When the Constitution says that, we will follow the federal rule. Then the Government of India has to wholly procure the vaccines and distribute them. Here, individual States are left in a lurch…” Justice Chandrachud said.
•Mr. Mehta urged the court to exercise restraint. “The world is in a crisis. Vaccine manufacturers are few. Any indication that the Supreme Court is examining the price structure would hamper…” he said.
•Justice Bhat said the court was only looking into the rationale of the pricing and did not intend to hamper any negotiations.
•The court referred to how private entities were pricing vaccine jabs very high. “Are you saying that everyone between 18 and 44 years of age can afford vaccines… not at all,” the court addressed the government.
•Amicus curiae, senior advocate Meenaskshi Arora, said, “Private hospitals price an injection at ₹1,000. For a family of four, it will come up to ₹4,000. This is the price they have to pay for getting vaccinated immediately. It is a huge expense… This is when Central governments in other countries vaccinate their people free of charge”.
•Justice Bhat said vaccine prices would go further high in case of shortage. “Even other drugs like Remdesivir, the prices had hit the roof,” the judge said.
📰 Ending encryption: On enforcing traceability on popular messaging apps
Enforcing traceability on popular messaging apps will encroach into user privacy
•Barely a day before the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 came into force, WhatsApp moved the Delhi High Court against the rules — specifically the one that mandates that a “significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order”. Given the specification that a “significant social media intermediary” is one with more than 50 lakh registered users, WhatsApp’s messenger service would clearly be affected. WhatsApp’s contention is that for compliance and traceability, it would have to break its end-to-end encryption service that allows messages to be read only by the sender and the receiver. Its argument is that the encryption feature allows for privacy protections and breaking it would mean a violation of privacy. The question to be asked is whether the traceability guidelines (by breaking encryption) are vital to law enforcement in cases of harmful content. A release by the Ministry of Electronics and IT has said that the traceability measure will be used by law enforcement as the “last resort” and will come by only in specific situations, such as “for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India... or child sexual abuse material, punishable with imprisonment....” The assertion suggests that this requirement is in line with the Puttaswamy judgment that clarified that any restriction to the right of privacy must be necessary, proportionate and include safeguards against abuse.
•But the Government, as the law stands now, can already seek access to encrypted data under Section 69(3) of the IT Act, and Rules 17 and 13 of the 2009 Surveillance Rules that require intermediaries to assist with decryption when they have the technical ability to do so and when law enforcement has no other alternative. Besides, it can still seek unencrypted data, metadata and digital trails from intermediaries such as WhatsApp. The trouble with enforcing traceability is that without safeguards such as having any independent or judicial oversight, government agencies could seek any user’s identity on vague grounds and this could compromise the anonymity of whistle-blowers and journalistic sources, who can claim to be acting in the public interest. WhatsApp’s contention that “requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent... and fundamentally undermines right to privacy” is, therefore, not hyperbole. If anything, the Government needs to revisit its position on traceability commitments of intermediaries and instead revise the IT Act, 2000 in line with existing global best practices besides legislating the long-pending Data Protection Bill.
📰 Co-WIN, casinos and luck
The psychology behind trying our luck at booking a vaccine appointment is the same as in gambling
•The experience of booking an appointment to get vaccinated in India has been rewarding for some but frustrating for most. The procedure for a citizen to get vaccinated is to register on the Co-WIN website or Aarogya Setu app and schedule an appointment at a preferred centre. It sounds easy until you try it. Soon you realise that no matter how fast you click the confirm button, it’s not easy to get an appointment. That’s because vaccines are in short supply. And that is because the Government of India hasn’t placed enough orders.
•People who have been trying to get an appointment find someone or the other in their social network who got lucky with an appointment. That motivates them to keep trying. The system of getting vaccine appointments has become gamified with vaccination centres releasing alerts of slot openings on social media. These alerts inform people about the openings of vaccination slots at any time of the day or night. They keep people hooked on to the game of ‘fastest finger first’ to book an appointment.
Vaccination and gambling
•The psychology behind why random alerts and repeated log ins into the website to try one’s luck at booking an appointment works is the same as why people gamble money in casinos or buy lottery tickets. At a casino, people put money in the slot machine and press the button. People don’t know if they’ll win. They can’t predict it. But they believe that the odds of winning increase the more they play. So, they keep gambling. Of course, most people lose more than they win because the odds are always in favour of the casino, which makes most of the money. In the case of trying their luck at getting a vaccination appointment, people eagerly wait for alerts of slot openings, log in and press the confirm button. People don’t know if they’ll ‘win’ an appointment. They can’t predict it. But people believe that the odds of ‘winning’ an appointment increase the more they log in. So, people keep trying. Of course, most people don’t ‘win’ appointments because the odds are not in their favour. The only difference between gambling at casinos and booking vaccination appointments is that in gambling, the casino wins most of the time. But regarding vaccination, both the government and the people lose.
Active conditioning
•In Ivan Pavlov’s experiment of classical conditioning, the dogs in the experiment would start drooling when they heard the sounds associated with food preparation. They would drool when the bell rang even though no food was present. After a while, the dogs would stop responding if no food appeared after the bell was rung. But psychologist B. F. Skinner found that rats and pigeons would continue doing the task much longer if they were rewarded occasionally rather than every time. Both are types of conditioning, but Skinner’s conditioning was active, whereas Pavlov’s was passive. The dog didn’t have to do anything conscious to get the reward, whereas the rat and pigeon had to undertake a task. Making the animal take an explicit action produced a stronger, longer lasting effect on behaviour.
•Humans respond in similar ways as rats and pigeons when given an occasional reward for repetitive behaviour. Casinos give players the illusion of control by letting players place chips and play their cards. Giving them choices and making people take action makes them feel like they have some control, as opposed to giving purely luck-based unpredictable rewards. In case of vaccinations, the government is giving people the illusion of control by encouraging people to log in and try their luck at booking an appointment. Giving people the choice to take action towards booking an appointment makes people feel like they have some control, even though the odds are highly stacked against ‘winning’ an appointment. There is an element of surprise or uncertainty, so people are never sure when the appointment will come through. This is keeping people engaged. The question is, should the government be operating vaccinations like a casino?
📰 Elected autocrats, their pandemic responses
In the U.S., India and Brazil, messianic populism, polarisation and insularity have made the pandemic that much worse
•A year and counting into the greatest health crisis the world has faced in over a century we can identify one overwhelming factor that separates the countries that have done relatively well from those that have been complete disasters: elected autocrats. By any measure the most dismal performers in the democratic world have been the United States, Brazil and India. Despite its vast wealth and resources and its low population density, the U.S. has one of the highest per capita death tolls in the world. Brazil has taken denialism to new levels and the novel coronavirus pandemic has been allowed to range so fiercely that the country has become a petri dish for new mutations. India’s first wave numbers were relatively mild (even accounting for underreporting) but the current wave is probably the worst and deadliest the world has seen.
The reactions
•In all three cases it did not have to be this bad. Former U.S. President Donald Trump took the pandemic as a personal affront, initially refused to come to terms with the threat and wilfully downplayed the gravity of the pandemic. When Washington finally decided to take action, the response was crippled by policy incoherence, partisan attacks on Democratic Governors and open hostility to the scientific community.
•Mr. Trump even provided a definition of his autocratic writ declaring in April 2020 that “when somebody’s the President of the United States, the authority is total, and that’s the way it has got to be.”
•Brazil’s right-wing populist President, Jair Bolsonaro, who came to office on a platform of being tough on crime and the politically correct, has been called the tropical Trump. He dismissed the pandemic as a “little cold”, boasted that real men had nothing to worry about, attacked public health officials as promoting a hoax and fired health ministers who defied him. Measures to combat the pandemic that have been taken in Brazil have come from governors and mayors and have been met with fierce opposition and public mockery from Mr. Bolsonaro.
•Narendra Modi was never an outright COVID denier, and his government did take decisive measures, imposing a nation-wide lockdown in March 2020. But having failed to consult with experts or any of the Chief Ministers that govern India’s federal States, the welfare consequences of the lockdown were severe as tens of millions of urban migrants were forced into a mass exodus back to their villages. The pandemic subsided for some time, but even as experts warned of a second wave driven by new variants, the government celebrated its national triumph over the virus, dragged its feet on vaccinations and forged ahead with large-scale election campaign events and religious festivals even as the second wave surged. But of all the policy failures that have led to calls for the government to resign, none is more egregious or more revealing of Mr. Modi’s indifference than the Government’s decision to stay within its Budget allocations and charge States for vaccines. At the current rate, it will take the world’s largest producer of vaccines more than a year to vaccinate its population.
•As elected autocrats, Mr. Trump, Mr. Bolsonaro and Mr. Modi have three things in common.
•First, they came to power as classic right-wing populists who branded themselves as incarnations of the people and peddled their personal virtues of strength and fortitude as substitutes for deliberation and policy making. Rulers powered by messianic faith have little patience for experts and science. All three have surrounded themselves with yes-men and ruled from the gut, peddling triumphalism (all three prematurely declared the pandemic vanquished), quack remedies (injecting disinfectants, the waters of the Ganga) and sheer macho bombast, as when Mr. Trump and Mr. Bolsonaro took a lap for surviving infection even as they received the best care in the world.
The line of nationalism
•Second, autocrats feed on polarisation. All three have championed a virtuous nationalism — rooted alternatively in evangelism in Brazil and the U.S., or Hindutva in India — animated and weaponised by the demonisation of the other. Ethnicised nationalism works by demoting the “other” — Muslims, Blacks, immigrants, gays, secularists and all those who subscribe to ideals of civic nationalism — to the status of the undeserving and the morally deficient. Membership in the community of the nation is essentialised. Mr. Trump demonised immigrants, channelled white supremacy and stoked fears of Blacks invading suburbs. Mr. Bolsonaro routinely smears his opponents as banditos or communists and has a long track record of making homophobic and misogynistic remarks. Mr. Modi has a long record of debasing India’s 200 million Muslims, and when re-elected in 2019, doubled down on his party’s platform of making India a Hindutva project, first by turning Kashmir (India’s only Muslim majority State) into a militarised colony of the central government and then pursuing laws that are perceived by Muslims as according them second class citizenship status. In diverse societies, ethno-nationalism can only fuel social polarisation, and a polarised society is a society that cannot mobilise the trust and solidarity that responding to a pandemic calls for.
•The pandemic itself was shamelessly used to inflame identities, with Mr. Trump denouncing the ‘Kung Flu’, Mr. Modi’s minions raising the spectre of ‘corona jihad’, and Mr. Bolsonaro hurling homophobic slurs at mask wearers. More than anything else, this explains why the most common sensical public health measures — wearing masks, restricting social interaction, testing and getting vaccinated — all became so politicised in the U.S., India and Brazil.
•Third, once in power, the autocrats quickly personalised, centralised and insulated their power. All three have attacked the Constitution (literally in Mr. Trump’s case), demanded fealty from independent institutions, over-ridden the authority of expert institutions, tampered with data, assaulted the independence of the media, and elevated loyalty to the leader as the highest principle of service. This autocratisation explains the dismal failures of governance. The core tasks of a government in times of a pandemic — coordination across levels of government, clear and consistent communication of basic policies and health measures, support for frontline workers and maybe, most importantly, rallying all citizens to stand together — have all been subverted by the autocrats’ will to power.
A pushback
•In the U.S., India and Brazil, this toxic combination of messianic populism, social polarisation, insularity and centralisation has made the pandemic that much worse and poisoned the waters of democracy. But democracies are not just about their leaders. Throughout the crisis, health-care workers and civil society organisations have stepped up where their leaders have failed, and democratic institutions have pushed back. Mr. Trump has been exposed by the media and shown the exit by the voters. The Brazilian Senate has launched a very public investigation into Mr. Bolsonaro’s handling of the pandemic and his poll numbers have plummeted. Mr. Modi has just been repudiated in State-level elections and the Indian Supreme Court has called out the incoherence of the government’s vaccine policy. But to take comfort in the hope that democracies will demand accountability, we must first remember, as the pandemic continues to ravage India and Brazil, that it is not only the virus, but also the hubris of autocrats, that kills.
📰 Recognising caste-based violence against women
By repeatedly setting aside convictions under the PoA Act, courts bolster allegations that the law is misused
•The horror of the gang rape of a 19-year-old Dalit woman in Hathras in 2020 is still fresh in our minds. Activists, academics and lawyers argued that the sexual violence took place on account of the woman’s gender and caste and that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) must be invoked.
•On the heels of the Hathras crime came a new judgment of the Supreme Court (Patan Jamal Vali v. State of Andhra Pradesh) addressing the intersectionality of caste, gender and disability. In this case, the victim of sexual assault was a blind 22-year-old Dalit woman. The trial court and the High Court had convicted the accused for rape under Section 376 of the Indian Penal Code (IPC), and under Section 3(2)(v) of the PoA Act, and sentenced him to life imprisonment. The Supreme Court, in its judgment delivered by Justice D.Y. Chandrachud and Justice M.R. Shah, confirmed the conviction and the punishment for rape under the IPC but set aside the conviction under the PoA Act. On the one hand, this judgment is a huge step forward as the court used the opportunity to bring recognition to intersectional discrimination faced by women on the grounds of sex, caste and disability. However, by setting aside the conviction under the PoA Act, it is like many other previous judgments of the Supreme Court.
The intersectional approach
•Let us focus on the positive aspects first. The Supreme Court, in a first, elaborated on the need for an intersectional approach, to take into account the multiple marginalities that the victim faced. It relied on well-known intersectional theorists such as Kimberlé Crenshaw who first coined the term ‘intersectionality’ and on the statement of the Combahee River Collective which addressed the intersectional discrimination faced by black women in the U.S. Using these sources, the court recognised that when the identity of a woman intersects with her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. It said we need to understand how multiple sources of oppression operated cumulatively to produce a specific experience of subordination for the blind Dalit woman. Placing special emphasis on making the criminal justice system more responsive to women with disabilities facing sexual assault, the court also laid down directions to train judges, the police and prosecutors to be sensitised in such cases.
•But despite using an intersectional lens, the court set aside conviction under the PoA Act. The PoA Act was enacted to address atrocities against persons from SC and ST communities and was amended in 2015 to specifically recognise more atrocities against Dalit and Adivasi women including sexual assault, sexual harassment and Devadasi dedication. Section 3(2)(v) states that if any person not being an SC/ST member commits any offence under the IPC punishable with imprisonment of 10 years or more against a person on the ground that such a person is from an SC/ST community, he shall be punishable with imprisonment for life and with fine. This was amended in 2015, to change the phrase “on the ground that such person is a member of SC/ST” to “knowing that such person is a member of SC/ST”.
•In cases of sexual violence against Dalit and Adivasi women, courts have almost consistently set aside convictions under the PoA Act. In 2006 in Ramdas and Others v. State of Maharashtra, where a Dalit minor girl was raped, the Supreme Court set aside the conviction under the PoA Act stating that the mere fact that the victim happened to be a woman who was member of an SC community would not attract the PoA Act. In Dinesh Alias Buddha v. State of Rajasthan (2006), the Supreme Court held: “It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.” In Asharfi v. State of Uttar Pradesh (2017), the court held that the evidence and materials on record did not show that the appellant had committed rape on the ground that the victim was member of an SC community. In 2019, in Khuman Singh v. State of Madhya Pradesh, a case of murder, again the court held that the fact that the deceased was a member of an SC community was not disputed but there was no evidence to show that the offence was committed only on that ground; conviction under the PoA Act was set aside. There are several precedents insisting on an unrealistic burden of proof. This issue needs to be referred to a larger bench to take a different view.
Burden of proof
•In all these judgments, the court held that there was no evidence to show that the accused committed sexual assault on the ground that the victim was member of an SC/ST community. One is tempted to ask: what kind of evidence would that be? How would the prosecution prove in any given case that the accused had sexually assaulted the victim because she was Dalit/ Adivasi? The only evidence that can be led is that the victim was from an SC/ST community and that the accused was aware of that. When a woman is from a marginalised caste and is disabled, she faces discrimination due to her sex, caste/tribe and disability, all of which render her vulnerable to sexual violence. This is what intersectionality theory requires us to recognise.
•In the Patan Jamal Vali case, the court using the intersectional lens recognises that evidence of discrimination or violence on a specific ground may be absent or difficult to prove. It agreed with the finding of the sessions judge that the prosecution’s case would not fail merely because the victim’s mother did not mention in her statement to the police that the offence was committed against her daughter because she was from an SC community. It also confirmed that it would be reasonable to presume that the accused knew the victim’s caste as he was known to the victim’s family. Despite such a nuanced understanding, the court held that there was no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the victim’s caste. It is unfortunate that intersectionality, which seeks to recognise the multiple grounds of marginalisation faced by women, was used by the court to state that it becomes difficult to establish whether it was caste, gender or disability that led to the commission of the offence.
•Why would this matter, one might ask, if the punishment of life imprisonment was upheld? It matters because the repeated setting aside of convictions under the PoA Act bolsters the allegations that the law is misused and amounts to the erasure of caste-based violence faced by women. Further, as stated in the recent Parliamentary Standing Committee Report on Atrocities and Crimes against Women and Children, the “high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration”. This judgment was a missed opportunity for the court to use intersectionality to uphold the conviction under the PoA Act or refer the matter to a larger bench if needed. We need to stop hiding behind smokescreens of hyper-technicality of evidence and recognise caste-based violence against women when it stares us in the face. Else, our caste discrimination laws will be rendered toothless. If intersectionality theory mattered in this case, it should have influenced an interpretation of the PoA Act that reflects the lived experiences of women facing sexual violence.
📰 The Indian model of coexistence
Israel and Palestine will have to seek a solution through non-violence, and could take a leaf out of India’s book
•The cycle of violence between the Israeli forces and the Palestinian public is neither the first nor likely to be the last of its kind. The Palestinians have been losing not only their lives and livelihood but also the very land for which this violence has been raging for over a century now. The territory in question is The Holy Land to the three religions of Abrahamic monotheism, viz., Judaism, Christianity and Islam. One can’t be a Jew or a Christian or a Muslim and deny that it is the Promised Land of the Beni Israel branch of the descendants of Abraham. The Al-Aqsa mosque in Quran is Solomon’s Temple which was the first Qibla (direction of prayer) of the Muslims. The Islamic claim on Jerusalem comes only through its association with Judaism and Christianity.
A brief history
•Britain renounced its Mandate over Palestine in 1948, paving the way for the United Nations to divide Palestine between the Jews and Arabs, giving them about 55% and 45% of the land, respectively. The Jews, meanwhile, had declared the establishment of the state of Israel for which they had been working for long. The Palestinians, who lacked the resources to conceive of a state, failed to form a state of their own in the land allotted to them. Instead, a coalition of Arab countries invaded the nascent state of Israel to nip it in the bud. Israel not only defeated the Arab armies, but also unleashed what the Palestinians call Nakba, an Arabic word which means holocaust. Israel destroyed about 600 Palestinian villages and expelled about 80% of Arabs from its territory.
•In 1967, in the Six-Day War, Israel captured not just more Palestinian land but also Egypt’s Sinai Peninsula and Syria’s Golan Heights. During the Yom Kippur War of 1973, the Arabs came to realise that Israel is here to stay. But the Arab states, while washing their hands off Palestine, failed to impress the same realisation upon their Palestinian brethren, a sizeable number of whom remain committed to seeking a solution through counter-violence. Non-Arab Muslim countries, while being of no help to the Palestinians have been the greatest cheerleaders of the violent section of the struggle.
•This vicious cycle of violence is not going to end unless there is realism on both sides. The Hamas should know that Israel will not give up on holding on to land it has held for years, and Israel should understand that total subjugation, expulsion or even decimation of Palestinians will not make it any safer. Both the sides will have to seek a solution through non-violence. A solution based on the common humanity of all stakeholders, one that is not riven by racial and religious schisms, needs to be explored. Secularisation of the discourse is an inescapable prerequisite for any workable solution. This is especially more applicable for the weaker side.
Accommodation of all
•The Indian model of democracy and secularism, which accommodates religious, ethnic, linguistic and other diversities, could be a viable model for the peaceful coexistence of formerly antagonistic groups. The European model of the annihilation of natives in the Americas and Australia, last tried on the Jews in Nazi Germany, is not a solution which we can morally countenance and practically resort to. India, on the other hand, evolved a unique model of accommodating the victors and the vanquished, without ever resorting to the latter’s decimation.
•A modus vivendi has to evolve on the basis of hard realities, the first of which is that neither the Jews nor the Palestinians are going to vanish into thin air. The Palestinians missed the bus to form a state in 1948, and have missed many since then. Now, they are sparsely spread over the land in scores of non-contiguous pockets, making a cohesive state unviable. The two-state solution can be possible only if Israel frees the occupied territories and removes the Jewish settlements from there, an unlikely scenario in the foreseeable future.
•If the two-state solution is nowhere in the offing, a single state after the Indian model, i.e., a secular, democratic and pluralistic state, may be the only feasible option. A nation state only for the Jews would be a relapse into the ghetto mode, with all its concomitant implications.
•The Palestinian refugees have a right to return. That the altered demographics would impinge on the religio-racial character of Israel is not an argument which behoves a modern democratic state founded on common humanity with equal rights and opportunities for everyone. It is true that a nation state belongs to the group which constituted itself into a nation. Therefore, the group’s ethos would reflect in national life without it rubbing it in. A nation is an imagined community. As imagination expands, the foundations of the nation become deeper. For this, there could be no better model than India. Israel might not offer the right model of conflict resolution for India, but India presents a model of peaceful coexistence for Israel.
📰 Power play to bring the digital ecosystem to heel
While there are problems in the system, ill-considered regulation such as the new IT Rules is not the way forward
•Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 imposes an obligation on significant social media intermediaries providing a messaging function, to ensure traceability of the originator of information on their platforms. A failure to implement this obligation can lead to intermediaries being held responsible for illicit content on their platforms. These rules have recently come into effect. Consequently, WhatsApp has filed a petition in the Delhi High Court alleging that the mandate for traceability violates the privacy rights of Indian citizens, by rendering WhatsApp unable to provide encrypted services.
•In response, the Government has, through a press release, sought to question the substance and timing of WhatsApp’s petition. On scrutiny, however, it appears that the response is misconceived.
•The Government primarily relies on the argument that: privacy is not an absolute right, and that the traceability obligation is proportionate, and sufficiently restricted. Notably, the new Rules mandate traceability only in the case of significant social media intermediaries that provide messaging services (i.e. those that meet a user threshold of 50 lakh users, which WhatsApp does), subject to an order being passed by a court or government agency and only in the absence of any alternatives.
•While it is indeed true that privacy is not an absolute right, the Supreme Court of India in the two K.S. Puttaswamy decisions (of 2017 and 2018) has clarified that any restriction on this right must be necessary, proportionate and include safeguards against abuse.
On traceability as a feature
•However, as we argue in a recent paper, a general obligation to enable traceability as a systemic feature across certain types of digital services is neither suitable nor proportionate. Additionally, the Rules lack effective safeguards in that they fail to provide any system of independent oversight over tracing requests made by the executive. This allows government agencies the ability to seek any messaging user’s identity, virtually at will. However, anonymity from the government can be important, particularly in contexts of journalistic source protection and for whistle-blowers. Therefore, deciding whether to remove anonymity requires application of an independent judicial mind.
•In applying the Puttaswamy tests to the Rules, one must examine not just whether the weakening of encryption systems will lead to some law enforcement gains, but whether these are worth the costs involved. Thus, one must consider the impacts of such a measure on the general digital ecosystem in terms of the overall cybersecurity and privacy problems such an obligation could create. There is near universal consensus that mandating the presence of backdoors or weakening encryption generally — which a traceability mandate would do — would compromise the privacy and security of all individuals at all times, despite no illegal activity on their part, and would create a presumption of criminality.
Other means exist
•In any event, the Government already has numerous alternative means of securing relevant information to investigate online offences including by accessing unencrypted data such as metadata, and other digital trails from intermediaries. Therefore, the present Rules attempt to shorten the investigative process, even though, as we argue in our paper, law enforcement is not supposed to be an entirely frictionless process. Frictionless processes lacking sufficient checks will merely incentivise fishing expeditions by government agencies.
•Further, the surveillance powers of the Government are in any case vast and overreaching, recognised even by the Justice B.N. Srikrishna Committee report of 2018. Importantly, the Government already has the ability to access encrypted data under the IT Act. Notably, Section 69(3) of the Information Technology Act and Rules 17 and 13 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 require intermediaries to assist with decryption where they have the technical ability to do so, and where law enforcement has no alternatives. The newly notified Rules go well beyond current provisions in the law by seeking to punish relevant intermediaries for failing to adequately weaken encryption systems.
•The Government’s press release appears to be well aware that this is in effect what would happen if the traceability mandate were to be imposed. However, it notes that it is the responsibility of intermediaries to find an alternative method to protect user privacy, with or without the use of encryption.
Scrutiny is a must
•The press release also claims that the new Rules were introduced pursuant to consultation. However, this does not reveal the entire story. The traceability related provision in the draft version of the Rules released in 2018 faced significant opposition from numerous stakeholders, ranging from service providers, academia, and civil society organisations. The new traceability provisions are substantially similar, and carrying out a consultation merely to reject all the views that go against state interests is far from best practice. Ideally, and given the substantive changes made to the 2018 draft (including the addition of several entirely new parts such as those pertaining to regulation of digital news), the new Rules should also have been put through a period of consultation before being notified. . Ideally, the rules should also be accompanied by an explanatory memorandum explaining the rationale for regulation.
•Of course, this entire discussion is notwithstanding the fact that the intermediary rules are not the manner or place to go about putting in place new substantive regulation to solve the myriad problems caused by the digital ecosystem. Indeed, the ability of the government to issue progressively more onerous obligations under the guise of “due diligence” requirements under Section 79 of the IT Act (which in essence, deals with the issue of take-down of illegal content) must be subject to judicial scrutiny.
•Overall, however, it is clear that the move by the Government is part of a broader power play against foreign-based technology companies, and to generally bring the digital ecosystem to heel. While, undoubtedly, there are numerous problems in the digital ecosystem that are often exacerbated or indeed created by the way intermediaries function, ill-considered regulation of the sort represented by the new intermediary rules — which appear to have little basis in evidence or care for consequences –— is not the way forward. Indeed, the only truly democratic and relatively long-term solution would be for legislative change along multiple avenues, including in the form of revising and reforming the now antiquated IT Act, 2000.
