CLC Student Law Review Vol. II Issue I

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C AMPUS L AW CENTRE STUDENT LAW REVIEW Volume II

Issue I

April 2014

Editorial Board 2013-2014

Patron-in-Chief

Editor-in-Chief

Prof. (Dr.) Usha Tandon

Sumedha Sarkar

Senior Editors

Vihan Dang

Maansi Verma

Kriti Saran

Editors

Ishita Bisht Ajay Justice Shaw Sh aw

Anandita Sharma Rituparna Mukhuty

The Campus Law Centre Student Law Review (CLCSLR) seeks to publish and provide avenues for student research and scholarship. Published by the Students’ Union, Campus Law Centre, Faculty of Law, University of Delhi. No reproduction, storage or transmission except via fair dealing of any part of this publication may take place without prior written permission of the Editorial Board of the th e Campus Law Centre Student Law Review. Please note that though every effort has been made to ensure that the information in CLCSLR is accurate and appropriately cited/referenced, neither the Editorial Board nor the Students’ Union shall be held liable or responsible in any manner whatsoever for any consequences consequences resulting from inaccuracies, errors or views taken by authors in the Journal. Further, the views expressed by the authors are not necessarily those of the Editorial Board or of any sponsors of Campus Law Centre Student Law Review. ©Campus Law Centre Student Law Review 2014. All rights reserved .

ISSN 2321 – 0028 (Print)

C AMPUS L AW CENTRE STUDENT LAW REVIEW Volume II

Issue I

April 2014

CONTENTS Foreword Special Thanks Editorial Acknowledgments Acknowledg ments Articles 1

Too Young, Too To o Wild and Too To o Free? Getting the Juvenile Justice Act Together Tog ether Arindrajit Basu & Ayani A yani Srivastava Srivast ava

2

The Greening of Trade Jurisprude Jurisprudence: nce: A Study on the Conflict and Reconciliation Reconciliation of Trade and Environment Nivedita Raju R aju

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3

Right to Information: Shredding the Curtain of Secrecy Around Political Parties Tanya Choudhary

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4

Heralding Corporate Governance in Banks in India: A Study of Banking Laws (Amendment) Act, 2012 and BASEL III Accord Anish Jaipuriar Jaipu riar

77

5

Towards the Electronic Police State: Addressing the Concerns Shamba Dey

101

1

6

Establishing Establishing the Jurisprudence of Instant Customary International International Law and its Contemporaneous Relevance Sarthak Malhotra & Sujoy Sur

121

Legislative Comments 1

A Critical Overview of o f the Assistive Reproductive Rep roductive Technologies Tec hnologies (Regulations) Bill, 2010 Sriparna Dutta Choudhury

143

A tribute to Professor Lotika Sarkar (1923 – 2013)

For lessons within and beyond the classroom

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FOREWORD

I am pleased to learn that the second volume of the Campus Law Centre Student Law Review is ready for its readers. In its maiden publication in 2013, it became the first ever student-edited and peer reviewed publication of the Campus Law Centre, Faculty of Law (University of Delhi). In its second year of publication, this initiative by the Students’ Union is taken forward with renewed vigour. The Law Review has h as two primary goals. First, it provides a forum for students to discuss, debate and deliberate on contemporary legal issues. Second, the Review seeks to encourage writing, editing and research among the Campus Law Centre student community. It will be an annual, peer reviewed publication with a student Editorial Board committed to promoting legal scholarship. Campus Law Centre has an outstanding tradition of producing some of India’s most erudite legal minds and it is this culture that needs to be preserved and nurtured by creating opportunities for law students who will eventually take up a career at the Bar or the Bench. The second volume of the CLCSLR covers multidisciplinary issues such as the jurisprudence of punishments for juvenile delinquents, environmental considerations within International Trade relations, BASEL and domestic banking laws, applicability of RTI on political parties, amongst others. I would like to commend the Editorial Board for this commendable effort and look forward to the many contributions it is sure to make to legal discourse in the future.

Professor Usha Tandon Professor in-Charge Campus Law Centre April 2014 New Delhi

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SPECIAL

THANKS

The Editorial Board would like to express its deepest gratitude to Advocate Ratan Kumar Singh for his encouragement encouragement and generous sponsorship of the publication of the Campus Law Centre Student Law Review, Vol. 2 Issue 1. Advocate Ratan K. Singh is an eminent personality in the fields of International and Domestic Arbitration, International Commercial and Financial Law, Mining Law, Construction and Infrastructure Law, Environmental Law, and Constitutional and Administrative Law. Mr. Singh sits as an arbitrator and has also chaired as well as participated as a tribunal member and counsel in various domestic and international arbitrations, both ad-hoc as well as those governed under the rules of ICC, UNCITRAL, SIAC, ICA, DIAC etc. Adv. Singh is a Masters in Geology, apart from having a Bachelors’ degree in Law. Law. He is the Director Director of Indian Branch of of Chartered Institute Institute of Arbitrators (“CIArb”), London, India Branch. He is also the Chairman of “International Arbitration Club of India”, the Chairman of Indian Chapter of Tourism Education Future Initiatives, Philadelphia, and a Patron of Centre for Tourism Studies, Rajasthan Chamber of Commerce. He is also on the editorial board of the Law Reports “Recent Arbitration Judgments” and “Bank CLR”. Being an approved faculty/tutor with CIArb, London, he has been actively training practitioners and students. He has been called for delivering lectures in various law schools, including the National Law Schools, and for judging various national and international moot court competitions, including Vis Moot conducted in Vienna and Hong Kong. He is also instrumental in streamlining dispute resolution process of many private and governmental organizations. He is associated with myriad international forums and has delivered speeches in United Nations World Tourism Organization (Madrid), Oxford University, International Chamber of Commerce, Bombay Stock Exchange, Commodity Stock Exchange, Standing Conference of Public Enterprises

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(SCOPE), Nepal Mediation Society, Bocconi University (Milan) and the Nani Palkhiwala Arbitration Centre. In the recent past, Mr. Singh has been a speaker in “Harvard India Conference”, jointly organized by Harvard Law School, Harvard Business School and Harvard Kennedy School in Boston, U.S.A. on 15-16th February, 2014. Mr. Singh has also been one of the keynote speakers in the conference organized by International Council of Jurists at London on 23th June, 2014. Advocate Ratan K. Singh is presently authoring two books on arbitration for leading international law books publishers.

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EDITORIAL

Academic discourse and the exchange of ideas among the student community form the bedrock of progress of any discipline, the law being no exception to this. The Campus Law Centre Student Law Review is an initiative to encourage such legal scholarship. Now in its second year of publication, the Review strives to fulfil the objectives with which it was established in 2012. It aspires to provide a platform to voice those opinions and debates that emerge from the corridors and classrooms of law schools, cutting across disciplines, interests and expertise within the student community. By establishing a dialogue between the Board and the author, the Review aims to act as a catalyst facilitating capacity building among those who, through research and study, endeavour to take the discipline forward, the Editorial Board being as much a part of the learning process as the contributors to the Review. Each year presents its own share of debatable legal issues, some fresh off the block, and some that refuse to go away. Whichever way one looks at it, this pushes one to think and test new ideas. Each of the submissions this year reinforces this belief by seeking to engage with and innovatively deliberate on fundamental legal questions that have arisen over the last few years. After an invigorating and intensive review cycle, bolstered by a team of meticulous peer reviewers, seven original manuscripts form the content of the second volume. This volume opens with an examination of the Juvenile Justice Act, 2000. In the aftermath of the Delhi Gang Rape Case, a public debate ensued on the quantum of punishment to be awarded to the accused juvenile, centring on the requirement of proportionality between crime and punishment. Arindrajit Basu and Ayani Srivastava trace this critical debate, while advocating a need to balance the retributive and rehabilitative objects of punishing juveniles. Trade related issues and environmental questions have not conventionally been perceived to be interrelated. In the second article, Nivedita Raju shows through case law how the objectives of these two seemingly diverging fields can be reconciled. The paper goes on to establish an inclination of the international community to not choose one at the cost

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of the other, thereby promoting a healthy dialogue between free trade proponents and those espousing environmental concerns. The year leading up to the 16 th General Elections saw a great clamour for increased accountability and transparency in politics. In the midst of this, the judgment of Subhash Chandra Aggrawal and Anr. v. Indian National Congress brings political parties under the scope of the Right to Information and Ors brings Act, 2005. In the third paper p aper of the Review, Tanya Choudhary examines the reasoning behind the judgment, its possible implications and proffers a meeting ground between civil society and political parties through a comparative study of parallel right to information legislations in other nations. Next, Anish Jaipuriar examines the changes the Basel III Accord brings in the context of corporate governance in Indian banks. Identifying the question of whether such change would be for the better or worse, the article delves into the problems in adoption of Basel III and suggests measures that can ensure a more transparent yet strong banking structure to support a stable financial system in India. The fifth article recognises the ability of the government to pre-empt and protect the public through far reaching surveillance operations is often seen to be in direct conflict with the exalted right to privacy of the very same public. Shamba Dey examines the various aspects of surveillance operations undertaken by the state, while arguing that the traditional perceptions of privacy and governmental tracking must undergo a change in light of the imminent need to safeguard against unprecedented adversaries. Customary International Law, as a doctrine, has been as severely criticised as it has been praised. It has been appreciated for filing a void where codified international law fell short but at the same time, has been dismissed for being traditionalistic, rigid and ambiguous in its application. In the sixth paper of the Review, Sarthak Malhotra and Sujoy Sur argue that Instant Customary law presents a more efficient alternative which focuses on the psychological element of state intent i.e. opinion juris rather rather than insisting on long practice for a custom to be formed. They contend, through contemporary examples, that this doctrine is more systemised and more suited for application in today’s fast paced world.

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The Review culminates with a legislative comment on the Assisted Reproductive Technologies (Regulation) Bill, 2010. The advent of surrogacy as a viable answer to the plight of couples unable to procreate, has sparked a debate between the rights of the commissioning parents and the surrogate mother. Sriparna Dutta Choudhury examines the Bill in light of the rights of parties, arguing that the provisions of the Bill fail to sufficiently protect the rights of the surrogate. On a final note, the Editorial Board sincerely hopes that the second volume of the Campus Law Centre Student Law Review proves to be an engaging read and encourages students to debate, question and deliberate on principles of the Law.

Sumedha Sarkar, Vihan Dang, Maansi Verma, Kriti Saran, Anandita Sharma, Ajay Justice Shaw, Ishita Bisht and Rituparna Mukhuty.

New Delhi April 2014

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CKNOWLEDGMENTS A CKNOWLEDGMENTS The Editorial Board would like to thank our Advisory Board, Mr. Ajitesh Kir, Mr. Siddharth Siddh arth Peter de Souza, Ms. Anu Choudhry and Mr. Udit Rastogi for their support and encouragement. The Board would like to express its gratitude to Mr. Rohit Rathi, Mr. Brian Tronic, Mr. Dilpreet Singh, Mr. Raja Bagga, Ms. Jeny Shaw, Mr. Surendra Kumar, Ms. Chinmayi Krishnan, Ms. Aamna Hasan, Ms. Samira Varanasi, Ms. Yukti Choudhary and Mr. Aniruddha Rajput whose exhaustive comments and invaluable insights played a pivotal part in the review process. Finally, we would also like to thank Mr. Gupta of 3A Graphics for helping with and printing the final manuscript.

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TOO YOUNG, TOO WILD AND TOO FREE? GETTING THE JUVENILE JUSTICE ACT TOGETHER

Arindrajit Basu & Ayani A yani Srivastava * Can any society or legislative regime principally impose a lenient punishment on a murderer or rapist simply on account of his age, regardless of the social harm he intended and was capable of causing? In light of recent developments in India with respect to various criminal occurrences involving juveniles, who were spared exposure to the punishment merited by their crime, this paper seeks to establish that the answer to the above question lies in the negative. Juveniles in India have been conferred a ‘special status’, etched in legal principles and scientific research. This status has been recognised by the law in the form of a separate criminal justice system for juveniles. The authors do not advocate doing away with this system. Yet, in order to balance out the reformative and retributive aspects of any criminal justice system, this paper advocates certain amendments to the Juvenile Justice Act, 2000, which provides for a maximum punishment of three years in a remand home regardless of the degree of harm intended and/or caused. The authors have compared the evolution of the Indian juvenile justice system with legislative regimes from other jurisdictions, and have suggested incorporation of some provisions to the Indian system, having factored in the cost to society, as well as the right of juveniles to remain ‘young, wild and free’.

I.

INTRODUCTION

As Karen left the public health building building in Illinois for a quick visit to the washroom, she could not possibly have fathomed the monstrosity of the events that were about to unfold. She was raped at knifepoint by a seventeen year-old. 1 Neither could Ronnie-Green Jr., who walked out of his house onto the streets of Pontiac, Michigan and was summarily executed by an 11 year old who was using a 0.22 caliber-rifle.2 Nor could the 23 year old physiotherapy intern in New Delhi, as she boarded a moving bus, where she would be brutally violated and fatally assaulted by five men, one of whom was 17 and a half years old.3

*

IInd year, B.A. LL. B., West Bengal National University of Juridical Sciences. 1 Daniel W Van Ness, Crime and Its Victims: What Can We Do?, DOWNERS GROVE, IL; INTERVARSITY PRESS 23-24 (1986). 2 Keith Bradsher, Boy Who Killed at 11 Is Convicted of Murder as an Adult, NY Times, Times, Nov 7, Nov 7, 1999. 3 PTI, Delhi Gang Rape: Chronology of Events, The Hindu , Aug 31, Aug 31, 2013.

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The tragic link between the three cases lies in the fact that the perpetrators managed to evade the punishment that their acts merited. In Karen’s case, the accused, who had been a repeat offender in various burglary cases, plead guilty on a few counts of burglary, following which the rape charge was dropped.4 Attempts made by Karen and her family to re-open the case only resulted in the criminal using his youthful offender status to obtain a lenient punishment. 5 Nathaniel Abraham, who was responsible for the brutal murder of Ronnie Green was sentenced to seven years in a rehabilitation home 6 while the seventeen and a half year old on the bus in Delhi was sentenced only to three years in a similar detention facility as per the provisions of the Juvenile Justice (Care and Protection Protection of Children) Children) Act, 2000 (hereinafter (hereinafter ‘the Act’). Act’). The first two cases led to a huge public outcry spearheaded by the families of the victims, who felt that they had been wronged by the State. This led to a paradigm shift in the laws of their respective states, which included provisions to deal with juveniles, who commit crimes of an exceptionally heinous nature, provisions that are yet to be incorporated into the Juvenile Justice Act, 2000 in India.7 As will be established throughout the rest of this paper, the Indian system is grossly inadequate in its current state to account for such juveniles, thereby obstructing the course of justice, superseding the rights of the victim and diluting the potency of the crime. With strong public sentiment prevailing against such heinous offenders 8, the authors argue that the system is at a watershed and it is time the legislature sought to plug such loopholes, not by abolishing the system as a whole or by denying children their special status but by making certain amendments to the current law. The authors attempt to establish the above-mentioned above-mentioned hypothesis hypothesis in the following order. Part II of this paper summarises the various international covenants on child rights that have shaped the framing of separate laws for juveniles in India. While framing any recommendations, such international covenants must be considered, something this paper does in due course. Part III traces the evolution of juvenile justice legislation in India. Part IV discusses note 1. Supra note 5 Id. 6 Keith Bradher, Boy Who Killed Gets 7 Years, NY Times, Jan 14, 2000. 7 See also Aparna Viswanathan, Viswana than, Balancing the Juvenile Act , The Hindu, Sep 9, 2013. 8 Aditya Kalra, Arnika Thakur, Delhi Gang Rape Verdict: Reactions from People on the Street , EUTERS, (Sep 10, 2013) available at http://blogs.reuters.com/indfia/2013/09/10/delhi-gangR EUTERS rape-verdict-reactions-from-people-on-the-street 4

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and delineates the evolution of special acts in legislative regimes that may serve as appropriate models for the Indian legislature. Part V elucidates the role of the significance of the victim in the sentencing calculus and the extent of harm suffered by the victim of a criminal act in the sentencing process, and thereby lays the groundwork for this paper’s recommendations, which lie in the separation of offences on the basis of intended social harm. Part VI rebuts the argument that juveniles lack agency to form the requisite intention to commit an offence, by considering and analysing the latest developments in the field of neuroscience with respect to the functioning of the adolescent mind. Part VII brings about the various recommendations—which recommendations—which can be categorised into two main courses of action. The first is an automatic legislative transfer of offences such as rape and homicide, where the juvenile, if convicted, is automatically punished as an adult without the judge applying his discretion. The second is the conferring of a certain amount of discretion on the judiciary, after adhering to pre-decided guidelines to impose punishment under the Indian Penal Code instead of an alleviated one under the Act. This paper does not seek to explore the ramifications of its recommendations, in terms of its deterrent effect on future juvenile perpetrators and hence has not analysed statistics with respect to juvenile crime in the country. All the authors seek to do is to apply theoretical legal and social principles in an attempt to balance out the rehabilitative and retributive aspects of the juvenile justice system without delving into the institutional framework through which the proposed amendments may be implemented.

II.

A SUMMARY OF SUMMARY OF INTERNATIONAL JURISPRUDENCE ON CHILD RIGHTS

The first international document that reflected the growing concerns of the global community regarding the imperative need to secure the well being of children was the Geneva Declaration of 1924, which advocated that nations must strive to ensure that children receive the basic necessities of life and are free from exploitation. The United Nations Declaration on the Rights of the Child, 19899 defines a ‘child’ as any individual under the age of eighteen. 10 India

United Nations Declaration on the Rights of the Child, November 20, 1959 GA res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959). 10 Supra note note 7, Article 1. 9

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has signed and ratified this Declaration. 11 The Declaration recognises the vulnerable status of children in society owing to both their physical and mental immaturity, endorses special legal protection for them and propagates the notion that any legislation must account for the best interests of the child. 12 The minimum requirements requirements of a juvenile justice system were recognised recognised by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (hereinafter ‘The Beijing Rules’) in 1985. 13 These rules advocate the setting up of a free, fair and efficient juvenile justice system in all countries in order to protect the special status of the child. Regarding the Minimum Age of Criminal Responsibility (MACR), the Beijing Rules state that this should be set as high as possible, in line with the guidelines given by the United Nations, which account for the socio-cultural socio-cultural differences in each nation and it is imperative that the offender, if convicted, must be able to understand, understand, by virtue of his ‘individual powers of discernment’, the anti-social ramifications of his behaviour.14 Furthermore, the Beijing Rules correctly identify two broad aims of juvenile justice. The first is obviously the well-being of the juvenile, which would include the provision provision of ample opportunities for reformation, if any exist and the second is the ‘principle of proportionality’, which endorses the notion that punishment should be proportional to the gravity of the crime perpetrated as well as the personal circumstances of the juvenile. These rules do not state that the juvenile offender cannot be punished under any circumstances but such punishment can, under no circumstances, be greater than that meted out to an adult offender committing a similar crime. 15 The final developments developments in international jurisprudence, jurisprudence, which have impacted the evolution of Juvenile Justice in our nation, are the United Nations Guidelines for the Prevention of Juvenile Delinquency Delinquency (hereinafter ‘The Riyadh

11 Jyoti

Rao, A History of Child Rights in India (Dec 31, 2007), available at http://www.unicef.org/i http://www.unicef.org/i ndia/children_3220.htm 12 Supra note note 7, Article 2. 13 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29, 1985, UN GAOR A/RES/40/33. 14 “In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Rule 4, UN GAOR A/RES/40/33 (Nov 29, 1985). 15 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29, 1985, Rule 5, UN GAOR A/RES/40/33.

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Guidelines’)16 and the United Nations Rules for the Protection of Individuals Deprived of their Liberty (hereinafter ‘The Havana Declaration’) 17. The Riyadh Guidelines build on the previously passed declarations on the rights of the juvenile offenders, and explicitly call for socio-legal safeguards from social stigma that may further damage the personalities and futures of juvenile offenders. The guidelines recommend certain measures that the State may impose to ensure their holistic well being. It also states that juveniles should not be punished for crimes that do not cause excessive social harm. Apart from proposing extensive measures on the proper administration of juvenile detention facilities, the Havana Declaration proposes that the deprivation of the liberty of a juvenile by judicial means such as imprisonment should only be used as a last resort, in circumstances where such liberty poses an imminent threat to public safety. It is clear that while international law recognises the special status of the juvenile offenders and the need for the enactment of a legislation to protect such offenders, it also implicitly accounts for cases to which such protection cannot be extended (albeit they may be exceptions) but indicates that the special status should only be revoked as a measure of last resort. By incorporating these principles of international law into domestic jurisprudence, the Indian Constitution allows for special laws to be enacted in favour of women and children through Article 15(3), which is the provision from where the Act derives its constitutional legitimacy to ensure that delinquents are reformed and re-integrated into society as productive individuals.

III. A BRIEF HISTORY OF HISTORY OF LEGISLATIONS CONCERNING JUVENILE CONCERNING JUVENILE DELINQUENTS IN INDIA The Guardian and Wards Act, 1890 was the the first instance of a legislation legislation targeting children in conflict with law.18 This was followed by different states

16 17

18

UN GAOR A/RES/45/112, (Dec 14, 1990). UN GAOR A/RES/45/113, Annex 45, UN GAOR Supp. (No. 49A) at 205, Dec 14, 1990, U.N. Doc. A/45/49 (1990). This term has constantly been used to describe juvenile delinquents in India, most recently in the ‘Statement of Purpose’ of the Juvenile Justice Act, 2000.

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passing such acts specific to children like the Madras Children Act, 1920, the Bengal Children, Act 1922, and the Bombay Children Act, 1924.19 Over time, a need for a uniform countrywide legislation, as well as a separate judicial process for children was felt and the abovementioned Acts gave way to the Children Act, 1960, which distinguished between neglected children and juvenile delinquents by establishing the Child Welfare Boards to handle cases concerning the former, and Children’s Courts for cases pertaining to the latter.20 The Children Act, 1960 further created a post of ‘probation officer’ whose job description was to “advise and assist neglected or delinquent children”.21 This legislation was followed followed by the Juvenile Juvenile Justice Act, 1986. As stated in its preamble, this act sought to deal with ‘neglected’ children and ‘juvenile delinquents’ 22, laying down separate mechanisms for the two categories. 23 This act was repealed by the Juvenile Justice Act, 2000, which amounted to India’s acknowledgement to its international obligations as a signatory of the U.N. Convention on the Rights of the Child of 1989, the Beijing Rules and the Havana Declaration.24 The Act was a far more comprehensive legislation, extending the ambit of the categorisations made in the 1986 Act to juveniles ‘in conflict with the law’ (i.e. children who have committed, or are suspected of having committed an offence)25, and ‘children in need of care and protection’ (i.e., children who have been neglected in terms of socio-economic necessities). The Act thereby sought to deal with children in situations that could potentially lead them to the path of delinquency and children who are already in conflict with law.26 The Juvenile Justice Act as applicable today stipulates blanket immunity on all children under the age of eighteen by shielding them from trial and 19

Representing Children Worldwide, How Children’s Voices are Heard in Child Protective Proceedings: India (February, 2006 ) available at http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/fron tpage.htm. 20 Ibid. 21 Juvenile Justice Act: A Reformative Step for Children in Conflict with Law, SCAN INDIA (Feb 2, 2011 ) http://www.scanindia.in/blog/2011/02/02/juvenile-justice-act-aavailable at reformative-step-for-children-in-conflict-with-law/ 22 Objectives, Juvenile Justice Act, (1986). 23 SUMAN N ALWA & H ARI DEV K OHLI OHLI, COMMENTARY ON THE JUVENILE JUSTICE ACT, (Universal Law Publishing Company, 2011). 24 Aparna Viswanathan, Balancing the Juvenile Act , The Hindu, Sep 9, 2013. 25 Supra note note 24, at 28. 26 Id.

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subsequent punishment under adult court. It has been held that even in offences punishable with death or life imprisonment, the jurisdiction to try a juvenile is vested solely with the Juvenile Justice Board. 27 The philosophy underlying the Act is the doctrine of parens patriae , where the State assumes a paternalistic role and the obligation of the Juvenile Justice Board is primarily to determine “the best interest of the child”.28 The purpose of the ‘enquiries’ 29 set up by the Board is not to convict and impart sentence, but to rehabilitate the child and restore him/her to mainstream society.

IV.

A COMPARATIVE ANALYSIS COMPARATIVE ANALYSIS OF JUVENILE OF JUVENILE JUSTICE LEGISLATIONS

The evolution in juvenile justice legislations across the globe may be divided into three major stages. 30 In stage one, offences committed by juveniles were tried under the same framework as adults. With recognition of the potential for reform in children, the law progressed to stage two and the State adopted a paternalistic attitude towards juvenile delinquents. Horrific incidents of crime triggered stage three wherein the State began to espouse a ‘Get Tough’ attitude on juvenile delinquency, and the welfare model followed previously gave way to a justice model. On close examination and analysis of the provision and working of the juvenile justice systems of many jurisdictions, the authors have come to the conclusion that the Massachusetts (USA) and the Canadian Law may be sound models for adaptation by India as the events and social backlash that prompted changes in these two systems are very similar to the backlash that India is facing today.

Sarita Nayak Sawant v. State , , Crl. L. J. 351 (1990). 28 Objectives, Juvenile Justice (Care and Protection of Children) Act, 2000. 29 As opposed to the criminal justice system, the juvenile justice system does not use terms like trials and sentencing. They instead use ‘enquiry’ or ‘adjudication’. 30 See M ARK GOTTLIEB, BOSTON B AR ASSOCIATION ’S T ASK FORCE ON JUVENILE JUSTICE, THE M ASSACHUSETTS JUVENILE JUSTICE MODEL S YSTEM OF THE 1990S: R E- THINKING A N ATIONAL MODEL (1994). 27

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A. CANADA- YOUTH YOUTH CRIMINAL JUSTICE JUSTICE ACT, 2003 Before 1908, in Canada, children were treated as per adult criminal jurisprudence and there were no special provisions for juveniles. 31 Stage two came about with the enactment of Juvenile Delinquents Act, 1908. The Juvenile Delinquents Act in 1908 characterised a significant change in the philosophy of treatment of juvenile delinquents. It was grounded in the philosophy of parens patriae . The Juvenile Delinquents Act stated, “every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child”. 32 The juvenile justice system adopted a welfare model and consequently due process rights were minimised and the process was informal; the primary aim being the welfare of children. This legislation was replaced by the Youth Offenders Act, 1984. As the previous legislation had been critiqued on this ground, this Act accorded due process rights to juvenile delinquents. However, the primary objective of the legislation still lay in the welfare of children. The Youth Offenders Act was criticised on many grounds inter alia for for being too soft on the offender, for not properly addressing serious and violent offences, and for not giving enough recognition to the rights of victims. 33 In 2003, a young girl was brutally attacked by a gang of juveniles.34 The Youth Criminal Justice Act, 2003 was enacted in response35 and stage three in Canada’s juvenile justice jurisprudence was ushered in. Incorporating a tough outlook on juvenile delinquents, the Youth Criminal Justice Act expressly states “long-term protection of the public” as a principle. 36 It further enunciates a need for societal accountability of juveniles by consequences proportionate to the nature of the offence.37 Reformation and rehabilitation are also important aims of the Canadian legislation and in furtherance of the same; there is an array of extra-judicial

31

Jay Makarenko, Youth Justice in Canada: History and Debates on Maple Leaf Web (March 1, 2007) available at http://www.mapleleafweb.com/featur http://www.mapleleafweb.com/features/youth-jus es/youth-justice-canad tice-canadaa-

history-debates. Juvenile Delinquents Act § 38 (1908). Dept. of Justice, Govt. of Canada, The Youth Criminal Justice Act and Background , (24, December 2013). 34 Frances P. Reddington,. Lynn S. Urban & Melissa Conn, Canada and the United States: A Comparison of the Approach to Juvenile Crime , 6 JIJIS 241 (2006). 35 Id. 36 Youth Criminal Justice Act §§ 3(1)( a a ) and 38(1) (2003). (20 03). 37 See Youth Criminal Crimina l Justice Act, 2003. 32

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measures that may be employed when dealing with juvenile offenders. 38 The Youth Criminal Justice Act provides for incarceration in certain cases39, such as when a violent crime40 has been committed by the offender, or when there are aggravating circumstances like manner of commission of an offence. When the juvenile is convicted for murder, incarceration is mandatory. 41 Recent amendments to the Youth Criminal Justice Act 42 introduce the application of adult sentence to juvenile offenders from the age between 14-17, who have been convicted of murder, attempted murder, manslaughter or aggravated sexual assault. 43 The court must be satisfied beyond all reasonable doubt that imposition of adult sentence is necessary for protection of society. 44 Youth Criminal Justice Act stipulates that factors such as nature and gravity of offence, age, maturity, and previous criminal record of the juvenile must be taken in consideration before an adult sentence is pronounced. 45 Previously, the proceedings of juvenile court were conducted in confidentiality and the names of juvenile offenders were concealed from public domain.46 Staying true to the Youth Criminal Justice Act’s objective of protecting the public, and to aid transparency, the amendment proposes to insert clauses which facilitate publication of names of young offenders convicted of violent offences.47 It also mandates the police to maintain criminal records of all juvenile offenders, even in cases where no incarceration had been imposed, and only extra-judicial measures were taken against the juvenile. 48

38 Youth

39 40 41 42 43 44 45 46 47 48

Criminal Justice Act §§17-18 “Such as take no measures (police); issue the young person a caution (police); issue the young person a formal warning (police and Crown); refer the young person to a program or agency in the community that may help him or her to stop offending (police); or refer the young person to a program of extrajudicial sanctions (police and Crown)”. Youth Criminal Justice Justice Act § 39 (1) (1) (2003). 1st session, 41st Parliament. Clause 167 (3) 2012. Youth Criminal Justice Justice Act § 42 (2003). (2003). st st 1 session, 41 Parliament. Clause 167 (3) 2012. 1st session, 41st Parliament. Clauses 176 and 183 2012. 1st session, 41st Parliament. Clauses 183 and 183 2012. Youth Criminal Justice Act § 72 (1). (1). Youth Criminal Justice Act §3(1) ( b (200 3). b ) (iii) (2003). st st 1 session, 41 Parliament. Clauses 185 and 189 2012. 1st session, 41st Parliament. Clause 190 2012.

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B. MASSACHUSETTS JUVENILE MASSACHUSETTS JUVENILE JUSTICE JUSTICE LEGISLATION

Before 1899, in the United States, juvenile delinquents more than seven years of age experienced the same criminal sanctions as adults. 49 The transition to stage two occurred with the first juvenile court which came into existence in 1899.50 The nature of proceedings of juvenile courts reinforced the paternalistic nature of the State towards juvenile delinquents. It was a welfare system, where the principle aim was to rehabilitate the children and protect their rights. 51 The juveniles did not have any constitutional rights because the presumption was that the court would always act to further the welfare of the child. This belief began to be questioned in the 1960s and consequently, due process rights were granted to juvenile delinquents.52 The progression from stage two to stage three was stimulated by the Edward O’Brien case. O’Brien was fifteen years old at the time of commission of offence, and was charged for murder having stabbed his neighbour ninety-seven times, leading to her death. 53 The judicial decision to try him as a juvenile triggered the emergence of the concept of legislative waiver in the 1996 statute.54 William Weld, the then Governor of Massachusetts, said in this regard, “society has an obligation to exact retribution ... [and that] only by facilitating the transfer of violent offenders to the adult system ...would retribution be properly attained”.55 The Massachusetts Ma ssachusetts Law, as it stands today, balances the interests of the society against that of juvenile delinquents by going beyond theories of rehabilitation and incorporating theories of punishment and deterrence as well. The Massachusetts model does so by introducing an array of sentencing and trial options. It employs a ‘legislative waiver’, which mandates automatic transfer of a juvenile accused of first or second-degree murder to adult court. 56 There is also a provision for blended sentencing 57, that is, the sentence imposed Sullivan, Jr., Jr., Indiana as a Forerunner in the Juvenile Court Movement , 30 IND. L. R EV EV . 279, 281 (1997). 50 Id. 51 Frances P. Reddington, Lynn S. Urban & Melissa Conn, Canada and the United States: A Comparison of the Approach to Juvenile Crime, 6 Crime, 6 JIJIS 241 (2006). 52 Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on the Right Track, 33 Track, 33 U.S.F.L. 401, 405 (1999). 53 Ellen O'Brien, A O'Brien, A Death Next Door, Boston Globe, Aug. 31, 1997. 54 Danielle R. Oddo, Removing Confidentiality Protections and the "Get Tough" Rhetoric: What Has Gone Wrong with the Juvenile Justice System? 18 B.C. T HIRD WORLD L. J. L. J. 125-26 (1998) 55 Id. at 124-125. 56 Massachussetts General Law, ch 199, § 74 (1998). 57 Massachussetts General Law, ch 199, §58 (1998). 49 Frank

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is such that may continue after the juvenile attains majority, subject to evaluation of reformation by the requisite judicial authority. 58 Additionally, there is a provision that defines a new category of ‘youthful offenders’, comprising of juveniles between ages fourteen and seventeen who have been accused of offences punishable by imprisonment under ordinary criminal law.59 The jurisdiction over juveniles under this category vests in the juvenile courts, and they may be subjected to a juvenile sentence, adult sentence or a blended sentence.60 The judge is mandated to factor in certain denominators such as the previous criminal record, age, maturity and capacity of reformation of the offender, as well as the nature of offence and mode of commission of offence. As a safeguard against unnecessarily harsh punitive measures, the law mandates that the judge must make a written statement that the punishment imposed is necessary for present and future public safety. 61 To further the objectives of deterrence and crime-control, Massachusetts among other states, has reduced the confidentiality quotient usually associated with juvenile court proceedings.62 This extends to a harsher treatment meted out to repeat offenders, so as to inculcate in them a sense of responsibility towards society.63 C. INDIA The Guardians and Wards Act passed in 1890 was the first time that an attempt was made to distinguish between criminal sanctions to children and adult offenders. This was followed by the Juvenile Justice Act 1986, and subsequently the Juvenile Justice Act 2000. All these acts fall under stage two of the developmental trajectory observed in legislations pertaining to juvenile justice across the world. All these legislations emphasise the paternalistic role of the State and the primacy was accorded to welfare and rehabilitation of ‘children in conflict with the law’. The welfare nature of the Juvenile Justice Act, 2000 first came under public scrutiny with the Delhi Gang Rape Case, where one of the six rapist58

Id. Massachussetts General General Law, ch.199, § 52(1998). 52(1998). 60 Massachussetts General General Law, ch.199, § 58(1998). 58(1998). 61 Massachussetts General General Law, ch.199, § 58(1998). 58(1998). 62 Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on the Right Track, 33 U.S.F.L. 401,405 (1999). 63 Supra note 26, at 16. 59

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murders of a twenty three year old woman was a juvenile, aged seventeen and a half years.64 While the five ‘adult’ accused were awarded the death penalty, the sixth accused, a ‘juvenile’ as per the definition provided under the Juvenile Justice Act, 2000 will be tried under the aegis of the said Act and be consequently subjected to a maximum of three years in a remand home- a much more lenient punishment as compared to his co-actors. 65 This led to immense public outrage and consequently, a clarion call for amendment to the Juvenile Justice Act and reduction of age of criminal responsibility. This case may prove to be the much-needed trigger to propel India’s juvenile justice legislation to stage three. There have already been some unsuccessful attempts to amend the law. A Public Interest Litigation, Salil Bali v Union of India 66 was filed in 2013. The petitioners challenged the provisions of the Juvenile Justice Act, in light of the recent Delhi Rape Case and claimed that it was unconstitutional as it rendered unfettered immunity to the juvenile and obstructed the proper dispensing of natural justice. Firstly, referring to the Statement of Objects and Reasons of the Act, the Court, after re-enforcing the various international covenants on the matter held that purpose behind juvenile justice in India lay in the rehabilitation and re-integration of the delinquents into society rather than taking punitive measures. Furthermore, the Court stated that according to experts in the field of child psychology, the chances of reformation taking place in an individual before the age of eighteen are far greater. Forcing them to languish in jails may inadvertently turn them into hardened criminals. Upholding the rationale of the Act, the Court asserted that the human brain continues to develop till one attains the age of eighteen and only at eighteen, does an individual fully understand the consequences of his action and thus all individuals under the age of eighteen must be given the protection of the Act.

64 65

66

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Supra note 3. Juvenile Justice (Care (Care and Protection of Children) Act § 15 (3) (2000): “…the Board Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law...”. (2013) 7 SCC 705.

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More recently, in Dr. Subramanian Swamy and Ors v. Raju through Member Juvenile Justice Board 67 , the Supreme Court dismissed a petition regarding a reading down of the Act to base the premise of ‘juvenility’ on basis of “mental and intellectual maturity”, instead of the present criterion of age. The petitioners argued that such a blanket categorisation based on age, and regardless of emotional and mental maturity, and seriousness of the nature of the offence would be in contravention of Article 14. The Court countered this argument stating that since the differentiation has been made in order to adhere to India’s international obligations, as also to provide a separate framework for trial and punishment for juvenile delinquents, delinquents, it will not violate the principles of classification under Article 14. The Court then cited the fundamentals of reading down statutes, holding that if on a literal interpretation of the statute, the Court believes that certain provisions may attract unconstitutionality, the Court may explore whether there has been a legislative omission in that regard.68 However, the Court emphasised the thin line between reading down and judicial overreach 69, concluding that in the present case judicial interference would be an infringement on the domain of the legislature. The authors agree with this judgement in so far as it holds that such an amendment in the law must be undertaken by the legislature. We do not, however, suggest the reduction of the age of criminal punishment for all offences as such a measure would not only be in contravention of the various international covenants that India has signed and ratified, but would also be logically incorrect in the Indian social context, where social malpractices that exploit children, such as child labour, forced prostitution and trafficking are still prevalent. 70 The law must be sensitive to the special needs of the children and give them as much scope for rehabilitation

Criminal Appeal No. 695 of 2014, Arising out of SLP (Crl.) No. 1953 of 2013, judgment delivered on March 28, 2014. 68 Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others 1991 Supp. (1) SCC 600. 69 Murthy Match Works and Others vs. The Asstt. Collector of Central Excise and Another (1974) 4 SCC 428. 70 “Such exploited children are generally prone to committing more offences due to economic, social or educational under-development and the State is under an obligation to rectify this as far as possible”. See Shreya Shah, India’s Missing Children, By the Numbers, W ALL S TREET JOURNAL INDIA (Sept 11, 2014) available at http://blogs.wsj.com/indiarealtime/2012/10/16 /indias-missing-children-by-the-numbers/ 67

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and reformation, as long as it does not unduly compromise the objective of retribution, which also forms an integral principle of natural justice.

V.

THE ‘HARM PRINCIPLE’ AND PRINCIPLE’ AND ITS SIGNIFICANCE IN LEGISLATIVE PROPOSALS

The legislations mentioned in Part V stems from the recognition of retribution as a component of ‘justice’. The entire concept of retribution stems from a notion of moral blameworthiness that justifies the punishment. 71 Hart contends that the offender must pay a ‘debt’ to society in the form of punishment as compensation for violating the social order. 72 Herbert Morris further extends this logic by stating that “society’s members implicitly agree to an allocation of benefits and burdens” by agreeing to live in and be a part of that society and “punishment serves the purpose of restoring the equilibrium of benefits and burdens”.73 It obviously follows that as certain grave crimes would upset this equilibrium more than others; the restoration of this equilibrium must be based on a ‘principle of proportionality’, which correlates the punishment meted out with the gravity of the act in question. The gravity of a certain act is a function of the extent of the harm caused, the degree of the criminal’s involvement in the alleged harm 74 and the prior knowledge that the criminal had of the extent of harm his act may cause. Incorporating the degree of harm into the sentencing calculus is a judicial imperative, as different crimes are committed with differing degrees of intention to cause harm. For instance, a murderer, by intending to end the life of a fellow human being necessarily intended greater harm than a petty thief who intended to deprive another human being of some cash and hence, the murderer must receive a harsher sentence. Recognition of harm also casts the offence in a more significant light by indicating that a crime is not only a violation of a set of rules or laws, but also has a direct impact on society through the impact on the victim. It has the twopronged benefit of recognising the offence as a misuse of the offender’s free will which has been bestowed upon him by society and also as an injury to the

71

Supra note 13. H.L.A. H ART, PUNISHMENT AND R ESPONSIBILITY , 231 (1982). ESPONSIBILITY 73 Herbert Morris, Persons and Punishment, in PUNISHMENT 89, (J. Feinberg and H. Gross eds., 1975). 74 R.Nozick, Philosophical Explanations , (Cambridge: Harvard University Press, 1981), pp. 363-66. 72

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other individual.75 It is logically incorrect to ignore the impact on the victim in the process of sentencing as a violent crime necessarily involves at least two parties and the current justice system in our country seems to focus on the criminal, while neglecting the victim as a stakeholder. 76 The Right to Life has been guaranteed to all individuals by Article 21 of the Constitution. The Supreme Court has laid down, on innumerable occasions, that this right does not refer to mere “animal existence” but extends to the “right to live with human dignity”.77 This right extends to living a peaceful life without being subjected to violence or other forms of heinous abuse from other members of society. This is where the irreducible ‘right of the victim’, which has its genesis in the discourse on Article 21 of the Constitution and supersedes the rights of the offender, comes into play. In State of U.P. v Sanjay Kumar 78 , the Court proclaimed that a sentencing policy in any criminal justice system must consider two aspects-the gravity of the crime and the background of the individual. Endorsing the ‘theory of proportionality’79 for the determining of the sentence-a doctrine that has been proclaimed by the Beijing Rules, the Court further stated that ignoring the needs of the victim and his community and their right to avenge the loss suffered due to the offence would amount to an encroachment of the ‘human dignity’ that is guaranteed by Article 21. The ‘1993 Bombay Blasts’ were one of the most heinous acts of terrorism in the last twenty-five years. On 12 March 1993, a series of 13 bomb blasts rocked the city of Mumbai, resulting in 350 deaths and up to 1200 other injuries.80 In the Bombay Blasts Case81 Muhammad Moin Faridulla Qureshi, who was seventeen years and three months old at the time of commission of the offence, was denied the protection of the Act on account of the nature of 75 D.Van

Ness, Crime and it’s Victims , 23-24 (1986). EV . 9,973-1021 (1985). Lynne. N. Hendersen, What’s Wrong With Victims Rights , 4 S TAN. L. R EV 77 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. v. Bombay Municipal Corporation, AIR 1986 SC 80. 78 (2012) 8 SCC 537. 79 The jurisprudence on the retributive theories of justice lie in the notion that in committing an offence, the criminal has violated the natural order and must make compensation to restore such a natural order. David. A. Starkweather , , The retributive theories of ‘just deserts’ and victim participation in plea bargaining, 3 IND. L. J. L. J. 67 (1992). 80 THOMAS H ANSEN, W AGES OF V IOLENCE IOLENCE N AMING AND IDENTITY IN POST-COLONIAL BOMBAY , 125, (2001). 81 Essa @Anjum Abdul Razak Memon (A-3) and Ors .v. The State of Maharashtra, through STF, CBI Mumbai and Ors. etc., 2013 (3) SCALE 1. 76

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the offence committed by him and was subsequently tried and convicted along with other adult perpetrators under the Terrorist and Disruptive Activities Act (TADA). The Court, upon convicting him stated that the gravity of his crime indicated that he was certainly not a “child in need of care and protection” 82, which was the pre-requisite of being granted protection under the Juvenile Justice Act, as stated in its preamble. The reasoning for the same is worth analysing in the present context. The Court employed two legal instruments to adjudicate upon this case. Firstly, as has been previously established 83, Article 14284 recognises that the plenary power of the Supreme Court exists “independent of statutes with a view to do complete justice between the parties and may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice…”.85 Secondly, in order to interpret the Act, the Court invoked the ‘Doctrine of Purposive Construction’. This doctrine essentially states that the interpretation of statutes should be such that the basic object and purpose of the act in question should not be destroyed. The court combined the doctrine with a joint reading of Articles 139-A (2)86and 142 of the Constitution of India, Section 15187 of the Code of Civil Procedure, thereby justifying the over-riding effect of TADA over the Act. The court interpreted the meaning of the words “ends of justice”, as mentioned in Article 139-A (2), in light of State Bank of Patiala & Ors v.S.K. Sharma 88 where it was held that the interest of justice was best served by following principles of natural justice and any technical irregularity, which obstructed the guilty from being punished, should be discarded and not be allowed to defeat the purpose of justice. 89 82

Id.

83 See

e.g. Kalyan Chandra Sarkar v. Rajesh Ranjan @ PappuYadav and Anr, AIR 2005 SC 972. 84 INDIA CONST. art. 142: “..The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it...”. 85 Id . 86 INDIA CONST. art.139-A: “(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court”. 87 Civil Procedure Code § 151 (1908) “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”. 88 1996 AIR 1669. 89 State Bank of Patiala & Ors v. S.K. Sharma, 1996 AIR 1669: “Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not

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The current loopholes in the Act go beyond mere technical techn ical irregularities and actually prevent the proper dispensing of justice. Hence, instead of compelling the Supreme Court to use the great powers bestowed on it by Article 142, the legislative changes recommended re-enforce the causes of natural justice by ensuring that heinous offenders are removed from the juvenile justice system as soon as they are convicted and all murderers or rapists are justly punished without the possibility of any room for doubt.

VI.

REBUTTING THE LACK OF AGENCY ARGUMENT: A BRIEF PERSPECTIVE PERSP ECTIVE ON NEUROSCIENCE

One of the core arguments forwarded by advocates of the provision of blanket immunity to juveniles and exemption from the harm principle analysis with respect to sentencing that was done in the preceding section is that the human brain and consequently, decision-making capacity of an individual continues to mature and develop till an individual reaches adulthood. 90 Due to this, many proponents of a system that provides blanket immunity for all juveniles state that the juveniles lack agency to commit crime. The pre-frontal cortex, which regulates decision-making and the expression of emotions is one of the last parts of the brain to fully develop and recent research has shown that complete development can take place well beyond the adolescent years into adulthood 91 Furthermore, the limbic system, which aids the processing and management of emotions does not fully form in the adolescent years either. 92 As a result r esult of these two factors, neuroscientists neur oscientists believe that the adolescent acts differently with respect to varied situations of altered emotional stress. 93 These situations have been broadly classified into two kinds. In situations of ‘hot cognition’, individuals are generally more prone to taking undue risk due to the allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive counter-productive exercise”. 90 National Juvenile Justice Network, U SING ADOLESCENT BRAIN R ESEARCH ESEARCH TO INFORM POLICY : A GUIDE FOR JUVENILE JUSTICE ADVOCATES (September 2012). 91 Id. 92 Wisconsin Council on Children and Families, Families, Rethinking the Juvenile in Juvenile Justice: Implications (March 2006). of Adolescent Brain Development on the Juvenile Justice System (March 93 As stated by Ronald Dahl: “These changes manifest as mood swings, greater conflict with parents, a greater tendency for risk-taking and rule-breaking and an increased draw towards novel experiences and strong sensations”. Ronald. E. Dahl, Adolescent Dahl, Adolescent Brain Development: A 1021 A NNALS N.Y. ACAD, SCI. 12-16 (2004). Period of Vulnerabilities and Opportunities 1021

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high levels of emotional intensity generated by factors such as peer-pressure or the presence of an uncontrolled environment such as the streets or the playground, which prevents them from acknowledging the consequences of their behavior.94 Conversely, in situations of ‘cold-cognition’, where a controlled setting such as the classroom or a family outing enables the individual to act with less impulse and more rationale, volatile acts that may be committed at the spur of the moment are generally prevented.95 This nexus between recent developments in neuroscience and juvenile agency was recognised by the American Supreme Supr eme Court in Roper v. Roper v. Simon 96 , which abolished the death penalty for juveniles in all circumstances. Proponents of using neuroscience in the juvenile justice system argue that it is the most sophisticated and allencompassing means of explaining delinquent behavior and should be the rationale behind negating the blameworthiness of the juvenile, resulting in the provision of carte blanche’ immunity to any juvenile convicted of a crime from the normal law without making any distinction between various offences. 97 Opponents of this theory however believe that basing the entire juvenile justice system solely on neuroscience and the consequent lack of agency argument, which has been stated in the preceding paragraph, would be fallacious on three counts.98 Firstly, the science of brain imaging is still in its nascent stages. 99 There is no concrete scientific evidence to show that the development of the pre-frontal cortex, known as myelination is equally underdeveloped for all individuals below a certain age.100 Secondly, biology may not be the sole cause behind criminality and certainly, the fact that the underdeveloped adolescent brain does not affect all juveniles equally can be intuitively deduced by the fact that not every juvenile, despite similar brain development, 94

Wisconsin Council on Children and Families, Families, Rethinking the Juvenile in Juvenile Justice: Implications (March 2006). of Adolescent Brain Development on the Juvenile Justice System (March 95 Id. 96 543 U.S.551, 578 (2005). 97 See Emily Buss, Buss, Rethinking the Connect between Developmental Science and Juvenile Justice, 76 U. CHI. L. R EVIEW 493, 507 (2009); Jay D. Aronson, Neuroscience Aronson, Neuroscience and EVIEW 493, EV . a nd Juvenile Justice Ju stice , 42 A KRON L. R EV 917, 924 (2009). 98 Johanna Cooper Jennings, Juvenile Jennings, Juvenile Justice, Sullivan and Graham: How the Supreme Court’s Decision EV . 8-10 (2010). Will Change the Neuroscience Debate, 6 D UKE L. & TECH . R EV 99 Jay D. Aronson, Neuroscience Aronson, Neuroscience and an d Juvenile Justice , 42 AKRON L. R EV EV . 917, 924 (2009). 100 B.J. Casey et al, The Adolescent Brain 1124 ANNALS N.Y. ACAD , SCI. 111,112,122; 111,112,122; See also State v. Garcia NO.CR 2005-422 (N.M. Dist.Ct.Dec.14.2007), Transcript 1 (testimony of Gur). As there is a clear difference between the two genders with respect to the onset of puberty, girls tend to mature faster than boys and should thus, logically, be held more responsible than their male juvenile counterparts.

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commits heinous crimes.101 Thirdly and most importantly, the underdeveloped brain does not and cannot negate the formation of specific intent or mens rea to to commit a crime, which marks the foundation of any form of criminal liability. The proponents proponents of the theory that juveniles juveniles lack agency agency do not contend contend that the adolescent is incapable of forming specific intent and anticipating the consequent harm but drawing from theories on neuroscience, they argue that his “technically sufficient mental state is substantively irrational”. 102 For example, the proponents would argue that when an adolescent commits homicide, he may understand that his act will lead to the death of the victim and that this death will cause a great deal of harm to society but may not be able to determine the far-reaching consequences that may ensue upon the person’s death for his loved ones or the economic debilitation such death could potentially cause. This notion leads to an unnecessarily deep conception of mens rea and and goes against the foundational principles of criminal law, which have long established that a person is presumed to intend the consequences of his/her actions. Mens rea may may be categorised into four stages, namely volition, motive, will and intention.103 ‘Volition’ is the legal term for the desire that leads a human being to perform any conscious, voluntary act. 104 This desire is a means to achieve a larger, more long-term goal, termed as ‘motive’. 105 Intention has been defined as the object aimed at by the act caused by the volition. 106 It refers to the immediate expectation from the consequences from the said act. 107 The continuing desire for a particular consequence, which inspires numerous volitions to perform acts that may lead lead to the consequence consequence from time to time, is referred to as ‘will’.108 None of these definitions extend to the awareness or understanding of the far-reaching consequences of the act so performed, and proponents of

101 Ibid. 102 Terry.

A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice , 85 NOTRE D AM EV . 89,94 (2009); See also State v. Garcia NO.CR 2005-422 (N.M. Dist.Ct.Dec.14.2007), L. R EV Transcript 1, at 170-172 (testimony of Beyer). He essentially argued that children fail to see the worst possible consequences of their actions or that there may be more than one possible cause of action that he may resort to. 103 S YED SHAMSHUL HUDA, PRINCIPLES OF THE L AW OF CRIMES 170 (Eastern Book Company 2011). 104 Id. at 171. 105 P.S. A A PILLAI, CRIMINAL L AW , 42 (2012). 106 Supra note note 101, at 174. 107 Supra note note 102. 108 Supra note note 100.

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granting blanket immunity are subverting due process by creating a phantom fifth stage which extends to understanding the social implications and consequences of one’s act. It is argued that a more nuanced approach towards the use of neuroscience in the juvenile justice system be taken. While, for the reasons mentioned above, neuroscience cannot serve as the basis for shaping legislative policy to the extent of establishing that all juveniles lack the agency to commit crime, evidence and expert analysis provided by neuroscientists may be applied on an individual case-by-case basis to ascertain whether the specific individual in question merits adult punishment when considered in conjunction with the circumstances surrounding the crime and the state he or she was in at the time of commission of the act, something that will be considered in the next section. Certainly, recent developments in neuroscience do contribute, albeit marginally, to our understanding that juveniles deserve a separate system for themselves by establishing the general principle that juveniles differ from adults in their responses to various situations. It cannot, however, serve as a justification for extending protection of the juvenile law to all perpetrators of heinous crimes, irrespective of the amount of harm the crime has caused because the research is not concrete enough to warrant such a blanket legislative approval.

VII.

RECOMMENDATIONS

Keeping the analysis on victim’s rights in mind and the recent trend of cases in India where juveniles have emerged as ‘super-predators’ 109, as well as the comparative study of juvenile justice legislations across jurisdictions, the authors of this paper have proposed some amendments to the Juvenile Justice Act. Apart from specific gory instances110 that have fuelled public sentiment against the provision of blanket immunity to the juvenile, the most recent records compiled by the National Crime Records Bureau (NCRB) in 2013 show that there has been an unprecedented 87% rise in the number of rapes

Mumbai: Police Files Charge Sheet in Shakti Mills Gang Rape Case (Oct 13, 2008) available at http://ibnlive.in.com/news/mumbai-cb-files-chargesheet-in-the-2nd-gangrape-case-atshakti-mills/427190-3-237.html); 5 juveniles held for gang rape in Guwahati , The Hindu, September 08, 2012, available at http://www.thehindu.com/news/national/other-states/5juveniles-held-for-gang-rape-in-guwahati/article5137332.ece Supra note 3. 110 Id. 109

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committed by juveniles between 2007 and 2012 and a 500 per cent increase in the kidnapping of females by minors. 111 It is argued that the Youth Criminal Justice Act and Massachusetts Juvenile Justice Legislation are in line with the principles of natural justice and successfully account for the rights of the victim without taking away from the special status of the juvenile. The recommendations in this section are founded on the provisions of those statutes but set in the context of the juvenile justice system, as it has evolved in India. In dia. A. LEGISLATIVE WAIVER The Indian Penal Code Cod e states that a person above abo ve the age of twelve may possess the requisite mens rea to commit crime. 112 Further, the Supreme Court has explicitly recognised the fact that a child can only be convicted for his act if it can be proved that he fully comprehended the nature and consequences of his act.113 The Court went on to say that it might be safely assumed that a child below seven years of age cannot do so. In the case of children between the two ages, the Court presumes that they are in the ‘twilight zone’ and have not reached the age of discretion either, though this presumption can be rebutted if there is concrete evidence to the contrary, thereby leaving it up to the judge to decide whether the child should be held liable for his action. 114 The authors recommend that juveniles above the age of twelve convicted for culpable homicide or murder under Sections 299 or 300 of the Indian Penal Code or for rape under Section 375 be punished under the normal law without obtaining the benefits of the juvenile justice system on the basis of their intention to cause greater harm.115 Any form of aggravated sexual assault should be placed in the category of automatic legislative transfer as it involves the juvenile offender possessing a degree of intention that is enough to violate the bodily integrity of another

111

National Crime Crime Records Records Bureau, Bureau, Crime in India 2012 (Jun 4, 2013). 83 and 84, Indian Penal Code. IPC holds that children till 12 years of age cannot be held responsible for their actions, effectively meaning that from 12 years onwards, children do have the capacity of forming mens rea to to commit crimes. 113 Abdul Sattar v. Crown AIR 1949 Lah 451. 451. 114 Hiralal Mallick v. State State AIR 1977 SC 2236. 115 Add 16 (1) A- Provided, where a juvenile above the age of twelve is charged with culpable homicide or rape as punishable under the Indian Penal Code, the provisions of this clause will not no t apply and the accused may m ay be punished pu nished as per the th e provisions provis ions of o f the general gene ral law. 112 See sections sections

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human being. The Supreme Court, in Shri Boddhisatwa Goutam v . Miss Shubhra Chakraborty 116 elucidated the gravity of rape as a crime by stating that, It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women.117 The offenders may be tried by the Juvenile Justice Board because till they are proved to be guilty of the heinous offence, they must be assumed to be innocent and hence still possessing the right to use their special juvenile status bestowed upon them through the Constitution and the provisions of this Act. However, as soon as they are convicted of being a rapist or a murderer, the sheer gravity of such conviction means that their special status and right to be treated as a juvenile has been forsaken and hence, they must be punished as adults. Furthermore, Section 19 of the Act, which mandates the erasing of all records of juvenile offenders, should be amended to not include crimes punishable with life imprisonment or death penalty under its ambit for the purpose of detecting repeat offenders and not provide them immunity if it appears that these recidivists do not seem to be responding to any rehabilitative efforts.118 It is imperative that the judicial system attempts to balance the rehabilitative requirements of the juvenile with other necessary interests such as the ensuring of accountability to the victim and restoration of the societal equilibrium that has been upset by the offender. The minute chances of rehabilitation and reformation that may exist in the case of juveniles who commit heinous crimes need to be subverted to the larger social interest of upholding the principles of natural justice. 119 Providing them the benefit of the lenient juvenile punishment facilities detracts from the resources that may have

116 1966

AIR 922. 117 1966 AIR 922. 118 Add Section 19 2-B “Provided for juveniles convicted of crimes punishable with life imprisonment or death penalty, 19(2) shall not apply and the records shall not be erased.” 119 Joseph. F. Yeckel, Violent Federal Offenders in Juvenile Justice , 51 W ASH. U. J. U. J. URB & CONTEMP L. 331-335 (1997).

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been spent in other cases where rehabilitation is possible and hence causes a net social loss. B. JUDICIAL DISCRETION For the juveniles aged twelve to seventeen charged with other ‘violent offences’, the authors of this paper suggest that, as is done in several other jurisdictions120, both the judiciary 121 and the Juvenile Justice Board should retain a certain amount of discretion to impose punitive measures harsher than the ones presently stipulated by the Act. ‘Violent offences’ should be defined as “offences in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm”. 122 The authors endorse this definition, and have attempted to draw a logical equivalent with the Indian Penal Code. The sections of the Indian Penal Code that this definition may attract include, but are not limited to ‘Grievous Hurt’123, Robbery 124 and Dacoity 125. The rationale for advocating that judicial discretion be applicable to these offences as opposed to an automated legislative waiver is that their definitions as given in the Indian Penal Code cover a wide range of harm intended and harm caused. For instance, Section 320 lays down that fracture or dislocation of a bone or a tooth will also constitute ‘grievous hurt’. This could technically apply to fracturing a finger, or punching out a milk tooth, both of which would not constitute offences atrocious enough for a child to be subjected to adult sentence, or blended sentencing. Hence, the authors advocate the buffer of judicial discretion for violent offences not including rape, culpable homicide not amounting to murder, and murder. The introduction of provisions empowering the Juvenile Justice Board to impose an adult sentence, or a ‘blended sentence’ 126 provides them the flexibility to ensure that those who do not deserve the benefit of or may not benefit from the juvenile justice system are filtered out of it.

120

See Youth Youth Criminal Justice Act (2003), Massachusetts General Laws, ch 199 (1998). From District Court onwards. 122 Laid down by the Canadian Supreme Court. R . v. C.D.K .,(2005) 3 S.C.R. 668, ¶ 17. 123 Indian Penal Code, §§ 320-328 (1860). 124 Indian Penal Code, §§ 390-398 (1860). 125 Id. 126 Blended sentences allow for juvenile courts to impose adult sentences or extend their juvenile punishments into early adulthood. See Cathi. J. Hunt, Note, Juvenile Sentencing: Effects of Recent Punitive Sentencing Legislation on Juvenile Offenders and a Proposal for Sentencing in the Juvenile ORLD L. J. Court, 19 B.C. THIRD W ORLD L. J. 668, 670 (1999). (1999 ). 121

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Whenever, a juvenile is charged with a crime, the presumption must be that he is to be treated as per the Act (a presumption of juvenility). The judge must be convinced beyond reasonable doubt that employing one of the three proposed trial and sentencing options would make for a far more expeditious disposal of justice. Certain denominators that the judicial authority must consider before pronouncing sentence should be laid down in the Act itself. These may include, but need not be limited to, the previous criminal record of the offender, gravity, nature of the offence, age and maturity of the offender and his/her personal amenability to any form of rehabilitative treatment and circumstances under which the crime was committed. 127 The judge may also use the expert testimony of neuroscientists to determine whether the act of the child with respect to the given circumstances merits protection. 128 The provision of such discretionary powers on the judiciary acts as a safety valve in miscellaneous cases where an offender may be a few months short of his eighteenth birthday or may have already spent an unsuccessful term in a juvenile correctional facility. It gives the judge the opportunity to use his judicial mind to determine, on a case-by-case basis whether such offenders deserve the protection of the juvenile justice system in our country.

VIII. CONCLUSION There are many flaws in the Act as it stands today, most of them originating from a single cause. By according primacy to the reformation of the juvenile offender and focusing all its provisions in furtherance of his rehabilitation and reintegration into society, the Act compromises public safety and can be contended to be in contravention of principles of natural justice. There being a pressing need for a more balanced approach, recommendations recommendations have been made keeping in mind that the intention to cause harm to society is an integral aspect of commission of any offence. It has been contended that society’s willingness to forgive the offender should therefore be the primary factor in determining sentence, and that the possibility of his reformation should only supplement it, instead of being the predominant consideration. The authors do not suggest adopting an unnecessarily harsh approach towards juvenile offenders, and the suggestions put forth do not contravene any 127 Candace

Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on the Right Track, 33 U.S.F.L. 401,405 (1999). 128 Maroney, Supra note 95, at 164.

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international treaties or norms. While acknowledging the fact that a juvenile should be shielded from the criminal law because of his/her special status and the inherent possibility for reform, it is imperative that the justice system in our country and the public perception of it is not compromised for the sake of this possibility. One outrageous act of murder or rape may spiral into a destruction of public faith in the justice system if it is not checked properly. These incidents have brought the juvenile justice laws to stage three of the trajectory of juvenile justice legislations. This is why the authors have advocated the legislative waiver for exceptionally heinous offences such as rape and murder, and have also recommended recommended the incorporation of judicial discretion on a case-by-case basis to filter out the instances where reformation is not a possibility. Society’s willingness to forgive the offender offender is an integral aspect of determining sentence. sentence. Hence, the entire system of juvenile justice essentially revolves around the extent of the cost of reformation that we, as a society are willing to bear.

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THE GREENING OF TRADE JURISPRUDENCE: A STUDY ON THE CONFLICT AND RECONCILIATION OF TRADE AND ENVIRONMENT

Nivedita Raju * Environmental protection was not a concern when the General Agreement on Tariffs and Trade was drawn up after World War II. Until recently, trade policy-makers and environmental officials pursued their work on separate tracks, rarely perceiving their realms as interconnected. Today, environmental protection is a central issue on the public agenda- and trade and environmental policies regularly intersect and increasingly collide. 1 It is the sovereign right and duty of States to protect their citizens and territory with respect to the environment, health, public morals and public order. Measures taken in the exercise of these rights and duties can be protested against as being ‘protectionist’ by affected parties. However, States possess the policy space needed for the establishment of the measures necessary to protect their territory. Therefore, when States trade with each other across borders, this intersection of free trade and environmental protection inexorably instigates political differences. Essentially, the WTO law envisages non-economic exceptions to free trade which form the basis for protection of environment within the framework of the General Agreements on Tariffs and Trade (GATT). These exceptions include the protection of human, animal and plant life and health, the conservation of exhaustible natural resources, sanitary and phytosanitary (SPS) measures and technical barriers to trade (TBT). This paper will study the dawn of conflict between trade law and environment by introducing the essential trade principles under GATT in Section I, following with cases in Section II arising out of disputes between countries to impose trade restrictions with the objective of protection of the environment. Restrictions in the form of sanitary and phytosanitary (SPS) measures measures and technical barriers to trade (TBT) will also be dealt with in this section, while Section III will deal with the conflict between GATT and Multilateral Environmental Agreements (MEA). In Section IV, the author will strive to propose recommendations before concluding with final remarks in Section V of the paper.

* 1

IV th year, L.L. B., Gujarat National Law University, Gandhinagar. D ANIEL C. E TSY , GREENING THE G ATT: TRADE, ENVIRONMENT AND FUTURE , Institute for International Economics, Economics, 9 (1994).

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I.

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INTRODUCTION – ESSENTIAL TRADE GOVERNING PRINCIPLES UNDER GATT

GATT was established in response to growing international economic interdependence. ‘Globalisation of trade’ translated into the globalisation of effects of trade incentives as well as restrictive measures. Any trade favouritism or hostility shown towards one country or any protectionist measure adopted for domestic products meant trade losses or gains for other countries. To create a level playing field where trade between and within countries is regulated by a common set of principles thus became a necessity. This led to the the formation of GATT which laid down the following principles: Article III2 of GATT mandates that all foreigners and local citizens be treated equally, that is to say that both imported and locally-produced products must be treated on the same footing. This National Treatment principle essentially prohibits protectionist measures which may give leverage to domestic products over ‘like’ imported products. The principle of National Treatment is symbiotic with the Most-Favoured Nation (MFN) principle, under Article I, which states that a country, which has been accorded ‘MFN’ status may not be treated less advantageously than any other country which also has an MFN status by the promising country. This principle cautions against such measures which may have the effect of promoting one imported product from one country over another ‘like’ imported product from another country. MFN relationships extend to reciprocal bilateral relationships following both GATT and WTO norms of reciprocity and non-discrimination. The principles of National Treatment and Most-Favoured Nation, therefore, form the cornerstones of GATT and WTO legislation. Now addressing Article XI, the GATT expresses the ‘General Elimination of Quantitative Restrictions’, and prohibits the imposition of restrictions apart from duties, taxes or other charges under Clause 13 while also laying out several exceptions in specific scenarios under Clause 2. However, 2

3

National Treatment on Internal Taxation and Regulation, General Agreement on Tariffs and Trade, Apr 15, 1994, 199 4, art. III, part II, 1867 II, 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994). “No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party”. General Agreement on Tariffs and Trade, Apr 15, 1994, Article 1994, Article XI (1), ( 1), 1867 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).

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Article XX on General Exceptions contains exceptions for the fulfillment of non-economic objectives. Article XX (b) and XX (g) state that trade measures can be taken for for reasons of protection of of human, animal or plant plant life or health and for conservation of exhaustible exhaustible natural natural resources. resources. Nevertheless Nevertheless,, these provisions for regulatory measures reel in apprehension of misuse as they appear to be tools of protectionism of the domestic industry or as modes of discrimination in products from various States. These apprehensio apprehensions ns are addressed by the ‘Chapeau’ to Article XX which emphasises that the measures provided by the Article will not be applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between States which possess the same conditions, or a veiled hindrance to international trade. There is a fixed method of the application of Article XX. The procedure is two-tiered; first, the provisional justification of the measure under the individual sub-paragraphs of Article XX of GATT is applied, followed by the appraisal of the measure under the Chapeau 4. As the measures under Article XX are exceptions, the onus of justification is on the parties who invoke it. The burden is upon the invoking party both to prove the sub-paragraph requirements, as well as to prove the chapeau requirements. 5 A country seeking protection under Article XX first has to prove that the trade measure objected to, is for the protection of human, animal or plant life or health. The second step is to show that the measure is necessary. To pass the test of necessity, the country has to establish that there should not have been an alternative that was reasonably available that was less inconsistent with GATT legislation. The country consequently has to first ascertain whether an alternative measure is reasonably available and must then determine the consistency of this alternative provision with other GATT provisions. If no such alternative measure exists, then it is said that the measure taken by the country was “necessary”. This test was applied by the GATT in Thailand-Cigarettes 6 wherein the Thai government imposed restrictions on foreign cigarettes under the premise of Article XX (b). The GATT Panel, while accepting Thailand’s contention that smoking is injurious to health and therefore well within the ambit of Article XX 4 5

6

S TEFAN ZLEPTNIG, NON-ECONOMIC OBJECTIVES IN WTO L AW , Vol.1, 112 (2010). ORLD TRADE L AW : TEXT, M ATERIALS AND SIMON LESTER & BRYAN MERVURIO, W ORLD COMMENTARY , 382, (Hart Publishing, 2010). WTO Appellate Body Report, Thailand - Customs and Fiscal Measures on Cigarettes from the Phillipines, Jul 15, 2011, WT/DS371/AB/R.

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(b), ruled out the necessity of the measure, because there were other methods which Thailand could have reasonably used, for instance banning positive cigarette advertisements and updating ingredient disclosure regulations. This rigid ‘least trade restrictiveness’ test developed and applied by GATT Panels, especially in Thailand-Cigarettes has been criticised as imposing too many constraints on domestic regulation. r egulation.7 However, a new feature of requirement was recently developed in Brazil-Retreaded Tyres 8 , where the Brazilian government had imposed import restrictions on tyres following the health risks posed by unused tyres as breeding grounds for mosquitoes. The Appellate Body (AB) held that no alternative measure put forth by the European Communities (EC) could substitute Brazil’s import ban. They said that in order to justify an import ban under Article XX (b), a panel must be satisfied that it brings about a material contribution to the achievement of its objective. This new feature is a great stride of the WTO towards environmental protection as it allows a country to design its trade measures such that they foresee the applicability of policies of sustainable development development in light of environment environmental al protection. Further, Article XX (g) allows parties to adopt measures inconsistent with the provisions of the GATT if they relate to the conservation of exhaustible natural resources, provided such measures are made effective in conjunction with restrictions on domestic production or consumption. The requirements that a country must fulfill in order to invoke this exception are:

-

the objective objective or measure has to be for the conservation conservation of ‘exhaustible ‘exhaustible natural resources’ the measure must relate to the conservation of exhaustible natural resources the measure must be in conjunction with restrictions on domestic production or consumption. 9

The landmark case US-Gasoline 10 laid down a test to determine whether a measure is related to the objective sought to be furthered. The panel said that

7 8

9

S TEFAN ZLEPTNIG, NON-ECONOMIC OBJECTIVES IN WTO L AW , Vol.1, 112 (2010). WTO Appellate Body Report, Brazil - Measures Affecting Import of Retreaded Tyres, Aug 29, 2008, WT/DS332/AB/R. ORLD TRADE ORGANISATION: PETER V AN DEN BOSSCHE , THE L AW AND POLICY OF THE W ORLD TEXT, C ASES AND M ATERIALS, 502 (Cambridge University Press, 2005).

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the crux of the matter lay in determining if the measure and policy have a ‘substantial’ relationship. The two should therefore be inherently linked. The view of the panel was further clarified in Canada-Herring and Salmon ,11 where it was held that ‘relating to’ means that the measure must be ‘primarily aimed’ at the objective. It is concluded therefrom, that while the sanctity of the MFN and National Treatment principles cannot be easily disturbed, countries are increasingly relying on the exception clauses to further their environmental protection aims. The following section will highlight the dilemma created by this increasing trend through case studies, which will also bring to the fore the creative manner in which the dispute settlement bodies are interpreting the GATT principles to accommodate environmental concerns, wherever possible.

II. 1.

CASE STUDIES Tuna-Dolphin I And II12

These two disputes arose in light of the United States embargoes on yellowfin tuna and yellowfin tuna products imported from Mexico and other countries that used purse-seine fishing methods which resulted in an alarming increase in the death of dolphins. Purse-seine fishing is a method wherein there are two fishing boats, primarily the seine skiff, which goes out to encircle the school of fish and then deploys a net around them for capture, finally returning to the main fishing vessel to complete the circle parameter. The net is then reeled in with the entire contents of fish for processing. The unfortunate predicament that evolved with this method is that innumerable dolphins, which tend to swim above schools of yellowfin tuna in the Eastern Pacific Ocean, would end up in the nets nets as incidental casualties. casualties. This led to the US US ban on tuna imports from Mexico, which had the largest tuna product industry at the time, via the Marine Mammal Protection Act of 1972 (MMPA). Section 101(a)(2)(B) of the Act stated that the import of yellowfin tuna harvested using purse seine 10

WTO Panel Report, United States - Standards for Reformulated and Conventional Gasoline, May 20, 1996, WT/DS2/R, as modified by by Appellate Appellate Body Report WT/DS2/AB/R, DSR 1996:I, 29.

11 GATT

Panel Report, Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, Mar 22, 1988, BISD 35S/98. 12 GATT Panel Report, United States - Restrictions on Imports of Tuna, DS21/R, Sep 3, 1991,unadopted, BISD 39S/155.

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nets in the Eastern Pacific was prohibited unless the government of the importing country could show that it had a program comparable to the average rate of ‘taking’13 in United States to reduce marine mammal by-catch. The onus was on the country requesting requesting a finding to show through through documentary evidence evidence that ‘taking rates’ are comparable. Mexico refused to abide by the new standards of modifying their fishing techniques, and so no products were accepted from the origin of Mexico into the United States. Mexico brought a complaint through GATT Articles III, XI and XII 14 claiming inconsistency of the MMPA product ban with WTO legislation, bringing to the forefront the debate over Process and Product Methods (PPMs) on the regulation of international trade on the basis of production methods or in this case, the technique used to harvest tuna. The issue with PPMs was that the actual process used is not relevant if the end-product is the same. This also showcases how developing countries were growing increasingly frustrated with the inclusion of PPMs in the WTO, as they feared that this would help industrialised countries gain advancements in environmental and technological bases and widen the disparity between rich and poor nations. Mexico argued that the MMPA was discriminatory in nature against like products based on their PPMs. This also indicated a violation of Article XI in the prohibition of non-tariff restrictions or quotas which limit import/export licenses. The U.S. refuted Mexico’s contention that they had defied the National Treatment obligation under Article III, as it applied fundamentally the same standard to imported tuna to like domestic tuna. This contention was hollow, as there was no possible way Mexican fishermen could know the acceptable incidental taking rate for their fleet until after the U.S. fleet had finished fishing. This could have formed the basis for the MMPA violation of the National Treatment standard, yet the GATT panel reached a broader holding. The hypothesis of the U.S. argument lay in the fact that different treatment of tuna based on how they were caught, does not discriminate between them, because products produced by different methods are not “like” products. This was rejected by the panel. In its view, differences in the way that the tuna were caught could not possibly affect tuna as a product. Mexico further claimed that the exceptions under Article XX (b) and (g) were not met, focusing on the fact “The term ‘take’ means to harass, hunt, capture, kill or attempt to harass, hunt, capture or kill any marine mammal”. Marine Mammal Protection Act, § 3(13) (1972). 14 Non-Discriminatory Administration of Quantitative Restrictions, General Agreement on Tariffs and Trade, Tra de, Apr 15, 1994, art. a rt. XIII, XIII, 1867 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).

13

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that Article XX cannot be applied outside the jurisdiction of the US. Agreeing with this argument, argument, the panel ruled ruled in favour of Mexico. Mexico. The panel interpreted GATT in a manner that implied that any law restricting imports on the basis of their process or production method would necessarily violate Articles III and XI unless the PPM affected the physical characteristics of the product. The outcome of Tuna Dolphin I eventually eventually fell in favour of Mexico. Tuna-Dolphin II 15 was filed by plaintiffs, the European Economic

Community and the Netherlands against the US in the claim that the latter did not possess any right to impose embargoes on intermediary nations. The former argued that the intermediary nation embargo constituted a quantitative restriction and thus violated Article XI of the GATT. For intermediary nations, the MMPA outright banned the import of tuna if there was no proof of certification of zero import of yellowfin tuna/tuna products from primary nation embargo. The US tried to seek protection under Article XX (b) and (g) ‘relating to the conservation of an exhaustible resource’ and ‘necessary to protect the life and health of dolphins’.16 The intermediary nations contende contended d that the species requiring conservation had to be within the jurisdictional territory of the enforcing nation who imposed said measure. More importantly, they did not find dolphins an “exhaustible natural resource”. Finally, they contended that US measures did not fall under the ‘necessity’ imposed by Article XX (b). Under Articles III and XI, the panel ruled in favour of the EEC and the Netherlands, but regarding jurisdiction, in favour of the US because nothing in the GATT was found to amount to the conservation of resources mandatorily being in the jurisdictional territory of the country enforcing the measure. The examination of Article XX (b) and (g) by the panel led to the conclusion that the banning of tuna would not in itself conserve dolphins, as only changes in actual policy could accomplish this and this was not the original purpose of the GATT. The GATT was meant to deal with products of member states, not their processes. In addition to this, the panel concluded once again, that the US measures for dolphin protection were not ‘necessary’ meaning they GATT Panel Report, United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381. 16 John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment , H ARV . EV ., ENVTL. L. R EV ., Vol. 28 (2004).

15

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were not ‘indispens ‘indispensable’ able’ or ‘unavoidable’. The only way to protect dolphins would be for intermediary nations to change policies, which was not the intention of the GATT. The scheme employed by the US in attempting to force primary and intermediary nations in banning tuna based on whether the practices of the latter were comparable to the former appeared as though the US was forcing other nations to adopt their fishing policies which went against the objectives of GATT. Hence, the panel ruled against the US again. The Tuna-Dolphin disputes resulted in the manifestation of several US laws which restricted the import of products harvested in an environmentally dangerous method, capable of being incompatible with Articles I, III and XI of GATT. Much to the alarm of environmentalists, the restrictions on imports founded on the characteristics of products as opposed to their PPMs seemed to take precedence. This led to the proposal by environmental critics of the more practical, moderate school to broaden the scope of likeness and revitalise the environmental exceptions exceptions in Article XX. 2. Asbestos - France France17 Canada challenged the French ban on the manufacture, sale and import of products containing asbestos. The WTO panel accepted Canada’s argument that asbestos products are like certain substitutes for those products made in France, and that banning imports of asbestos products therefore provided them less favorable treatment in violation of the national treatment standard in Article III of GATT.18 The most significant stride in the analysis by the panel was the decision not to account for the relative risk to human health of the asbestos products and of the substitute products in determining whether they were like one another.19 It said that because the protection of human life and health is covered by Article XX (b), “introducing the protection of human health and life into the likeness criteria would allow the Member concerned to avoid the obligations in Article XX, particularly the test of necessity for the measure under paragraph (b) and the control exerted by the introductory clause

17 WTO

Panel Report, European Communities - Measures Affecting Asbestos and AsbestosContaining Products, Sept 18, 2000, WT/DS135/R. 18 Id. at 8.154 - 8.158. 19 John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment , 30, H ARV . EV ., ENVTL. L. R EV ., Vol. 28 (2004).

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to Article XX”.20 The Tuna-Dolphin mentality mentality of the panel was mirrored in this decision, and the panel followed the ‘characteristics over PPMs’ slant. However, in a landmark decision by the Appellate Body, the panel’s analysis was overturned in light of the “highly significant physical difference (between asbestos, which is carcinogenic, and substitutes, which are not, ‘at least to the same extent’)” and that it was inexcusable how it was not considered in the examination of the physical properties of a product as part of establishing ‘likeness’ under Article III. The decision thus, thus, opened the door door for environmental considerations considerations to be taken into account in determining whether products are like. The panel determined that it satisfied Article XX (b) because it was “necessary to protect human life or health”.21 Although the Appellate Body’s decision that the ban did not violate Article III meant that it did not need to reach Article XX, it nonetheless upheld the panel’s interpretation of XX (b) on appeal. Canada’s contentions were that the asbestos ban was not necessary as France had the option of pursuing alternatives which were less inconsistent with GATT and strictly controlled dangerous use of asbestos. Post Tuna-Dolphin , environmental critics had greatly feared just this form of argument that tribunals might uphold. However, the Appellate Body said that “France could not reasonably be expected to employ any alternative measure if that measure would involve a continuation of the very risk that [its ban] seeks to ‘halt.’ Such an alternative measure would, in effect, prevent France from achieving its chosen level of health protection” protection”..22 The Appellate Body emphasised that all “WTO Members have the right to determine the level of protection that they consider appropriate in a given situation,” and noted that France’s chosen level of health protection was a complete halt in the spread of asbestos-related health risks. 23 The panel in Asbestos accordingly accordingly applied an interpretation of Article XX (b) such that if “an alternative measure which the party could reasonably be expected to employ and which is not inconsistent with other GATT provisions is available to it” and if no GATT-consistent measure is reasonably available, the party is “bound to use, among the measures reasonably available to it, that

20 21

Id. Supra note 17.

22 WTO

Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, Mar 12, 2001, WT/DS135/AB/R. WT/DS135/A B/R.

23

Id.

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which entails the least degree of inconsistency with other GATT provisions.”24, ruling in a way that quelled the fears of environmental critics. A. DISPUTES UNDER SANITARY AND PHYTOSANITARY (SPS) AND TECHNICAL BARRIERS BARRIERS TO TRADE (TBT) (TBT) MECHANISMS The Appellate Body can be lauded for its interpretation of minimum standards of TBT and SPS Agreements such that they are consistent with moderate proposals on the function of international standards, the right to set domestic levels of protection, and the burden of proof. This can be seen by the growing trend to overrule panel decisions that would have denied governments much leeway for consideration of non-trade interests. 3. EC - Hormones25 Most beef produced by the US is treated with hormones while EC produced beef is not. The US claimed that the ban violates the SPS Agreement. The panel’s interpretations of the Agreement effectively reinforced the fears of environmentalists. First, the panel said that the Agreement’s requirement that parties base their SPS measures on international standards means that a measure “needs to reflect the same level of sanitary protection as the international standard.” 26 It should be noted that the panel did acknowledge that the Agreement provided provided that a party may adopt a more protective measure than the international standard if it did so in accordance with the specified risk assessment procedure. Yet the panel called this provision an “exception” to the general requirement that parties adopt the international standard. The panel thereupon concluded that if a complaining party showed that the general requirement is not met and the domestic measure is more protective than the international standard, the burden of proof shifts to the defending party to demonstrate that it adopted its measure in accordance with the risk assessment procedure. 27 The Appellate Body invalidated these interpretations interpretations.. It rejected the panel’s view that the SPS Agreement requires parties to adopt the same level of 24 Id. 25 WTO

Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products, Jan 16, 1998, WT/DS26/AB/R. 26 WTO Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R/USA.. WT/DS26/R/USA 27 Id.

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protection as international standards, and declared that even if a domestic measure is not based on an international standard, the burden of proof remains on the complaining party to show that the measure is inconsistent with the Agreement. 28 The Appellate Body affirmed that the Agreement requires domestic measures with higher levels of protection than relevant international standards to be based on a risk assessment, 29 but, on the recognition of the fact that scientific opinions can differ, the Appellate Body said that parties need not only adopt measures consistent with the mainstream view in the scientific community. Rather, “the results of the risk assessment must sufficiently warrant—that is to say, reasonably support—the SPS measure at stake. The requirement that an SPS measure be ‘based on’ a risk assessment is a substantive requirement that there be a rational relationship between the measure and the risk assessment.” The difficulty for the EC was that the scientific risk assessments of the banned hormones had all concluded they were safe. Since the risk assessments did not reasonably support a ban, the Appellate Body upheld the panel conclusion that the ban violated the SPS Agreement.30 4. EC - Sardines31 Subsequently, the role of international standards under the TBT Agreement came under the judicial microscope before the panel in European Communities-Trade Description of Sardines . Like the SPS Agreement, the TBT Agreement mandates mandates that parties use relevant international standards standards “as a basis for” their domestic TBT measures except when the international standards “would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued”. 32 The panel interpreted the language “as a basis for” in accordance with the decision of the Appellate Body in Hormones , but, as in Hormones , treated the requirement to use international standards as the general rule to which the option of adopting more protective domestic standards is an exception, thereby placing the burden of proof on the party defending a measure more protective than a relevant international standard to show that the international standard would be ineffective or inappropriate to 28

WTO Appellate Body Report, EC - Measures Concerning Meat and Meat Products (Hormones), Jan 16, 1998, 104, 109, 165 WT/DS26/AB/R. 29 Id. 30 Id. 31 WTO Appellate WTO Appellate Body Report, European Communities - Trade Tra de Description of Sardines, Sa rdines, Oct 23, 2002, WT/DS231/AB/R., DSR 2002:VIII, 3359. 32 Id.

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meet the legitimate objectives of the party. This was reversed by the Appellate Body on the basis of its reasoning in Hormones and again concluded that the burden of proof is on the complaining party. Specifically, the burden is to show that the international standard was not used as a basis for the domestic measure and that the international standard is effective and appropriate to fulfill the legitimate objectives pursued by the defending party through the challenged measure.33 5. US - Gasoline34 The US-Gasoline Dispute was the first dispute that engaged “sustainable development”. Following the Ozone Convention of 1985 and the Montreal Protocol of 1987, the US Environmental Protection Agency promulgated a rule on the composition and emission effects of gasoline aimed at the reduction of atmospheric pollution. The regulation contained two baseline regulations – the first to be applied to domestic refiners and the stricter regulation applied to importers and blenders of gasoline. Brazil and Venezuela contended that the rule was against WTO principles of “National Treatment” and the TBT Agreement. The US refuted the same, claiming consistency with WTO principles and sought protection under the invocation of Article XX (b), (d) 35 and (g). The panel also found that conserving natural resources was not the sole purpose of the two differing baselines prescribed by the US, thus nullifying protection under Article XX (g) and upheld that the measures taken by the US were not justified. On appeal, this decision on Article XX (g) was reversed because the Appellate Body found that the baseline regulations did indeed fall within the scope of Article XX (g).36 The Panel agreed that clean air could be considered an ‘exhaustible natural resource’ since it is both “a resource (it had value) and ...natural”. ...natural”. However, the measure measure was still not justified justified by Article XX XX 33 Id . 34 WTO

Panel Report, United States - Standards for Reformulated and Conventional Gasoline, May 20, 1996, WT/DS2/R, as modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, 29. 35 “General Exceptions: necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices”. General Agreement on Tariffs and Trade, Apr 15, 1994, Article 1994, Article XX (d), 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994). 36 WTO Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline, May 20, 1998, WT/DS2/AB/R.

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because the discriminatory aspect of the measure constituted “unjustifiable discrimination” and a “disguised restriction on international trade” under the chapeau of Article XX.37 6. US - Shrimp38 The US - Shrimp dispute showcases the future potential for cases to pervade the sphere of WTO law. The essence of the case lay in the US prohibition of shrimp harvesting by methods that were harmful to sea turtles. Similar to Tuna - Dolphin , it also prohibited the import of shrimp unless the harvesting nation was certified as giving a regulatory programme for the conservation of sea turtles. The US effected regulations which prohibited the import of shrimp from countries that were not certified as having comparable conservation policies for endangered sea turtles or as coming from shrimp boats with fishing devices which were capable of excluding turtles, also called ‘turtle excluder devices.’ The US contended that its measures were justified under Article XX (b) and (g) as Article XX did not have jurisdictional limitations nor limitations on the locations of animals or natural resources to be protected and conserved. conserved. The Appellate Appellate Board primarily held that sea turtles constituted exhaustible natural resources within the meaning of Article XX and the US measure related to the conservation of an exhaustible natural resource thereby sanctifying the purpose of Article XX (g). The subject scrutinised by the Appellate Board was whether the measures taken were compatible with the Chapeau of Article XX and if the measures could be seen as unjustifiably discriminatory, as this would push them far beyond the applicable boundaries of Article XX. The Appellate Board stated that discrimination occurs either when a country where the same conditions apply is treated differently, or when the application of the measure in question does not allow for an inquiry into the appropriateness of the regulatory programme for the conditions prevailing in the exporting countries. The US failed to enter into negotiations to conclude bilateral or multilateral agreements for the protection and conservation of sea turtles. This was a fundamental pre-cursor to the enforcement of import prohibition. Therefore, it was seen as unjustifiably discriminatory and the import prohibition was not permissible.

37

Id.

38 WTO

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Mar 3, 1973, WT/DS58/AB/R. WT/DS58/AB/R.

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While ultimately reaching the same finding on Article XX as the Panel, the Appellate Body, however, reversed the Panel's legal interpretation of Article XX with respect to the proper sequence of steps in analysing Article XX. The proper sequence of steps, as per the Appellate Body would be to first assess whether a measure can be provisionally justified as one of the categories under paragraphs (a)-(j), and, then, to further appraise the same measure under the Article XX chapeau. chapeau. It can thus be safely concluded that the AB has been responsive to the need of protecting environment and hence open to upholding trade restrictive measures which meet the criteria laid down in general exceptions. However, one common feature among all the cases mentioned above is that the AB has stressed on ‘justification’ of the measure so imposed. If an equally efficacious but less restrictive method is available, the measure so imposed has been struck down. On the contrary, if the consequence on health, natural resources, plant and animal life is so severe that waiting for an alternative is not justified, then the measure has been upheld. One such alternative method proposed is for countries to enter into Multilateral Environmental Agreements, which diverge from GATT principles but are increasingly gaining significance. significance.

III.

THE GATT-MEA CONFLICT CO NFLICT

Multilateral Environmental Agreements (MEAs) are agreements entered into by three or more parties and form an integral part of global framework. MEAs conflict with free trade on a routine basis. The nature of these provisions appears to directly contradict WTO legislation. Another significant feature of MEAs is their capacity to authorise trade in a specific product between its parties, but ban trade in the same product with countries that have not signed the agreement. This directly opposes the Most Favoured Nation-principle of GATT. This conflict of the objectives of the MEAs and the GATT has remained one of the key issues in the trade-environment debate since the early 1990s.39 1. Trade Restrictions Restrictions in MEAs The term ‘trade measures’ could mean reporting requiremen requirement, t, labeling or other identification requirement, export and/or import bans, ‘market 39

40

Eric Neumayer, Trade Measures in MEAs and WTO Rules: Potential for Conflict, Scope for Reconciliation , 55 (3) AUSSENWIRTSCHAFT , 2 (2000).

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transformation’ measures etc. 40 Trade measures that are explicitly described in the MEA or in subsequent decisions of the parties to the MEA and which are mandatory obligations applied by all parties are called ‘specific measures’. 41 Measures which are not expressly described are also applied by parties to comply with MEA objectives and are called ‘non-specific measures’. Trade measures are incorporated into MEAs to monitor and control trade in products where the uncontrolled trade would lead to or contribute to environmental damage. This may extend to a complete exclusion of particular products from international trade; to provide a means of complying with MEAs’ requirements; to provide a means of enforcing the MEA, by forbidding trade with nonparties.42 Prominent MEAs are briefly examined below. 2. Montreal Protocol, 1987 It contains rigorous trade restrictive measures applicable to both parties and non-parties to the MEA. The Protocol restricts trade in ozone depleting substances as well as trade in products that contain such substances. The trade restrictive measures have played a major role in reducing the production and consumption of ozone depleting substances throughout the world. 43 By making the trade measures of the Protocol applicable to non-parties as well, the MEA has addressed the free-rider problem that would have arisen from the nonparties being able to circumvent them. 44 The Protocol’s trade measures against non-parties oppose the GATT principles of Most Favoured Nation, National Treatment and the Elimination of Quantitative Restrictions. The Protocol also uses PPM-trade measures on the use of ozone-depleting substances. However, the measures can be protected under Article XX, as the ozone layer is an exhaustible natural resource and its depletion adversely affects human, animal and plant life and health; there would not be any arbitrary or unjustifiable discrimination since the Montreal Protocol is a multilateral instrument based on an international consensus relating to the scientific assessment of what is necessary to protect the ozone layer. Moreover, it contains provisions that 40

DUNCAN BRACK & K EVIN EVIN GRAY , MULTILATERAL ENVIRONMENTAL AGREEMENTS AND WTO – – A A R EPORT Internati onal Affairs and the International Internati onal THE WTO EPORT, The Royal Institute of International Institute for Sustainable Development, Development, 4 (Sep 2003). 41 Id. at 5. Id. at 42 Id. at 6. Id. at 43 Robyn Eckersley, The Big Chill: The WTO and MEAs , GLOBAL ENVIRONMENTAL POLITICS, MIT, 14 (May 2004). 44 Working Paper, Robert Van Slooten, The Case of the Montreal Protocol , TRADE AND ENVIRONMENT: PROCESSES AND PRODUCTION METHODS, OECD, 89 (2004).

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exempt non-parties from trade restrictions if they comply with the control measures under the Protocol and hence there is no arbitrary and justifiable discrimination between countries where the same conditions prevail. There has never been a GATT or WTO challenge to the Protocol’s trade measures.45 3. Convention on International Trade in Endangered Species (CITES) The CITES contains restrictions on the import and export of various threatened or endangered species listed in its appendices. It has a number of enforcement-related enforcement -related trade measures, directed against non-complying parties and non-parties. At the outset, the Secretariat of the CITES endeavored for mutual support with the WTO, and adopted a five-year strategic plan which included the objective of ensuring continuing recognition and acceptance of CITES measures by the WTO and ensuring mutual support in decision-making processes. 4. Cartagena Protocol There is a complete absence of conclusive scientific evidence concerning the risks to humans, animals and plants associated with the transplantation of genes from one species to another. This doubt has sparked the controversial political debate on who should bear the burden of proof and by what standards. The Cartagena Protocol, 2000 is an effort to resolve questions related to the trans-boundary movement movement of living modified organisms (LMOs). The Protocol places restrictions on the trans-boundary movement, transit, storage and handling of certain LMOs which are meant to be liberated into the environment. It requires the parties to apply the precautionary principle in case of scientific uncertainty. uncertainty.46 The Protocol, which thus serves to restrict the free flow of trade in certain LMOs, may be applied against both parties and non-parties. However, trade in the biotechnology industry is also governed by a number of WTO Agreements- most significantly, the SPS Agreement. The SPS Agreement, extending to LMOs as well, enables parties to restrict or regulate trade in order to protect human, animal and plant safety, provided such measures pass the usual tests of non-arbitrariness, non-discrimination and least trade restrictiveness. Yet the risks covered by the SPS Agreement are not as wide-ranging as those under the Cartagena Protocol, resulting in a significant 45

Supra note 43 at 15.

46

Cartagena Protocol, Jan 29, 2000, art. 1, 10 (6) and 11 (8), 2226 U.N.T.S. 208; 39 ILM 1027 (2000); UN Doc. UNEP/CBD/ExCOP/1/3, at 42 (2000). (2000) .

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overlap of the two. Difficulties spring up when the risk assessment provisions of the Protocol operate differently from the evidentiary rules of the WTO-SPS Agreement. The Protocol enables the importing party to apply the precautionary principle when carrying out its own risk assessment prior to the import of LMOs while the SPS Agreement allows countries to set their own standards but provides that the measures should be based on objective and accurate scientific data. The SPS Agreement only permits the precautionary principle to be applied on an interim basis while a risk assessment is being conducted47 whereas the Protocol contains no such restriction. 48 Controversy in this context is not in any way a far-fetched matter as the US is a major producer and exporter of genetically modified products and will hence be ever-anxious to get rid of restrictions to the export markets. The decision in Shrimp-Turtle suggests that the Appellate Board may uphold the Protocol if a dispute involving the measures under the Protocol and the WTO agreements come before it. However, this outcome is not assured and members of the Protocol have to conduct risk assessment of LMO products of the US while toeing the fine line of political balance so as to avoid the US challenging the WTO. 5. Convention on Biological Diversity (CBD) The CBD does not sanction specific trade measures, though several of the issues it covers such as access and benefit-sharing arrangements, alien species, incentive measures for the conservation and sustainable use of components of biological diversity, provisions concerning knowledge, innovations and practices of indigenous and local communities, impact assessment, liability and redress, sustainable use, agricultural biodiversity may impact trade. The CBD also lacks any language relating it to the GATT or WTO. Article 22 specifies that the CBD is not to affect the rights and obligations deriving from existing international agreements, unless those rights and obligations would cause serious damage or threat to biological diversity. The Convention predated the WTO agreements that came into force at the end of the Uruguay Round, rendering this savings clause inapplicable, and leaving any potential conflict to be resolved under customary international law. The CBD does not predate the GATT itself however, so arguably the WTO dispute settlement bodies could end up interpreting what constitutes serious damage or 47

SPS Agreement, Apr 15, 1994, Article 5 (7), (7), 1867 U.N.T.S. 493 . 493 . 48 David Wirth, MEAs in the Trade- Environmen EV ., ., 38 (2004). Environmentt Debate , 3 B. U. L. R EV

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threat to biodiversity in the case of a challenge under the WTO. Article 15 of the CBD permits states to limit or place conditions on access to genetic resources, which could theoretically be inconsistent with the WTO, though dependent on their design and treatment of foreign companies differently than domestic companies. Article 27.2 of TRIPS may also potentially be troublesome, as it allows WTO members to exclude patentable inventions for the purpose of protecting public order or morality, to protect human, animal and plant life or health or to avoid serious prejudice to the environment. environment. Article 27.3(b) allows members to exclude plants and animals from being patented but prohibits members from excluding micro-organisms, non-biological and microbiological processes from patenting. WTO members may still exclude certain life-forms from patentability where it might interfere with a country’s ability to preserve genetic resources or traditional knowledge. However, However, the area of potential conflict is whether WTO members would be obliged to provide intellectual property protection protection to plant parts such as cells or genes conferred in other jurisdictions by countries that have allowed for such patentability, which would then have have implications for for access and benefit-sharing benefit-sharing regimes. regimes.49 The conflict as a consequ consequence, ence, exists though it may be explicit or implied and arises only when trade is likely to infringe the specific protection conferred by an MEA. Such conflicts however, if not addressed at an early stage and in a precise manner, will only lead to increased litigation. With this in mind, the author believes that the following can prove to be effective solutions: (i)

Exemption of MEAs through Waivers:

Article IX of the WTO Agreement provides for a process of waiver, which can be used to exempt MEAs from GATT rules. Through this, upon ratification, MEAs could be submitted to the WTO for waiver. This would seem to legitimise MEA trade measures, and requires minimal reform of the GATT/ WTO. However it may not succeed for all MEAs, especially those which have lesser support. Waivers will be less possible for other MEAs among WTO Parties as the required three-fourths majority would be difficult to attain.

49 Ryan

Winter, Reconciling the GATT and WTO with MEAs: Can We Have Our Cake and Eat it Y , 223 (2000). Too? , 11 COLUM. J. INT’L ENVTL. L. & POL’ Y

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In any event, a waiver reinforces a hierarchy of the WTO Agreements over MEAs50. (ii)

Amendment of the GATT: GATT: GATT Article XX could be amended so that measures pursuant to an MEA could be deemed a justifiable restriction on trade. Measures taken pursuant to the MEA would then be necessary considering their objectives though it would still be up to a panel or the Appellate Body to determine this and therefore in effect interpret the relevant MEA. In addition, any MEA trade measure would still have to satisfy the additional requirements under the Chapeau of Article XX. MEAs benefiting from this presumption would need to be identified in some way. One option would be to list specific MEAs. In turn, the WTO dispute settlement system could defer consideration of any dispute to the MEA mechanism, creating separate but equal regimes. This would work most effectively where the MEA specifically deals with trade in a particular type of goods or services (e.g. CITES, Montreal Protocol, Basel Convention, Cartagena Protocol). By selecting particular MEAs, however, there may be concern about the impracticality of having to amend Article XX or even simply agree an amendment to the list, every time a new MEA comes into force. A counter to this solution would be that MEAs would then always be subordinate to WTO obligations. 51 (iii)

Change of Forum for WTO-MEA Disputes: Disputes involving the MEAs and WTO may be resolved via a different authoritative forum, such as the International Court of Justice (ICJ). The ICJ could then apply Principle 7 of the Rio Declaration which says that “all States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem”. If the complaining party were a member of the MEA, the dispute could be referred to the mechanism under that agreement, if there is one provided for by the respective MEA.52

50

DUNCAN BRACK & K EVIN EVIN GRAY , MULTILATERAL ENVIRONMENTAL AGREEMENTS AND Internat ional Affairs and the International Internati onal THE WTO- A R EPORT EPORT, The Royal Institute of International Institute for Sustainable Development, Development, 35 (September 2003). 51 Id. at 39. 52 Id.

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A Global Environmental Organisation:

All the above solutions, as well as any discussion centered on the trade-environmental trade-environme ntal confluence concern are permeated by the basic assumption or admission that GATT/ WTO is more powerful than the MEAs. One reason for this view is that the international environmental protection arena has no counterpart such as the GATT/ WTO. Although labeled ‘unrealistic’, the creation of a Global Environmental Organisation would be to environment related restrictions on trade, what WTO is to trade liberalisation. The only flipside to this solution is that it would be very difficult to create such an organisation, as such an organisation would balance the disciplinary power of the WTO53

IV.

RECOMMENDATIONS

Notwithstanding the discussion above, the conflict between free trade and environment protection exists. Inevitably, trade-environment conflicts have to be resolved with the import of more environmental principles into trade jurisprudence. With the evolution of a greener outlook on international trade disputes, the Appellate Body now appears to be one which prefers to stick doggedly to the literal meaning of the text. This current approach can be lauded as being uncontroversial and an evident path for a tribunal which seeks political support for its decisions, as under principles of international law, the text of the agreement forms the root of decision-making. However, in a legal sense, when the Appellate Body needs to look beyond the text, and discover proof of political agreement, it can be criticised as using interpretative tools which are incoherent and inconsistent in nature, as can be traced from their disputes over the years. A cleaner, and less problematic solution, would instead be to rely on Article 31(3) of the Vienna Convention on the Law of Treaties. Article 31(3) lays out the foundation to connect a treaty text to certain specialised types of extra-textual agreements. Article 31(3) instructs the interpreter to take into account, together with the context of the terms of the treaty: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

53 Robyn

Eckersley, The Big Chill: The WTO and MEAs , GLOBAL ENVIRONMENTAL POLITICS, MIT, 45 (May 2004).

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(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. Invoking Article 31(3) can be viewed as being extremely advantageous in various ways. Firstly, it relies on a method of interpretation which by itself mirrors a broad consensus, one which the Appellate Body previously pledged to use. Article 31(3) would therefore be a more politically amicable interpretative tool with all the States involved. Moreover, Article 31(3) could identify agreements which are clearly relevant to the issue before the tribunal. 54 The issues in the application of Article 31(3) may center round the fact that each of the three categories in Article 31(3) necessarily requires a specific connection between the extra-textual agreement and the treaty text. Thus all the parties must acquiesce in some manner to the agreement for the application of Article 31(3). Secondly, Article 31(3) does not prevent the parties from jointly deciding that subsequent agreements may be relevant to interpretation even if not all of the parties have adopted them. For example, the WTO Agreement allows the General Council to make interpretive decisions on the basis of a three-fourths majority. Further, subsequent agreements, whether reached expressly or through practice, may establish an interpretation of a treaty that is not subject to challenge by states ratifying the treaty later. In other words, new parties have to take the treaty as it is when they join it, including any interpretations of it already established under Article 31(3). In addition to this, rules of customary international law potentially relevant under Article 31(3)(c) may bind nations that have not specifically agreed to them, at least as long as the nations have not persistently objected to their formation. 55 Subsequent practice establishing the agreement of the parties under Article 31(3)(b) need not be by every party; the practice need only be accepted by all, and the acceptance can be tacit. 56 MEAs containing trade restrictions provide an example of such subsequent practice. From the early 1970s, when CITES was drafted and adopted, to the present, when it and other major MEAs 54 John

H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment , H ARV . ENVTL. L. R EV ., Vol. 28 (2004). EV ., 55 I AN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL L AW , 636 (Clarendon Press, 1998). 56 T. O. ELIAS, THE MODERN L AW OF TREATIES, 76 (Kluwer Academic Publishers, 1974).

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with trade restrictions have attained close to universal membership, the vast majority of GATT parties have negotiated, signed, and ratified the MEAs without contemporary claims by other GATT parties that the trade restrictions violate GATT. Because Basel and CITES can only be consistent with GATT if Articles XX (b) and/or XX (g) are not limited to protecting humans, animals, and natural resources within the jurisdiction of the party imposing the trade restriction, the Tuna-Dolphin view of extra-jurisdictionality cannot be correct. Subsequent practice therefore should have led to a decision in Shrimp-Turtle I that measures taken to protect sea turtles outside the jurisdiction of the nation taking the measures are within the scope of Article XX. The application of Article 31(3) may curb the wide array of extratextual agreements that the Appellate Body could take into account. For instance, even the universally adopted Rio Principle 12, cited in Shrimp-Turtle I by the Appellate Body as ‘evidence of the preference of the international community for multilateral approaches to environmental protection’ 57 could be taken into account only if they were “regarding” the text under review (in that case, GATT Article XX), or if they reflected relevant customary international law. Principle 12 would not meet either requirement. Political declarations are far more likely to meet the first criterion if they are made in the WTO context. The WTO members’ consensus statement in the 1996 CTE Report that they support and endorse “multilateral solutions based on international cooperation and consensus as the best and most effective way for governments to tackle environmental problems of a trans-boundary or global nature” probably does qualify as a subsequent agreement under Article 31(3)(a), especially since the following sentence of the report specifically refers to the need to ensure a “mutually supportive relationship” between WTO agreements and MEAs. Article 31(3) would not, undeniably undeniably,, be the perfect solution. There exists no perfect interpretive solution. It would, however, provide a way to consider whether particular extra-textual agreements may be taken into account in interpreting WTO texts that is more predictable, more faithful to the most

57 WTO

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R.

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generally accepted interpretive rules, and more likely to identify relevant agreements.58 A general apprehension is that the expanding scope of the WTO will restrict the potential of the MEAs and make them less effective, as the trade restrictions in MEAs may become vulnerable to challenge before the WTO. This conflict has been examined extensively and an d several solutions have been put forth, though practical and concrete steps are yet to be taken on this matter. However, discounting the possible political reasons it may have for doing so, it can be concluded that the jurisprudence of international trade has imbibed a greener slant over a series of disputes. The constant discord between trade and the environment is undeniable, and the solutions proposed coupled with the reading of Article 31(3), in the authors’ opinions, would as a minimum, help sojourn this conflict.

V.

CONCLUSION

The above analysis concludes that the judicial outlook of trade jurisprudence has gradually evolved to address environmental concerns. The judicial search for political agreement has led directly to greener decisions in two ways. Firstly, by reading the ordinary text, many of the interpretations from cases like Tuna-Dolphin were done away with, as those interpretations were based on the narrow view of panels regarding GATT objectives instead of a scrutiny of its plain text. It was by reading the plain text that the Appellate Body pronounced their judgment with legislation much more amicable to environmental concerns. Secondly, when the Appellate Body sought beyond the text of the trade agreement, they discovered instances of political agreement in non-trade contexts, including in international environmental instruments such as CITES. It is imperative for international economic law to accord legal recognition to the inherent value of non-economic objectives. WTO Panels have discernibly widened the definitions within the legislation, such as ‘exhaustible natural resources’ to account for increasing environmental hazards. Further, they have rationalised the legal review of national measures adopted to pursue such non-economic objectives. As a result, States will be encouraged to 58

John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment , H ARV . EV ., ENVTL. L. R EV ., Vol. 28. (2004).

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pursue non-economic objectives in response to environmental threats, as long as they derogate from their trade-related obligations in a justifiable manner to the extent permitted by the GATT. This presents a striking transformation in juristic mentality to validate and enforce national measures necessary for the protection of the environment, thereby attempting to reconcile the perpetual dissension between international trade and the environment.

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RIGHT TO RIGHT TO INFORMATION: SHREDDING THE SHREDDING THE CURTAIN OF SECRECY AROUND AROUND POLITICAL PARTIES

Tanya Choudhary * This article analyses the concept of transparency in politics and the merit of bringing political parties within the ambit of India’s sunshine legislation viz. the Right to Information Act, 2005. The debate is prompted by the recent decision of the Central Information Commissioner in Shri Subhash Chandra Aggarwal & Another v. Indian National Congress and Others 1 which has which has declared the declared the six major political parties of the country to be ‘public authorities’ within the scope of the RTI Act. Though the order is correct in terms of the outcome, the reasoning employed in reaching the conclusion suffers from several flaws. The article studies the existing regulatory framework for political parties in India as well as the RTI laws of other jurisdictions in order to grasp the different ways in which countries have previously extended extended their RTI laws to political parties. The The article seeks to debate the potential potential social and political consequences of such a move in India and offers a middle ground to remedy the stalemate between the political parties and the civil society on the issue.

I.

INTRODUCTION

Political parties are the sine qua non of of modern democracies.2 These are unique institutions which “form the government, man the Parliament and run the governance of the country”. 3 Political parties ought to serve as the link between the government and the people but the paradox of our times is that political parties themselves are more often than not, the evil to be remedied. A few decades into being a democracy, India witnessed criminalisation of politics, growing influence of money and muscle power in elections and lack of internal democracy and transparency in the functioning of political parties. To take an example of 1998 elections, the figures by the Election Commission revealed that 1,500 out of approximately 14,000 contestants had previously * 1 2

3

IIIrd Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad. File No. CIC/SM/C/2011/001386 CIC/SM/C/2011/0013 86 & 00083. Molenaar, Fransje, The Development of European Standards on Political Parties and their Regulation , (Legal Regulation of Political Parties Working Paper Grp Paper No 4) available at http://ww http://ww w.partylaw.leidenuniv.nl/uploads/wp041 w.partylaw.leide nuniv.nl/uploads/wp0410.pdf 0.pdf EPORT ON R EFORM EFORM OF THE ELECTORAL L AWS (2001). L AW COMMISSION OF INDIA, 170 TH R EPORT

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been convicted of grave offences such as murder, rape, robbery and kidnapping. 4 The candidates ca ndidates contesting elections included a Member M ember of Parliament who had murdered a local police officer by throwing him in front of a running jeep and three others who had won the previous elections while in prison.5 The state of elections for the State Legislative Assemblies was no different. For instance, Bihar State elections of 1987 witnessed 333 incidents of booth capturing with 66 shooting incidents and 53 bomb explosions. 6 Corruption and criminals have thus become “as much a fixture in politics as the white Gandhi cap”.7 In the absence of any legislative intervention, intervention, political corruption and other problems plaguing the national political life have gradually become so entrenched within the system that they do not lend themselves to any easy solutions. In the past few years, the Indian citizenry has been rattled by a string of political scams and corruption scandals including the Commonwealth Games scam, allocation of 2G spectrum scam, Bofors Hawala scam, fodder scam etc., each unraveling one after the other. It is in this background that on 3 rd June 2013, the full bench of the Central Information Commission (hereinafter ‘CIC’) in Subhash Chandra v. Indian National Congress and Others 8 passed an order declaring that the six major national political parties namely Congress, Indian National Congress, Bhartiya Janata Party (BJP), Communist Communist Party of India India (Marxist) (CPM), Communist Communist Party of of India (CPI), Nationalist Congress Party (NCP) and Bahujan Samaj Party (BSP) are subject to the Right to Information Act, 2005 (henceforth will be mentioned as ‘The Act’). As per the scheme of the Act, this order (i) placed an obligation on the political parties to proactively disclose information to the public 9 and (ii) equipped the public with the right to demand answers from the political parties about their source of funding, choice of candidates, election manifestoes among a host of other issues (unless the information sought was covered by any of the exceptions under Section 8 in which case the disclosure would not be mandatory). 4 5 6

7

8 9

52

N. Gunalan, Indian Criminals Contesting Elections , T Strait Times, Singapore, February 14, 1998. Id. Michael Hamlyn, The Troubled State of Bihar: Gangster grip in coal and politics , The Times, London, November 18, 1986. John Stackhouse, Path From Prison to Power is Short in India in the Current Elections, Criminals have become as much a Fixture as the Gandhi Cap, The Globe and Mail, Canada, February 21, 1998. File No. CIC/SM/C/2011/001386 CIC/SM/C/2011/0013 86 & 000838. Right to Information Act, § 4 (2005).

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The decision was instantly hailed by the public as a landmark judgement, which set a new ‘benchmark for transparency in political life’. 10 However, the political parties have since, unanimously opposed the order in an uncharacteristic display of solidarity. In the few days after the decision, political parties were found debating and evaluating every possible means to wriggle out of the order. As a result, the Central Government finally tabled an amendment bill in order to exclude all the political parties registered with the Election Commission from the ambit of the RTI Act. 11 Since the country finds itself in the midst of a ‘transparency versus non-disclosure’ debate, it is pertinent to discuss and debate the pros and cons of bringing political parties within the ambit of the RTI Act. To further this purpose, Part II of this article undertakes a critical, in-depth analysis of the logical and legal tenability of the CIC’s order in Subhash Chandra v. Indian National Congress and Others . Part III examines the possible social and political repercussions of bringing political parties within the ambit of RTI. Part IV is a comparative evaluation of the RTI Act of India with the RTI laws of other countries to appreciate the various approaches that different countries have adopted over the years to subject political parties to transparency laws. Part V then examines the major challenges to the idea of transparency in politics and Part VI comprises the conclusion which finally summarises the entire debate and offers a way ahead.

II. SHRI SUBHASH CHANDRA AGGARWAL & ANOTHER V. INDIAN NATIONAL NAT IONAL CONGRESS CONGRE SS AND OTHERS OT HERS The Right to Information Act is applicable to all bodies which fall within the definition of ‘public authority’ au thority’ under Section 2(h)12 without providing

10

Editorial, A Editorial, A New Benchmark for Transparent Politics , The New Indian Express, June 4, 2013. Nayak, Non-Government Nayak, Non-Government Organisation Recognized as ‘Public Authorities’ under the Right to Information Act, 2005 , ACCESS TO INFORMATION PROGRAMME , COMMONWEALTH HUMAN IGHTS INITIATIVE (2013). R IGHTS 12 Section 2(h): “public authority” means any authority or body or institution of self-Government established or constituted(a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or made by the appropriate Government, and includes any (i) body owned, controlled or substantially financed; 11 Venkatesh

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for an exhaustive list of such authorities. Like the majority of litigation around the RTI Act, this case also dealt with the scope of the Act and turned on the interpretation of Section 2(h). The term ‘public authority’, as defined under Section 2(h), has two components – (i) the first part of the definition refers to those bodies which have been established/ constituted by or under the Constitution or statute (state and centre) or notification by appropriate government (ii) the second part then goes on to widen the definition and includes within its purview all ‘bodies owned, controlled or substantially financed by the government’. 13 Since political parties in India are clearly not established under the Constitution or any statute, the primary question before the Central Information Commission in this case was whether or not political parties are ‘public authorities’ under the second limb of Section 2(h). Their reply to this question came in the affirmative, supported by a three pronged justification i.e. (1) political parties are substantially financed by the government; (2) political parties perform functions of a public nature and (3) constitutional/legal provisions vest political parties with rights and liabilities. Each of these grounds will be individually individually analysed in the the present section. section. A. POLITICAL PARTIES ARE SUBSTANTIALLY FINANCED BY THE GOVERNMENT GOVERNMENT The primary ground for bringing political parties within the ambit of ‘public authority’ under Section 2(h) is that these are “substantially financed” by the government. Political parties in India enjoy numerous financial privileges such as large tracts of lands/ houses free of cost or at concessional rates, exemption from payment of income tax, 14 free air time on All India Radio and Doordarshan as well as free electoral rolls during the time of elections, 15 all of which are instances instances of indirect financing financing by the government. The only question, which then remains to be answered, is whether or not this financing amounts to ‘substantial financing’. Though the words (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government. 13 Prabodh Saxena, Public Authority and the RTI , 13 EPW 44 EPW 44 (2009). 14 Income Tax Act, § 13A (1961). 15 Representation of the People Act, §§ 78A & 78B, (1951).

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“substantially financed” have nowhere been described in the Act, in The Hindu Urban Cooperative Bank Ltd. v. State Information Commission and Others,16 it was clarified that where a question of public funds is involved, the word “substantially financed” cannot be interpreted narrowly by reducing it to percentages or mathematical values. Accordingly, any financing which is not ‘trivial’ enough to be ignored as a pittance is to be termed as ‘substantial funding.’ This rationale has been cited with approval in many subsequent cases. For instance, in Pradeep Bhanot v Chandigarh Club , 17 where Chandigarh Club received certain land from the Chandigarh administration and paid a rent which was considerably lower than the commercial rent prevalent in the market. This alone was enough for the court to hold that the Club was a ‘public authority’ as it was being ‘substantially financed’ by the government. The government. The same view was upheld in a plethora of other cases 18 which are not discussed in this paper for the sake of brevity. B. POLITICAL PARTIES PERFORM DUTIES OF A PUBLIC NATURE The second prong of the CIC’s order rested on the assumption that political parties perform important “public functions” in a democracy and are therefore amenable to RTI. The court drew this conclusion based on a single decision of Karnataka High Court in Bangalore International Airport Limited v Karnataka Information Commission , 19 where the court was determining the applicability of RTI Act to BIAL and it was observed that public authority is a “body which exercises public function for the benefit of the public rather than for private profit, and it is this feature which distinguishes a public authority from a private one.” This led the CIC to the conclusion that political parties which perform functions of a public nature are ‘public authorities’ under the Act. However, there is more than one flaw in this line of argument. First of all, even a cursory glance at the Act would reveal that it does not mention a (2011) ILR 2 Punjab and Haryana 64. Shri Pradeep Bhanot v. Chandigarh Club, Chandigarh, CIC/LS/A/2010/001184. CIC/LS/A/2010/001184 . 18 Delhi Integrated Multi Model Transit System Ltd. v. Rakesh Aggarwal 2012(131) DRJ 537; Thalappalam Service Co-operative C o-operative Bank B ank Ltd. v. Union of India AIR 2010 2 010 Ker 6; Tamil Nadu Road Development Company Limited v. Tamil Nadu Information Commission AIR 2009 (NOC) 255 (Mad). 19 ILR 2008 KAR 3618. 16 17

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‘public function test’ in the definition of ‘public authority’. The public functions test is employed instead, to determine the definition and scope of ‘State’ under Article 12 of the Constitution and an d to determine the High Court’s power to issue writs under Article 226. Interestingly, a string of judicial pronouncements categorically state that the definition and scope of ‘State’ under Article 12 is completely separate from the definition of ‘public authority’ envisaged under the RTI Act.20 The difference lies in the fact that right to information was wa s traditionally viewed as emanating from the freedom of speech and expression under Article 19(1)(a) of the Constitution 21 and subsequently, its roots were traced back to Article 14 (equality before the law and equal protection of law) and Article 21 (right to life and personal liberty) since transparency was sought to be used as a deterrent against unequal treatment and discrimination. 22 However, the scope of the right at that point continued to be limited to the extent that it could only be exercised against the ‘State’. The purpose of RTI Act was inter alia to to broaden the scope of citizens’ right to information by not limiting it in terms of state but expanding it to any ‘body’ which qualifies to be a ‘public authority’ within the given definition. Therefore, CIC’s interpretation is very difficult to reconcile with the language and the context of the Act. Secondly, judicial decisions in the past have expressly rejected the public function test in the context of RTI itself. In as recently as 2010, it was stated in Kul Bhushan Dania v Usha Kumari 23 that a ‘public function’ test cannot be read in as a criterion to judge whether or not a body is a public authority when this has nowhere been explicitly mentioned under Section 2(h) of the RTI Act. The obvious reason for this being that it is the prerogative of the popularly elected legislature to formulate laws and it is not open to the judiciary to substitute its own will with the intention of the legislature. Another case in point is Kuldeep Singh v. State of Punjab 24 where a school imparting education and performing public function but not receiving any substantial grant-in-aid was held to be

20

The Hindu Urban Cooperative Bank Ltd. v. The State Information Information Commission, (2011) ILR 2 Punjab and Haryana 64. 21 State of UP v. Raj Narain, (1975) 4 SCC 428; S.P. Gupta v. Union of India, (1981) Suppl. SCC 87. 22 Secretary General, General, Supreme Court v. Subhash Chandra Aggarwal, AIR Aggarwal, AIR 2010 Delhi 159; S.P. IGHT TO INFORMATION (2006). S ATHE, R IGHT 23 Kul Bhushan Dania v. Usha Kumari, 2010 Indlaw CIC 27. 24 2011(2) RCR (Civil) 22.

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beyond the scope of RTI. 25 In Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa 26, the court even refused to hear arguments about the nature of function performed by the bank, stating that such a test is wholly irrelevant in the context of RTI. Similar view was voiced in National Stock Exchange of India Ltd. v. Central Information Commission .27 and several other cases. Finally and most ironically, in the Bangalore International Authority case (which has been used by CIC to support its conclusion) the Karnataka High Court itself did not apply the public function test to the factual matrix before it. Instead, the case was solely decided on the touchstone of ‘substantial financing’ as the Court came to the conclusion that BIAL is substantially financed by the government and therefore, qualifies to be a ‘public authority.’ Thus, the Court’s observation in Bangalore International Authority case was nothing more than an obiter and it can be argued that the intention was never to usher in a ‘public function test’ as an additional or even a supplementary criterion to define the meaning and scope of the term “public authority”. As a result, r esult, the CIC’s reliance on this judgment is wholly misplaced and it is not appropriate to use the ‘public function’ test to decide whether a body is a public authority. However, keeping legal precedents aside, one can make the argument that the Act should be applicable to all bodies which perform public functions and not just those which receive government funding. 28 This debate has been gaining momentum in recent years with the rise in globalisation where government is delegating more and more of its activities to private organisations. It is often argued that failure to include such organisations within the Act will place substantial amounts of government information outside the reach of the Act.29

25

Th e Cloak of Privacy Protects Pr otects Companies Compan ies , 8 Shonali Ghosal, Public Utilities Elude the RTI Net: The TEHELKA (2011). 26 Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa, (2010 (V) AD (Del) 405, W.P. (C) 6129/2007). 27 [2010] 100 SCL 464 (Delhi). 28 David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws , PRIVACY INTERNATIONAL (2006). 29 Alasdair S. Roberts, Less Government, More Secrecy: Reinvention and the Weakening of Freedom of EV . 298 (2000). Information Law , 60 (4) PUBL. ADMIN. R EV

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Though this argument carries considerable merit, there are certain fundamental difficulties that the use of a public function test is likely to engender. First, there has never been any unanimity among judges about what constitutes a “public function”. 30 In fact, the only point that remains uncontested is that there cannot be a single test to define ‘public function’. 31 The evolving jurisprudence jurisprudence on the definition of the State under Article 12 of the Indian Constitution and writ jurisdiction of the High Court under Article 226 reveal that originally public functions were defined in terms of the sovereign functions of the State. However, what these sovereign functions are remains undefined and subject to change. 32 ‘Sovereign ‘Soverei gn functions’ can be confined to provision of public security, protection of life and property or it may encompass a wide range of functions such as sports, education, culture, transport, communication, religion etc. 33 In fact, the the idea of of sovereign function is derived from the amorphous concept of sovereignty which has itself eluded consensus among political and legal theorists since centuries. 34 Thus, to articulate a precise definition of ‘public function’ is extremely difficult, to say the least. In such a case, using an undefined and vague category of “public function” instead of a statutorily prescribed definition of “public authority” would only give rise to unpredictability and uncertainty in the scope of the RTI Act. Another argument against the use of this test is that it widens the scope of RTI a little too far. There are a number of institutes like schools, hospitals which perform the public functions of imparting education and providing health and medical facilities respectively but these cannot be brought within the purview of the Act.35 This is because the Act envisages transparency in the functioning of public authorities by virtue of the fact that they receive and utilise taxpayer’s money and should consequentially be accountable to the Public Corporations and Private Bodies that perform Public functions and/or receive Public Funds , (accessed July 25, 2013) available at http://www.right2info.org/scope-of-bodies-covered-byaccess-to-information/private-bodies-that-have-a-public-character 31 Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649. 32 Balmer Lawrie and Co. Ltd. v. Partha Sarathi Sen Roy, 2013 (2) SC T232 (SC). 33 For instance, Armenia provides for an expansive range of functions of ‘public importance’ generally, www.right2info.org. including health, education, communication et al. See generally, 34 Robert S. Gilmour & Laura S. Jensen, Reinventing Government Accountability: Public Functions, Privatization, and the Meaning of "State Action" , 58(3) PUBL. ADMIN. R EV EV . 251(1998). 35 Kul Bhushan Dania v. Usha Kumari , , 2010 Indlaw CIC 27; Krishak Bharti Cooperative Ltd. v. Ramesh Chander Chande r Bawa , (2010 (V) AD (Del) 405, W.P. (C) 6129/2007). 30

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public irrespective of the functions that they perform. In fact, a logical extension of the CIC’s argument would lead us to the conclusion that even “ gurdwaras should should become public authorities since they serve langar , which is a public activity” 36, something which was clearly not envisaged by the Act. 37 What is ironical, though, is that this statement criticising the ‘public functions’ approach for RTI was made three years ago, in 2011, by Satyanand Misra – the person who headed the bench in the present case. 38 C. CONSTITUTIONAL/LEGAL CONSTITUTIONAL/LEGAL PROVISIONS VESTING POLITICAL PARTIES WITH RIGHTS AND LIABILITIES The order states that the constitutional constitutional and statutory rights and obligations of political parties reflect their public character, bringing them within the net cast by Section 2(h). Unfortunately, Unfortunately, even this third ground stated in the order is worth appreciating only for its ingenuity and not for its legal merit. This is a new category magically conjured out of thin air as such a parameter neither appears in the Act nor has any backing in judicial precedents. 39 What is more amusing is that political parties do not even squarely fall within this ingenious category since the Constitution with its 385 articles does not once mention the words ‘political party,’ much less lay down the rights and liabilities of political parties. This is unlike countries such as Germany where the Constitution actually contains elaborate provisions for the establishment and functioning of the political parties. 40 In India on the other hand, the only place where the word ‘political party’ finds a mention in the Constitution is in the tenth schedule, which was not inserted into the Constitution until 1985. 41 Logically, such a new category also detracts from the rest of the definition. If a statute conferring rights and obligations upon a body is sufficient 36

Elud e the RTI Net: The Th e cloak of Privacy Privac y Protects Companies C ompanies , 8 Shonali Ghosal, Public Utilities Elude TEHELKA (2011). 37 Id. 38 Id. 39 Anirudh Burman, Transparency and Political Parties: Finding the Right Instrument , 48 (28) EPW 39 EPW 39 (2013). 40 L AW COMMISSION OF INDIA, 170 TH R EPORT EPORT ON R EFORM EFORM OF THE ELECTORAL L AWS (2001). 41 The Tenth Schedule deals with the disqualification of a person as a member of either House of Parliament or the Legislative Assembly on the grounds of defection.

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to qualify that body as a public authority, there is little point in retaining the first part of Section 2(h) which requires that a body, in order to be public authority needs to be ‘established’ or ‘constituted’ and not merely recognised by the Constitution/Statute. Similarly, the judicial interpretation of the second part of the definition that the appropriate government should have a deep and pervasive control over the body and not merely regulatory control 42 is rendered irrelevant if a body can be brought within the ambit of RTI simply because a statute regulating its functioning confers rights and liabilities upon it. Therefore, the decision of the CIC is not free from legal infirmities and two out of the three prongs which form the basis of the order, are legally untenable. The only legally redeeming quality of the judgment is that political parties are indeed ‘substantially financed’ by the government. This ground alone is sufficient to bring political parties within the ambit of the definition of ‘public authority’ under Section 2(h). Additionally, the prime significance of this order continues to lie in the fact that it is a culmination of a long standing demand for greater transparency in politics.

III.

THEORETICAL IMPLICATIONS AND SOCIAL REPERCUSSIONS

The opposite stance taken by the civil society and the political parties on the issue has sparked off a rigorous public debate and discussion on the efficacy of the CIC order. This arises out of speculations about the social and political consequences consequences of bringing political parties within the ambit of the Act. Any attempt to argue for or against the decision would presuppose an appreciation of the existing legal framework surrounding political parties. The political parties, as mentioned above, largely fall outside the ambit of constitutional provisions. The Representation of the People Act of 1951 is the only piece of legislation that regulates some aspects of the functioning of political parties. The political parties in India are exempted from paying tax under the Section 13(A) of the Income Tax Act of 1961 but in return they are legally bound to maintain regular accounts, record and disclose names of donors contributing more than Rs. 20,000 to the Election Commission. 43 42

43

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Zila Sahakari Kendriya Bank Maryadit, Jagdalpur v. State Information Commission, 2011(4) MPHT 20. Representation of the People Act, § 29C, (1951).

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Section 77 of the Representation of the People Act also places a limit on expenditure during elections to control the influence of money in elections and to provide a level playing field to all those contesting elections. elections. But these laws are of little practical utility since non-compliance with the legal requirements does not invite strong penalties. This is perhaps why only 174 out of 1,196 registered parties have submitted their annual reports regarding contributions to the Election Commissioner in 2010-11. 44 While the CPI(M) did not submit their donation report at all, Bahujan Samaj Party went to the extent of claiming that the party had not received any donations above Rs 20,000 even though the total income of the party was declared to be Rs 17267.84 lakhs.45 In the same vein, the actual expenditure incurred during elections has no connection whatsoever to the statutory maximum prescribed under the law. More often than not, the expenses revealed are merely the tip of the iceberg. This was best highlighted when Member of Parliament Gopinath Munde declared at a book launch function last year that he incurred an expense of Rs. 8 crores during his 2009 Lok Sabha Elections, 46 an amount which is several times the prescribed statutory limit of 25 lakh rupees. In some cases such as the ceiling on expenditure, the law itself provides an escape route by fixing a ceiling only in respect of the expenditure incurred or authorised by the candidate himself while leaving out the expenditure incurred by the party or any supporter in his election campaign.47 In such a scenario, some might argue (and legitimately so) that RTI merely ensures disclosure and transparency and so even if the disclosed information reveals serious concerns like money laundering, corruption, arbitrariness etc. that would just form the basis for a greater struggle. However, the fact also remains that disclosure (as mandated by RTI) has proved to be a very effective means of regulation in the past which cannot be underestimated. This was observed in the context of environment when the United States 44 N.

Misra, Enforcing Clean Politics , New Indian Express , July 15, 2013. 2013 . of Income Tax Returns Filed and Donations Don ations Received by Political Parties, National Election Watch and Association Assoc iation for Democratic Dem ocratic Reforms Reform s (2002), available at http://adrindia.org/sites/default/files/Donations%20Report%20-%20FY-200405%20to%202010-2011_0.pdf (Last visited 11 January, 2014). 46 Munde Admits Spending Rs. 8 Crore in 2009 polls p olls , The Hindu, June 28, 2013. 47 Namit Oberoi, Reforming Election Funding , 1(1) NUJS L AW R EVIEW EVIEW 145 145 (2008).

45 Analysis

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passed the Emergency Planning and Community Right-to-know Act in 1986 mandating corporates to disclose the extent of toxics that they release into the atmosphere. The purpose of the law was only forced disclosure and it did not prescribe any upper-limit on the pollution. Nevertheless, it was found that within six years the toxic levels fell by 44 per cent, a decrease not easily achievable by any statute on environmental protection. 48 Often termed as “regulation by revelation,” this mechanism mobilises the ‘power of shame’49 and the pressure of public opinion to achieve effective results. As Jeremy Bentham would say, “the more strictly we are watched, the better we behave”.50 Having proved its merit in the context of environment, RTI is most likely to result in effective regulation of political parties since there is no other body on which the pressure of maintaining a favourable public opinion is as severe as that on political parties. The very existence of political parties and their entire agenda of grabbing political power hinge on public perception of the party and the constant threat of losing people’s confidence and support during elections is likely to compel political parties to exercise self-restraint. This is precisely why laws demanding public disclosure are likely to be more effective than electoral laws for remedying corruption and establishing political accountability.51 This assertion is further fortified by the fact that the need for transparency to improve the functioning of political parties has also been previously acknowledged by innumerable reports such as the 170 th Law commission in 2001 52 and the 2002 Report of the National Commission to Review the Working of the Constitution 53 which recommended that the records of political parties should be properly maintained, audited, submitted to the Election Commission and this information should be made public. A similar view was expressed by the Election Commission on Proposed Electoral 48

Ann M. Florini, Increasing Transparency In Government , 19(3) I NT. J. W J. W ORLD ORLD PEACE 29(2002). 49 Jonathan Fox, Uncertain Relation between Transparency and Accountability , DEVELOPMENT IN PRACTICE 17, NO. 4 (2007): 663. 50 Taeku Lee and Sina Odugbemi, How Can Citizens Be Helped to Hold Their Governments Accountable?, Accountab le?, in ACCOUNTABILITY THROUGH PUBLIC OPINION: FROM INERTIA TO PUBLIC ACTION 415 (Taeku Lee and Sina Odugbemi eds., 2011). 51 Simeon Djankov et al., Disclosure by Politicians , 2(2) A M. ECON . J.: APPLIED ECONOMICS (2010). 52 L AW COMMISSION OF INDIA, 170 TH R EPORT EPORT ON R EFORM EFORM OF THE ELECTORAL L AWS (2001). 53 R EPORT EPORT OF THE N ATIONAL COMMISSION TO R EVIEW EVIEW THE W ORKING ORKING OF THE CONSTITUTION (2002).

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Reforms in 200454 when it insisted on full public disclosure of the income and expenses of political parties. This is in fact, a good opportunity for political parties to improve their legitimacy and strengthen their relations with the public.55 Another obvious advantage of using the Act to usher in transparency in the functioning of political parties is that it obviates the need to invent a new cog in the wheel as the desired goals can be achieved within the existing legal mechanism. But on the other side of the spectrum, arguments against disclosure abound wherever and whenever disclosure is sought.56 Political parties have vociferously opposed the decision on the ground that it opens up great possibilities of misuse. Parties fear that they will be inundated with requests, sometimes even false and vexatious requests made with a political motive bringing the actual work of the party to a standstill. This argument though not entirely baseless, is untenable for numerous reasons. First, RTI Act provides adequate safeguards and in-built protections to avoid such a scenario. RTI mandates proactive publication of certain information which means that a large part of the information is already placed in the public domain, substantially reducing the volume of individual requests.57 Second, RTI does not require the public authorities in question to go hunt for information every time a question is put in front of them. It demands disclosure of only that information which has been duly recorded. Where information sought was not a part of record and is not required to be recorded under any law, political party will be under no obligation to collect or collate such non-available information and then furnish it to an applicant. 58 Third, and this was the ground why the argument of the political parties was dismissed in the Subhash Chandra case , is that the validity of a statute cannot be questioned only on the basis of a possibility of its misuse. Finally, even if it is accepted that it involves risk of abuse, it needs to be appreciated that the right to information is a right of wide amplitude which lies at the core of democracy, freedom of speech, free and fair elections etc. and so even on a sheer cost-benefit analysis, “it is better to leave a few of its noxious 54

EFORMS (2004). ELECTION COMMISSION OF INDIA, PROPOSED ELECTORAL R EFORMS Arora, State Funding of Elections: Some Posers , 35 (37) EPW 3284 EPW 3284 (2000). 56 Ann Florini, The Battle Over Transparency , THE R IGHT IGHT TO K NOW NOW : TRANSPARENCY FOR AN ORLD 1, 1 (Ann Florini ed. 2007). OPEN W ORLD 57 David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws , PRIVACY INTERNATIONAL (2006). 58 Khanapuram Gandaiah v. Administrative Officer, AIR2010SC615. 55 Dolly

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branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.” 59 Another argument often raised is that the political parties are already disclosing information to the Election Commission and the Income Tax Authorities under the existing electoral laws and the present decision will only cause multiplicity of accountability agencies. agencies. First, the inadequacy of the existing mechanism and framework of law hardly needs to be overemphasised. Electoral laws mandate disclosure of only limited information and provisions such as the disclosure about campaign expenses apply only during elections. The RTI on the contrary, is premised on the belief that democracy is not just about people coming to vote once in five years and then retreating into the background as passive spectators. There needs to be continuous engagement and free flow of information between the governors and the governed. The argument is also untenable since the RTI laws of no country exist in a vacuum. RTI law generally forms a part of the broader framework of a host of other legislations which simultaneously regulate the functioning of the political parties. The best example of the point being made is Nepal 60 where the RTI mandates disclosure from political parties while a host of other legislations like Political Parties Act of 2002, Election Commission Act of 2007 etc. require political parties to maintain records, submit annual budgets, disclose donations above NPR 25,000, 61 and report campaign expenses.62 This would be further elucidated in the next section that provides an in-depth evaluation and comparison among the RTI laws existing in other jurisdictions.

IV.

COMPARATIVE COMPARATIVE EVALUATION: RTI LAWS IN OTHER JURISDICTIONS

Sweden has the distinction of being the first country in the world to enact a freedom of information act way back in 1776. 63 Thereafter, it took another century before the other countries of the world began recognising the 59

Romesh Thappar v. State of Madras (1950 SCR 594). Sanjeeb Ghimire, Reforming Political Parties in Nepal: The Role of the Right to Information , TOWARDS OPEN GOVERNMENT IN NEPAL 223, 225 (2011). 61 Political Party Party Act, (2002). 62 Election Commission Commission Act, (2007). 63 Jaytilak Guha Roy, Right to Information: A Key to Accountable and Transparent Administration , CONTEMPORARY DEBATES IN PUBLIC ADMINISTRATION , 312 ( 312 ( Alka Dhameja Dh ameja ed. ed . 2004). 60

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citizen’s right to information. The growth of such laws was very slow as less than twenty countries had passed RTI laws till 1995. However, the right to information movement has gained pace over the last decade and nearly sixty countries have come up with RTI laws within a span of fifteen years, from 1995 to 2010.64 This massive proliferation of right to information laws across the globe is generally attributed to the spread of democracy.65 A democratic government derives its legitimacy from the will of the people, and the government is understood as a representative or an agent of the public (principal). This principal-agent relationship has given rise to the presumption of transparency as it is being increasingly acknowledged that public as the principal has a ‘right to know’ about the activities carried on by the agent on its behalf. Thus, the right to information laws emerged with its requirement of proactive public disclosure of information in order to overcome the information asymmetric between the rulers and the ruled.66 In India on the other hand, the RTI emerged not so much as a result of a rise of democracy in 1947, as the failure of representative democracy at multiple levels 67 in the form of widespread political corruption, economic deprivation, environmental concerns etc. which motivated the people to unite for a right to information movement, finally culminating into the RTI Act of 2005. But irrespective of the country or the history, the standard features of a right to information law are generally the same- a presumption of openness, the requirement for suo motu disclosure, obviating necessity for legal standing, procedure for disclosure and a nodal agency for implementation. One point, however on which RTI laws of different countries show considerable diversity is the coverage of the Act.

64 Shekhar

Singh, The Genesis and Evolution of the Right to Information Regime in India , TRANSPARENT GOVERNANCE IN SOUTH ASIA, 3 (2002). 65 David Banisar, Freedom of Freedom of Information and Access to Government Records Around the World , PRIVACY INTERNATIONAL (2002). 66 Ann M. Florini, Increasing Transparency in Governance, 19(3) INT. J. W ORLD PEACE 3, 14 (2002). J. W ORLD 67 Shekhar Singh, The Genesis and Evolution of the Right to Information Regime in India , TRANSPARENT GOVERNANCE IN SOUTH ASIA (2002).

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It is interesting to note that like India, a few countries have previously sought to extend their RTI laws to political parties in the interests of transparency and cleanliness in public life, albeit in different ways. These approaches can be categorised into three different categories. First, the RTI laws of certain countries explicitly list political parties within the definition of “public body”/“public authority”. Second, in certain other cases the transparency laws have been extended and applied to political parties pursuant to judicial pronouncements. A third method of achieving this is by means of a special provision in the right to information law devoted to political parties. This section undertakes a detailed analysis of the pros and cons of all these three conceptual categories. categories. A. EXPLICIT INCLUSION OF POLITICAL PARTIES AS A PUBLIC BODY UNDER THE ACT It should come as no surprise that there are very few countries in the world (Poland, Nepal) where political parties are explicitly listed as a public body/ authority to which the RTI Act is applicable. In such countries, the RTI Act places all public bodies including the political parties under the same obligations of proactive disclosure and providing access to information. This is completely different from the RTI Act of India which does not specifically enumerate the public bodies covered under the Act. Furthermore, unlike India, both Nepal and Poland have incorporated citizen’s right to information as a formal explicit constitutional right. 68 The RTI Act of Nepal is a fairly standard right to information law, barring a few provisions which are really progressive such as the scope of the Act itself. The Right to Information Act of Nepal is applicable to all ‘public bodies,’ (a term defined under Section 2) which explicitly includes political parties and even non-governmental non-governmental institutions which receive funding from the government. The fallback of such an approach and perhaps one of the many reasons the implementation of the RTI Act in Nepal is only ‘modest’ 69 is that by bringing NGO’s and political parties within its ambit, the Act places them in 68 69

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NEPAL CONST. of 1999, art. 16. The World Bank, Implementation of the Right to Information in Nepal: Status Report and (Jan 31, 2011) Recommendations http://www.freedomforum.org.np/content/attachments/article/114/RTI-ReportNepal%20_World_Bank.pdf

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the same position as the government. Thus, NGO’s and political parties have no incentive to demand disclosure or play an active part in the implementation of the Act. Their non-compliance with their own obligations further erodes their moral authority to seek disclosure from other public agencies under the Act.70 A few examples will highlight the point being made. Till 2011, no political party in Nepal had appointed a Public Information Officer to provide information as mandated under the Act. 71 Frequent disclosures are made only during the time of elections. Parties like Community Party of Nepal – Maoist (CPN-M) and Communist Party of Nepal (CPI-UML) practice “democratic centralism” wherein the central party leadership maintain their stranglehold over all key information and decisions and only information of a routine nature is disclosed to the lower levels.72 This reveals the dangers of giving an overexpansive coverage to the RTI laws which might make the provision counterproductive and potentially self-defeating. So though an explicit provision in the Act to cover political parties seems and probably is very very progressive, it has not worked well in practice. In Nepal both the demand and supply of information under the RTI remains low. 73 Since RTI is a unique act whose success largely depends on the people of the country primarily the civil society, media and political parties - in Nepal the law benignly lies in the statue books due to the lack of political will to implement the Act and the lackluster attitude of the civil society. The situation in Poland is likewise, where though the Access to Public Information Act, 2001 allows access to information held by- public bodies, private bodies that exercise public tasks, trade unions and political parties- the mechanisms for the enforcement of the Act are relatively weak.74 Thus, widespread

70

Id. Sanjeeb Ghimire, Reforming Political Parties in Nepal: The Role of the Right to Information , in TOWARDS OPEN GOVERNMENT IN NEPAL 223, 225 (2011). 72 Id. 73 Id. 74 Patrycja Joanna Suwaj, Difficulties with Implementation of Conflict of Interest Regulation in Polish Local Government , COMBATING CONFLICT OF INTEREST IN LOCAL GOVERNMENTS IN THE CEE EFORM INITIATIVE 147, (Barbara COUNTRIES LOCAL GOVERNMENT AND PUBLIC SERVICE R EFORM Kudrycka ed. 2004). 71

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corruption, political patronage and scams exists involving top political leaders despite the legislation. 75 B. JUDICIAL INTERVENTION INTERVENTION TO APPLY APPLY TRANSPARENCY TRANSPARENCY PROVISIONS TO POLITICAL PARTIES There is a second category of countries such as Mexico and Canada and now India, where the RTI Act does not make any direct reference to political parties, but the transparency laws have been applied to political parties through judicial pronouncements. Mexico will serve as the best example of the point being made. The Federal Transparency Transparency and Access to Government Information Information Law of Mexico does not expressly list political party as a public body.76 However, the first two major cases that arose about the application of this law, revolved around political parties.77 The first case was brought in 2002 by a newspaper journalist who approached the Federal Electoral Institute (the body that audits the accounts of political parties in Mexico) to reveal details of salary of officials of political party.78 Upon the Institute’s refusal, the journalist approached the Federal Tribunal and in the case, which ensued the tribunal, used Article 6 of the law- the presumption in favour of transparency- to hold that political parties are political associations, which receive substantial public funds. They accordingly ought to be subjected to public scrutiny. 79 The court also relied on the international covenants like International Covenant on Civil and Political Rights and American Convention on Human Rights to state that the citizen’s fundamental right of suffrage, political association and political affiliation

75 Krzysztof

Jasiecki, Regulating lobbying in Poland: Background, scope and expectations , COUNCIL OF available at EUROPE (2006) http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/cy%20activity%20inte rface2006/143%20_2006_-if-rep%20jasie.pdf 76 David Banisar, Freedom of Information and Access to Government Records Around the World , PRIVACY INTERNATIONAL (2002). 77 Eric Heyer, Latin American State Secrecy and Mexico’s Transparency Law , 38(2) G EO. W ASH. INT’L EV .437 R EV .437 (2006). 78 ALASDAIR R OBERTS OBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE 6-8 (2006). 79 Zarate v. Federal Electoral Institute, Case SUP-JDC-041/2004.

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requires that they be given access to information about political parties, their monetary resources, organisation and internal regulations. 80 Another similar example of the judicial intervention can be found in Canada in Phinjo Gombu v. Tom Mitchinson ,81 where an investigative reporter approached a court in Ontario and got the declaration that public should have access to electronic database of the campaign contribution records in the municipal election. The court recognised that there was a public interest involved in public scrutiny of political parties and election process which overwhelmingly outweighs outweighs any other competing interest. 82 These cases are very similar to the Indian position with the only substantial difference being that in Mexico, all the major political parties proactively published information about their salary on their website within a week of this decision. decision.83 C. SEPARATE PROVISION FOR POLITICAL PARTIES PARTIES IN THE RTI ACT A third and rather innovative approach has been adopted by Indonesia, Ecuador, Bulgaria and a few others where political parties are explicitly mentioned in the RTI Act but the extent of information sought from political parties is less than what other public authority are required to disclose. This is achieved by crafting a separate provision in the RTI Act for political parties. For example, Indonesia’s Public Information Disclosure Act of 2008 creates four categories of public bodies and political parties form one such category.84 This is starkly different from the single category of ‘public authority’ under the RTI Act of India which is defined under Section 2(h). 80

Id. 59 O.R. (3d) 773 (2002). 82 Open Society Soc iety Justice Initiative, Written Comments on the Case of Geraguyn Khorhurd Patgamavorakan Akumb v. Armenia , available at (2006) http://www.right2info.org/resources/publications/GeraguynKPAvArmeniaOct06amicus.p df. 83 ALASDAIR R OBERTS OBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE 6-8 (2006). 84 Muhammad Taufiq, Policy Implementation of Information Disclosure in Indonesia: Challenges and Responses , UNITED N ATIONS PUBLIC ADMINISTRATION NETWORK , available at http://unpan1.un.org/i http://unpan1.un.org/i ntradoc/groups/public documents/un-dpadm/unpan047568.pdf 81

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In Indonesia, the Act mandates political parties to suo motu reveal reveal certain information, primarily related to public programs, decision-making procedure and management and use of funds from the Budget of the State 85 which is less than the information that the other category of public body need to furnish. 86 Such a limited application of RTI laws to political parties and civil society actors stems from several factors. First and the more conventional explanation is that freedom of information laws are a part of the broader category of human rights, 87 and human rights were traditionally perceived only within the framework of the state. To that extent, it imposes obligations on the state actors only.88 On another level, such an approach is based on the understanding that there are only some activities of the political parties that directly affect public interest, such as those undertaken with the help of public funds and accordingly, public has a right to have access to information about such activities only. Such a rationale also emerged from a South African judgement when a High Court dismissed the request for public disclosure of donation records of political parties. 89 The court’s decision was based on the understanding that when political parties receive donations from independent private sources, they are not performing any pubic function, nor exercising any power as a public body under the Constitution or any legislation. So, political parties are not public bodies in so far as disclosure of their donation records is concerned.90 This is also evident in Bulgaria’s Access to Information Info rmation Act which states that political parties are ‘obliged bodies’ to disclose information but only to the extent of those activities which are financed out of the consolidated state 85

Public Information Information Disclosure Act, art. art. 15 (2008). (2008). further example, see Article Article 16 of the Ecuador, the Organic Law on Transparency and Access to Public Information Informat ion which contains contain s a separate provision provisio n for political politic al party. The provision imposes an obligation on every political party benefitting from state funds to electronically publish their annual reports about the detailed use of such funds. 87 Misra Hidayani Napu, Towards a Better Regulation of Indonesia’s Public Access to Information (2012) (unpublished Master’s Thesis, Tilburg University). 88 Bunga Manggaiasih, Pushing For the Right to Know: Understanding the Indonesian Mass Media Support for Freedom of Information Bill (2012) (unpublished Master’s thesis, Institute of Social Studies). 89 Institute for Democracy in South Africa and Others v. African National Congress [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C). 86 For

90 Id.

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budget or for which funds are received from the European Union or as a part of EU projects and programs. 91 This approach is in many ways, superior to the Indian position wherein once a body is found to be substantially financed by public funds, it is declared a public authority and then the entire repository of information with the body is subject to public disclosure and public scrutiny (unless specifically exempted under Section 8). This fails to take into account that a body can have both public and private character and when it is not indulging in any public activity or performing functions using public funds/taxpayer’s money, it should not be subjected to unwarranted public gaze. The first criticism and apprehensions over the Subhash Chandra order order is also from the standpoint that a political party competes with the other political parties for political space and power, in a similar way as a large company competes with the others in a competitive economic market. To that extent, parties have the right to keep some of the activities hidden from the public view not because the activities are illegal but for the simple reason that disclosure may be detrimental to its future prospects. 92 Analysing these three models in the context of India would reveal r eveal that broad requirements of disclosure required under RTI might be a progressive step to take but not practically implementable and even the intervention of judiciary is unlikely to produce effective results in the absence of political will to implement the Act. In such a case, the approach adopted in countries like Bulgaria, Indonesia etc. offers a useful alternate wherein a mutually acceptable level of disclosure can be reached from the point of view of both citizens’ rights and political parties.

V.

POLITICAL RESISTANCE: GREATEST CHALLENGE TO TRANSPARENCY

On the strength of the foregoing discussion about the merits of the RTI, the one unassailable truth which emerges is that – “Knowledge if not power, is definitely the first step in the direction of attainment of economic and

91

Access to Public Information Act, art. 3(2)(2) (2000). Burman, Transparency and Political Parties: Finding the Right Instrument , 48 (28) EPW 39 EPW 39 (2013).

92 Anirudh

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political power.”93 It is then hardly surprising that “secrecy is as difficult d ifficult to eradicate as the evils which it spawns.” 94 Freedom of information laws irrespective of the time and country, have always faced stiff political resistance. After Sweden became the first country to enact RTI law in 1766, nearly two centuries elapsed before any other country adopted the transparency law. To take an example closer home, in India the citizen’s right to information was first declared to be a fundamental right in 1975, which was followed by a plethora of decisions by the apex court of the country. But this failed to move the Government of India and it was only after a decade of struggles, civil society movements, toothless legislative bills and drafts that the Right to Information Act as we know it today, was passed in 2005. What finally serves as a driving force in all these situations is the ultimate realisation among political parties that such an Act will serve a useful purpose when they are not in power as it would empower them to maintain a check over the political party which forms the government. But what happens when transparency is demanded in the functioning of all the the political parties (whether or not they become a part of government)? History is replete with instances where the government has overturned the judicial decision which went against the pursuit of their own self-interest. The first set of amendments to the RTI Act came within six months of the passage of the Act by which the scope and power of the Act was considerably weakened. The proposed amendments exempted from public scrutiny file notings, documents ‘under process’, documents related to competitive processes such as examinations and documents recording the material basis of Cabinet decisions.95 Similar attempts have also been made when the judiciary tried to subject the Central Bureau of Investigation (CBI) to the RTI Act over allegations that officials in the Bureau had amassed disproportionate assets. The

93 Ann

IGHT TO K NOW NOW : TRANSPARENCY FOR AN Florini, The Battle Over Transparency , in THE R IGHT ORLD 1, 1 (Ann Florini ed. 2007). OPEN W ORLD 94 John McMillan, Freedom of Information in Australia: Issue Closed , 8 FEDERAL L AW R EVIEW EVIEW 379 (1976-77). 95 Amita Baviskar, Winning the Right to Information in India: Is Knowledge Power?, CITIZEN ACTION AND N ATIONAL POLICY R EFORM EFORM : M AKING CHANGE H APPEN 201 ( J. Gaventa and R Macgee eds. 2010).

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legislature immediately responded by inserting CBI to the schedule of entities that fell under Section 24 that deals with exemption. 96 In such cases, generally the political parties in the opposition can be relied upon to create a massive uproar and build pressure on the government in power by exposing their hypocritical stance. However, even that is unlikely to happen in the current situation where all the political parties are unanimous and complicit in their stand to overturn the decision that empowers the people. The irony of the situation is most sharply defined in United Progressive Alliance’s (UPA) reaction to the judgment. UPA which, until recently was basking in the glory of spearheading the progressive piece of legislation called RTI is now trying to wriggle out of a law which is its own creation. Congress has termed the order as an “adventurist approach” which would get political parties entangled in “unnecessary things.” 97 Similarly, BJP which was all set to raise corruption and black money as a huge issue in the elections, initially expressed its support for the decision but then quickly changed its course to argue that there was lack of clarity on several issue such as the roles of the Election Commission and CIC in regulating affair of political parties. 98 It also failed to comply with the CIC order subsequently much like the other five political parties.99 Evidently, the “ethics of rule following is insisted only to the extent that it applies to the other people,” 100 and does not harm the pursuit of their own self or collective interest. Is clean, healthy politics then an unrealisable dream?

VI.

CONCLUSION

Political parties are private associations operating in the public domain which form the basis of democracy. Conventionally, electoral laws such as the Representation of the Peoples Act of 1951 have governed aspects of functioning of political parties. This emphasis on state regulation has however, now given way to the realisation that citizens should occupy the centre stage in a democracy and all political parties should be accountable to the people. It was 96 Mukul

Mudgal, Sunlight on the CBI , The Indian Express, Jun 28, 2011. Aarti Dhar Dha r , Hind u , Jun 2013 . , Parties Reject CIC order on RTI, The RTI, The Hindu , Jun 5, 2013. 98 Congress, CPM reject CIC’s order to bring them under RTI, BJP sees no wrong , The Times of India, June 4, 2013. 2013 . 99 Mohammad Ali, CIC puts 6 Parties on Notice for Not Implementing RTI , The Hindu, February 11, 2014. 100 UPENDRA B AXI , CRISIS OF THE INDIAN LEGAL S YSTEM 7 (1982). 97

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in this context that the ‘the right to information’ emerged as an offshoot of the fundamental right to speech and expression, first by judicial expositions and finally, by a legislative intervention in the form of the RTI Act as the political leaders agreed to the symbolic qualities of open government and greater engagement with the public. But as the common history of Nepal, Poland and India demonstrate, the consequence of such a law in terms of exposure to the wrongdoings of politicians and subjecting them to continuous public scrutiny, has always affected the political will to enforce the law. The judiciary on the contrary, has emerged as the champion of citizen’s rights by taking a proactive and positive stance towards the ‘right to information,’ at times even by stretching the law to respond to the exigencies of the hour. The decision in Subhash Chandra , running into fifty four pages is among the lengthiest decisions rendered by the CIC since its inception in 2005. In addition to giving effect to the longstanding demand of the public, this order also gives us a glimpse of the hitherto unknown potential and expanding utility of the RTI Act. Admittedly, the decision cannot serve as a panacea for all the problems plaguing the political life of the country. For one, RTI Act requires disclosure of only that information which has been recorded. Thus, when political parties issue coupons instead of receipts for cash donations or spend crores of rupees on elections without making a record, these unaccounted transactions would largely remain outside public scrutiny. Furthermore, most understandings which shape the activities and organisation of political parties does not usually find a place on paper. There are deeper, more entrenched problems about ideology, caste prejudice, gender bias etc. which are not recorded and thus are impossible to be traced through papers. What cannot be denied, however, is that this is a path breaking decision on transparency in political life. But keeping the RTI Act intact in the face of continuous attempts to undermine its power is the greatest challenge to RTI. The examples of Nepal and Poland point out that the broad requirements of disclosure required under RTI is progressive but not a pragmatic solution to the present day problems. Similarly, while the approach of judicial interpretation and intervention adopted by Mexico and Canada are laudable, it is clearly unlikely to work where a legislature can practically nullify the decision of the Court by passing a retrospective amendment to the law. In such a case, the approach adopted in countries like Bulgaria, Indonesia etc. offers a useful middle ground. It provides an alternate wherein a mutually acceptable level of disclosure can be reached from the

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point of view of both citizens’ rights and political parties. So instead of completely insulating political parties from the purview of RTI, an acceptable solution can be reached by declaring in certain terms the information that political parties are required to disclose. This would help overcome the political resistance to a great extent because the hostile attitude towards RTI Act or any new transparency law largely also stems from the fear of uncertainty about the extent of disclosure that would be required. Such an approach would disperse this air of uncertainty and ensure that transparency and openness are wisely nurtured and judiciously deployed in order to serve its intended functions.

75

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TOWARDS THE ELECTRONIC POLICE STATE: ADDRESSING THE CONCERNS

Shamba Dey * The electronic police state is one that engages in mass surveillance of telephone traffic, email, web and Internet searches, radio, and other forms of electronic communication, including video surveillance. The Government of India conceived the idea of the electronic police state in 2009 when it proposed to establish the Central Monitoring System, which is similar to the surveillance program of the National Security Agency in the United States of America. The formation of the Central Monitoring System has however actuated a public debate on the violation of individual privacy coupled with the lack of transparency in surveillance operations which greatly accentuates the possibility of abuse of Executive authority. This article thus proceeds in four parts. Part I reviews mass surveillance systems as a necessary tool for fulfilling the social, economic and political aspirations of individuals. Part II examines the concept of privacy in the light of changing technologies and evolving societal needs, arguing that privacy is a broad, subjective, contextual and self-referential concept, and that there may be no legitimate basis for protection of privacy against mass surveillance. This Part further argues that mass surveillance systems have the potential to strengthen, rather than weaken privacy. Part III analyses the contentious argument that lack of transparency in the operations of the Central Monitoring System and its consequential effects violate civil liberties, fairness, and justice. Finally, Part IV discusses the possibility of overreach by the Executive and the checks and balances necessary to mitigate such risks.

I.

BACKGROUND: THE PURPOSE AND NECESSITY OF SURVEILLANCE

Surveillance is undertaken with twin purpose in mind- one being welfare and the other being security. This is true of both private organisations and the government. Private organisations use surveillance and data collection to protect their physical resources and information systems from external threats and to market their goods and services.1 The government uses surveillance, data * 1

Ist Year, LL.B., Government Law College, Mumbai. Fred H.Cate, Government Data Mining: The Need for a Legal Framework, 43 H ARV . C.R.-C.L. See Fred L. R EV EV . 43, 440 - 44 (2008) at 435 ("advances in digital technology have greatly expanded the volume of personal data da ta created as a s individuals engage in everyday activities"). ac tivities").

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collection, and data mining to identify problems, anticipate and counter potential threats, govern populace and deliver valuable social welfare services.2 Traditionally, government agencies across the world have collected and analysed statistical data. Instances of such data collection include but are not limited to assessment of land revenue, assessment of income of individuals and corporations for tax purposes, preparation of census reports, birth and death certificates, preparation of ration cards, poverty lists and electoral lists. The data so collected drives the planning and execution of the government’s agenda on welfare. In fact, providing most of the basic social services such as welfare benefits to an ever-increasing population and protecting the rights of people (such as rights against employment discrimination) are difficult without extensive data harvesting tools because without these tools, beneficiaries would not otherwise be correctly identified. As David Lyon explains, “The surveillance systems of advanced bureaucratic nation-states are not so much the repressive machines that pessimists imply, but the outcome of aspirations and strivings for citizenship. If government departments are to treat people equally, then those people must be individually identified. To exercise the right to vote, one's name must appear on the electoral roll; to claim welfare benefits, personal details must be documented. Thus, the individuation that treats people in their own right, rather than merely as members of families or communities, means freedom from specific constraints but also greater opportunities for surveillance and control on the part of a centralised state.” 3 Surveillance,4 therefore, is a way of governing. With newer and faster developments in information technology, a greater level of surveillance, one that extends to the monitoring, collection and analysis of information that may not be voluntarily made accessible by the citizen becomes unavoidable. As technologies that let users discover and analyse the current world trends become more powerful, governments seek to

2

Id.

3

D AVID L YON, THE ELECTRONIC E YE: THE R ISE ISE OF SURVEILLANCE SOCIETY 32-33 (1994) (Quoting NICHOLAS ABERCROMBIE , SOVEREIGN INDIVIDUALS OF C APITALISM (1994)). As per the New Penguin Compact English Dictionary (2001) Penguin Books, ‘Surveillance’ means ‘close watch kept over someone e.g. by a detective’. In the context of the paragraph, the term is not to be understood in its literal sense, but in the sense of general data collection activity legitimately undertaken by any government.

4

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use them for protection and welfare purposes.5 For example, in Europe and United Kingdom, governments have installed tele-care services that use remote monitoring technology to enable vulnerable people to live independently in their own homes. 6 The technology employs electronic sensors to transmit information about the user's location and patterns of behavior in the user's home to an external hub, where it can trigger an intervention in case of an emergency. Since 2005, China has begun to expand its surveillance through its Field Epidemiology Training Program; Brazil and Argentina have chosen to use World Bank loans to develop surveillance capacity in public healthcare, while the U.S. Agency for International Development has redesigned its surveillance strategy to focus on the use of data to improve public health interventions. 7 Additionally with the reduced cost of technologies, tech nologies,8 there is opportunity for the government to use these technologies to collect, collate and analyse more information. Increased focus on surveillance also becomes necessary in light of the wide accessibility of information and telecommunication technologies. Terrorist Terr orist groups and other such organisations use digital and mobile technologies to communicate with each other9 and to cover their identities. Since the September 11 attacks,10 terrorist strikes have become a major cause of concern for national defense, foreign and home affairs for most countries, including India. Unlike in the nineteenth and twentieth century, an adversary today need not necessarily be another nation; terrorist organisations, hackers and criminals have emerged as newer forms of threat with a wide range of unprecedented challenges.

5

James Dempsey and Lara Flint, Commercial Data and National Security , 72 G EO. W ASH. L. R EV EV . 1459, 1464-68 (2004) at 1468-69. 6 See Department of Health, Older People and Disability Division, Building Telecare in England (July 19, 2005; See also , Sorell T., Draper H, Telecare, surveillance, and the welfare state, AM J BIOETH (2012) 12(9), 36-44. 7 See J AMISON DT, BREMAN JG, MEASHAM AR, et al, DISEASE CONTROL PRIORITIES IN DEVELOPING COUNTRIES., (Washington (DC): World Bank, 2 nd ed. 2006). 8 Patricia Bellia, The Memory Gap in Surveillance Law , 75 U. CHI. L. R EV EV . 137, 142-53 (2008). 9 G Weimann, Terror on the Internet : The New Arena, the New Challenges, (Washington, D.C., United States Institute of Peace Press, 2006) (describing Al Qaeda's use of the Internet); Audrey Kurth Cronin, Behind the Curve: Globalization and International Terrorism , 27 INTL. SECURITY 30, 46-48 (2002-03); P HILIP BOBBITT, TERROR AND CONSENT: THE W ARS FOR THE T WENTY FIRST CENTURY , 55-57 (2008). 10 The September 11 attacks were a series of terrorist attacks launched upon the United States on September 11, 2001, see United States v. Mohammed, et al. D-126 Ruling.

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Terrorists can move easily and change cell phones and e-mail addresses at will, hackers can gain access to government computer networks, and criminals can take advantage of weaknesses in digital networks to not only commit conventional crimes such as embezzlement of funds but also perpetrate a whole new range of offences like phishing.11 The digital technologies that inadvertently aid the commission of such offences necessitate the government to invest in counter-surveillance 12 to identify and prevent threats posed by the use of such technologies by criminals. This modern-day form of terror forces intelligence operatives to act swiftly and for this purpose, use new and expeditious ways to gather information in order to preempt such crimes. 13 This is significantly different from the older models of law enforcement where the focus has been on ex post apprehension and prosecution of wrongdoers. 14 Today, modern surveillance makes it possible to prevent wrongdoings ex ante . Furthermore, unlike ordinary criminal investigations, national security investigations and counter-terrorist surveillance often have remarkable breadth– spanning long periods of time, multiple geographic regions, and numerous individuals, whose identities are often unknown to the intelligence community at the outset and hence the need for collection and record keeping of historical data on various aspects of individuals is inevitable. Data interceptions thus become vital for gathering intelligence about terrorist organisations and unlawful activities. The very nature of these crimes makes a strong argument in favour of giving the government a certain level of latitude in the gathering of intelligence. The government cannot in fact identify preemptively who a

11 Phishing

is the act of attempting to acquire information such as usernames, passwords, and credit card details (and sometimes, indirectly, money) by masquerading as a trustworthy entity in an electronic communication. see Handbook by Peter see Handbook of Information and Communication Security by Stavroulakis, Stavroulakis, Mark Stamp, at 433. 12 Supra note note 4. Here and henceforth (unless specifically mentioned to the contrary) the term ‘surveillance’ is to be understood in its literal sense. 13 Judge Richard Allen Posner, Our Domestic Intelligence Crisis , The Washington Post, December 21, 2005: “..The information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating investiga ting a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.” 14 Scott Charney, The Internet, Law Enforcement, and Security , PRACTICING L. INST., FIFTH ANNUAL L AW INSTITUTE at 944 (discussing the traditional model of law enforcement before the advent of new information technologies).

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terrorist is, until after his or other people’s privacy has been ‘violated’. Innocent people, such as unwitting neighbors of terrorists, may, have valuable counterterrorist information, which can be tapped and used for the protection of citizen’s right to a safe and secure environment. The existing system is a reactive system, relatively centralised, publicly managed, and rooted in human discretion.15 Manual patrolling and collection of evidence takes a very long time, which can often lead to costly delays for both the victim and the government. However, through an automated surveillance system, these functions will be performed on secured electronic links and there will be minimum manual intervention. As Kozlovski explains, “By predicting when, how, ho w, and by whom a crime will be committed, it aims to enable efficient intervention. Automated tools constantly monitor the environment to match users' risk profiles against dynamically identified patterns of criminal behaviour. Patterns of previous computer crimes are coded as ‘crime signatures’ which monitor for anomalies or deviations from ‘normal’ behaviour. The patterns of ‘normal’ behaviour are coded and an algorithm watches for a certain level of deviation from them.” 16 Hence, interception through surveillance is instantaneous and more reliable than fallible human officers. This leaves very little scope for violating the law;17 even if a violation occurs, the surveillance systems can help in the investigations by quickly providing more accurate evidence. It is perhaps against this backdrop that the government has taken the initiative to build the Central Monitoring System (CMS).

II.

THE ILLUSION OF PRIVACY

The project to build a national mass surveillance and data mining system in India began in 2009.18 The Central Monitoring System, which was reportedly deployed in 2013, 19 uses advanced advance d computer compu ter technologies techno logies to collect large amounts of personal data of all individuals. The technology is used to monitor and record phone calls, to read emails and messages, to scan Internetbased activities of individuals, to track the location of individuals in real time 15 Nimrod 16 17

18 19

Kozlovski, Designing Accountable Online Policing, 107 Id. at p.110. MIREILLE HILDEBRANDT, JEANNE G AAKEER , HUMAN L AW AND COMPUTER L AW : COMPARATIVE PERSPECTIVES, (Springer 2013) p.70. Centralised System to Monitor Communications , Press Information Bureau, 26 November, 2009. Deepa Kurup, In the dark about ‘India’s Prism’ , The Hindu, 16 June, 2013. See Deepa

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and to analyse behavioural patterns of individuals based on the collected information. However, the formation of the Central Monitoring System has raised serious concerns of violation of civil liberties and individuals’ right to privacy. The debate over surveillance involves a clash between the relevant public interests such as national security or the detection and prevention of crime on one hand, and the individual’s interest in preserving his or her privacy on the other. Much of this clash however results from a mistaken understanding of the term ‘violation of privacy’, and it is especially so in the context of the changing information age. In this Part, the author examines the spiraling complexity in distinguishing between private and public data and whether privacy rights are at all violated when the government collects data about individuals. Privacy in general means the right of an individual to live one's life in seclusion without being subjected to unwarranted and undesired publicity,20 to decide for oneself the extent and degree of sharing one’s thoughts and feelings. 21 Privacy could c ould also be interpreted interp reted as a property prop erty right, giving individuals ownership over their personal data. 22 This latter view, in fact, originated in ancient Athenian society 23 and thereafter found place in English and American jurisprudence. Although it is an unconventional comparison to make, there are some similarities between property and privacy rights. For example, just as authors or musicians have the right to prevent duplication and propagation of their works, so too an individual can be said to have the right to limit access to his personal data. In Pope v. Curl ,24 Curl, a bookseller, obtained and published, without consent of the authors, personal letters written to and by well known literary figures, including Alexander Pope and Jonathan Swift. Lord Chancellor upheld the privacy of Pope’s letters on the grounds that the writer of a letter has a property right in his words. Similarly, in Yovatt v. Winyard , 25 the Court extended extende d property rights protections to cover personal

20

Kerby v. Hal Roach Studies, 1942 53 Cali. App. 207, 127. ALAN W ESTIN ESTIN, PRIVACY AND FREEDOM , (New York: Atheneum 1967), 373. 22 W.A.Parent, Privacy, Morality, and the Law , PHILOSOPHY AND PUBLIC AFFAIRS, Vol. 12, no. 4 (Princeton, NJ.: Princeton University Press, 1983), pp. 269-88; See generally, generally, Lawrence Lessig, Code : Version 2.0 (2006). 23 B ARRINGTON MOORE, JR .,., PRIVACY : S TUDIES IN SOCIAL AND CULTURAL HISTORY (Armonk, (Armonk, N.Y: M. E. Sharpe, 1984), pp. 82, 108, and 124. 24 (1741) 2 Atk. 342. 25 (1820) 37 Eng. Rep. 425,426 (Ch.). 21

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secrets. Thus, “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’, were all wrapped together under the principle of property”.26 The author however contends that these concepts of privacy are very rigid and create problems. Every individual is continually engaged in a personal adjustment process in which he balances his want for privacy with his desire to reveal his personal matters to others.27 Professor Gary Marx comments on how individuals differ in the methods of communication of personal matters and in their general approach to concealment and revelation. The societal notions of gender are also illustrated. Society, on one hand; believes that women are more ‘public’ in the sense of sharing their thoughts and feelings, and on the other hand due to the greater modesty shown by women, they may be known to be more ‘private’. Regional variation may also exist. “Thus persons in California, in particular, are often stereotyped as being more forthcoming in expressing the personal. That also seems true of Americans in general relative to Europeans.” Europeans.”28 It is due to the social and environmental requirements of the society which one has to adjust to, that an individual, willingly and unwillingly, leaves traces of himself wherever he goes and hence reveals private information to others. An individual has to work with other individuals, live together and make friends. Such other individuals become aware of his habits and behaviours. The individual is fully aware of the private information he shares yet he does so because of reasons that are inherently social and perhaps, psychological too. 29 Exchange of information can also happen without the individual’s awareness. Strangers in public places can collect information about an individual. Likewise, talking on the cell-phone in buses, cars, trains and other public places, reveals IGHT TO BE LET ALONE (New MORRIS ERNST AND ALAN SCHWARTZ, PRIVACY : THE R IGHT York: Macmillan, Macmill an, 1962), pp. 6-12. 27 Supra note note 19. 28 Gary Marx, Murky Conceptual Conceptua l Waters: the t he Public and an d the Private, E THICS AND INFORMATION TECHNOLOGY , 2001. Vol. 3, no. 3, at 157-169. 29 Michael McFarland, McFarland, SJ, Why We Care about Privacy , Markkula Center for Applied Ethics, Santa Clara University: “These associations are not merely preferences or matters of convenience. Therefore social obligations, that is, all that is required to maintain the complex web of relationships in which each person lives, are fundamental human obligations. These obligations include the sharing of personal information, which is a necessary part of any meaningful relationship, whether it is personal, community, political or bureaucratic. Friendship necessarily requires self-revelation. Belonging to a voluntary association entails sharing something of one's history, one's ideas and aspirations, and one's current circumstances.” available at http://www.scu.edu/ethics/pr acticing/focusareas/technology/internet/privacy/why-care-about-privacy.html 26

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information about a person’s private and confidential matters in part or in whole, to strangers. However, even when aware, an individual has to allow such collection of personal data out of necessity and convenience. For example, CCTVs in hospitals, hotels, shopping malls, traffic cameras, and parking-lot cameras capture a bulk of information on a regular basis. Banks know information about an individual’s clients and amounts transferred. Telephone and mobile operators know the numbers dialed, the duration of calls, messages sent, and the whereabouts of an individual. 30 Mobile applications like GPS collect information about user locations in very large quantities. Personal data therefore assumes a fluid nature- it flows easily and eventually falls out of the control of the individual. The same is true of the Internet, where such fluidity of data is greater. Search engines reveal bulk of information about individuals in the form of comments made, statements written and even videos. They also collect information about past searches made by individuals, which are then used to drive audience-specific advertisements. Emails, sent and received, drafted but not sent, spam mails, mailing lists are all stored by the service provider. This could be considered by some to be an intrusion upon one’s privacy, the risk being assumed knowingly and voluntarily by the individual.31 The acceptance of such risk comes from explicitly consenting to the terms of use, or implicitly by enabling cookies in their web browser. Today most individuals see social networking sites as an important medium of communication. Eric Schmidt, the CEO of Google, has rightly pointed out in an interview with PBS, that “the next generation is infinitely more social online” and less private, “as evidenced by their Facebook pictures”. 32 Facebook and Twitter store information about an individual’s personality, habits, and opinions. 33 Status messages, posts, pictures and tweets, even if they have been deleted from the view of the public are nevertheless known to the website’s operators. 34 Facebook itself tells other people what an 30 "Apple

denies tracking iPhone users, but promises changes", Computerworld , April 27, 2011. See e.g See e.g .,., Smith v. Maryland, 442 U.S. 735, 745 (1979); United States v. Miller, 425 U.S. 435, 443 (1976). 32 Polly Sprenger, Sun on Privacy: 'Get Over It', Wired, January 26, 26 , 1999. 33 Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets , New York Times, Sept. 9, 2007. 34 Facebook came under the scanner for the ‘User Content Posted on the Site’ clause in its ‘Terms of Use’ which read: “You may remove your User Content from the Site at any time. 31

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individual is saying, where he is visiting and with whom. 35 Data is transferred to Facebook's servers in the USA but users are not given sufficient information about this and the terminology in Facebook's conditions of use and privacy statements may not meet the legal requirements requirements relevant for compliance of legal notice, privacy consent, and general terms of use. 36 It must be stated here that the aim of these examples is not to draw a comparison between the activities of private organisations and the Central Monitoring System or to suggest that the government can collect data just because private organisations are also collecting data. The aim is to underline the simple fact that new technologies have increasingly blurred the distinction between public and private. Not only have individuals, on their own, given up much of their privacy 37 to the digital space and physical space, but it has also become practically impossible for individuals to control what other people say, know or think about them. What used to be private information in the preinformation age is now increasingly becoming public and “rather than approaching the public and private as one-dimensional, rigidly dichotomous If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.” The ‘license granted’ refers to t o the license that Facebook has to your ‘name, ‘na me, likeness, and image’ to use in promotions and advertising. Facebook changed its terms of use on Feb 4, 2009. The new terms of use deleted the phrase that license would ‘automatically expire’ if a user chose to remove content. By omitting this line, Facebook license extends to adopt users' content perpetually and irrevocably years after the content has been deleted, Facebook Privacy Change Sparks Federal Complaint , PC World. Retrieved on March 5, 2009. 35 The Facebook privacy policy once stated, "We may use information about you that we collect from other sources, including but not limited to newspapers and Internet sources such as blogs, instant messaging services and other users of Facebook, to supplement your profile." Facebook Privacy Policy, Retrieved on December 8, 2010. 36 See compliant and settlement order of United States Federal Trade Commission (FTC) with Facebook available at http://www.ftc.gov/sites/default/files/documents/cases/2011/11/111129facebookcmpt.pd f and http://www.ftc.gov/news-events/press-releases/2011/11/facebook-settles-ftc-charges-itdeceived-consumers-failing-keep); See Lane v. Facebook, 10-16380, U.S. Court of Appeals, Ninth Circuit (San Francisco). 37

D ANIEL SOLOVE, UNDERSTANDING PRIVACY , (Harvard University Press, 2008): “Although polls indicate that people care deeply about privacy, people routinely give out their personal information and willingly reveal intimate details about their lives on the Internet. Law professor Eric Goldman points out that people’s ‘stated privacy concerns diverge from what [they] do.’ Canadian scholar Calvin Gotlieb declares that ‘most people, when other interests are at stake, do not care enough about privacy to value it’.”

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and absolute fixed concepts, they are best conceptualised as multi-dimensional (with dimensions sometimes overlapping or blurred and at other times cross cutting or oppositional), continuous and relative, or contextual, whose meaning lies in how they are interpreted and framed”. 38 However where huge volumes of private information is transferred from the secluded domain to the public domain, an important question that lingers is whether the individual can still, in the name of his right to privacy, control how the personal information (which is now public) would be used by others. In this regard, the Supreme Court of India has laid down an exception to the right to control of information stating where a matter becomes a matter of public record, the right to privacy no longer exists, and it becomes a legitimate subject for comment. 39 This means, there can be no expectation of privacy once the private information becomes public, which simplistically put, implies that there is a loss of ownership over personal data. The US Supreme Court also takes a similar view: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”40 This means that when the police are using a beeper device to track a suspect’s car on public streets, it is capturing public information because the suspect cannot legitimately expect to be private in a public place. 41 Similarly, when a person uses a telephone, he needs to realise that he must ‘convey’ phone numbers to the telephone company, since it is through the telephonecompany’s switching equipment that his calls are completed. A subscriber knows that the telephone-company has facilities for making permanent records of the numbers he dials, for he sees a list of his calls on the monthly bills and the company does record information for legitimate business purposes. As long as the telephone company is capable of recording and disclosing the numbers its customers dialed through its electronic system, the customer cannot assume that the company’s employees would not do so. It is too much to believe that a subscriber, under these circumstances, should harbour any general expectation of privacy.42 Similarly, it can be argued that there is no legitimate expectation of 38 Supra

Govind v State of Madhya Pradesh, 1975 2 SCC 148 (SC held that privacy note 26; See Govind rights are not absolute). 39 R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632. 40 Katz v United States, 389 U.S. 347, 351 (1967). 41 United States v. Knotts, 460 U.S. 276, 281(1983). 281(1983). 42 Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v. New York Tel. Co., 434 U.S., at 174 -175.

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privacy of data relating to an individual’s bank accounts, cheques and transactions available with a bank, because the individual does not have ownership, possession, or control over the data. Instead this data is now part of the stored business records of the bank. 43 If the government issues a notice to the bank, it simply wants to inspect data that is in the control of the bank. The same argument may be extended to an individual's email data held by Google Mail, in stored form in its servers. 44 While the nature of the relationship of an individual with his bank or telephone company may be different from his relationship with Google, the one thing that is common in all these technologies is that the individual takes on the risk associated with the transfer of data beyond his private domain by either putting himself into a stream of activity that he doesn’t control45 or by giving third party access. A case where the actual conversations in a phone pho ne call or contents c ontents of an email are wire tapped may require further analysis. Here, the subject matter is not public but a matter that an individual seeks to preserve as private. There is no assumption of risk or voluntary release of control. However, in the landmark case of Katz 46 , Justice Hugo Black of the US Supreme Court Co urt declined to accept that phone conversations are constitutionally protected. On the contrary, he opined that the natural uninvited risk of eavesdropping cannot be completely eliminated and there can be no privacy protection against such eavesdropping. 47 Likewise, many in the legal community are divided on the question of whether conversations and things intimately private are at all subject to privacy protections. There are no bright line rules. Many US Courts have found no expectation of privacy in the content of emails because of Internet Service Provider (ISP) access. 48 Email always runs “the risk that an employee or other 43 United

States v. Miller, 425 U.S. 435, 446 (1976).

44 Lessig,

supra note 20, p. 205: “…unlike a telephone call, this content is saved in a searchable

form. Companies now invest millions in technologies that scan the conversations of employees that before were effectively private. Both in real time and in retrospect, the content of conversations can become known”; See also, JEFFREY R OSEN OSEN, THE N AKED CROWD: R ECLAIMING ECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS AGE (New York: Random House, 2004), 34–53. 45 Lessig, supra note 20, at 209. 46 Supra note 38. 47 See Dissenting Dissenting Opinion of Justice Hugo Black. 48 McLaren v. Microsoft Corp ., No. 05-97-00824-CV, 1999 WL 339015, at *4 (Tex. App. May 28, 1999) (asserting

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person with direct access to the network service will access the email, despite any company promises to the contrary”. 49 Some other courts have indicated in dicta that, because of third party exposure, email content is of lesser protected status than mail or telephone content and that the privacy of email depends, not on social expectation or whether the content is at issue, but on the fact of third party access. 50 In India, In dia, wiretapping of phone pho ne conversations between two individuals would not amount to violation of privacy if it can be satisfactorily shown that the recorded information had relationship to public interest. 51 Considering the prevailing jurisprudence on personal liberty under Article 21 of the Constitution52, one would therefore have to resolve the issue by carefully measuring the interests at stake- privacy rights and national interest; balancing the two would mean that the degree of eavesdropping permitted should “be

defendant’s stored emails differed from tangible stored items because such emails were “first transmitted over the network and were at some point accessible by a third party”). 49 United States v. Maxwell, 45 M.J. M .J. 406 (C.A.A.F. 1996). at 418. 50 United States v. Charbonneau, 979 F. Supp. 1177, 1184 (1997); Leventhal v. Knapek, 266 F.3d 64, 74 (2d (2d Cir. 2001); Steve Jackson Games, Games, Inc. v. United States States Secret Service Service , 36 F.3d 457, 460-64 (5th Cir. 1994) (held that that stored stored e-mails e-mails not intercepted intercepted contemporaneously with transmission are not protected under federal privacy laws). 51 § 8(1)(j) of The Right to Information Act, (2005): “Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted unwarrant ed invasion invasio n of the privacy of the individual individ ual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature Legislature shall not be denied to any person”. 52 The Supreme Court has upheld the constitutional validity of interceptions, as provided in § 5(2) of Indian Telegraph Act, 1885 1885 and monitoring monitoring through through its its order dated December December 18, 18, 1996 and laid down guidelines limiting its scope to five instances: “national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence.”; See PUCL v. Union of India, AIR 1997 SC 568, wherein the Court rejected the notion of ‘prior judicial scrutiny’ as a procedural safeguard and accepted the contention that administrative safeguards would be sufficient. More recently, in consistency with Art 19(2) of the Constitution, § 69 of the Information Technology Technol ogy Act, 2008 has expanded expande d the power of the Government Governme nt to decrypt information informati on and conduct interception which may be exercised when it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.

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directly proportional to its efficacy and inversely proportional to its intrusiveness”.53 What emerges from the above discourse is that the data collection activity of the Central Monitoring System does not pose a privacy violation problem. Further, there seems to be no reason why a conflict between the public interest and individual privacy needs to exist, when one looks at privacy as a collective right. Discussions about privacy often take form around a particular technology or social measure that violates privacy and hence it is argued that such measure be rejected. However, it is wrong to treat privacy as an exclusive personal privilege, and not in the light of its general importance as a public good.54 For example, collecting names of sex offenders and keeping them in the public domain may be seen by some as a violation of privacy of the accused but such data serves to protect a community from future crime. Similarly, permitting only consensual rather than mandatory testing of infants for HIV, with no disclosure of results, is a danger to common good- the suffering of considerable numbers of children that could be reduced with early detection. In this case, the right to life outweighs any risk of discrimination against mothers. Similarly, “societies do not become totalitarian by use of ID cards; they abuse ID cards because they are totalitarian. Democracy has the adaptability to use ID cards and remain democratic” 55 because such technologies increase fairness and accuracy,56 which is absolutely essential if the government were to detect tax evaders, welfare cheats, mafia, illegal immigrants and thieves who steal the very identities of citizens. “Reliable identification can increase, not diminish, citizen's privacy and autonomy”; 57 if a system like the Central Monitoring System that facilitates the collection of large volumes of data exists, it would assist the government's agencies and enforcement officers in identification, and thereby strengthen public welfare. 53

IEW OF PRIVACY AS A CHECK AGAINST ALEXANDER DIAZ MORGAN, A BROADENED V IEW INGDOM , GOVERNMENT ACCESS TO EMAIL IN THE UNITED S TATES AND UNITED K INGDOM INTERNATIONAL L AW AND POLITICS, Volume 40:803, at 843. 54 P R EGAN EGAN, LEGISLATING PRIVACY : TECHNOLOGY , SOCIAL V ALUES, AND PUBLIC POLICY . Chapel Hill, U.S.: The University of North Carolina Press 1995. ("If we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection.”). 55 AMITAI E TZIONI, THE LIMITS OF PRIVACY , New York 1999, p.184. 56 Eugene Volokh, The Benefits of Surveillance Surveillance , THE R ESPONSIVE ESPONSIVE COMMUNITY , Fall 2002, at 9. 57 Supra note 53.

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LACK OF TRANSPARENCY AND FEAR OF MISUSE

In the electronic police state, the Central Monitoring System would monitor the individual after initial collection of data by building a profile of the individual. The concern here is that the data collected might be misconstrued or misused against the individual by constructing a wrong profile about him. This is because of the lack of transparency- individuals are apprehensive about the rules governing the accessibility and interpretation of the data and the reasons and implications of such surveillance. Consider an example. A man staring fixedly at an individual bothers that individual not because the man staring might discover what the individual is doing privately, but because the man has violated norms of socially acceptable behavior and may possibly commit acts of nuisance against the individual in future. This, in many ways, may also be true of people’s perception about government surveillance. Individuals do speak of ‘privacy’, but what frightens them is not the abstract notion that the government might be closely watching them; rather, the possibility that the information gathered will be misconstrued or abused. People may fear that a government agent, by threatening to release information, can exert illegitimate pressure on them. They may be afraid of being falsely incriminated based on a pattern of circumstantial activities. This brings out an essential difference between the privacy of the government and the privacy of individuals: the government has greater power than individuals. When the government's privacy is violated through unauthorised disclosure of classified documents, the government can prosecute the leaker, or employ other means to prevent harm. In contrast, individuals have far less power and fewer ways to protect themselves. Under these circumstances, individuals would find it “harder to do anything that deviates from accepted social behavior”. 58 Most people would be afraid to stand apart, to be different, even if there is no explicit threat of retaliation. Hence individuals would feel that it is better to conform because they would not know what the technology is capable of interpreting.

58

Michael McFarland, SJ, supra note 27; Westin, supra note 19, p.20-32; C ARL J. FRIEDRICH ZBIGNIEW K.BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AND , (Cambridge, MA: Harvard University Press, 1963), p. 179; Brandeis and AUTOCRACY Warren, The Right to Privacy, 4 H ARVARD L.R EV EV . 193 (1890) at 196.

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However, such fears of misinterpretation and misuse appear to the author to be far too remote for two reasons. First, misinterpretation and misuse can happen at the hands of any person who stores any form of information, whether he is a private party p arty or a government agent, and an d consequent harm can be inflicted upon an innocent person. While on one hand bona fide information can be passed on to the police (such as naming a tax evader), on the other hand any malicious person can also give false information to the police about an innocent person and initiate a criminal investigation against him or get him wrongfully detained. In no society, have people been absolutely free from wrongful and arbitrary interventions of the state authorities or private parties. The important point to note here is that people can become victims of abuse even when they have strong control over their personal activities and there is little government surveillance. On the contrary, government surveillance can help reduce the misuse of intelligence against innocent citizens, such as preventing sale of personal data by an Internet company to third parties, bogus job advertisements or credit card frauds. Similarly, the Central Monitoring System, being more accurate and consistent, can also limit the risk of government abuse: the cameras that might video-tape an act of robbery can also video-tape evidence of police misconduct. Video-tape evidence eviden ce can decrease the risk that the wrong person would be arrested. Second, the Central Monitoring System only aims at detecting the possibility of crime and deviations from law and order. The task of enforcement, however, is ultimately upon the police, military, or other departmental authorities, who would have to act within the due process of law. Thus, even if misinterpretation of data occurs resulting in violation of any legal right of an innocent person, there is always a remedy available against the enforcing authority that has made the mistake, whether willfully or not. An important practical question that arises here is whether the individual who feels that his protected interests are violated must bear the burden of proof. In this regard, legal scholar McCormick writes that: “The proponent of such a ‘disfavored contention’ should have the burden of proof.”59 The individual moving to suppress evidence and seeking exclusion of probative facts should bear some burden in showing the need for such

59

MC.CORMICK ON E VIDENCE §337, at 786 (3rd ed. 1972).

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exclusion. However, the burden may also shift to the State to justify that there has been no violation of privacy in the surveillance act complained of. Surveillance in itself does not prevent individuals from access to the judiciary. This means that there is no reason why an individual has to be any overtly careful about what he says on a social networking site or who he associates with simply out of fear of the Central Monitoring System’s profile building ability, unless such expression or association is prohibited by a statute. Ideally, where one is not committing any unlawful act, there is no reason to believe that he would be subject to incrimination, detention, enquiry, or labelling by the Central Monitoring System. However, where one has a history of unlawful acts, his profile may be placed on a ‘caution-list’, and where there is sufficient apprehension, the government may solely for purposes permitted under law proceed to investigate and take preventive measures. Although individuals deeply fear the spill-over of data into the hands of others, but as already discussed in the previous section, the law provides protection only when there is a legal basis and legitimate expectation of privacy, but not in all cases. 60 If there is no legitimate expectation of privacy to be found in the expressions and associations of an individual, there may not be much legal ground to claim his privacy, even though he may fiercely want to preserve it. 61 However at the same time, law enforcement officers should also satisfy the court of the valid grounds for monitoring the activities of the plaintiff, retrospectively, failing which the injured plaintiff can recover damages. What excuses the lack of transparency in the activities of Central Monitoring System is the need for secrecy in certain government operations. In order to function, government agencies sometimes need to operate away from the public eye. Certain sensitive police and military operations and defense strategies need to be carried out secretly. Diplomats may need to take different approaches with different States. The monitoring techniques and algorithms used by the Central Monitoring System would assist the operations of government decision-makers. Reasonable restrictions need to be placed on access to data, especially when it concerns national security. While transparency

60 See Malak Malak Singh v State of Punjab and Haryana AIR 1981 SC 760. 61 Govind v State of Madhya Pradesh, 1975 2 SCC 148 (The

Supreme Court held that constitution makers did not intend to protect mere personal sensitiveness).

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of operations may be important, it cannot be taken to mean that the government has to reveal how the algorithms make predictions, who analyses the data, how long the data is stored etc., because these revelations can be easily exploited by perpetrators to their advantage and frustrate the whole purpose of surveillance.

IV.

SAFEGUARDING SAFEGUARDING AGAINST THE EXECUTIVE

Transparency requires self-restrained use of power 62 and more so because invisible power can lead to abuse. Fear of such abuse led the Roman satirist Juvenal to question: quis custodiet ipso custodes , or “who watches the watchers?” 63 Without considerable oversight, “the veil drawn over access to information may become an impenetrable wall, with the Judiciary or the Legislature loathing to second-guess those responsible for ensuring national security”64, and none may inspect and check the use or abuse of such power.65 Thus, what should be a legitimate reason for concern is not the fact that the activities of CMS seem to be against privacy rights or are not entirely transparent but the possibility that with more information in the control of the Executive branch, the balance of power may tilt in its favor. The Executive branch serves as the public’s agent for purposes of implementing and enforcing the regulatory mandates of the Parliament and there are agency costs in this arrangement when administrators use their position to gain advantage over others. As Justice Jackson explained in Irvine v. California , the duties and responsibilities of Executive officers are “to enforce the laws, to investigate, and to prosecute. Those charged with this duty should not be the sole judges of when to utilise constitutionally sensitive means in pursuing their tasks”. 66 With regards to the CMS, there is a risk that the Executive branch agents may breach the authority vested in them and use the 62

Dawn Johnsen, Functional Departmentalism and Non-judicial Interpretation: Who Determines Constitutional Meaning? , 67 L AW & CONTEMP . PROBS. 105, 115 (2004) (“The effectiveness of...principled self-restraint and external political checks in turn depends heavily on the traditional values of transparency and accountability.”) 63 Satires (Satire (Satire VI, lines 347–8). 64 Laura Donohue, Anglo-American Donohue, Anglo-American Privacy and Surveillance , 96 J. C RIM. L.& CRIMINOLOGY 1059, 1059, 1167-70 (2006), at 1193. 65 Griffin Dunham, Carnivore, the FBI’s E-mail Surveillance System: Devouring Criminals, Not Privacy , 54 F ED. COMM. L.J. 543, 554 (2002) at 562. 66 See 347 347 U.S. 128, 132, 317 (1954) (internal citation omitted).

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CMS to advance ulterior purposes. 67 Information collected surreptitiously can be used to blackmail or discredit opponents by revealing embarrassing secrets. Indian political history furnishes numerous examples of this phenomenon.68Officials, in particular political positions, have been tempted to serve their own goals. When there is too much intelligence in the hands of the Executive, it can also hide its failures easily. This would ultimately defeat the whole objective of protecting public interest for which the CMS is designed. Deterring such behavior by Executive branch agents is a critical component of our constitutional system and to ensure this, it is necessary to put restraints on the Executive branch and keep the CMS insulated from unnecessary Executive interference. Placing it under the exclusive control of the President of India, or the Prime Minister’s Office, or the Research and Analysis Wing are some of the options. The CMS should be allowed to carry out surveillance and arrive at its findings purely on the basis and strength of the facts it collects and by going dispassionately into the merits and demerits of those facts. Proper and routine disclosures about its activities through formal notifications, hearings, briefings, written submissions and testimonies have to be made to both houses of the Parliament. An appropriate judicial authority also needs to be b e set up for the purpose of scrutiny over the Executive’s purported violations of the privilege held by the CMS. Judicial oversight however need not mandate that law enforcement officers must conform to the requirements under the traditional system of warrants. It could rather be a simple system of regular reporting and auditing. This is because surveillance practices in an electronic police state, aim to shift from operations targeted at individual suspected persons to operations which do not identify targets at the very onset but focus on interpreting behavior patterns based on data and information. Alternatively, courts may strengthen judicial review by reconsidering or amending the existing jurisprudence on privacy to recognise e-mail, social networking technologies and advanced mobile communication technologies as sui generis rather than relying on imperfect analogies to older technologies. Post-acquisition minimisation procedures need to be designed to limit the powers of the Executive branch officials to only those materials that fall 67 Terry 68

Moe, Politics and the Theory of Organisation , 7 J.L. ECON. & ORG. 106, 124-25 (1991). See, Saikat See, Saikat Dutta, We, The Eavesdropped , OUTLOOK , May 3, 2010.

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legitimately within their purview. Minimisation would mean destruction of inadvertently acquired communications of citizens at the earliest practicable point, if it does not contain foreign intelligence information or evidence of a crime or matters of serious national interests. All such material acquired must be destroyed, say within five years, and for Internet transactions, say within two years, from the expiration date of collection. Lastly, the CMS and its officials should be made subject to another layer of monitoring. Their activities need to be regularly monitored through another computerised surveillance system to check for tendencies of agents to overreach or to leak information for malicious purposes. The operations of this second layer of monitoring may follow that of a corporate internal audit committee. The second layer may also be composed of non-agency personnel and this second layer can be privy to confidential surveillance to assure compliance with existing privacy protections.

V.

CONCLUSION

The government's most important technique of control is no longer merely watching or threatening to watch individuals. It is actively analysing and drawing connections between data. Much surveillance occurs without any knowledge that one is watched. Data mining technologies can record perfectly innocent behavior that no one is particularly ashamed of and draw surprisingly powerful inferences about people's behavior, beliefs, and attitudes. Over time, these tools will only become more precise and effective. Thus the problem today is not that fear of surveillance will lead individuals to docile conformity, but that even the most innocent and seemingly unimportant behaviors can increase knowledge about both the individual and others connected to him. Individual behavior may tell things about individuals that they may not even know about themselves in the first place. In addition, knowledge about some individuals can generate knowledge about others who are not being directly watched. Individuals can no longer lo nger protect themselves simply by preventing the government from watching them, for the government may no longer need to watch just them to gain knowledge about them. For many individuals, such extra-ordinary methods of surveillance pose a significant risk to privacy and, under an extremist view, represent a first step towards an Orwellian police state. However, as the author in this article shows, such extremist rhetoric exaggerates the threat of surveillance, especially, in an 119

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increasingly digital world, where individuals are no longer armed with appropriate tools to construct their personal privacy barriers. Besides, for five decades, the Supreme Court seems to have allowed itself to be guided by crime control, public interest, and security concerns which has resulted in an abstract body of jurisprudence that is unwilling to fortify and protect individual privacy against government invasions. This makes the invocation of privacy rights a difficult exercise even in very sensitive cases. Lastly, even though security concerns justify the need for surveillance systems in a country like India, surveillance has also begun to offer a wide range of economic and social benefits by aiding in large-scale welfare programs. This further strengthens the case for deploying mass surveillance to better manage the day-to-day activities of the government. Thus, surveillance will become a permanent feature of governance, in a manner that will be as ubiquitous in time as the familiar devices of the regulatory and welfare states, and consequently gain greater acceptance in law. However at the same time, it is important to ensure that the wisdom of judiciary is not blinded by advances and marvels of technology alone alo ne but it must consistently maintain the delicate balance between ensuring better law and order systems and securing the contours of personal liberty that are embedded in the Constitution.

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ESTABLISHING THE JURISPRUDENCE AND CONTEMPORANEOUS RELEVANCE OF INSTANT CUSTOMARY INTERNATIONAL LAW

Sarthak Malhotra * and Sujoy Sur ** Customary International Law has been and is one of the foremost sources of international law. However, in a world where time and systemisation are of utmost importance, traditional Customary International Law, at times, comes across as rather rigid and unmethodical in establishing and espousing binding customary rules. The solution to this difficulty has been achieved in the form of Instant Customary Law, where a much greater emphasis is placed on the legal intent or the subjective element of opinio juris rather than consistent state practice. Instant Customary Law claims that the legal intent of a state accompanied by a minimum amount of state practice in accordance with the legal intent is sufficient to establish a customary rule which binds the state. This emerging concept of instant custom in international law has gripped the attention of many and as a result, much literature has been devoted to outlining its contours and understanding its underlying jurisprudence. An important factor contributing to the increased recognition of Instant Customary Law is its ability to address the shortcomings and inadequacies of traditional Customary Law. After establishing the jurisprudence of Instant Customary Law, this article delves into the practical aspect of Instant Customary Law, by taking some contemporaneous instances which further substantiate its relevance and its efficiency as a source of law in modern times. In that stride, the article will discuss, inter alia, – the legally binding effect of UN resolutions in light of the ‘Bush Doctrine’, stance taken by the international community towards Libya with respect to the recent Arab Spring revolution and how the new age web-based social platforms have become an integral medium to discern the legal intent, i.e. opinio juris of states. Finally, this article will strive to establish how the jurisprudence of Instant Customary Law is congruous with the present day scenario and needs to be acknowledged and understood by the international community at large.

I.

INTRODUCING INTRODUCING THE LEGALITY OF CUSTOMS

Customs have played a principle role in the development of legal systems around the globe. The traditionalistic temper, which customs usually * **

IInd Year, B. Com. LL. B, Gujarat National Law University, Gandhinagar. IInd Year, B.A. LL. B, Gujarat National Law University, Gandhinagar.

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emanate, have given them a primordial but persuasive hold over our legal rules and regulations. 1 Customs are usually practices in the early stages of legal developments, more often than not unwritten and uncodified; their survival ultimately protracted because of what can be called an aura of historical legitimacy.2 The gravity of customs as laws in most of national legal systems has gradually diminished over the past couple of decades3 with the codification of laws, modernisation of legal machinery and the presence of strong legislature. This however, has not been the case with international law. Customs in international law still carry a lot of weight and precedence in governing the affairs between States, primarily because international law is still burgeoning and lacks any centralised institution to which all the States conform and accede to. Secondarily, the body of written norms alone cannot serve as a basis for a coherent legal order with the consequence that the lacuna must be filled by unwritten rules and principles i.e. customs. 4 Customary International Law can be said to be broadly incorporated of two elements: patterns of state practice or behaviour and patterns of a psychological belief that such behaviour is ‘law’ which is termed as ‘ opinio juris sive necessitatis’.5 Although Article 38(1)(b)6 of the Statute of the International Court of Justice (ICJ Statute) defines custom as an ‘evidence of a general practice accepted as law’, there is no concurrence on how to elucidate the two elements of this definition. 7 In this paper, the authors will attempt only to clear the misconceptions surrounding the former of the two elements in the above definition, while acknowledging that the latter element is also not free of 1

M.N. SHAW , INTERNATIONAL L AW , (Cambridge University Press, 2003). See generally generally M.N. See e.g. R. M. UNGER , L AW IN MODERN SOCIETY : TOWARDS A CRITICISM OF SOCIAL THEORY , 49 (New York: Free Press, 1976), who notes that customary law can be regarded as ‘any recurring mode of interaction among individuals and groups together with the more or less explicit acknowledgement by these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that ought to be satisfied’; See also R. DIAS, JURISPRUDENCE, ch 9, London, (5th ed. 1985), and H. L. A. HART, THE CONCEPT OF L AW , Oxford (1961). 3 See H. ETHINKING THE SOURCES OF INTERNATIONAL L AW H. V AN HOOF, R ETHINKING , 114 (1983). 4 Petersen, infra note note 7. 5 Opinio juris sive necessitatis was first formulated by the French writer Francois Geny to differentiate between legal custom and mere social usage. See generally François François Gény Méthode d’Interprétation et Sources en Droit Privé Positif , ¶ 110 (1889). 6 United Nations, Statute of the International Court Of Justice, June 26, 1945, art. 38(1)(b). 7 N. Petersen. Customary Law without Custom-Rules, Principles, and the Role of State Practice in EV . 275 ( 2007). International Norm Creation, 23 AM. U. INT'L L. R EV 2

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incongruity. The issue of general state practice principally deals with the leitmotifs of what kind of activities constitute state practice and the legality of those state actions in light of the psychological element of International Customary Law i.e. opinio juris , the issue which this paper specifically focuses on. The principle requirement of state practice is that it should be prolonged over a period of time and recurring to get a legal attestation from the international community. State practice being an objective element was concentrated upon by courts and was used to ascertain the behavioural patterns of states, thus, inductively determining the customary arrangement between States. 8 However, in the Nicaragua case9 the ICJ initially defined customary law constituting both state practice and opinio juris , but on a subsequent analysis of facts the ICJ relied and concentrated only on the element of opinio juris without without directing any analysis of state conduct. 10 The Court in principle upheld the twopronged approach, while arguably in substance it only relied on the element of opinio juris . 11 What can thus be safely concluded is that the element of psychological intent of the state may hold precedence over actual state practice especially in circumstances where sufficient instances of putting that intent into practice have not been afforded to a state. Waiting for such instances to first occur and for the state to then apply its ‘belief’ of a ‘custom’ to such instances, so that it may develop into a concrete practice and can be upheld as a proof of a binding custom, is what makes the traditional International Customary Law a particularly long and tedious process. Moreover, jurists and scholars have often debated and concurred on the kind of activities which envisage state practice but the issue of duration of that state practice and its recurrence has been an area of constant gainsaying and disagreements. In the North Sea Continental Shelf cases ICJ pronounced that merely a passage of a short period of time will not necessarily be a bar to the formation of a new customary law, it is just that the state practice must be in recognition to the rule of law involved. 12 In general, the time element is 8

B. SIMMA, International Human Rights and General International Law: A Comparative Analysis , in THE PROTECTION OF HUMAN R IGHTS IGHTS IN EUROPE , IV COLLECTED COURSES OF THE ACADEMY OF EUROPEAN L AW , 153, 216 (Vol. 2 1993). 9 Infra note 68. 10 Id.; note 7. Id.; Supra note 11 Infra note note 13. 12 The North Sea Continental Contin ental Shelf Cases (Federal Republic Republi c of Germany v. Denmark; Federal Republic of Germany v. Netherlands), ICJ Reports, Feb 20, 1969, 3, 29, 41, 43, 72 ILR (1969).

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considered to be dependent upon the ‘circumstance of the case and the nature of usage in question’ and has not been conclusively settled, thus, providing scope for incertitude and deliberations.13 With the development and branching of law in fields which are evolving at a fast pace, the element of time has come into question, not only because time is of great essence in modern times but also because there is no duration of state practice specified in the international legal framework. This has given the scope for a wider interpretation, possible under the opinio juris element, element, thus, prevailing in magnitude over the element of state practice to give us an ‘Instant’ Customary International Law. The term Instant Customary Customary International Law in itself is not new but its piecemeal use by the international community over the years in contemporary matters of international law is making it gradually grow in importance. In light of the contemporary phenomenon of social media and trend setting practices by some states, the increasing importance of Instant Customary Law, which some believe is a paradoxical doctrine in itself as it over-rides the very focal point around which a custom revolves - time, will now be examined and reflected upon.

II. ESTABLISHING THE JURISPRUDENCE OF INSTANT CUSTOMARY INTERNATIONAL LAW The concept of custom offers an appealing sense of simplicity. Yet, upon closer analysis, it almost mystically transforms into a perplexingly complex theoretical dilemma. The dilemma is reflected in the ‘traditional’ view of custom formation.14 This dilemma is because of the requirement of prolonged state practice along with a ‘belief’ in that state practice by a rule of international law. The dilemma intensifies when these requirements are insisted upon for formulation of something as foundational as rule of law. 15 Instant Customary Law, as it will be seen further, is free of any such uncertain ‘practice over time developing into belief’ loops, as it mainly relies on the legal element of opinio juris. The practice of Instant Customary International Law, although, considered a ‘modernist’ approach finds its roots in the mid nineteenth century, as old as the concept of International Law itself. 13

Supra note note 1, at 76. EV . 603 (1990). Slama, Opinio juris in Customary International Law , 15 OKLA. CITY UL R EV Id.

14 J.L. 15

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It was in 1840 that Puchta and Savigny put forth the view that custom was “merely the immediate and spontaneous spontaneous revelation of the common popular 16 sentiment”. They were the first to instigate the line of thinking, which focused more on the subjective element of state practice instead of the state practice itself i.e. the ‘psychological’ ‘psychological’ element of opinio juris . Prior to this, a majority of the theories reiterated that material usage forms the basis of custom. Puchta and Savigny contended the formation of custom on the basis of this ‘psychological’ element only. They argued, “If 'law' is the expression of popular consciousness or will, then the overt or tangible aspect of custom dwindles in relevance and importance. So long as we can discover the popular sentiment, what need is there for an overt act or ‘precedent’?” ‘precedent’?”17 Further, it was Bin Cheng in 1968 who is formally accredited to have introduced the concept of ‘Instant’ Customary International Law. 18 Bin Cheng argued that it is only opinio juris which is necessary to constitute a binding customary law. Practice does not have any constitutive role to play in the establishment of customary law; rather it has only an evidentiary function to play.19 In Bin Cheng’s opinion, the U.N. Resolutions on Outer Space, 20 which had been adopted unanimously, constituted Instant Customary Law and required no further proof of state practice. Bin Cheng laid complete emphasis on the psychological element of opinio juris considering considering it to be more logical and discernible. The traditionalist view, however, established itself as ‘word of law’, especially after Article 38(1)(b) of ICJ Statute was interpreted as the re-iteration of the two traditionalist elements of opinio juris and state practice. Professor Anthony D’Amato gave a digressive view in 197121, criticising the traditional view as being “over complicated”. complicated”. Traditionally, practice was a determining constituent element in understanding and deriving customary international law, as the courts had to objectively concentrate on the state practice and induce the ANTHONY D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL L AW , Ithaca, 274, 11 (NY and London Cornell University Press, 1971). 17 Id. 18 Bin Cheng, United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law? 5 INDIAN J. INT’L L. 23 (1965). 19 B. Simma & P. Alston, Sources of Human Rights Law: Custom, Jus Cogens, and General Principles , 12 AUST. YBIL. 82 (1988). (1988) . 20 See G.A. Res. 1721, U.N. GAOR, 16th Sess., Supp. No. 17, U.N. Doc. A/5100 (Dec. 20, 1961); G.A. Res. 1962, U.N. GAOR, 18th Sess., Supp. No. 15, U.N. Doc.A/5515 (Dec. 13, 1963). 21 Id. 16

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law by collecting and systematising facts of state conduct. He criticised the traditionalist view by arguing against the most palpable conundrum present in its line of thinking, that of the indefinable repetitions of a usage to generate a legal obligation, declaring it as inconsistent and muddled. Instead, he reformulated the concept of determining customs into simpler and discernible elements of “articulation” and “act”. 22 Professor D’Amato’s theory suggests that extension of existing articulation theory that allows states’ articulations to anticipate the element of practice, thus letting international state actors signal how they might wish the norm to develop before any specific incidence of conflict occurs. 23 States fulfill the articulation component by making ‘announcements’ of their intentions: announcements that they may make through formal unilateral statements as well as through bilateral or multilateral informal understandings.24 The States then act upon the articulations, which are based upon evidentiary motivations, so pronounced in a significant and real way, thus, substantiating the articulation. Therefore, once the act occurs, the previously articulated rule or pronouncement takes a life of its own and manifests itself into a rule of law capable of being cited as a custom in similar instances arising in future. 25 A state, therefore, at the bare minimum, can cite one instance of an act following the articulation to proclaim it as a customary international law. D’Amato, thus, set the precedent for the claim-oriented approach26, but it certainly gave a much more systemised and uniform method of recognition of international customary rules as compared to the traditional view which D’Amato himself pilloried as “mystical jumps from non-law to law according to the number of repetitions”. 27 Bin Cheng further espoused this approach by contending that the animus , the psychological element, has been of cardinal influence in many cases

Id. V. Fon & F. Parisi, International Customary Law and Articulation Theories: An Economic Analysis , INT’L L. & MGMT. R., 202-203 (2006). 24 Id. 25 B. Langille, It's Instant Custom: How the Bush Doctrine became Law after the Terrorist Attacks of EV . 145 (2003). September 11, 2001, 2001, 26 BC INT'L & COMP. L. R EV 26 Id. 27 Niels, Supra note 7; Anthony D’Amato was very vocal for a change in the International Customary Law Scene, making him denounce the traditional view as self-contradictory and incoherent. Besides vouching for the articulation approach, he also talked about special customs (see The Concept of Special Customs in International Law ) existing between states as opposed to the “general principles” as generalised in the Statute of ICJ, art. 38(1)(b). 22 23

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of the Permanent Court of International Justice 28 and International Court of Justice29. Cheng, by psychological element, did not intend to mean so much the mental process or inner motivation of a State when it performs or abstains from acts,30 he meant rather the acceptance or recognition of, or acquiescence to, the binding character of the rule in question implied in a State’s action or omission, or in other words, it being a rule of general law binding on all. 31 Cheng further argued that the role of usage in the establishment of rules in international law hold a purely evidentiary function and by no means is it necessary that the usage should be prolonged or should be consistent “state practice” as such, provided that the element of opinio juris can be clearly established. In international law the states are their own lawmakers, 32 therefore, logically the binding force of rules and regulations of international law rests with the consent or acquiescence of the state. If states consider themselves bound by an internationally accepted rule of law or a rule between two states then it should be treated as opinio juris , as long as the rule does not infringe the right of third states not sharing the same opinio juris . Here, Cheng focuses on the aspect of local customary law, a customary law existing between two states. Professor D’Amato has also deliberated on this issue, which is a divergence from the general principles of international customary law – a special customary law between two states. 33 Cheng’s proposition of an Instant Customary Law is also re-iterated in Professor Stein’s conclusion that opinio juris is no longer seen as a consciousness that matures slowly over time, but instead as a conviction that instantaneously attaches to a rule believed to be socially necessary or desirable.34 It is this desirability that we will focus our attention upon. The tumultuous process of the establishment of a legally binding custom over decades seems to be an incongruous concept in recent times where immediacy 28

E.g. The case of the S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 28. E.g., Asylum Case (Columbia v. Peru), [1950] ICJ Rep. 266 at 266, 276; Right of Passage Case (Portugal v. India), [1960] ICJ Rep. 6, at 42-43. 30 P. Guggenheim, Contribution å l’histoire des sources du droit des gens , 94 R ECUEIL ECUEIL DES COURS (1958). 31 Cheng, Supra note 25. 32 S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 18: ‘The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law...’. 33 D'Amato, The Concept Of Special Custom In International Law, 63 A 63 AM. J INT’L. 211 (1969). 34 T. L. Stein, Approach of the Different Drummer: The Principle of the t he Persistent Objector in International Law , 26 H ARV . INT'L. LJ 457 (1985). 29

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of legal sanctions and modish state actions are needed, in a world which is nimbly recasting and where new concepts require advanced norms to govern themselves. With the formation of so many international organisations, the process of custom creation has been facilitated and hastened to a great extent. For example- the UN provides a forum for the states to exchange and harmonise their views to arrive at some form of compromise. 35 Space, social media, human rights are some of the numerous concepts which have gained significant force in global laws and cannot be contained by the rigidity of legal philosophy of the older days. Professor Sohn following on the lines of Professor Jennings36 noted that, “…The methods of developing new rules of customary international law have greatly changed since the Second World War. These changes have not been imposed on states by any external authority; they are the result of a voluntary acceptance by states of the need to adapt the methods of law-creation to the needs of the rapidly growing and changing world community. Any prior restrictions on the law-creating process were self-made, and they can be changed by the very method that established them in the first place. The rules contained in Article 38 of the Statute of the International Court of Justice were appropriate at the time of their adoption, and they are flexible enough to allow new ways of ascertainment of the existence of a rule of customary international law.” 37 The pertinent question under consideration, therefore, should be that what kind of acceptance and regulations can be constituted to have a legally binding effect on the states. We will mainly focus upon the declarations of bodies of universal legal importance and laws endorsed by some states, which have been participative in treaty making pertaining to the area concerned, or which can be said to be “superpowers” “superpowers” in their respective areas.38 35

ANTONIO C ASSESE , INTERNATIONAL L AW , Oxford, (Oxford University Press, 2005). 36 R. Y. R. Y. J JENNINGS, The Identification of International Law , in INTERNATIONAL L AW : TEACHING AND PRACTICE 8 (1982). 37 Louis B. Sohn, Generally Accepted International Rules, 61 W EV . 1073, 1079 (1986). 61 W ASH. L. R EV Evolving methods of developing new rules of customary international law are the result of the need to "adapt the methods of law-creation to the needs of the rapidly growing and changing world community”. 38 Cheng, Supra note 25. Bin Cheng in his paper gave admittance of many delegates who believed that in certain cases the countries which have a sort of monopolistic control in particular spheres, those countries should assent to the declaration, otherwise it ceases to

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Since the inception of the United Nations as a stable international body and the International Court of Justice as the insurmountable apex judicial world organ, the legal effect of declarations, resolutions, international cases and treaty making has gained a strong binding force. Resolutions of states can only be considered to have a binding effect if they are able to establish the opinio juris and substantiate it with an evidence of realising the rule in practice. Considering the legal standing which the UN has in the present scheme of things, it will be convenient to take as a starting point, the relationship of General Assembly Declarations with customary law.39 Resolutions of the General Assembly may constitute state practice; they may originate state practice; corroborate customary law; and they may supply opinio juris in in some cases.40 As has been mentioned, earlier the transition from custom to law was fundamentally inductive; the approach now has evolved into a deductive one. 41 Rules, declarations, for instance, by the General Assembly, and the surrounding ritual itself, are taken as the genesis for the possible development of customary law in the event that state practice ultimately happens to lock on these proclamations, as well as a law making process which is self-sufficient and complete in itself; even in the face of contrasting ‘external’ facts. 42 The dominance of retrospection has taken a back seat here, whereas, immediacy and urgent necessity, in the form of lawful consent of the state (opinio juris), has come to the fore. Turning from United Nations to academic circles, Lung-Chu Chen, an internationally recognised scholar and professor of international law at New York Law School43, in his evaluation of the new Restatement's provisions on the carry a binding effect and becomes a dismissive document. An example of this would be Space Law during the 1960’s. Absence of USA and USSR in any multi-lateral treaty or resolution with respect to Air or Space Law would not be considered to have a binding or directive effect simply because of the pre-potency of these two countries in practically every aspect in the areas of Air and Space Law. 39 O.Y. ASAMOAH, THE LEGAL SIGNIFICANCE OF THE DECLARATION OF THE GENERAL ASSEMBLY OF THE UNITED N ATIONS , (The Hague: Martinus Nijhoff Publishers, 1966). 40 There are at least two other possible grounds on which it might be claimed that United Nations resolutions and declarations are “lawmaking”, namely as authoritative interpretation of the charter (Asamoah, op. cit.) and as statements of “general principles of law” as in Article 38(i)(c) 38( i)(c) of the th e I.C.J. Statute. 41 Simma and Phillip, Phillip, supra note note 26. 42 Id. 43 Professor Lung-Chu Chen, J.S.D (Yale), L.L.M (Northwestern). Professor Chen is an authority on International Law, Humanitarian Law and U.S. C onstitutional Law. He has been the former advisor to the President of Taiwan.

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protection of persons, considers quite categorically that the Universal Declaration's “frequent invocation and application by officials, at all levels of government and in many communities around the world” have conferred on it “those expectations characteristic of customary international law”. 44 Therefore, putting forth the concept jurisprudentially jurisprudentially in present times, we can surmise that Instant Customary International Law is a system of enforceable, binding and sanctionable source of law, branching out of the most legally compelling source in the International arena i.e. Customary Law. This system of Instant Custom revamps the concept of customary law by focusing and re-iterating on the importance of the subjective aspect of opinio juris and sidelining the objective element of prolonged state practice over many years for its tardiness. The legal validity that it derives is from the active or passive consent of the states. Therefore, once a state ratifies or acts upon its agreed part, it ‘instantly’ acquires the character of a custom as it re-enforces the psychology of the state that it has put into practice.

III.

CONTEMPORANEITY OF INSTANT CUSTOMARY LAW

A. UNDERSTANDING THE LEGAL EFFECT EFFECT OF RESOLUTIONS RESOLUTIONS To deal with a range of internationally relevant subjects ranging from environment to terrorism, states have frequently engaged in multi-lateral treaties and protocols and resorted to UN Declarations. Additionally, the growing prominence of International Customary Law can be understood from its application in the field field of International International Humanitarian Law. Law. In this context, especially in light of the international proceedings in the past one and a half decades, a discussion on the Bush Doctrine becomes vital. The Bush Doctrine was adopted in response to the terrorist attacks of 9/11. It became an instant custom within weeks as states began acting in accordance with the rule first articulated by President Bush, in his address to the nation on 11th September 2001 and subsequently by the U.N. General Assembly and the Security Council, on 12 th September 2001, which were unanimously 44 L.C.

Chen, Restatement: Protection of Persons , 14 Yale JIL 546-547 (1989); See also, M CDOUGAL, IGHTS AND W ORLD ORLD PUBLIC ORDER , 273-274, 325-327 (Yale L ASSWELL & CHEN, HUMAN R IGHTS University Press, 1980). For a recent Soviet voice to this effect see V.E. Kartashkin, The Universal Declaration and Human Rights in the Contemporary World, 39 Soviet YBIL (1988).

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adopted.45 These two instances provided the required articulation of the opinio juris of of the states in following the rule and abiding by the resolution. The states further complied with the procedures and activities of the US administration, thus putting their intent into practice and binding themselves as they normally would in case of a custom. This immediate compliance further underlines the legal intent of the states in carrying out the action and reduces the need to carry out the action repetitively over a prolonged period for the custom to have some force. Importantly, such compliance and actions at an international stage are taken to be as requisite state actions by which a state can be held bound. 46 An example of this is Britain’s active participation in the military operations undertaken by the US administration in Afghanistan, weeks after the resolution and the doctrine.47 The terrorist attacks of 11th September 2001 acted as a springboard for the creation of many international agreements on counter-terrorism. A number of laws were formulated and multilateral treaties and U.N. resolutions were either expressly or tacitly adopted by the nation states on various sub-issues ranging from suppression of nuclear terrorism 48 , implementation of antiterrorist conventions49, and condemnation of terrorist activities.50 Such rapid and progressive development of binding international rules, which in this case were, originally established by one state and subsequently accepted and adopted by other countries, is a classic example of Customary Law going instant and crossing the barrier of time and tradition. To delve a little deeper into the legal implications and repercussions of the states’ adoption of international resolutions, it is important to iterate here the theory put forth by Marko Divac Öberg to assess the legal effects of resolutions and treaties. Under this theory, there are three basic types of legal effects.51 A resolution may have the legal effect of (i) creating obligations, rights 45

Id.

46

A. PELLET, Article 38 , in ZIMMERMAN , OELLERS-FRAHM & CHOUMUSCHAT , THE INTERNATIONAL COURT OF JUSTICE - A COMMENTARY 751 (London: Oxford University Press, 2006); See also, Congo v. Belgium. [2002] ICJ Rep. 3, 23-24. Blair is the ‘USA’s Best Secretary of State’ , BBC Worldwide Monitoring, (Oct. 16, 2001), available LEXIS, News Group File. at LEXIS, International Convention for the Suppression of Acts of Nuclear Terrorism New York, April 13, 2005. 1373 U.N. SCOR, (4385th mtg.), U.N. Doc. S/RES/1373 (2001). 1368 U.N. SCOR, (4370th mtg.) U.N. Doc. S/RES/1368 (2001). D. Divac Öberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ 16 EUR . J. OF INT’L. L. 881, 879-906 (2006). The word effect simply

47 48 49 50 51

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and/or powers (which we shall call ‘substantive effects’)52and/or (ii) making e.g. that an alleged fact is true) or legal situations ( e.g. e.g. determinations53 of facts ( e.g. that an obligation was violated), which trigger the substantive effects (‘causative effect’). To this is added (iii) how and when the substantive effects operate (‘modal effects’).54 Sometimes, there only exists a mirage in the name of legal effects. This is the case when a resolution simply restates an obligation, a right or a power that already exists.55 Declarations in principle only interpret or restate the law and have no legal effect; and a resolution which merely interprets the Charter does not, in theory, have any legal effect of its own. 56 To the extent that a resolution details and substantially adds to the Charter, any ensuing legal effect does not come from the resolution of a given organ per se but but from the fact that it may be considered generally acceptable by UN Members.57 This acceptance of the resolution in letter and spirit is the opinio juris of states. In the event of deficiency of legal effects, the same can be obliterated if there is a strong and substantiated psychological ‘intent’ present in the states accompanied or followed by an act which is in accordance with their intent.58 The vigorousness of the intent is more often than not ‘automatically’ developed or already present when times of urgency prevail.59 Thus as an example, any state which supports a state having an interest contrary to that of the general international community and/or the supra-national bodies such as United Nations, whether directly or indirectly through the use of media, political statements, similar resources etc., is said to be bound by an instant custom and can be considered to oppose the

means consequence. The legal effect should be distinguished from any moral, political, or other effects which do not fall within the scope of this article. 52 Combacau, ‘L’écoulement du temps’ Sociétéfrançaisein pour le droit international, 77 LE DROIT INTERNATIONAL E T LE TEMPS, ¶ 21–22, 98–100 (2011). 53 Öberg, supra note 55. 54 Id . 55 56

Id. Id.

Report of Committee IV/2 of the UNCIO, San Francisco, 12 June 1945, UNCIO Doc 933, IV/2/42(2), at 7; 13 UNCIO Docs 709, at 709–710. 58 Cheng, supra note note 25; Sohn, supra note 38; See also, D’Amato, supra note 16. 59 Bush Doctrine in itself is an example of it; Grotian Moment can be an example of it. The term Grotian moment signifies a legal development that is so significant that it can create new customary international law or radically transform the interpretation of treaty-based law. Grotian Moment - The International War Crimes Trial Blog , School of Law, Case Western Reserve University, (July 29, 2012) available at http://law.case.edu/grotian-moment-blog/ 57

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general international considerations even though such support or practice might have been for a very short period of time. While celebrating the boons of Instant Customary Law, it must also be kept in mind that it is severely criticised for not having as staunch a binding force as the traditional customary law. Though it hasn’t been expressly overruled by the international fraternity, it also doesn’t command wide-spread and uniform concurrence. However, keeping in mind that it is still an emerging concept of international law, what is sought to be propounded in this article is that nation states are gradually showing a willingness to consider this as an alternate method of source establishment in modern times of rapid reaction. B. TAKING LIBYA AS A CONTEMPORARY CASE STUDY Applying Instant Customary Law in the case of Libya which was subjected to large scale international intervention during its civil civil war, we can can say that NATO’s alignment with the Benghazi rebels (and National Transition Council) was illegal60, inter alia , according to the seminal case of Nicaragua v. United States of America.61 In this case, the ICJ held that the ‘United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted against the Republic of Nicaragua in breach of its obligation under customary international international law not to intervene in the affairs of another State’.62 Further, general intervention is proscribed both by Article 2(7) of the UN Charter and provisions of the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States, both of which NATO states are party to. 63 But an accommodating exceptional view was also mentioned in the same case with the ICJ stipulating that ‘reliance by a state on a novel right or an unprecedented exception to the principle [such as humanitarian intervention] might, if shared 60 R.

Pelekanos, Customary International Law and the Scramble For Libya (Dec 16, 2011), available at http://crisisproject.org/customary-international-law-and-the-scramble-for-libya. 61 Military and Paramilitary Activities Activiti es In and Against Nicaragua (Nicaragua v. United States of America) [1984] [19 84] I.C.J. Reports 392. 62 The principle of non-intervention is also supported by UNSC Resolution 2131 (XX) 1965, containing the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and augmented by Resolutions 31/91 of 14 December 1976, 32/153 of 19 December 1977, 33/74 of 15 December 1978, 34/101 of 14 December 1979 and 35/159 of 12 December 1980 on non-interference in the internal affairs of states. 63 Military and Paramilitary Activities Activiti es In and Against Nicaragua (Nicaragua v. United States of America), [1984] [198 4] I.C.J. Reports.

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in principle by other states, tend towards a modification of customary international law’.64 The resolution which allowed this alignment (S/RES/1976) was not vetoed and was entertained by the BRIC Group and Germany with acquiescence. In the context of international law, neutrality of this nature is interpreted as a passive form of consent. 65 The ICJ had further proclaimed that if states in coalition develop a legal intent and act upon it, then, to go against the norms of non-intervention could be taken as an exception and a new rule in itself. This can be argued to be an Instant Customary Law formation, a development of legitimate expectation by the international community over a short period of time. time. Such intervention intervention with states acceding acceding to it can be said to be customary law in itself, developed out of the ‘Right to Protect’ 66 mechanism and giving scope for states in general to act along these lines in similar cases as that of Libya here. Therefore, this can be taken as a very relevant contemporary case of the reinforced recognition of the jurisprudence which Instant Customary International Law espouses and also a case highlighting the need for the international community to adapt to this new method of custom formation which binds states. states. A word of caution caution however must must be added here. here. It is neither argued, nor should the ICJ judgment be interpreted to mean, that any and every legal intent rapidly formed under exceptional circumstances would set a correct precedent. Especially in light of developments as they unfolded in Libya, after NATO’s interventions, an instantly formed opinio juris may not ultimately develop as a custom if the action taken on its behest cannot stand legal scrutiny or is immoral or unethical. C. EMERGENCE AND ADMISSIBILITY ADMISSIBILITY OF SOCIAL SOCIAL MEDIA MEDIA AS ‘INSTANT’ CUSTOM The increasing access to the internet has given rise to a culture where the public not only acts as a consumer but also acts as a contributor or producer.67 It leads to the formation of a participatory environment environment whose main components are civic engagement and creative expression. In a nutshell, 64 65

Id. See generally Shaw, Shaw, supra note note 1, at 80-82.

66 R2P

67

– Right to protect mechanism was introduced by the 2005 World Summit and that formed the normative framework of S/RES/1976 that authorised NATO’s intervention in the Maghreb. JENKINS, CONFRONTING THE CHALLENGES OF PARTICIPATORY CULTURE: MEDIA EDUCATION FOR THE 21ST CENTURY , (The MIT Press, 2009).

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“Young people creatively respond to a plethora of electronic signals and cultural commodities in ways that surprise their makers, finding meanings and identities never meant to be there and defying simple nostrums that bewail the manipulation or passivity of ‘consumers’.” ‘consumers’.”68 Social media has become an evidentiary gold mine and has been recognised as a valid form of evidence in a plethora of cases relating to privacy, contract, trademarks, copyright issues 69 , etc. Recently, the electronic social media has been considered as strong evidence particularly in relation to highlighting the psychology of a state through its state actors. Evidentiary sources existing in the form of social media can also be termed as ‘Instant Customary Law’ which may be understood as valid rules which develop without undergoing a long period of gestation. International Humanitarian Law 70, which is a prime benefactor of the jurisprudence emerging out of Instant Customary International Law, has been actively using electronic social media and eevidences as evidences in the court. The recognition by the international community of social media as a valid source of evidence evidence can be seen in the light light of numerous international international cases where social media was accepted as evidence. However, lack of authoritative literature on this topic proves to be an impediment in understanding this particular application of Instant Customary Law. Social Media, by providing ‘on ground’ witness accounts, reduces the dependence on traditional sources such as testimonies. It has also expanded access to information. The role of social media in Arab Spring is well known. 71 It has expanded access to evidence of human rights abuses beyond mainstream evidences. “Technology has allowed us to see into many parts of the world that were previously shrouded by oppressive governments or geographical P. Willis, Foot Soldiers of Modernity: The Dialectics of Cultural Consumption and the 21st-Century EV . 390-415 (2003). School, 73 H ARVARD EDUCA. R EV 69 The enactment of Digital Millennium Copyright Act (DMCA) and DMCA Title II, the Online Copyright Infringement Liability Act (OCILLA) and the efforts made by the Congress in USA for passing the Stop Online Piracy Act (SOPA) in the House and its Senate companion bill, the Protect IP Act (PIPA) go a long way in strengthening the opinio juris of the states for the evidentiary value of Social Media. 70 International humanitarian humanita rian law is a set of rules which seek to limit the effects of armed conflict because of humanitarian reasons. International humanitarian law is also known as the law of war or the law of armed conflict. What is International Humanitarian Law? ICRC ICRC (July, 2004) available at http://www.icrc.org/eng http://www.icrc.org/eng /assets/files/other/what_is_ihl.pdf [Last Accessed on 10 March 2014]. 71 D. Tapscott, Social Media Can Help Build Governments Too, Huffington Post, May 23, 2011. 68

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boundaries.”72 In fact, digital technologies and mobile devices have become the primary sources of documentation. They have also helped in revolutionising political conflict and documenting it. For the purpose of admissibility, electronic evidence falls under the category of ‘documentary evidence, defined by tribunals as anything in which information of any kind has been recorded. 73 The opinio juris, for accepting admissibility of evidence emanating from social media, can thus be found in the various pieces of legislations enacted by countries around the world. The rules pertaining to litigation in England and Wales namely the Civil Procedure Rules include social media within the broad definition of ‘documents’ thereby meaning that electronic documents which include instant messages and content from social networking sites are covered within this definition. In India, evidentiary value of electronic records which includes social media in its ambit is discussed widely under Section 65A and Section 65B 74 of the Indian Evidence Act, 1872. In a recent Quebec court’s decision, the Commission des Lesions Professionnelle has held that posts from the social networking site Facebook are admissible in evidence, based in part on its finding that all Facebook content content is in the public domain. 75 Thus not only a majority of the countries but even international courts and tribunals have recognised social media as a valid source of evidence. The evidentiary value of social media can be appreciated the most in the cases of human rights violations. Social Media has been frequently used to establish the grounds for persecution indictments and to provide a basis for an international investigation. International NGOs like Human Rights Watch and WITNESS have been collecting photos and videos of state-sponsored state-sponsored violence 72 B.

Cole, The Web as a Spotlight: An Alternative Look at Technology in the Arab Spring, Huffington Post, (Apr. 8, 2011), available at http://www.huffingtonpost.com/ben-cole/the-web-asaspotlight-an_b_850679.html 73 Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on the Prosecutor’s Motion for Admission of Certain Exhibits into Evidence, Case No. ICTR-98-44-T, (25 Jan 2008) ¶ 5; The Prosecutor v. Alfred Musema, Judgment and Sentence, Case No. ICTR-96-13-T, (27 IGHTS AND January 2000) ¶ 53; See also O’NEILL, ET AL., R APOPORT CENTRE FOR HUMAN R IGHTS INE IN OLD W INESKINS INESKINS? NEW PROBLEMS IN THE USE OF ELECTRONIC JUSTICE, NEW W INE EVIDENCE IN HUMAN R IGHTS IGHTS INVESTIGATIONS AND PROSECUTIO PROSECUTIONS NS (2011). 74 65A: Special provisions as to evidence relating to electronic record; 65B: The contents of electronic records may be proved in accordance with the provisions of this section. 75 See generally Legal Update, Employment and Labour, Occupational health and safety and workers’ compensation , (August 2011) http://www.nortonrosefulbright.com/files/facebook-content-isheld-to-be-admissible-in-evidence-pdf-83kb-55617.pdf ; R. Hudon, C. Tremblay, N. Aubin March 2009. C.L.P. 412395-62C-1006, 2011 Q CCLP 1802.

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from all over the world. Information created and disseminated via web based technologies (social media) form a considerable part of their evidence. These evidences, though, might only be having persuasive and influential value at present but their increasing recognition as potent evidence cannot be ignored. A famous example of use of electronic evidence is the case of admissibility of Nick Hughes’s video footage in the infamous Rwandan genocide case. In this case, in 1998, Hughes, a British Reporter shot a video of the murder of a father and his daughter and other victims. This footage was admitted as “Exhibit 467” in the trial of George Rutaganda before International Criminal Tribunal for Rwanda who was convicted and sent to Prison in 1998. 76 Photographs have also been used to document human rights abuses since long time. Foremost examples of photographs being taken into documentary account are the photographs of atrocities of the Opium Wars in China, and the famous photograph of Kim Phuc, the Vietnamese child running.77 In the Milutinovic Trial at the International Criminal Tribunal for Yugoslavia (ICTY), the Chamber had admitted the Prosecutor’s submission of footage from the BBC and CNN after considerable perusal of their authenticity. 78 Text messages have also been considered as valid evidence sometimes.79 Another landmark development development in such case is the formation of the platform called Wiki Leaks. This ‘whistleblower site’ posted original classified documents of the government, organisations and corporations online. This also included secret military documents of Afghanistan wars and Iraq wars which were certainly an eye opener for the whole world. The US Government reacted swiftly and sharply to such disclosure which can be seen from the following statement made made by Richard Hass, President President of of Council on Foreign Relations, Relations, United States of America that, “Foreign governments may think twice before sharing their secrets or even their candid judgments with American counterparts counterparts lest they read about them on the Internet; resulting reticence will deprive N. HUGHES, Exhibit 467: Genocide Through a Camera Lens , THE MEDIA AND THE R WANDA GENOCIDE (2007). 77 S. Saywell, Kim's Story, The Road from Vietnam, Canadian Centres for Teaching Peace available at http://www.peace.ca/kimstory.htm [Last Accessed on 27 July 2013]. 78 Prosecutor v. Milutinovic et al ., ., Decision on Prosecution Motion to Admit Documentary Evidence, Case No. IT-05- !87-PT, (10 October 2010). 79 Neal Ungerleider, Violence and Death in Africa, 160 Characters at a Time , Fastcompany, (October 5, 2010) available at http://www.fastcompany.com/1693190/nigeria-sms-text-message-riot 76

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policymakers of an important source of information and make decision making more ad hoc and less systematic than it needs to be.” 80 Such reaction by USA initiated a chain of events which saw country heads reacting sharply and countries working upon their cyber and whistleblower laws. 81 It can thus be inferred that an unspoken and instant custom developed among the nation states to condemn such acts and to send out a strong deterrence message by collectively taking a stand against such disclosure. The most noticeable recognition of electronic media, which impliedly includes social media, is from the United Nations itself.82 When it comes to digital evidence, the principle of Chain of Custody is is put to use. This principle is used in determining admissibility of digital evidence taking into account the fact that digital evidence can be changed/tampered with.83 ‘Chain of custody’ refers to the “chronological and careful documentation of evidence to establish its connection to an alleged crime or incident”.84 From the beginning to the end of the process, it is necessary to be able to demonstrate every single step undertaken to ensure ‘traceability’ and ‘continuity’ of the evidence from the incident to the courtroom. 85 In this determination, the principle of chain of custody is applied to digital evidence in the same manner as it is applied to physical-documentary evidence, thereby providing scope for its admissibility. Considering the fact that this sort of admissibility is recognised by the United Nations and no country has expressly opposed this admissibility, implies the opinio juris of all the states to be actively and willingly bound by the United Nations resolutions and conduct.

80

81

82

83

84 85

How to Read WikiLeaks , available at R.N. Hass, (Nov 29, 2010) http://www.cfr.org/diplomacy-and-statecraft http://www.cfr.org/diplomacy -and-statecraft/read-wikileaks/p23 /read-wikileaks/p23500?cid=rss-fullf 500?cid=rss-fullfeedeedhow_to_read_wikileaks-112910 how_to_read_wikileaks-11 2910 [Last Accesse on 5 April 2014]. Gillard Condemns Wikileaks , The Sydney Morning Herald, Dec 2, 2010. Black, Sherwood & Kamali, WikiLeaks claims are 'psychological warfare' says Ahmadinejad, The Guardian, Nov 29, 2010. See , UNITED N ATIONS OFFICE ON DRUGS AND CRIME (UNODC), CRIME SCENE AND PHYSICAL E VIDENCE A WARENESS FOR NON FORENSIC PERSONNEL (New York, 2009). Lucy L. Thomson, Admissibility of Electronic Documentation as Evidence in U.S. Courts , Centre For Research Libraries, Human Rights Evidence Study, (December 1, 2009), available at http://www.crl.edu/sites/de http://www.crl.edu/sites/de fault/files/attachments/pages/Thomson-E-evide fault/files/attachments/pages/Thomson-E-evidence-report.pdf nce-report.pdf Id. Id .

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This admissibility proved to be sufficiently useful in Muhammar Gaddafi’s murder case.86 In October 2011, cell phone videos surfaced depicting Muhammar Gaddafi’s death. These videos raised suspicions of war crimes following which the International Criminal Court (ICC) Prosecutor proceeded with the prosecution prosecution and investigation. These videos were used as corroborative evidence by the ICC prosecutor to scrutinise whether Gadaffi’s death was a war crime.87 The admissibility of such evidence led to the proof of gross International Humanitarian Law violations, putting liability on the state actors responsible for it. No time could be lost in proving first that such videos can be admitted as evidence because it would run the risk of counter-actions by the state. The Instant Customary Law which had developed in favour of its admissibility, and which Libya had become a party to by not objecting to such practice being followed by other countries and by UN, became binding on Libya. Such instances are strengthening the belief in admissibility of social media as evidence. As a result, there are many organisations today that are active in collecting electronic evidence evidence and digital news and incident reports. 88 It is quite clear that a customary law is established when it influences state conduct because of its legal nature. 89 One of the most qualified commentators on the jurisprudence of international law, Sir Hersch Lauterpacht opines that all uniform conduct of Governments (or, abstention there from) should be regarded as evidence of the opinio necessitates juris except when it is shown that conduct in question was not accompanied by any such intention. 90 The general recognition test regarding customary law could be found in West Rand Central Gold Mining Company Ltd. V. The King 91 wherein the court ruled that a valid international custom should be proved by satisfactory evidence that the The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi [2012]. ICC- 01/11-01/11. 87 Sheridan, Groups seek probe of Gaddafi’s death, The Washington Post, October 22, 2011. 88 International NGOs like Human Rights Watch and WITNESS are some of the examples of such organisations. A famous organisation of Mexico called Canalseisdejulio (Canal 6) is active in collecting alternative information outside the influence of state-sponsored media and large private houses. 89 See generally J J ACK L. GOLDSMITH & ERIC A. POSNER , THE LIMITS OF INTERNATIONAL L AW 3 (2005). (Based on the reasoning that international law evolves as a result of states acting rationally to maximise their interests, according to the distribution of state power, and the perceptions of other states’ interest). 90 H. L AUTERPACHT , THE DEVELOPMENT OF INTERNATIONAL L AW B Y THE INTERNATIONAL COURT, (Cambridge University Press, 2003). See also the dissenting opinion of Judge Lachs in North Sea Continental Shelf Cases; Federal Republic of Germany v. Denmark and The Netherlands [1969] I.C.J Reports 3. and D’Amato, Supra note 16. 91 West Rand Central Gold Mining Company v. The King, 2 K.B. 291[1905]. 86

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custom is of such a nature that it has received general consent of the states and no civilised states shall oppose it. The above quoted illustrations prove to a certain extent that the admissibility, acceptability and recognition of social media as valid evidence in the international arena can be termed as a form of Instant Customary Law. The discussion in the North Sea Continental Shelf Cases92 is consistent with this inductive reasoning, “Some states have at first probably accepted the rules in question, as states usually do, because they found them convenient and useful, the best possible solution for the problems involved. Others may also have been convinced that the instrument elaborated was to become and would in due course become general law. Many states have followed suit under the conviction that it was law.” In other words, the quiet or otherwise acceptance of a rule by state should be seen as a milestone in the establishment of that rule as a generally accepted law.

IV.

CONCLUSION

We conclude by remarking that the growth of law is imperative with the evolution of society. Similar is the case with International Law with respect to customary formation of law and international relations. Codification is a universally progressive step in the path of law and Instant Customary Law vouches for something similar. Instant Customary Law warrants w arrants that a gestation period is not necessary for the formation of customary rules and aims to remove the arbitrariness emerging out of it by focusing on the systemised aspect of sources of International Law i.e. treaties and resolutions. In light of the various new age global phenomenon which have emerged in the past couple of decades instantaneous action is the need of the hour, not only because time is of utmost consideration but systemised action is desirable and serves a constructive purpose. This systemisation is in contrast to the uncertainties prevailing in traditional customary law due to the long gestation period and no settled mechanism to discern the legal intent out of state practice or settle upon a specified time period for a state practice. A definite time period is also not plausible because of differing facts, circumstances and municipal laws or customs.93 Therefore Instant Customary Law by relying on just one decisive element limits these uncertainties, making it more determinable and systemised. 92 93

ICJ Reports, 1986 1986 at 98; 76 ILR at 432. Supra note. 1 at 76.

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International Law is becoming increasingly and intrinsically dynamic in its approach. With the United Nations gradually increasing its stronghold over global affairs over time, establishing its authority as a supra-national body, and states striving for express recognition of formal legal intent along with state practice, Instant Customary International Law tries to bridge this gap between customary recognition of a state’s legal intent and minimal state practice. Though semantically, it comes c omes across as a paradoxical term in itself but it is not contradictory semantics which we should be worried about. Instantaneous recognition of state practice as customs is becoming increasingly prevalent and can be easily touted as the way forward. The Bush Doctrine, legal effect of UN resolutions and treaties, the the Arab Spring in context of Libya and the emerging admissibility and evidentiary value of digital-social media in custom formation were some of the various incidents to fathom the depth and reach of the practicability of Instant Customary International Law. It should not be understood as an opposition to the Customary Source of International Law, but rather as Customary Law reequipped to be able to discern and explain the contemporary global phenomenon which could not have been predicted while the traditional view of Customary International Law had installed itself back in the 1940’s and 1950’s. It proves to be an efficient rule to bind states, which otherwise wouldn’t have been bound, and questions the states of their practice, while being an equally efficient tool of understanding International State actions from a customary perspective. It would, without an iota of incertitude, prove to be a prominent source of international law and a much-discussed aspect of customary law in future, with all its uncertainties and a nd unenforceability resolved.

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A CRITICAL OVERVIEW OVERVIEW OF THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) (REGULATION) BILL, 2010

Sriparna Dutta Choudhury * The practice of surrogacy today contemplates the use of assisted reproductive technology, technology, which makes it possible possible for couples who are unable to conceive conceive children, to use their own gametes to create their own unique embryos embryos and for these embryos to be transferred to a surrogate. 1However, like most other developments in reproductive biology, the public perception of surrogacy vacillates between two extremes: pro-family action on one hand and commodification of women as breeder machines on the other. Contributing to this polarisation of opinion is the growing popularity of India as a prefer p referred red destination for surrogacy on account of its lack of well-defined laws on the subject. Therefore, there is an urgent need to establish a legal structure to regulate the burgeoning surrogacy industry in India and address the ethical, sociological and economic concerns associated with it. The Assisted Reproductive Technologies (Regulation) Bill, 2010, currently pending in Parliament, aims to achieve the abovementioned goals. goals. However, there exists much much scope for improvement imp rovement on various various key parameters. This paper attempts to identify and address the shortfalls and omissions in the Bill and suggests policy recommendations recommendations for protection p rotection of rights, rights, particularly those of the surrogate mother.

I.

INTRODUCTION

In Indian society, the institution of marriage is sacrosanct and plays a pivotal role in the continuation of lineage. The ability to produce children or procreation is generally considered by society to be one of the fundamental concomitants of marriage. The hurdle hurdle arises when a couple couple is unable to procreate through conventional biological means. However, due to advancements in medical science, infertility is not an ineradicable hurdle or a reason to remain distant from experiencing parenthood any more. In this regard, it is surrogacy su rrogacy which embraces these striving parents with hope. "

1

IInd year, L.L. B., Campus Law Centre, Faculty of Law, University of Delhi. EPRODUCTION UPDATE, Vol. 9, No. 5, 483Peter R. Brinsden, Gestational Surrogacy , HUMAN R EPRODUCTION 491 (2003) available at http://humupd.oxfordjournals.org/content/9/5/483.full.pdf?origin=publication_detail.

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Surrogacy is commercial or altruistic depending on whether the surrogate receives financial remuneration/compensation for her assistance or not. Commercial Surrogacy is a form of surrogacy in which a gestational carrier carrier is paid to carry a child to maturity in her womb and is usually resorted to by well to do infertile couples who can afford the cost involved.2 Altruistic surrogacy, on the other hand, is the kind wherein there is no involvement of money as a consideration consideration for the surrogate. The surrogate sur rogate carries the child of a couple purely on the basis of love and affection. Today, there is prolific growth in reproductive tourism and especially, commercial surrogacy. This proliferating nature of commercial surrogacy led the Apex Court of India to observe in Baby Manji Yamada v . Union of India and Another 3 , that commercial surrogacy is reaching “industry proportions”. The Court declared commercial surrogacy and surrogacy contracts as legal. The Court stated that, “Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party”.4 India has emerged as a favoured surrogacy destination primarily for two reasons – (i) affordable high end medical facilities as compared to developed countries and (ii) absence of governmental regulations. 5 At the present time, there is no law to govern surrogacy in India with the Assisted Reproductive Technologies Technologies (Regulation) Bill, 2010 still pending in Parliament. 6 The Assisted Reproductive Technologies (Regulation) Bill (hereinafter referred to as the “Bill”) was introduced by the Ministry of Health and Family Welfare in 2010 to codify the use of artificial reproductive technologies in the wake of legal, ethical, commercial, and technological challenges that existed within India’s reproductive reproductive advancemen advancementt domain. Chapter 1 of the Bill captioned ‘Definitions’ gave expression expression to the Baby Manji judgment through section 2(aa) which defines surrogacy as “an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her 2 3 4 5

6

Baby Manji Yamada v. Union of India & Another, AIR 2009 SC 84. AIR 2009 SC 84, ¶ 9. Id at at ¶ 5. India’s Surrogate Mother Business Raises Questions of Global Ethics , The Associated Press, Dec 30, 2007. Ghulam Nabi Azad, Surrogacy Bill in the Offing , Indian Express, Apr 11, 2013.

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or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate”. surro gate”. Using this as the starting point, the following section will examine examine the flaws in the Bill. It will attempt to address the implications the Bill has on the rights and duties of the parties involved, the health of the surrogate, questions of bodily autonomy and its client centric tendency.

II.

INHERENT LOOPHOLES IN THE BILL A. RIGHTS AND DUTIES

Integral to and in connection with the definition clause are the rights and duties of the parties involved in relation to surrogacy. Section 34 of the Bill under Chapter VII discusses rights and duties of patients, donors, surrogates and children. Clause (13) of section 34 states “a surrogate mother shall not act as an oocyte donor for the couple or individual, as the case case may be, seeking surrogacy”. It essentially signifies that the surrogate cannot act as the biological mother of the child. This in turn implies that most surrogacy arrangements would take place with a woman who would definitely have to relinquish the child. Since the surrogate would have no choice in the matter of relinquishment, the ‘only-surrogate and not-donor’ specification underpins the acceptance of commercial surrogacy. However, section 34(18) 34(18) is an exception, which makes room for a relative of the commissioning parents to serve as the surrogate mother, and thus extends its purview to include altruistic surrogacy. It states that a person, known or unknown to the couple, can act as a surrogate provided that in case of a relative acting as surrogate, she should belong to the same generation as the women desiring the surrogate. The issue arises in ascertaining if at all there is a departure from the usual course of procedure procedu re in case of a relative volunteering as a surrogate. sur rogate. The Bill fails to mention the terms and conditions of such agreement and if at all; the participation of a relative as a surrogate is subject to the same regulation as that of commercial gestational surrogacy. Hence it leaves these aspects to the whims and fancies of the commissioning parents. B. HEALTH Section 34(5) of the Bill states “…no woman shall act as a surrogate surro gate for more than five successful live births in her life, including her own children”. 145

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This provisio p rovision n is rendered inadequate by the insertion of the word “live”. This word overlooks overlooks a critical aspect to the surrogate’s sur rogate’s health i.e., the number of permitted cycles she can undergo. The number of live births is not equivalent to the number of ART cycles the surrogate undergoes, as the success rate of the procedure is low. Thus, in order to effectually ensure that this commercialisation of manufacturing another’s offspring doesn’t lead to exploitation of the surrogate’s health, the maximum number of ART cycles permitted ought to have been specified in the Bill. The Bill leaves out yet another important aspect i.e .,., breastfeeding. Breastfeeding carries tremendous health benefits both for the child and the mother. A study conducted by the World Health Organisation shows that babies who are fed breast milk have a lower risk of gastro-intestinal illness, illness, allergies, diabetes, chest infections, SIDs (cot death). It is argued ar gued that a woman’s right to breastfeed her child is a human right apart from the obvious and immense health benefits. It assists the uterus to return to its pre-pregnant state faster and reduces the risk of ovarian cancer, osteoporosis, and gestational diabetes and also helps to lose weight after child-birth. child-birth. The Bill fails to mention the period for which the new born born is to be kept with the the surrogate sur rogate if any health related complication of the baby arises. The Bill also suffers from the omission of a provision for counselling of the surrogate in case of any trauma or medical complication post delivery. A study conducted by Canadian Mental Health Association brings into light that post-partum depression is one such complication that is experienced by almost 20% of new mothers. Counselling services should be made available not only for making it easier for a surrogate to part from the child but also to help cope up with separation pangs after she has relinquished the child. Such needs must be taken care of by the intending parents as psychological disorders are a part of the same mutually agreed transaction namely pregnancy. C. CLIENT CENTRIC A combined reading of section 34(2) and 34(3) portrays the Bill to be favouring the client more than the surrogate. Section 34(2) provides that all expenses related to a pregnancy achieved in furtherance of assisted reproductive technology till the child is ready to be delivered as per medical advice to the biological parents shall be borne by the couple or individual seeking surrogacy”. Whereas section 34(3) states, “…the surrogate mother may

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also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate”. sur rogate”. The term “shall” has been employed in section 34(2), thus making it mandatory for the intending couple to financially protect the surrogate during the full tenure of surrogacy. surro gacy. On the other other hand, the term term employed in section 34(3) with respect to monetary compensation is “may be” and ergo puts the encumbrance on the surrogate mother to claim it. This not only acts as a stumbling block in case of enforcement of monetary compensation but also epitomises the policy maker’s abdication of his primary role as the defender of the rights of the the citizens in favour of his secondary role role as promoter of fertility tourism. It also raises a question on the benefit of having a legislation that puts a surrogate in between altruism and commercial without clearly taking a stand. Most surrogates surro gates come from the lower lower economic and social strata of the society with little education and limited income earning opportunities. The cumulative effect of all these factors makes poverty-stricken women in India India prone to economic exploitation by agents working for commissioning parents. In order to pre-empt them from such abuse and exploitation, a mandatory provision of of independent advocacy for the surrogates surro gates to represent their interests to both the clients (commissioning parents) and the clinician should be endorsed in the Bill. Independent advocacy would also be an effective remedy for contract negotiations and medical decision making on the part of the surrogate. sur rogate. The current cur rent Bill fails to address any of of these concerns and thus, thus, undermines the role of the surrogate. The Bill in section 34(24) mentions that the commissioning parents shall ensure that the surrogate mother and the child she delivers are “appropriately insured”. Insurance is indeed indispensable but the insertion of the word ‘appropriate’ is not sufficiently sufficiently lucid and thus leaves scope for possible misuse of this provision which is detrimental to the interest of the surrogate. Hence, the language of the Bill needs elaboration on the nature and extent of insurance that should be provided. D. BODILY AUTONOMY The Bill in section 23(5) seizes the surrogate’s sur rogate’s rights of bodily autonomy to choose her own reproductive rights and places the power to decide in the hands of the commissioning parents. It states “Where a multiple pregnancy occurs as a result of assisted reproductive technology, the concerned 147

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assisted reproductive technology clinic shall inform the patient immediately of the multiple pregnancy and its medical implications and may carry out foetal reduction after appropriate counselling”. This section seems to be in conflict with the judgment given in Suchita Srivastava v. Chandigarh Administration 7, where it was held – “the woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. Reproductive choices can be exercised to procreate as well as to abstain from procreating”. Further, Fu rther, in B.K. Parthasarthi v. Government 8 of Andhra Pradesh , the High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy”. The Committee on on Ethics of the American American College of Obstetricians and Gynaecologists9 stated in the Committee Opinion “…multi-foetal pregnancies increase the risk of both maternal and neonatal morbidity and mortality. Maternal risk of multi-foetal pregnancies includes hypertension, preeclampsia, gestational diabetes and postpartum haemorrhage”. A woman’s right to control her body far outweighs others’ right to have the kind and number of children they want and also such maternal risk cannot be looked upon as an occupational hazard. Thus, Thus, the Bill has failed considerably to protect the rights and welfare of those women who are the bedrock upon which the assisted reproductive technology industry is built. All major decisions relating to the foetus as well as the gestating mother, including necessary abortion during the full tenure of the pregnancy, should be the sole discretion of the surrogate and not be subject to the wishes of the intending couple. Due to fallacy in the language of the current Bill, the surrogate’s surro gate’s service service shifts from the voluntarism voluntarism of the surrogate’s womb to the complete temporary rental of her body, thereby depriving the sur surrogate rogate of her fundamental fundamental reproductive rights. rights. In the domain of surrogacy, reproductive autonomy of the surrogate holds paramount significance, the negation of which would tantamount to subjugation, oppression and exploitation of the surrogate. Unfortunately, the western liberal feminist perspective of considering surrogacy su rrogacy as an exercise of reproductive choice and economic autonomy doesn’t apply to Indian 7 8 9

AIR 2010 SC 235. AIR 2000 A.P.156. Pregnan cy Reduction, Committee Com mittee American College of Obstetricians and Gynecologists, Multifetal Pregnancy Opinion No. 553, (Feb 2013), available at https://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on _Ethics/Multifetal_Pregnancy _Ethics/Multifet al_Pregnancy_Reduction. _Reduction.

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surrogates. The existence of choice on part of these women is highly disputable owing to the socio economic conditions which determine their choice. It is argued that their freedom of choice is often eclipsed by poverty, low education levels, marginalisation in labour markets and patriarchal social and family structure and hence, their freedom of choice is socially and economically constructed. Moreover, the prevalence of the patrilineal descent 10 as well as patrilocal residence 11, and the scourge of the dowry system can make a woman vulnerable to forced surrogacy sur rogacy by a mother-in-law or husband12. In such social conditions, there may exist a situation where the consent obtained from the surrogate may not be consent in the true sense of the word. Though the provisions of the Indian Contract Act, 1872 may apply in such situations, the need for the Bill itself to provide for a consent mechanism to examine if the consent obtained is true, bona fide, free and out of one’s own volition is essential and cannot be ignored. Thus, legalising commercial gestational surrogacy surro gacy as intended by the Bill without without mechanisms from within the Bill that protect the rights of the the surrogate surro gate actively is likely to to leave much much room for adverse interpretation and abuse.

III.

CONCLUSION

The Assisted Reproductive Technologies Bill intends to legalise commercial surrogacy. However, the worldwide discourse on the ethical and moral facets seems to have have been ignored. The Bill also rejects rejects the recommendations of the Law Commission in its 228th Report 13, which is incidentally titled, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy”. The said Report had recommended banning commercial surrogacy while accepting altruistic surrogacy surro gacy in India. There exists a need to redefine and restructure the Bill in order to balance the risks and benefits of surrogacy. On one hand, while banning surrogacy completely on vague moral grounds would be futile, on the other hand, legalising commercial surrogacy is also not free Unilineal descent that follows the male line also known as ‘agnatic descent’. The residence pattern in which a newly married couple moves in with or near the groom’s father’s house. 12 Aastha Sharma, Surrogacy: Law’s Labour Lost , The Hindu, July 25, 2010. 13 L AW COMMISSION OF INDIA, NEED FOR LEGISLATION TO R EGULATE EGULATE ASSISTED EPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS R IGHTS IGHTS AND OBLIGATIONS OF P ARTIES R EPRODUCTIVE TO A SURROGACY , NUMBER 228, (Aug 5, 2009) available at http://lawcommissionofindia.nic.in/ reports/report228.pdf. 10 11

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from questionable ends. Since surrogacy is a complex concept, the law must be equally comprehensive in defending human liberty and facilitating realisation of positive entitlements. Due to the involvement of commerce in most surrogacy arrangements, the role of a surrogate is not only an extremely crucial one but it is also immensely vulnerable to pressure and duress. The entire burgeoning bur geoning industry of surrogacy sur rogacy pivots around the surrogate and her womb. Only when the Indian society enters the era of postfeminism where equal rights for women means giving giving women the autonomy to choose for themselves, can commercial surrogacy surro gacy be espoused in a truly egalitarian manner.

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