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Evolution of basic structure doctrine in India

This post has been authored by Hiral Chandrakant Jadhav- Panchal

EVOLUTION OF BASIC STRUCTURE DOCTRINE
1.    A.K. Gopalan v. State of Madras (1950)

In the A.K. Gopalan v. State of Madras (1950) case, the Supreme Court interpreted the Fundamental Rights under Part III of Indian Constitution.

In this case, it held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.

This means that the State can deprive the right to life and personal liberty of a person based on a law.

This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution.

Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair, or unjust.

Secondly, the Supreme Court held that ‘personal liberty’ means only liberty relating to the person or body of the individual.

2.     Shankari Prasad v. Union of India (1951)

In this case, the constitutional validity of the First Amendment Act (1951), was challenged.

The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.

The word ‘law’ in Article 13 includes only ordinary laws and not constitutional amendment acts (constituent laws).

Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

  1. Berubari Union Case (1960)

In this case, the issue was resolved about whether the Preamble is part of the Constitution or not.

According to the Supreme Court, in the Berubari Union case (1960), the Preamble shows the general purposes behind the several provisions in the Constitution and is thus a key to the minds of the makers of the Constitution.

Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble.

Despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that the Preamble is not a part of the Constitution.

Therefore, it is not enforceable in a court of law.

  1. Golaknath v. State of Punjab (1967)

In that case, the Supreme Court ruled that the Parliament cannot take away or abridge any of the Fundamental Rights.

The Court held that the Fundamental Rights cannot be amended for the implementation of the Directive Principles.

The Parliament reacted to the Supreme Court’s judgement in the Golaknath Case (1967) by enacting the 24th Amendment Act (1971) and the 25th Amendment Act (1971).

  • The 24th Amendment Act declared that the Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts.
  • The 25th Amendment Act inserted a new Article 31C which contained the following two provisions: No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14, Article 19, or Article 31.

No law containing a declaration for giving effect to such a policy shall be questioned in any court on the ground that it does not give effect to such a policy.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

5. Indira Nehru Gandhi v. Raj Narain case (1975)

The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975).

In this case, the Supreme Court invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts.

As per the court, this provision was beyond the amending power of Parliament as it affected the basic structure of the constitution.

The Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976).

This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

  1. Minerva Mills v. Union of India (1980)

The Supreme Court reiterated that Parliament can amend any part of the Constitution but it cannot change the “Basic Structure” of the Constitution.

In the Minerva Mills case, the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.

They together constitute the core of the commitment to social revolution.

The goals set out by the Directive Principles have to be achieved without the abrogation of the means provided by the Fundamental Rights.

Therefore, the present position is that Fundamental Rights enjoy supremacy over Directive Principles.

Yet, this does not mean that the Directive Principles cannot be implemented.

The Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of the Constitution.

7.  S. R. Bommai v. Union of India (1994)

In this case, the Supreme Court laid down that the Constitution is federal and characterised federalism as its ‘basic feature’.

It observed the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the states are mere appendages of the Centre.

The states have an independent constitutional existence. They are not satellites or agents of the Centre. Within the sphere allotted to them, the states are supreme.

The fact that during an emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal feature of the Constitution.

They are exceptions and an exception is not a rule. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle–the outcome of our own process and a recognition of the ground realities.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

  1. Keshavanda Bharti v. State of Kerala (1973)

It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that the “basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:

  • Supremacy of the Constitution
  • Unity and sovereignty of India
  • Democratic and republican form of government
  • Federal character of the Constitution
  • Secular character of the Constitution
  • Separation of power
  • Individual freedom

Over time, many other features have also been added to this list of basic structural features. Some of them are:

  • Rule of law
  • Judicial review
  • Parliamentary system
  • Rule of equality
  • Harmony and balance between the Fundamental Rights and DPSP
  • Free and fair elections
  • Limited power of the parliament to amend the Constitution
  • Power of the Indian Supreme Court under Articles 32, 136, 142 and 147
  • Power of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.

9. Waman Rao Case (1981)
  • The SC again reiterated the Basic Structure doctrine.
  • It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.
  • In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
    • The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws.
    • This was done in order to prevent them from being challenged in court.
    • Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.
    • Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.
  • The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those passed after that date can be subject to scrutiny.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

  1. Indra Sawhney and Union of India (1992)

SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)

  • Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
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Right to Privacy and its Significance in Social Media

Life and personal liberty can be considered as inalienable rights which an individual enjoys by virtue of being a human. These rights are inseparable from a dignified human existence.[1] According to J S Mill, “privacy is an aspect of liberty grounded on the permanent interests of man as a progressive human being”.[2] It exists in every human being, irrespective of socio-economic status, gender or orientation.

Until a few years ago, there was a lack of clarity with respect to the scope of the right to privacy under the Indian Constitution. However, in 2017, the nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy v. Union of India[3] held that privacy is a fundamental right, as part of the right to life and personal liberty under Article 21. However, it cannot be considered as an absolute right and is subject to invasion by state, only if such an invasion is based on “legality, need and proportionality for safeguarding this cherished right”[4].

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It is pertinent to note that privacy should not only be protected in the physical world but in cyberspace as well. The use of the Internet and social media has become very common in India owing to the availability of smart devices, lower internet tariffs and global connectivity.

The social media platforms, on one hand, provide an effective platform to freely express oneself to a large audience, and on the other hand, risk the exposure of certain sensitive personal data of the users. In certain situations, the user is aware of the information being collected by the social media networking sites, however, there might also be instances where the user is completely unaware of the information trail he is leaving online, over which he has no control. Such information can be used by potential offenders to commit physical crimes. For example, in 2016, a group of thieves pretended to be Police officials, entered a hotel in Paris where Kim Kardashian,[5] an American model, was staying for the time being and robbed her at gunpoint. It was later found out that the thieves were following Kim’s Instagram posts where she uploaded pictures wearing costly jewellery and tracked down Kim’s location using her Instagram. This instance shows how potential cybercrime offenders can exploit social media platforms to commit conventional crimes. This example was just one of many instances where information either provided or retained by the social media sites could be made use of for purposes unknown to the user, thus violating the user’s privacy. Therefore, just like any other aspect of life, privacy is an indispensable part of social media life as well.

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The existing and emerging legal framework governing the right to privacy vis-à-vis social media in India

  • The Information Technology Act, 2000 (I.T. Act)[6]

The right to privacy in social media has been protected in India even before privacy was even recognized as a fundamental right. The Information Technology Act, 2000 is considered comprehensive legislation dealing exclusively with the aspects of privacy in the realm of cyberspace.

Section 43A of the I.T. Act obligates a body corporate that possesses, deals or handles any sensitive personal data or information in a computer resource, to implement and maintain reasonable security practices and procedures. If the body corporate fails to do so, and as a result, there is a wrongful loss or wrongful gain to any person, such body corporate can be made to pay damages to the affected person.[7] The provision further defines ‘body corporate’[8] and ‘reasonable security practices and procedures[9].

Furthermore, the I.T. Act, under Section 69A, authorizes the Central Government to block public access to any information through any computer resource under certain grounds[10]. This provision has been relied on by the Government to ban various Chinese apps, including the social media site TikTok, over privacy concerns.[11]

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  • The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) [SPDI] Rules, 2011[12]

With respect to the reasonable security practices and procedures which the body corporate is required to implement under the I.T. Act, section 43A has to be read with the SPDI Rules of 2011. These rules provide a detailed framework for the implementation of section 43A.

The Rules firstly define ‘personal information[13] and ‘sensitive personal data or information.[14] It obligates the body corporate to-

  1. Provide a privacy policy for handling personal information, including sensitive personal information, to the users[15]. The same has to be published on the website of the body corporate[16];
  2. Obtain the consent of the user providing sensitive personal information, regarding the purpose of usage, before collecting such information[17];
  • Take prior consent of the user before disclosing any sensitive personal information of the user to a third party[18];
  1. Have a documented policy containing managerial, technical, operational and physical security control measures that are proportional to the information assets being protected with the nature of business.[19]

Therefore, it is evident that the SDPI Rules primarily cover privacy concerns over sensitive personal information. However, such protection has not been provided to the personal information of the user.

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  • The Personal Data Protection Bill, 2019[20] (PDP Bill)

Taking into account the limited protection provided to privacy on social media by section 43A of the I.T. Act read with the SDPI Rules of 2011, and the judgement of the Apex Court in the Puttaswamy case[21] recognizing privacy as a fundamental right, the Personal Data Protection Bill, 2019 was finally drafted to provide a robust framework on privacy and data protection in India.

The Bill defines ‘personal data’[22], ‘sensitive personal data[23], ‘data principal’[24], ‘data fiduciary’[25] and ‘consent’[26].

By dealing with the loopholes of the existing legal framework in India, the PDP Bill obligates the processing of ‘personal data of an individual only for specific, clear and lawful purposes [27]. It further provides that processing of personal data should be carried out in a fair and reasonable manner to ensure the privacy of data principal and for the purpose consented to[28]. Furthermore, personal data should be collected only to the extent necessary for the purpose of processing.[29]

With respect to the consent of data principal, consent should be obtained prior to processing of personal data[30] and should be specific vis-à-vis the purpose of processing[31]. Furthermore, with respect to consent for the processing of sensitive personal data, it should be obtained after giving the choice to the data principal to separately consent for purposes of the use of different categories of sensitive personal data[32].

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The PDP Bill has not yet become law and is currently referred to the Standing Committee[33].

  • The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[34]

The Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which replaced the Information Technology (Intermediaries Guidelines) Rules, 2011.

Under the Rules, the intermediary is required to publish its privacy policy on its website[35]. Further, the intermediary is required to periodically inform its users that in case of non-compliance with privacy policy, it has the right to terminate the account of such users [36]. However, the Rules do not talk about the elements and aspects of the privacy policy, leaving it to the whims and fancies of the intermediaries in the absence of a privacy and data protection framework in India. Furthermore, the provision of traceability of originator of information[37] under Rule 5(2) has the implication of violating the privacy of the users as for tracking the first originator of a message/information, the intermediary should have access to the metadata of the entire chain of the conversation. Therefore, in order to comply with the traceability requirement, the significant social media intermediaries will have to break end-to-end encryption, thereby compromising the privacy of communication.

WhatsApp privacy policy issue

The current privacy policy change by WhatsApp is undoubtedly the best example to illustrate the concern of the right to privacy on social media. Before understanding the implications of policy change in 2021, let us first understand the policy change in 2016.

WhatsApp was launched in 2010 and was bought by Facebook in 2014. Facebook affirmed that it would not change the privacy policy of WhatsApp. However, in 2016, WhatsApp announced a change in its privacy policy to be effective from the 25th of September 2016. The new policy sought to collect information like phone numbers, names, device information etc. of every WhatsApp account, and share the same with the parent company, Facebook. As a result, a petition was filed in the Delhi High Court challenging the change of the policy. In Karmanya Singh v. Union of India,[38] the Delhi High Court rejected the petition but directed WhatsApp to delete the data collected till 25th September 2016 from its servers. The information shared post-25th September was allowed to be shared according to the new policy. Aggrieved by the decision, the petitioners appealed to the Supreme Court, where this case is presently pending.[39]

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In January 2021, WhatsApp came up with a new privacy policy that basically does not touch upon the end-to-end encryption feature, however, WhatsApp can now share user metadata with its parent company and its subsidiaries[40]. WhatsApp gave two options to its users- either accept the policy and continue using the platform, or the WhatsApp account will be eventually deleted. Therefore, in essence, an opt-out option for the new policy change was not provided to the users.

Taking these developments into account, an application[41] was filed in the Apex Court challenging the new privacy policy. The application claimed that WhatsApp was offering lower privacy protection in India as compared to Europe[42]. The primary issue in the case is whether the ‘opt-out’ provision simply opts out of the application in totality i.e. whether WhatsApp is obligated to provide a specific option of ‘Not sharing data with Facebook. The case is currently pending in the Supreme Court.

It is pertinent to note that WhatsApp was able to come up with a privacy policy of ‘take it or exit it’ because of the lack of privacy and data protection framework in India. In such a situation, users have to rely on the privacy policies of the company as the I.T. Act read with SDPI rules provide very limited protection in this regard. If the PDP Bill had become law, WhatsApp would never be able to come up with a policy like this as the provisions of the Bill ensure that information is collected only for a specific purpose for which consent of data principal is explicitly taken and that the data fiduciary takes consent for processing sensitive personal data separately for each different purpose[43]. This provision would have prevented WhatsApp from taking consent for both purposes (for a chat with friends and family and chat with businesses) together, as messages with business entities could reveal sensitive personal data like health information, sexual orientation, etc. However, the scope of Clause 11(3)(c) should be expanded to include ‘personal data’ rather than ‘sensitive personal data of the data principal, just like Article 7(2) of the GDPR.

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[1] Opinion of Justice D Y Chandrachud in Justice K S Puttaswamy v. Union of India, (2017) 10 SCC 1.

[2] Jack Stillinger, Introduction in John Stuart Mill Auto biography, OXFORD UNIVERSITY PRESS, 7 (1971).

[3] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[4] Id, part T(3)(H).

[5] VANITY FAIR, https://www.vanityfair.com/style/2016/10/solving-kim-kardashian-west-paris-robbery (last visited Apr. 26, 2021).

[6] The Information Technology Act, 2000, No. 21, Act of Parliament, 2000.

[7] Id., § 43A.

[8] Id., explanation (i).

[9] Supra note 7, explanation (ii).

[10] If such information is prejudicial to the sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or incites the commission of any cognizable offence relating to above.

[11] BBC, https://www.bbc.co.uk/newsround/53266068 (last visited Apr. 26, 2021).

[12] The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011.

[13] Id., Rule 2(1)(i).

[14] Supra note 12, rule 3.

[15] Supra note 12, rule 4.

[16] Id.

[17] Supra note 12, rule 5.

[18] Supra note 12, rule 6

[19] Supra note 12, rule 8.

[20] The Personal Data Protection Bill, 2019.

[21] Supra note 3.

[22] Supra note 20, cl. 3(28).

[23] Supra note 20, cl. 3(36).

[24] Supra note 20, cl. 3(14).

[25] Supra note 20, cl. 3(13).

[26] Supra note 20, cl. 3(10).

[27] Supra note 20, cl. 4.

[28] Supra note 20, cl. 5.

[29] Supra note 20, cl. 6.

[30] Supra note 20, cl. 11(1).

[31] Supra note 20, cl. 11(2)(c).

[32] Supra note 20, cl. 11(3)(c).

[33] PRS INDIA, https://prsindia.org/billtrack/the-personal-data-protection-bill-2019 (last visited Feb. 26, 2021).

[34] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

[35] Id., rule 4(1)(a).

[36] Supra note 34, rule 4(1)(c).

[37] Supra note 34, rule 5(2).

[38] Karmanya Singh v. Union of India, 233 (2016) DLT 436.

[39] SC OBSERVER, https://www.scobserver.in/court-case/whatsapp-facebook-privacy-case (last visited Apr. 26, 2021).

[40] The latest clarifications from WhatsApp drew a differentiation between “messages with friends or family” and “messages with a business”. It claims that the new privacy policy pertains to the latter alone and the former remains unchanged. WhatsApp has clarified that some “large businesses might need to use secure hosting services from Facebook to manage WhatsApp chats with their customers, answer questions, and send helpful information like purchase receipts”.

[41] Supra note 38.

[42] In Europe, by virtue of General Data protection Regulation, though WhatsApp privacy policy talks about data sharing with Facebook, however, the users can rectify, update or erase information that the platform controls.

[43] Supra note 20, cl. 11(3)(c).

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Dissent and Democracy – Sedition Laws in India

By Karan Kumar Khaitani

“It shall be the duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom.”[1]

The recent spate in instances of invoking sedition laws against human rights activists, journalists and public intellectuals in the country have raised important questions on the undemocratic nature of these laws, which were introduced by the British colonial government.

While sedition laws are part of a larger framework of colonial laws that are now used liberally by both the central and state governments to curb free speech, the specificity of these laws lie in the language of ‘disaffection’ and severity of the punishment associated with them. Sedition laws were used to curb dissent in England, but it was in the colonies that they assumed their most draconian form, helping to sustain imperial power in the face of rising nationalism in the colonies including India. Targets of this law included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant. It is ironic that these laws have survived the demise of colonial rule and continue to haunt media personnel, human rights activists, political dissenters and public intellectuals across the country.

In the Universal Declaration of Human Rights, 1948 (UDHR), Article 19 states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Restrictions on the freedom of expression can be justified if they are provided by law or if they are in pursuance of a legitimate aim in international treaties such as the protection of national security, public order, public health or morals. There needs to be a necessity to restrict the right in the form of a pressing social need and there needs to be a strict scrutiny regarding the justification of the restriction. What needs to be seen is not just the necessity of the law that seeks to restrict the freedom but also the individual measures taken by the State. When a law restricts freedom of expression by reference to national security or public order imperatives, and that law is couched in general terms, specific justification needs to be provided by the State in prosecution (for compliance) with Article 19 of the ICCPR.

A colonial legacy like sedition law, which presumes popular affection for the state as a natural condition and expects citizens not to show any enmity, contempt, hatred or hostility towards the government established by law, does not have a place in a modern democratic state like India. The case for repealing the law of sedition in India is rooted in its impact on the ability of citizens to freely express themselves as well as to constructively criticise or express dissent against their government. The existence of sedition laws in India’s statute books and the resulting criminalization of ‘disaffection’ towards the state is unacceptable in a democratic society. These laws are clearly colonial remnants with their origin in extremely repressive measures used by the colonial government against nationalists fighting for Indian independence. The use of these laws to harass and intimidate media personnel, human rights activists, political activists, artists, and public intellectuals despite a Supreme Court ruling narrowing its application, shows that the very existence of sedition laws on the statute books is a threat to democratic values.

Section 124A should be scrapped in my view and the following law should be debated, discussed and enacted:

“Unlawful activity”, in relation to an individual or association, means any action taken by such individual or association

(i) Which directly incites through violent means, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union,

(ii) Which has, as a direct consequence of such action, the result of disrupting the sovereignty and territorial integrity of India;”

It is time we come out of the narrow closet of ideas of ‘nationalism’ and ‘Indian Culture’, and prevent ourselves from putting the larger goals such as upholding the principles of democracy at stake. For it will be a dangerous delusion if we continue to believe that the use or rather, the abuse of a law as arbitrary as Section 124-A of IPC cannot drive the people of the nation into a revolution and a dreadful retaliation against the state.[2]

At this juncture, it is important to point out that the democratic edifice of our country is not fragile to be easily shattered by ways of speeches in public places or by printing an article in the print media. In other words, the unity and integrity of India and the legitimacy of the Indian state are not as weak as it was in the case of the British colonial regime to be threatened and shattered by the speeches or the writings of a section of the political class.[3]

With this, I would like to conclude with the words of Gandhi Ji:

“Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

[1] Article 51(b), Constitution of India, 1950

[2] India’s Democracy in great Danger, Youth ki awaaz, 3rd March 2016

[3] Sedition Law and Indian Democracy, Law Teacher, 2016