"The State Has To Protect People Exercising Free Speech From Groups Threatening Them For Their Views": Justice Ravindra Bhat
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"The promise of free speech or free association would be of little use if a segment of the population threatens the free enjoyment of rights by others; rights would only be academic then. The State must act actively engage in the promotion of fundamental rights, in upholding the freedom of thought, expression, and of legitimate speech which can be contrary to the dominant discourse,...
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"The promise of free speech or free association would be of little use if a segment of the population threatens the free enjoyment of rights by others; rights would only be academic then. The State must act actively engage in the promotion of fundamental rights, in upholding the freedom of thought, expression, and of legitimate speech which can be contrary to the dominant discourse, freely expressed without fear of reprisal by private entities or collectives", said Justice Ravindra Bhat on Saturday.
The Supreme Court judge was speaking on the topic 'Fundamental Rights And The Role Of The Regulatory State' at the Second Professor Shamnad Basheer Memorial Lecture 2021 organized by LiveLaw.
Justice Bhat was of the view that the State has to frame policies proactively as the enforcer of fundamental rights to ensure that others, being private individuals or entities, who are not bound by fundamental rights, are compelled to respect them through law. "The enjoyment of any of the freedoms guaranteed under Article 19 assumes that the conditions conducive towards their enjoyment are assured by the State", said the judge.
'Absence Of Data Law Renders Right To Privacy A Dead-Letter'
Dealing with the unregulated and the unlegislated sectors in the country, Justice Bhat addressed the issue of privacy.
"The need for personal data protection and privacy flows from its enlarged scope and ambit under the Constitution- the right to privacy has now been recognised as a fundamental right in Puttuswamy's case in 2019. It is mostly non-State actors, that is private entities, which provide services that have the potential to encroach upon an individual's right to privacy. There not being any effective mechanism in the form of positive law to enforce the right against these entities, or for that matter, even against the State, is a very serious lacunae. Regrettably, we are still left standing, though the articulation of this right to privacy happened in 2019", expressed the judge.
Justice Bhat opined that while informational privacy is low on priority in the legislative order of business, the government's reliance on technology is becoming ubiquitous. "The absence of legislation makes this right somewhat academic. In the absence of a clearly enunciated data law, which sets out the norms, rights and remedies, the nature of that right is rendered, by and large, a dead letter, except in cases where the individual can approach the court and seek enforcement against the State", he said.
Justice Bhat noted that post-liberalisation, many services offered by the State were taken over by the private entities and that the State became a regulator from being the provider. "While statutory obligations, which contain penalties for violations, apply to public and private entities, the question is what about breaches beyond the black letter of the statute? Would violation of fundamental rights be invoked against private players, and then what is the regulator's role therein?", he asked. The judge indicated that in the 2013 Arun Kumar Agarwal's case, the Supreme Court while discussing the role of SEBI, held that the appointment of chairman, which was challenged in writ jurisdiction, was in violation of an express provision of the statute which required the person to be one of high integrity.
In this context, he discussed the WhatsApp privacy policy case- "In March 2021, when a mobile application, widely used by the public, proposed to amend its privacy policy and terms of services unilaterally, making the acceptance of its fresh terms mandatory for continued service, the Competition Commission initiated a suo motu investigation. Although the reason for investigation is undoubtedly rooted in the provisions of the Competition Act, which empowers the Commission to intervene in case of acts which, according to it, contravene sections 3, 4 or 6, it is clear that such authority also upholds the privacy of data of individuals who may be unaware of the manner in which data private information to be shared", said the judge.
The judge urged that until the legislative lacunae is addressed, it is crucial for sectoral regulators to ensure that constitutional values and fundamental rights do not become redundant.
"Today, everything we do is preserved as data. All of us, knowingly or unknowingly, are subject to some kind of profiling that happens at the marketplace, in which data is then traded a million times over. How that is to be done, who is to keep an eye?- that is best done by a completely independent regulator. That is the best guarantee against privacy concerns", continued the judge.
He expressed that in any personal data protection law, it is very important to have an independent regulator, which inspires confidence and over which the State does not have any form of control.
"There may be perhaps two or three regulators in charge of different forms of data, and that will inspire greater confidence from the people. There must also be participation in the framing of these regulations which will ultimately benefit all the concerned parties. Further, there must be swift remedies for breach, preferably also in the form of some kind of compensation", the judge opined.
Unregulated Sectors: 'High Time That The State Enacts A Law Of Universal Application To Enforce Principles Of Equity, Equality And Non- Discrimination'
Justice Bhat acknowledged that in the unregulated area of mining, physical infrastructure, energy, telecom, internet and e-commerce services, there tend to be discriminatory recruitment policies since private employers are not covered by Article 15(1)- "It is possible for them to blatantly discriminate against people on the basis of gender, caste, religion, language or any other ground including age. Sometimes, employment is denied for no ostensible reason. There are other reasons which are very evident to the person discriminated against, such as bias in favour of family, discrimination based on age, disability, personal views. But these discriminations are hard to prove. Likewise, fairness in the workplace during employment is harder to prove and get remedies. Industrial workmen often face arbitrary dismissal. Private entities hire workers on contractual basis to keep costs low"
He expressed that access to fundamental rights cannot be denied to people on the basis of their economic status- "Look at the workers in the unorganised sector. This, as of 2015, comprises 93% of the workforce, 45 crore people. In a report of the Union Ministry of Labour and Employment, it was said that less than 23% of the workers in informal sectors had access to paid leave or social security benefits"
Justice Bhat opined that in this grey area, it becomes all the more crucial for sectoral regulators to intervene without which constitutional values and fundamental rights run the risk of becoming ineffective, at least until the legislative lacunae is addressed.
In response to a question regarding the recent controversy about rights of delivery persons, gig workers, drivers etc, and if a regulatory response to that is needed in the spirit of the State facilitating rights, Justice Bhat said, "A PIL has been filed in Supreme Court. I can say that it is one area which needs to be looked into quite urgently. Beyond that, I would like to say anything, whether it is a matter for the court or the State to look into". It may be noted that raising questions of great public and constitutional importance as to whether "Right to Social Security" is a guaranteed fundamental right for all working people, whether employed in formal or informal sectors, "Gig Workers" have approached Supreme Court seeking social security benefits from food delivery apps such as Zomato and Swiggy and taxi aggregator apps Ola and Uber.
As regards the unregulated sectors, Justice Bhat asserted that it is high time that the State considers enacting a law of universal application to enforce principles of equity, equality and non-discrimination- "We would not be the first if we enact such a law. The first was the South African Legislature which enacted the Promotion of Equality and Prevention of Unfair Discrimination Act in 2000. It makes every High Court an equality court to enforce rights. Likewise, in the UK, the UK Equality Act provides remedies for discrimination based on age, disability, gender assignment, marriage, pregnancy or maternity, sexual orientation etc. The US Title VII of the Civil Rights Act, 1964 prevents discrimination in the workplace based on race, colour, religion, gender and national origin"
The judge also clarified that the incorporation of such equality laws should be at the end of the legislature and not the judiciary- "Courts cannot be the source of this kind of law, otherwise, we would have had it long back. It is not within the realm of courts to enact laws. What the courts can do is to nudge the legislature"
'Sabarimala Minority Judgment Sowed The Seeds For Dynamic Interpretation Of Equality And Non-Discrimination'
"The question that I wish to pose is what constitutes public interest over 70 years after Independence and now that we have become a republic. How should it be interpreted in the context of the evolving relationship between State and citizens in modern times which are the post-liberalisation and globalisation times and the State has transitioned from the provider to playing the role of a facilitator? Can we put the duty on the State to exercise legitimate powers to ensure that private entities, which now have a role to play in our daily needs, relations and life, have similar limitations so far as the fundamental freedoms of the individuals are concerned and the obligation to foster a culture of non-discrimination and accountability?", began the judge.
"I don't believe that courts are to swoop in and play this role, but it is incumbent on the state to nurture this environment of fairness and promote rule of law through a wide spectrum of legislation that regulate our daily interactions and relations as per the core values of the constitution. The court's role is complimentary, that of a safety wall to ensure these rights are enforceable if there is a lapse", he continued.
"The international law has some examples of some positive obligations on the State. The most important is the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. Clause (1) of Article 2 of the Declaration states that each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia , by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice", elaborated Justice Bhat.
"Article 14 of the Indian Constitution, for instance, reads that the State shall not deny any person equality before the law or equal protection of the law within the territory of India. Article 15(1) states that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex or place of birth. The use of the word 'shall' should be understood relatively or temporarily. It cannot be that we are talking of the State in its provision of services directly, but instead, it is an indirect obligation on the State to ensure that these constitutional principles and values continue to inform our institutions and interactions. There are numerous clues within the Constitution itself that the principles of fairness, equality and accountability form the core values of the constitutional machinery – for instance, considered Part IX of the Constitution which is the inclusion of the Panchayati Raj system within the text of the Constitution. It is perhaps the best example of this. The ethos behind this is to ensure democratic participation at grassroot level and effective representation in the government by including marginalised communities. This is implemented through an intersectional framework of interlocking vertical and horizontal reservational, proportional reservations for SC and ST and women", he continued.
"What is the concept of fairness? I will go back to the 1950s' dissenting judgment by Justice Vivian Bose in Anwar Ali Sarkar's case, where it was said that freedom of India was won at a great price and that history should not be forgotten in placing limits on a dynamic concept like equality. He talked very passionately about the brooding spirit of the law and the felt injustices of the past and that the words 'equality before law' in Article 14 are 'not just dull, lifeless words static and hide-bound in some mummified manuscript, but, living flames intended to give life to a great nation'. He expressed that 'in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these laws which have been called in question offend a still greater law before which even they must bow'?"
The judge expressed that with time, the expanded meaning of equality has linked it to other provisions of the Constitution and the new meaning of liberty has resulted in dramatic change in the content of these rights, which must continue to develop- "Now the concept of non-discrimination, Articles 15, 16, 17, 23, 24 provide for a wide scope of protection against social abuses and are not directed exclusively against the State"
Justice Bhat canvassed how the Supreme Court has in recent times has interpreted Articles 17 and 15(2) in extension of the sense they are intended to be enforceable and, in the process, rendered them more enforceable in nature- "The first example in respect of Article 17's obvious enforcement through the laws enacted by the Parliament, that is the Civil Rights Act and the SC/ST Prevention of Atrocities Act, is the case of the Sabarimala temple entry where the court was looking into the practice of prohibiting Temple entry for women as discrimination under Article 15, also emphasised on the practice being prohibited under 17 as a restriction of entry to women aged between 10 to 50 and exclusion of such women from religious places and practises because they menstruate and are considered impure during that time. They said that this was no less a form of discrimination. This is not the majority ruling but this is the seed which has been sown which will be taken up in later cases"
"Earlier, we had Anuj Garg (2007) when the State had prohibited the employment of women in any part of premises where liquor or intoxicating substances were consumed. The State was not dealing with its premises but private premises. The court said such a restriction was violated of Article 15 and the court characterised this protection as a romanticised one while striking it down", continued the judge.
He mentioned the 1983 decision in Sanjit Roy where the state law overlooked the Minimum Wages Act and enabled the state of Rajasthan to pay to its relief workers, as a measure of famine relief, which were lower than minimum wages- "The court said that this amounts to forced labour and that the choice of not accepting is no choice, that it is Hobson's choice and therefore, this amounts to exploitation". Justice Bhat discussed that there was also the case where a 2-tumbler system was followed in Tami Nadu with separate tumblers being used for serving tea to SC persons and non-scheduled caste persons. The court held that the practice was not only highly objectionable but violative of Article 15(2) and 17 of the Constitution and an offence under the Acts.
"I ask what in the case where a citizen is excluded on the grounds of race, caste or gender from using a park or a tank dedicated to the use of the public by another private person? In my opinion, the absence of the sanction under 15(2) does not render this immaterial. 15 ensures equal access to shops, public restaurants, hotels and palaces of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. State is not a prerequisite. A plain reading of the Constituent Assembly debates ensures that one is protected against discrimination perpetrated by anyone providing a service. Dr. B. R. Ambedkar said that 'shop' is used in the most generic term to show that a shop is a place where the owner is prepared to offer his services to anybody who is prepared to go there to seek his service", elaborated the judge.
Justice Bhat explained that how where the issue was of allowing admission to children only of army persons, the Supreme Court interpreted schools to come within the ambit of 'shop' to protect against private discrimination against private individuals. "Therefore, 15(2) provides the foundation for a general prohibition on discrimination and is not confined to the State alone", said the judge.
As regards discrimination based on religion, he discussed that in the Zorastrian case in 2005 where the bye-laws of the society permitted the sale of the house by one Parsi to only another Parsi, the Supreme Court, while reversing the decision of the High Court, held that restriction was permitted. The court said that it is a contract entered into by a person to become a member of the society and such being the private contract between two individuals, Part III of the Constitution will not be attracted. By holding this, the Court said that the bye-laws of exclusion should be allowed to stand. "There can be different ways to look at it in my opinion- the right to contract is an important right enjoyed by the citizens. The Right to equality and non-discrimination are fundamental in nature. Considering that these rights are in the Constitution and are inalienable, economic freedoms and other freedoms should be balanced in such a manner that all vulnerable groups can enjoy the right to equality and non-discrimination. When two freedoms are seemingly in conflict, there is a need to balance public interest in enforcing one right over the other. There is a need to revisit this concept in the light of later understanding of the pervasiveness of the rights", he said.
State's Role As A Facilitator
Justice Bhat was of the view that the most celebrated example of the State's role as a facilitator is the Vishakha case where the Supreme Court noted the lacunae in the law with regard to sexual harassment in the workplace and laid down elaborate guidelines under Article 32 to enforce rights under Articles 14, 15, 19 and 21 and so on. Pursuant to this judgement, the Parliament enacted the 2013 Act for prevention of sexual harassment at workplaces- "What is to be noted here is that it was the State which was the respondent- the court imposed the obligation upon it to protect the fundamental rights which is finally done by making this law. Important part here is that the law applies not merely to establishments under the control of the Union or the states but horizontally to all private individuals in workplaces. There is a very strong underlined public policy, which is, that an act of sexual harassment is not confined to a mere misconduct of an employee but it threatens the security and safety of female employees and if the employer fails to take action in this regard, the result is that the female employees are at an insecure place"
Next, Justice Bhat mentioned how the judgement in Sankalp Education Trust is very important because it stated that a common admission test should be organised based on which admissions are to be given in all instances at the national and state level for courses of higher professional education such as medicine, engineering, architecture et cetera. "This is a very significant step. The judgement has been assimilated in the form of binding rules framed by the concerned professional regulatory bodies which are empowered to grant recognition and affiliation to educational institutions. There is lesser scope for arbitrary conduct at least in admission to private institutions", he explained. Justice Bhat continued to discuss the enactment of 86th constitutional amendment which has universalised education and introduced Article 21A which ensures access to primary education as a fundamental right, followed by the RTE Act of 2009 providing for 25% quota in private institutions for children of economically weaker sections.
"Another example would be the Rights of Persons with Disabilities. This law provides comprehensive safeguards to ensure the enjoyment of constitutional guarantees and mandates reasonable accommodation to persons with disabilities...then there is the Equal Remuneration Act which ensures that women are paid the same wages for the same kind of work as their male counterparts. Other laws which seek to apply these values horizontally are the Senior Citizen Maintenance and Welfare Act, certain provisions of the Company Act that mandate appointing women as directors, labour legislation concerning safety of workmen, hours of work, minimum wages etc"
The judge expressed that the State's facilitative role in fostering a culture to respect fundamental rights is as important as its duty to respect Constitution; that in the absence of State's facilitative role, a large section of the population would face discriminatory practices and injustices of caste, poverty, religion, etc; and that in a liberalised economy, it is the need of the hour for the State to foster a culture of respect to enforce fundamental freedoms by proactively framing policies.
Question And Answer Session
Even the question and answer session which followed the lecture witnesses some interesting insights from the judge.
Justice Bhat expressed that delegated legislation must be kept within the bounds of what is permissible and that we have seen that Delegated legislation often over-steps those bounds.
"Till they are declared ultra vires, the subjects continue to suffer. The courts should rethink tightening the oversight on these delegated legislations through a new kind of doctrine...Most of these laws have a provision which directs the laying of rules and regulations on the table of the Parliament for a number of days"
As regards the further expansion of non-discrimination jurisprudence, Justice Bhat spoke of indirect discrimination, that the expression 'only' has been a stumbling block-
"Suppose one of the proscribed grounds was that which excluded a category of candidates who were scheduled caste, would 'only' then come in the way? Would 'only' be a force multiplier that it would knock off the obvious aspect of discrimination of the excluded person?"
In response to the question that if there is an unsubstantiated statement by someone following a particular religion that certain crimes have been committed on them by followers of another religion, what should the State's response be, the judge said "I think we have enough enacted law on this- what is proscribed speech which can be an offence, the nature of the statement, the degree, what kind of propensity it has to disturb public order...we have section 153 of the IPC and all for this"
As regards his opinion on marital rape in the light of the exception that sexual intercourse by a man on his wife not being under the age of 18 is not rape, the judge responded, "Holding the position that I do, I don't think I can express my personal opinion. There was a PIL in the High Court which I heard for a while but then the roster changed and I don't know what happened there. But it was interesting because of the obvious sense of injustice, and the other aspect that the punishment to the offender varies depending on the age of the victim"