One measure (simply to drive home the point) to understand the implications of obligations under data (including health data) laws around the world is to understand the cost of compliance and non-compliance. More importantly, the ‘cost’ under compliance and noncompliance is to necessarily be understood as different, with the latter emanating from fines and penalties, while the former constitutes activities undertaken to ensure non-compliance does not happen. This piece seeks to lay out, firstly, why health data fiduciaries (HDFs) need to comply with the HDMP and PDP; secondly, what the obligations under the proposed law (PDP) and HDMP are; and thirdly, some of the actions that could be resorted to for mitigating the compliance burden that health companies/startups.
In trying to understand the cost of compliance, comparing the anticipated rollout of PDP and the HDMP, to the rollout of the GDPR would be a good starting point. Even pre-GDPR, between 2011 and 2017, companies’ expenditures rose with companies spending more on compliance and the consequences of non-compliance. Between those years, and as of 2017, the average cost for organizations that experienced non-compliance problems was USD 14.82 million (annually), which was a 45% increase from 2011. The cost of compliance varied significantly by the organization’s industry sector, ranging from USD 7.7 million for media to more than USD 30.9 million for financial services. The percentage net increase in total compliance cost between 2011 and 2017 also varied by industry. Healthcare organizations experienced the highest growth in cost at 106%.
Civil society in India has advocated for a graded approach to scrutinize digital businesses so that startups are not overburdened with compliance costs. In a November 2020 issue brief published on the ORF website, a recommendation was made to make such scrutiny based on thresholds, with businesses that cross certain thresholds requiring to get their IT systems certified against applicable standards, with the certification remaining voluntary for others. While one can understand the force behind this sentiment, especially when it comes to data regulation (including inter alia, the costs associated to it) possibly impacting startup innovation, this may not be possible for health-tech startups, especially those dealing with certain kinds of sensitive personal health data. Health data forms a part of SPD, which requires a higher form of protection with a privacy by design focus advocated by the NDHM in its HDMP. We can see how the proposed PDP law even addresses this in various ways, with either its emphasis on the nexus between SPD and significant harm, or in the way SPD is treated wherein it requires a higher standard of consent from a DP, in order for such data to be first acquired and then processed by a DF.
There is also evidence to suggest that smaller organisations have a higher per capita cost of compliance. When adjusted by headcount (size), compliance costs are highest for organizations with fewer than 1,000 employees and smallest for organizations with 75,000 or more employees. This result may be explained in part by economy of scale, wherein larger companies have access to leading data protection technologies and highly skilled personnel who have expertise in data protection laws and regulations. Organizations with fewer than 5,000 employees have to rely on expensive external resources such as consultants and lawyers to meet compliance requirements on a global scale.
While, in the Indian context, there is no standard and reliable information available that details the economic impact of activities undertaken by companies to be compliant with our privacy / data protection laws, information accessed from privacy solution provider – datagrail.io, breaks down, very lucidly, the factors that affect the continuous cost of compliance. A practically observed premise is that the cost of compliance cannot be measured in money alone: it must also include the operational expenses of human resources and time. The report goes on to argue that measurements of the impact must extend beyond the initial cost of preparation to examine sustained compliance. Companies spent hundreds of thousands – even millions – of dollars on compliance solutions, but they continue spending thousands of hours manually managing compliance at the risk of introducing human error. While preparing to comply with the GDPR involves a set of activities such as data inventory and mapping, establishing a workflow (whether automated or manual) for processing subject access requests (SARs), implementing consent management, and updating privacy policies. Sustaining that compliance, however, involves further activities such as continually updating the data map with new fields and business systems, communicating process changes with all employees involved, producing robust compliance logs, and staying current with regulation updates or changes – in addition to processing SARs that come through. Decision makers report spending virtually the same amount of time working to sustain compliance as they did to prepare: this is the cost of continuous compliance.
In a survey taken to assess the impact of the GDPR on digital companies it was noted that while there were a number of figures reported, the data on SARs is one of the noteworthy takeaways we can use to illustrate the point being made here. SARs can be understood as declarations of intent by DPs to enforce their rights (which includes the right to confirmation and access, right to correction and erasure, right to data portability, right to be forgotten/stop continued disclosure) on their data. The PDP in its current form provides DFs a 30 day window to adequately respond to each SAR, which is a standard across laws and jurisdictions, but the US is going one step further and the OCR in the Department of Health and Human Services is implementing a shorter 15 day window for such response. 30 days may ‘seem’ like a lot, but it really isn’t. In a survey by datagrail.io, more than half (58%) of companies were receiving 11+ SARs per month and 28% were receiving 100+ per month (as of 2019), and additionally more than half of companies (58%) have at least 26 employees managing these requests. The survey went on to state that conservatively extrapolating, thousands of emails or alerts were sent to manage SARs in a year (2018-19), increasing the magnitude of risk with each touch point. SARs are a key requirement under privacy laws such as GDPR and CCPA, and are seemingly being provided the same legislative and regulatory importance under the PDP and HDMP. Much of the costs of compliance can be attributed to having to gather, collate and redact information manually, which is why it would make sense for startups to invest in automated solutions to handle such requests from the start. On an analysis of a per unit (per SAR) cost, it was found that companies in the UK spend about GBP 10 in complying with an SAR and even then it was found that this cost rarely covers the cost of complying with a SAR, particularly where the request is complex and collating the information is especially time consuming.
The proposed law under the PDP, and HDMP places obligations on DFs very similar to those under the GDPR. The obligations are ever present from the time a HDF gains access to data on individuals. They cover a wide variety of mandates from notice requirements to ensuring appropriate means of consent acquisition to ensuring principles of purpose limitation and specificity are maintained when data is being acquired, and ensuring the same during the time data is processed. For the purpose of this article however, I will focus on the obligations that are borne out of the privacy principles enshrined under both the PDP and HDMP.
I will focus on the privacy principles of ‘privacy by design’ and transparency, and while there are other principles of maintenance of records and having security safeguards, they can be viewed as necessary by-products of the highlighted principles.
Practically, to comply with the requirement, the first step in this process is bringing all key stakeholders of the organisation together, including from legal, security IT and engineering to product and market teams of the company. This is done to evaluate how they are working with sensitive data. The next priority is exploring the details of how the data should be stored, and businesses would need to balance data protection and function, i.e. data handling must be safe enough to consistently shield privacy, but not render the information entirely inaccessible. This would mean that there would need to be clarity on how data is stored, how it is backed up and how it is transferred within and outside the organisation. Also as part of the PDPOL, there needs to be a framework of select authorisation where there needs to be risk limited by granting access to data only to specific individuals, which depends on the function they perform within the company. The 2nd framework is data encryption, which is focussed on obfuscating data to guard against any unauthorised access. Encryption takes many forms. For example, data can be encrypted at different points in line with when risk is greatest; during storage, transmission, or access — even if permitted. It can also be continuously encrypted across its lifecycle. Offering a higher level of security, the main downside is longer processing to convert and extract information. The 3rd framework is masked storage, which as the name implies is about changing the appearance of data; generally replacing attributes such as numerals while retaining format and length. In doing so, it masks personally identifying elements, but preserves data value. Again, decisions about how and when to apply masking can be made in line with whether companies want to protect certain areas or all data processes. The 4th and final framework suggested is tokenised insights which, much like masking, means the swapping of sensitive data elements for non-sensitive equivalents, or tokens. The key difference is that full use of these tokens is exclusive to a secure tokenisation system. Tokens can’t be mapped back to data unless companies or approved individuals have access to the original tokenisation tool. Broadly speaking, this is one of the more robust methods and also comes with the additional benefit of flexibility, where data fields can be turned into tokens and back.
The privacy principle relating to transparency under the HDMP, will require the HDF to enable a DP to gain, withdraw, review and manage his consent through an accessible, transparent and interoperable platform. Reading the transparency obligation in the PDP along with the HDMP requires the HDF to notify the DP from time to time, the important operations of processing of any PD related to the DP, and such information needs to be provided in an intelligible form, using clear and plain language. Conformity in terms of documentation would mean having a comprehensive documented information security programme and information security policy that contain managerial, technical, operational and physical security control measures. In other countries with developed privacy laws, the privacy principle of transparency is closely associated with interoperability. As per the NDHM, interoperability is a key feature of the digital health architecture with the NHA pushing for adoption of the FHIR interoperability standards. So transparency will (to an extent) be built in to the interoperability framework. However, there is a limitation that is built into the FHIR standards. Now, the FHIR is an interoperable standard that is built on ‘Resources’ which could be understood as paper “forms” reflecting different types of clinical and administrative information that can be captured and shared. However apps and digital health representations of services / products may be built on ‘custom’ resources that may be integral to the digital health service / product offered, which is considered as non-conforming with the FHIR standard, and such custom resources would have to necessarily adopt the transparency principle to the internal code of systems that support a particular resource part of the FHIR standard. In the US, with the advent of the imposition of interoperability by the healthcare administration there, digital care providers are facing issues and require clarifications with regards to implications of interoperability requirements. Some of these relate to the need of patient data needing to be secure – whether in open application programming interfaces or patient facing apps; certain information – such as competitive prices negotiated between health plans and providers – should remain proprietary. Currently, no FHIR implementation guide exists to standardize the method of requesting and exchanging cost transparency information at the point of decision making.
To enable the adoption of the privacy principles above, as required as part of the obligations that need to be carried out by HDFs, the HDMP itself suggests solutions (as part of obligations to be carried out) that assist in ensuring conformity with the regulations. One of these is the maintenance of records, which include maintaining details of ecosystem partners, purposes of processing, description of the categories of DPs, description of the categories of PD and SPD, categories of recipients to whom the PD/SPD is disclosed or transferred including to data processors and geographies of recipients. A second privacy principle conformity method is conducting Data Protection Impact Assessments (DPIAs). HDFs are to carry out DPIAs before they undertake any processing involving new technologies or any other processing which carries a risk of significant harm to data principals. Significant harm has a nexus with health data generally, and therefore, while not clear in its required implementation HDFs would need to carry out routine DPIAs. DPIAs are to contain a detailed description of the proposed processing operation, the purpose of processing, nature of personal data being processed, assessment of the potential harm and measures for managing, minimising, mitigating or removing such risk of harm. Finally, before any activity that can cause a significant data sharing event (like a merger between two healthcare providers or entities, or an significant acquisition / investment event), a Data Audit will have to be carried out by a practicing and independent information security professional, which will cover, inter alia, written procedures and training imparted to all employees of a healthcare organisation, review of the work done and responsibilities carried out by the entity data protection officer (again a mandate of the PDP and HDMP), the review of privacy policies and notices (for obtaining consent) maintained by the organisation, records of all data subject rights and SARs, records and review of dealings with the HDFs with their data processors, DPIAs conducted, data breach events, information asset registers, business contracts, media disposals and data sharing processes generally. A Data Audit will eventually need to provide and certify the audit findings as either being compliant with privacy law compliances or not. This process can take up to 06 months, with the potential to impact a beneficial commercial event for a HDF, and therefore should not be relied on as a last resort to conformity with the PDP and / or the HDMP.
While the obligations and solutions as referred to above have been alluded to in the HDMP and PDP, it is expected that the data authority in consonance with the NHA will provide detailed regulations and guidelines for the steps to be taken by HDFs, in more detail.
Divyam is a lawyer and founder of consultancy ‘The Narrative Counsel’
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Goa State Cooperative Bank Ltd not a ‘State’ Under Article 12, does not discharge any public functions: Full bench of Bombay High Court
It must be said before saying anything else that the Full Bench of the Bombay High Court comprising of Justice MS Sonak, Justice Dama Seshadri Naidu and Justice Bharati H Dangre on March 5, 2021 in a latest, learned, laudable and landmark judgment titled Mr Vassudev Madkaikar and others vs. State of Goa and others in Writ Petition No. 92 of 2021 (Filing) has clearly, cogently and convincingly held that the Goa State Cooperative Bank Ltd. is not a ‘State’ nor does it fall within the ambit of ‘any other authority’ for the purposes of Article 12. It certainly deserves mentioning that the Bench also made it a point to observe that the said Bank does not discharge any public functions which would warrant issuance of a writ in the nature of mandamus. Very rightly so!
To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Bharati H Dangare wherein it is put forth that, “The cleavage of opinions between the two sets of perspectives on the issue as to whether a ‘Goa State Cooperative Bank’ is a ‘State’ within the meaning of Article 12 and whether the said Bank is discharging any public function, so as to render it amenable to the writ jurisdiction of this Court under Article 226 is the issue placed for consideration of this Full Bench.
The two division benches of this Court, in Ganesh Morto Naik v/s. Goa State Co-operative Bank Ltd., (1991) SCC OnLine Bom 211 and in another case of Surendra J. Kalangutkar v/s. Goa State Cooperative Bank Ltd., (2016) SCC OnLIne Bom 2587 ruled that the Goa State Cooperative Bank Ltd. (hereinafter referred to as GSCB) is a ‘State’ for the purpose of Article 12 and that since it is discharging public functions, it is amenable to writ jurisdiction under Article 226 of the Constitution of India. On the other hand, the judgment delivered at Aurangabad, in case of Shri Suresh Bhanudas Shinde & Anr v/s. State of Maharashtra & Ors Writ Petition No. 334 of 2018 has taken a contradictory view, when confronted with the issue whether the District Cooperative Bank Ltd. is a ‘State’, in the backdrop of the grievances raised by one of its employees and held that the said Bank is not a ‘State’ within the meaning of Article 12 and even the exercise of writ jurisdiction was refused since the contractual terms between the employer and employee were held to be not subjected to any control of the State Government. Relegating the petitioner to avail other remedies available under the law, the writ petition was dismissed. Running parallel to the said view is the decision of the Full Bench of this Court in Shamrao Vithal Co-operative Bank Limited v/s. Padubidri Pattabhiram Bhat AIR (1993) BOM 91, which ruled that Multi State Co-operative Bank registered under the Maharashtra State Cooperative Societies Act, 1984 is not a ‘State’ within the meaning of Article 12, though it is governed by the Banking Regulations Act, 1949 and it performs public functions.”
Be it noted, the Full Bench then observes in para 3 that, “The question for our consideration, in light of the reference order can be precisely and accurately framed as under:
i) Whether Goa State Cooperative Bank Ltd. is a ‘State’ or any instrumentality thereof, for the purposes of Article 12 of the Constitution of India.
ii) In case GSCB is not a ‘State’ within the meaning of Article 12, whether it performs any public functions, which would warrant issuance of writ in the nature of mandamus in discharge of its performance of the public functions.”
It is worth noting that it is then observed in para 25 that, “In order to deal with the submission, we deem it expedient to decipher the scheme of the enactment, which clothed the GSCB with the status of the State Cooperative Bank and the Land Development Bank.
A need was felt for establishment of a national level institution for providing credit for the promotion of agriculture, small scale industries, cottage and village industries, handicrafts and other allied economic activities in rural areas with a view to promote integrated rural development and securing its prosperity, which gave birth to establishment of a development bank to be known as NABARD. It was established as an apex organization with respect to all matters in the field of credit in rural areas and aimed to serve as a re-financing institution for extending credit for promotion of activities in the said field. The Bank was endowed with a function to provide re-finance to various banks for their term lending operations for the purposes of agriculture and rural development.
Perusal of the scheme underlying the statute would reveal that a particular Cooperative Society in a State with an object of financing of other cooperative societies is entitled to be categorised as State Cooperative Bank and also the State Land Development Bank if a Cooperative Society has its primary object of providing long term finance for agricultural development. The proviso appended to both the clauses, i.e. Section 2(u) and (v) lead to an inference that where such principal society or particular land development bank is not in existence in a State, the State Government may declare any State Cooperative Society carrying on business in that State to function as a State Land Development Bank to provide long terms loans for declare it as a State Cooperative Bank. Another contingency when such exercise can be undertaken is when the State feels that in addition to such particular society in a State, it is expedient to declare one or more Cooperative Society to be State Cooperative Bank within the meaning of Section 2(u) or to be the State Land Development Bank within the meaning of Section 2(v). Merely because GSCB has received recognition under the Act, it cannot be said that it enjoy complete monopoly in the field.
Being declared as a State Cooperative Bank certain benefits are conferred on it by virtue of Chapter 6 of the Act, in particular as conferred under Section 21 and 25. The State Cooperative Banks alongwith the regional rural banks or any other financial institutions approved by the RBI are entitled for re-finance, loans and advances from the National Bank, but by virtue of subsection 3 of section 21, the National Bank may in its discretion grant a loan or advance to a State Cooperative Bank if the loan or advance is fully guaranteed for repayment of principal and interest by the Government and also in case of a State Cooperative Bank which is a scheduled bank, if the loan or advance is secured either by a bill of exchange or promissory note executed by the Central Cooperative bank and assigned in favour of the State Cooperative Bank instead of the loan being advanced against security of stocks, funds as contemplated under sub-section 2. Further, in respect of other investment credit for promoting agriculture and rural development, the National Bank may provide financial assistance to a State Land Development Bank or a State Cooperative Bank or a Scheduled Bank or any other financial institution and reschedule the payment of such loans and advances. The scheme incorporated under the NABARD Act, 1981 itself would divulge that barring section 21, the State Land Development Bank or State Cooperative Bank is entitled for financial assistance alongwith other schedule bank or financial institutions approved by RBI and therefore it looses its unique character as far as the NABARD Act is concerned barring the provision mentioned above. The peculiar character of the Bank as has been attempted to be projected on a higher pedestal than any other society registered under the Cooperative Societies Act thus fail to impress us and has to be brushed aside as a hollow claim, since the GSCB is neither established under a State legislation nor its entire Share Capital is held by the State. Thus, the mere status conferred on it under the NABARD Act and that it is empowered to provide long term finance for agricultural development, which will ultimately benefit the farmer of the State in our considered opinion, is not sufficient and it do not satisfy the test of it being a functionality of the State attracting the expression “Other Authorities” within the meaning of Article 12 nor does this feature enable it to be an instrumentality or agency of the State Government.
The State focus paper of NABARD on which attempt is made to bank upon is not of much relevance as it merely reflect the bank working in the State of Goa and as to how security schemes have landed support to banking and it also speak of the inspection of the bank by NABARD by virtue of Section 35 of section 6 of Banking Regulations Act, 1949, pursuant to which the GSCB is inspected by NABARD every year.”
Adding more to it, the Bench then also goes on to make it amply clear in para 26 that, “Emphasis on the bye-laws of the GSCB also do not render any support urging us to take a view that GSCB is a State, for more than one reason. The Bank has framed its bye-laws by invoking the power conferred on it as a Cooperative Society under Section 10A of the Goa Cooperative Societies Act, 2001. Pertinent to note that the GSCB is recognized as an Apex Cooperative Bank within the meaning of Section 2a of the Act, making it the Federal Cooperative Bank having jurisdiction over whole of the State of Goa and recognized as such by the State Government for the said purpose.
Being registered as a Cooperative Society, it is empowered to frame bye-laws in accordance with the provisions of the Goa State Cooperative Act, 2001 and the Rules made thereunder. Sub-section 2 of Section 10A enumerate the matters on which the bye-laws can be made. Section 12 of the Act empower the Registrar to call upon the Society to amend the bye-laws if it is necessary or desirable in interest of the Society and if there is a failure to effect such an amendment of the bye-laws, he is empowered to register such amendment himself and the bye-law shall stand deemed to be amended.”
What’s more, the Full Bench then also elucidates in para 33 stating that, “A strong reliance on the judgment of the Apex Court in case of U.P State Cooperative Land Development Bank Ltd. V/s. Chandra Bhan Dubey & Ors 37 is also not of any succour to the petitioners, since the facts clearly distinguish the said decision. In the said case the Bank came to be constituted under a statute, U.P. Cooperative Societies Act as well as under the U.P. Cooperative Land Development Bank Act. Section 122 of the Act gave the State authority for recruitment, training and disciplinary control of the employees of the Cooperative Societies and also an authority to frame regulations regarding recruitment, terms of conditions of service, pay etc. The State Government thus constituted the U.P. Cooperative Institutional Service Board with the approval of the Government it published certain regulations which govern the service conditions of the employees. It was the only State Land Development Bank in the whole State of U.P and the Registrar of the Cooperative Societies of the State was entrusted with the functions of securing fulfillment of obligations of the Bank to the holders of the debentures. Further, the State Government has constituted guarantee fund under the Act for meeting likely losses and the Finance Department maintains the said fund. The Government officers were sent on deputation by the State to the bank on the post of Managing Director and Chief General Manager. Holding that the State exercised all pervasive control over the Bank, the U.P. Cooperative Land Development Bank was held to be ‘State’. This is not the situation before us when we deal with GSCB. Ltd. Applying the aforesaid parameters to determine whether the bank is an instrumentality or agency of the State, it has failed to make up to any of the characteristics which would clothe it with a status of ‘authority’ so as to fall within the meaning of expression “other authorities” under Article 12. It has no statutory flavour, i.e. it is neither a creation of a statute nor clothed with any statutory power, enabling it to take the shape of an authority. It does not discharge such functions as are governmental or closely associated or being fundamental to the life of people and discharge public function. The bank do not have deep and pervasive control or the brooding presence of the State Government so as to satisfy the test of instrumentality or agency of the State. This leaves the bank with an independent legal existence flowing from its status as a registered society and a cooperative society under the GSCB Society Act. However, it fails to cross the impediments of the aforesaid parameters laid down by the apex court before it attained the status of a State or instrumentality of the State under Article 12 of the Constitution.”
Truth be told, the Full Bench then observes in para 34 that, “On answering the issue (1) in the negative, we now turn to the second question under reference, when GSCB is not a State or an instrumentality of a State under Article 12 of the Constitution, whether a writ would lie against it, in discharge of performance of any public functions.
Please read concluding on thedailyguardian.com.
The fulcrum of the arguments, staking the claim that a writ would lie, is based on the judgment of the Apex Court being Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Others v/s. V. R. Rudani & Others. (1989) 2 SCC 691 and U.P State Cooperative Land Development Bank Ltd. V/s. Chandra Bhan Dubey & Ors (1999) 1 SCC 741. The decision in Andi Mukta was delivered on peculiar facts, being a writ petition filed by teachers of a Trust whose services were terminated by the institution which was affiliated to the University and governed by ordinance, casting certain obligations which it owed to the petitioner. The ratio flowing from the said judgment could be culled out to indicate that no writ would like against the private body except where it has some obligation to discharge duty which is statutory or of public character. The said decision delivered in the light of the facts where the management of the college was a Trust registered under the Bombay Public Trust Act and the issue was whether the writ petition is maintainable under 226 of the Constitution and whether the Court would issue writ of mandamus to the management, compelling it to pay the terminal benefits and arrears of salaries. Taking note, that the Trust was managing the affiliated college, which is admissible to grant-in-aid and that is how the Government played a major role in the control, management and working of educational institutions, it was held that the aided institution like the Government institution was discharging public functions, by imparting education to the students. The activities being closely supervised by the University authorities, employment in such institutions being not devoid of any public character and the service conditions of the academic staff was held to be not purely of a private character. On noting the existence of the relationship between the staff and the management resulting into a right/duty relationship,, the Apex Court held that a mandamus cannot be refused to the aggrieved party. However, it was clarified that if the rights are purely of private character or if the management of the college is purely a private body, with no public duty endowed, no mandamus will lie. These two exceptions carved out for issuance of a writ in the nature of mandamus being a private character and no public duty being discharged.”
It cannot be glossed over that it is then stated in para 39 that, “In our determination of the aforesaid issue we are also guided by the view taken by one of us (Mr. Justice Dama Seshadri Naidu), as a Judge of the High Court of Kerala at Ernakulum in the case of Bindu K. B v/s. State of Kerala and Others delivered on 09.10.2014 Writ Petition (C) No. 22233 of 2014 dated 09.10.2014. An employee of the Socio Economic Unit Foundation, Thiruvananthapuram -respondent no.2 on being placed under suspension and called upon to submit explanation to the charges framed against him invoked the writ jurisdiction of the High Court. The writ petition was opposed on the ground of maintainability and that is how the issue of maintainability was exhaustively examined. After a detailed analysis of the scheme flowing through the 2 important agencies, the submission of the petitioner that the 2nd respondent, his employer is an accredited agency and a unit of a local self government it is mandatory to approach it in the matter of conservation and sanitation though not subjected to any statutory or supervisory control of governmental agency nor was it in receipt of any aid from the Government was specifically noted. After making reference to the several decisions holding the field and expressively quoting paragraphs 36 and 37 of Binny Ltd (supra) and also on examination of the decisions of the coordinated benches and adopting the principle of stare decisis, the 2nd respondent Society registered under the Travancore-Cochin, Literary Scientific & Charitable Societies Registration Act of 1955 was held to be not a ‘State’. Further, dealing with the relationship between the employer and the petitioner-the employee, it is held as under:-
‘58. Though, the submission of the learned counsel for the petitioner, in the first blush, appears attractive, I am afraid it cannot stand the legal scrutiny. In Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, a Constitution Bench of the Supreme Court has observed that the origin of Government service is contractual; there is an offer and acceptance in every case, but once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. It is further observed that the hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. In fact, under these circumstances, the recourse to public law remedy comes into picture. It is, by any reckoning, fallacious to contend that there is no element of contract in public service.
59. In the present instance, whatever the nomenclature given to the service conditions governing the employees of the 2nd respondent, they are not statutory in nature. In other words Ext. P6 service rules have not been framed under any statute, to say the least. Thus the dichotomy sought to be introduced by the learned counsel for the petitioner that the service rules framed and applied, without actually entering into individual contracts with the employees, are of public nature cannot be sustained.’
The conclusive indication is in the ultimate paragraph; ‘In the facts and circumstances, this Court holds that the 2nd respondent does not answer the description of a State, an agency or any instrumentality of State or that of any other authority. Despite the fact that as an accredited agent to the Government it discharges duties of public nature, a mere service dispute in terms of Ext.P6 non-statutory service rules does not give the necessary wherewithal to the petitioner to take recourse to Article 226 of Constitution of India. Accordingly the writ petition is dismissed at the threshold as not maintainable, but leaving it open for the petitioner to explore other legally permissible methods of grievance redressal.’”
Finally and far most importantly, the Full Bench then rightly holds in para 40 that, “It is trite position of law that the power of the High Court conferred under Article 226 of the Constitution to issue writs, for enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose can be directed to any person or authority. But it is well understood that a mandamus would lie to secure the performance of a public or statutory duty in the performance of which, the person who seek such a writ has a sufficient legal interest. The writ, in form of a command directing particular act to be done would lie against a nature of public duty, though the person or authority on whom the statutory duty is imposed need not be a public official or an official body. A writ in the nature of mandamus would also lie against a private body, but only when such body performs any public function. The commercial business of banking, though is a function of public importance is not a public function and this position, succinctly flow from the decision of the Apex Court in case of Federal Bank Ltd. (supra). Merely because the Reserved Bank of India prescribe the banking policy for the sound economic growth and any particular bank function under the Banking Regulation Act, a private company carrying on business or commercial activity of banking do not conclusively establish that it discharge any public function or public duty. The Regulations are to be ranked not more than regulatory measures and if there is a failure to adhere to the said regulations, certain consequences are visited, is also not an indication to categorize the functioning as public duty. Similarly, merely because an organisation carries on function of public importance which are akin to or closely related to government functions, it would be no reason to hold that it discharge public functions.
Another important aspect which has to be borne in mind is that a writ can be issued for the discharge of only that public function if at all a body performs a public function and not any other function performed by it in the course of its business. Even if a body is performing public duty and amenable to writ jurisdiction, as a necessary sequel, all its decisions are not subject to judicial review but only those decisions which have public element therein can be judicially reviewed in exercise of writ jurisdiction. A fine line needs to be drawn between the contract of service by bearing its connection to the nature of contract and a contract of personnel service cannot be enforced with the exception when the employee is a public servant working under the Union of India or State, or an employee who is employed by any authority which is recognised as ‘State’ within the meaning of Article 12 and when such an employee fall within the ambit of “workman” within the meaning of Section 2(s) of the Industrial Dispute Act, 1947. There cannot be any dispute that writ is maintainable under Article 226 of Constitution of India even against a private management for enforcing the ‘public duty’ cast upon them, but it cannot be said that the same is available also for enforcing the terms and conditions of service in every situation. With the said observations, the Accountant who had knocked the doors of the Court who was aggrieved by issuance of a chargesheet by the Socio-Economic Unique Foundation, a private Society without any government control, and which was held to be not answering the description of a State, an agency or instrumentality of State or that of any other authority, it was held that though acting as a accredited agent to the Government it discharges duties of public nature, mere service dispute in terms of non-statutory service rules does not permit the petitioner to take recourse to Article 226 of the Constitution of India. In light of the aforesaid discussion on the two issues formulated by us in the primorial part of this judgment, we answer the same as under:
1) The Goa State Cooperative Bank Ltd is not a ‘State’ or an instrumentality thereof nor does it fall within the ambit of ‘Any other authority’ for the purposes of Article 12 of Constitution of India.
2) The GSCB does not discharge any public functions, which would warrant issuance of writ in the nature of mandamus in discharge of its performance of public functions. The questions being decided as aforesaid, we direct the Writ Petition to be placed before the appropriate Bench for its consideration.
The questions being decided as aforesaid, we direct the Writ Petition to be placed before the appropriate Bench for its consideration.”
In a nutshell, we thus see that the Bombay High Court effectively, elegantly and eloquently addresses both the questions and superbly answers them after according rational reasons for the same along with relevant case laws! In an 85-page judgment, the Full Bench of Bombay High Court has taken great pains to explain each and every aspect along with relevant case laws and we have dealt with only the most relevant part here. This brief, brilliant, bold and balanced judgment is like the key that has unlocked the lock and answered both the questions posed with consummate ease! It goes without saying: “There is nothing more that remains to be said”!
Sanjeev Sirohi, Advocate,
Scrapping of IPAB under the Tribunal Reforms Bill, 2021: Is it a right move?
The Government of India recently introduced the Tribunal Reforms (Rationalization and Conditions of service) Bill, 2021 which was passed by Lok Sabha (The Lower house) and is currently pending at Rajya Sabha (The Upper House) for its approval. The Bill was introduced to bring reforms in working and appeals through Tribunals. The bill aims to modify the working of some tribunals or merging some which are involved in similar functions while scrapping other tribunal all together which are not necessary or which do not handle cases in which public at large is litigant.
REASON OF THE BILL
The decision to reform tribunals was taken after the government’s analysis of tribunals’ data for last three years. It was noted that tribunals in several sectors did not necessarily lead to faster justice delivery and that they were also at a considerable expense to the exchequer. Another reason which led to such reforms was the issue of shortage of supporting staff of tribunals and infrastructure which led to inefficiency in working of such tribunal. The government also relied on various Supreme Court Judgement wherein the Hon’ble Court has deprecated the practice of tribunalisation of justice and filling of appeals directly to the Supreme court. The Government further while considering streamlining of tribunals necessary noted that it would not only save considerable expense to the exchequer and at the same time, lead to speedy delivery of justice.
SHORTCOMINGS OF IPAB AND ITS SCRAPPING
The dispute resolution of IP matters is a long process. An additional Intellectual Property Appellate Board (IPAB) was constituted in 2003 to look into appeals from Registrar under The Patents Act, 1970, Trade Marks Act, 1999, Geographical Indication of Goods Act, 1999 & the Copyright Act, 1957 (the Acts) and to have an expert insight in such matters. However, the Board failed to achieve its objective and proved ineffective. The Backlog of IP cases instead of falling, increased even after constituting the board. A total of 3933 cases were pending with the board till 2019. and a total of 1223 cases are still pending out of 1541 cases which were filled between August 2020 to February 2021. Considering the inefficiency of IPAB in delivering justice and in reducing significant workload from high courts which otherwise would have adjudicated such cases, the Bill proposes to scrap the Intellectual property Appellate Board in its entirety and replace it with respective High Courts. This was done with an aim to reduce Backlog of IP matter through speedy trial and to relocate the funds earlier utilized on the Appellate Board and its infrastructure. Another reason which led to scrapping of IPAB was that IPAB acted just as an additional layer of litigation and many cases did not achieve finality at the level of IPAB and were litigated further till High Courts and Supreme Court, especially those with significant implications.
AMENDMENTS IN THE ACT
The Bill further proposes to transfer all the pending cases of IPAB to High Courts. Accordingly, the Bill has amended the term Appellate Tribunal with High Court in all relevant sections of the Acts. The bill has also repealed certain sections which specifically dealt with Appellate tribunal. However, more clarity is required for the cases which have been already once heard by IPAB or in cases where final decision of IPAB is still pending. Further, it will be interesting to see how effectively does the transfer of cases takes place from IPAB to High Court in absence of any specific guideline or procedure laid down.
The Bill provides for appeal against the order of registrar directly to the High Court within 3 months from date of order. Such appeal shall be listed and heard by single judge of the High court, which if deems fit can transfer it to the bench. In case, the appeal is decided by the single judge, a further appeal lies with the bench of High court within 3 months from date of certified copy of judgement. The jurisdiction of High Courts in Appeals of IP Matter is still unclear, whether only high courts at the place of sitting of Registrar is will have the jurisdiction or whether the civil procedural law will be followed while hearing such matter. It will also be interesting to see if a separate IP bench is created in High Courts to deal with IP issues as already pending cases in High courts have increased over years and the bill if implemented will further overburden the court.
The bill is a step towards bringing appeals of judicial cases in main streamline. The Bill still has certain open ends which needs to be looked and filled in order to effectively implement it. The Government needs to look into management of these cases in High court which are already over burdened. The Government also needs to fill the vacancies of Judges in High Courts for achieving the aim of the Bill.
India attracts $67 billion FDI in Apr-Dec 2020
India attracted total FDI inflow of US$ 67.54 billion during April to December 2020;
FDI equity inflow grew by 40% in the first 9 months of F.Y. 2020-21 (US$ 51.47 billion . Foreign Direct Investment (FDI) is a major driver of economic growth and an important source of non-debt finance for the economic development of India. It has been the endeavor of the Government to put in place an enabling and investor friendly FDI policy. The intent all this while has been to make the FDI policy more investor friendly and remove the policy bottlenecks that have been hindering the investment inflows into the country. The steps taken in this direction during the last six and a half years have borne fruit, as is evident from the ever-increasing volumes of FDI inflows being received into the country. Continuing on the path of FDI liberalization and simplification, Government has carried out FDI reforms across various sectors.
Measures taken by the Government on the fronts of FDI policy reforms, investment facilitation and ease of doing business have resulted in increased FDI inflows into the country. The following trends in India’s Foreign Direct Investment are an endorsement of its status as a preferred investment destination amongst global investors:
• India has attracted total FDI inflow of US$ 67.54 billion during April to December 2020. It is the highest ever for the first ninth months of a financial year and 22% higher as compared to the first ninth months of 2019-20 (US$ 55.14 billion).
• FDI equity inflow grew by 40% in the first 9 months of F.Y. 2020-21 (US$ 51.47 billion) compared to the year ago period (US$ 36.77 billion).
• FDI inflow increased by 37% in 3rd Quarter of 2020-21 (US$ 26.16 billion) compared to 3rd quarter of 2019-20 (US$ 19.09 billion).
• FDI inflow showed positive growth of 24% in the month of December, 2020 (US$ 9.22 billion) compared to December, 2019 (US$ 7.46 billion)
FIRST EXPORT CONSIGNMENTS OF ‘RED RICE’ FROM ASSAM TO UNITED STATES FLAGGED OFF
In a major boost to India’s rice exports potential, the first consignment of ‘red rice’ was flagged off today to the USA. Iron rich ‘red rice’ is grown in Brahmaputra valley of Assam, without the use of any chemical fertilizer. The rice variety is referred as ‘Bao-dhaan’, which is an integral part of the Assamese food.
The red rice is being sourced by leading rice exporter – LT Foods. The flagging off ceremony of the export consignments was carried out by APEDA Chairman Dr M. Angamuthu at Sonepat, Haryana. As the exports of ‘red rice’ grow, it would bring enhance incomes of farming families of the Brahmaputra flood plains.
APEDA has promoting rice exports through collaborations with various stakeholders in the value chains. The government had set up the Rice Export Promotion Forum (REPF), under the aegis of the APEDA. REPF has representations from rice industry, exporters, officials from APEDA, ministry of commerce and directors of agriculture from major rice producing states including West Bengal, Uttar Pradesh, Punjab, Haryana, Telangana, Andhra Pradesh, Assam, Chhattisgarh and Odisha.
During the April – January period of 2020-21, the shipment of non-Basmati rice witnessed an impressive spike. The non-basmati rice exports was Rs 26,058 crore (3506 US$ Million) during April-January, 2021 against Rs 11,543 crore (1627 US$ Million) reported during April-January, 2020 period. The exports of non-Basmati witnessed a growth of 125 % in Rupee term and 115 % Dollar terms.
The sharp spike in rice exports especially during a phase where globally the COVID19 pandemic has disrupted supply changes many commodities, has been attributed to the government taking prompt measures to ensure exports of rice while taking all the COVID19 related safety precautions. “We took several measures in terms of ensuring safety and hygiene because of the operational and health challenges posed by COVID19, while ensuring that rice exports continue uninterrupted,” M Angamuthu, Chairman, APEDA has said.
CONSULTATIVE APPROACH OF THE GOVERNMENT IN FORMING POLICY FOR CHEMICALS AND PETROCHEMICALS SECTOR: SADANANDA GOWDA
Mr DV Sadananda Gowda, Minister of Chemicals & Fertilizers, Govt of India today emphasized that the government is working on a consultative approach in forming the policies for India chemicals and petrochemicals sector.
Addressing a webinar on ‘Implementation Strategy of Budget Announcement 2021-22’, organised by the Department of Chemicals & Petrochemicals, Govt of India and FICCI, Mr Gowda said that the Prime Minister’s intention is to see that the implementations of the Budget announcements be given more importance. “Implementations of the Budget announcements cannot be done only by the government. We should take our industry in confidence so that implementations can start from first week of April. The challenge for the govt is to now match the suggestions of the industry with the implementation part,” he added.
Gowda further said that Budget 21-22 has provided a nearly 200 per cent boost to the Indian pharmaceutical sector as the government sets around INR 124.42 cr for initiatives aimed at the development of the industry. “The big push for the pharma sector is being seen as an attempt to discourage the imports of raw materials that are widely used in local manufacturing,” he emphasized.
During the COVID-19 slowdown there has been noticeable production and consumption shift towards Asian and South Asian countries. The Speciality Chemical sector in India has been one of the few sectors that has remained largely unfazed by the ongoing slowdown, he added.
Highlighting the importance of R&D in the sector, Gowda said that a balanced approach through resource mobilization, key government initiatives in the sector and developing technological capabilities shall spur growth. This will also enable us to overcome the pandemic situation and make the sector stronger and more competitive.
Mansukh Mandaviya, Minister of State (IC) for Ports, Shipping and Waterways & Minister of State for Chemicals & Fertilizers, Govt of India said that the government is working to introduce PLI scheme for the Chemicals sector to increase domestic production. There are immense opportunities for the industry and the government is working to ensure to provide all necessary support. “The government decides on policies after a thorough research on ground and wants to make the industry competitive. We have to encash the opportunity,” he added.
Mandaviya further said that India has both the potential and the manpower to deal with the pandemic. The result of medicine diplomacy has been such that the entire world now wants to procure vaccines from India. After supplying medicines to 120 countries, no country has complained of inferior quality medicine. The Indian industry, its entrepreneurs and the Made in India stamp have set a benchmark globally, he noted.
Yogendra Tripathi, Secretary, Department of Chemicals & Petrochemicals, Ministry of Chemicals & Fertilizers, Govt of India said that the global petrochemical market is estimated to be $ 453 bn in 2020 and in the current decade is expected to grow at a CAGR of more than 6 per cent. “In the Indian context, the growth of petrochemicals and chemicals is going to beat the global trends,” he added.
Deepak C Mehta, Chairman, FICCI Chemicals Committee and CMD, Deepak Nitrate said that the budget did give some corrective measures for the duty structures particularly in places where there was inverse duty. The budget has given us many newer signals that are more on macro level but are very particular to the chemical industry, he added.
Kamal Nanavaty, President, CPMA said that as the world moves from conventional mobility of internal combustion engines to electric and hybrid vehicles, we will have the refining assets really become available to build new petrochemical base.
A lurking air pollution emergency amidst farmers’ agitation
It is surprising that dispensing with the fine on stubble burning is turning negotiable for the government and the farmers at the cost of the health of millions of people in northern India who choke whenever the farm fires are lit.
By imposing fines that were as high as Rs 2000 for not wearing masks, the Government of the NCT of Delhi demonstrated that when words do not work, restrictions become necessary. One cannot help but wonder where are these restrictions when it comes to protecting the air in and around Delhi.
The Central Government promulgated new farm laws/ ordinances in India during 2020 to protect the interests of farmers and also, to save the environment. Over the last few months Indian farmers have put up a strong resistance to the farm laws introduced by the Central Government in more ways than one. Since the highlight of their protest is their non-negotiable demand to repeal the three farm laws and a legal guarantee of MSP, some other demands of the farmers have gone unnoticed by the national media and especially the people of Delhi.
A crucial part of their demand, apart from rolling back the three farm laws has been dispensing with the fine imposed on stubble burning. It is surprising that such a discussion on dispensing with the fine on stubble burning is turning negotiable for the Government and the farmers at the cost of the health of millions of people in northern India who choke whenever the farm fires are lit. The air pollution in Delhi has been the focus of the entire world for the last one decade with Delhi topping the list of the most polluted cities around the world. Needless to say, little has been done to address the issue effectively. On the contrary, conflicting stands have been taken by governments for the ‘state’ of Delhi.
Delhi Chief Minister Arvind Kejriwal for example, openly supports the agitation against the farm laws, while he had previously been very critical of the farmers in Punjab and Haryana for stubble burning. All his Press campaigns on the issue of air pollution in Delhi during 2019 had centred squarely on stubble burning, which he had blamed for the foul air in Delhi. Sadly, not even once did the Delhi Government suggested the stakeholders during the farmers’ crisis that stubble burning needs to be regulated and discouraged. In fact, during the ongoing farm agitation, stubble burning increased many folds and the capital city choked yet again, in the absence of any state protection whatsoever.
The Delhi Government has time and again identified stubble burning in Punjab and Haryana as the main contributor to air pollution in Delhi. The Central Government recently passed the Commission for Air Quality Management for NCR Ordinance, 2020 to tackle this issue. Through this ordinance, stubble burning was to be penalised which was hopefully an effective step towards curbing the menace. However, the farm protests may even compel the Central Government to concede to the demand to exclude the penalty clause for stubble burning from the laws. In this sticky situation of blame-game, concessions and vested interests, the Delhi’s air emergency is once again pushed to the backburner.
Personally, my fight for clean air in Delhi is on since 2015 before the Hon’ble High Court of Delhi in the matter titled as ‘Sudhir Mishra vs Ministry of Health and Family Welfare and Ors.’ in W.P. (C) 2115/2015 tagged with a suo-moto matter of the High Court. Unfortunately, I suffer serious demotivation when I see professed global climate change crusader activists like Greta Thunberg supporting farm laws and not the right of the children of Delhi to breath in clean air. At the peak of the coronavirus pandemic, I had again moved to the High Court of Delhi to somehow control air pollution in Delhi, which was being adversely affected by stubble burning. However, the court was advised by the Central Government that it would soon bring a law to penalise stubble burning. And now here we are, back to square one, with the likelihood of the law or ordinance that could have penalised farmers for stubble burning being sacrificed, while climate change activists protest in favour of the farmers and their historical ways. In fact, we also know the deplorable condition of ground water and that it›s brazen extraction for water intensive farming in Punjab and Haryana is detrimental to our hopeful climate goals.
In October, 2020, the Supreme Court of India had indicated that it would study the stubble burning ordinance and pass orders, if necessary. However, in spite of the absence of any opinion of the Supreme Court on the said ordinance, the Government may concede to the demand of farmers and agree to remove the provision for imposing a fine on stubble burning and hence, wreak havoc with the health of millions of people. Moreover, Nobel Prize winners and other luminaries in the public eye internationally have come out in support of the farmers, turning a blind eye simultaneously to the consequences of stubble burning affecting the air pollution and smog in the national capital of Delhi. While climate change activists share toolkits and enhance international camaraderie around the laws, they fail to raise a climate change question supporting clean air for Delhi.
Arguments have also been made by many distinguished environmentalists that the farmers’ protests for repealing the three farm laws are a smokescreen to arm-twist the Government into allowing the other demands made by the farmers, and here we see that the environmental concerns have gone for a toss in this tug-of-war between the farmers and the Government. To top it, the opposition is fighting tooth and nail to maybe gain political advantage, which is a point of concern for actual climate change warriors. The massive vote bank in areas of Punjab and Haryana have probably motivated political parties to single-handedly parrot the farmers at the cost of middle-class taxpayers of the National Capital of Delhi, who inhale smoke-filled foul air.
In the entire maze of confusing discussions over the new farm laws controversy, somewhere the taxpaying middleclass of the capital city of Delhi have been the most neglected. Not only are the state borders closed and movements of Delhi residents restricted, but their lungs too are choking on account of the air quality in Delhi. The entire city is in a hostage situation and we are going to see sustained stubble burning in future as well, as farmers continue to be instigated to persist with their stir. What is even more uninspiring is that while Delhi bears the brunt of this farm law crisis, there is no encouraging talk or message for Delhi citizens to build their faith in improved air quality in Delhi. Instead, people governing them have abandoned their responsibility and are looking the other way for a considerable period of time now. Global Climate Change Activists like Greta Thunberg’s support towards the farmers agitation against the farm laws, ostensibly for the climate has raised many eyebrows. If one considers the ground issues concerning environment, then Thunberg may not be an inspiration to many young children, especially of Delhi.
While it is desirable that the farmers concerns are resolved soon, but does it have to be at the cost of health of so many owing to the Air Emergency?
The author is Founder and Managing Partner, Trust Legal, Door Tenant at No5 Barristers’ Chambers, United Kingdom and Climate Change Lawyer.
In October 2020, the Supreme Court had indicated that it would study the stubble burning Ordinance and pass orders, if necessary. However, in spite of the absence of any opinion of the Supreme Court on the said Ordinance, the government may concede to the demand of farmers and agree to remove the provision for imposing a fine on stubble burning and hence, wreak havoc with the health of millions of people. Moreover, Nobel Prize winners and other luminaries in the public eye internationally have come out in support of the farmers, turning a blind eye simultaneously to the consequences of stubble burning affecting the air pollution and smog in the national capital of Delhi.
Global climate change activists like Greta Thunberg’s support towards the farmers’ agitation against the new farm laws, ostensibly for the climate, has raised many eyebrows. If one considers the ground issues concerning environment, then Thunberg may not be an inspiration to many young children, especially of Delhi.
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