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Non-personal data: Tread wisely in the new gold rush

India’s effort to regulate the non-personal data space stirs up various questions, whose answers will determine the course of business, economy, citizen rights and national sovereignty.

Brijesh Singh and Khushbu Jain



There is a distinction between rival and non-rival goods. Material goods cannot be used by multiple people at the same time, making them rival goods. On the other hand, information, ideas and data are non-rival which means they can be used by multiple people at the same time without reduction in their value or utility. Exclusive property rights which apply to material rival goods are inherently unsuitable to the non-rival domain. Reuse of the same set of data and information for multiple purposes is also not an issue. If one has it, do not exclude others from having it too. This reduced excludability has created the root cause for property rights problems in digital information technology such as: (a) piracy of copyright protected digital products, (b) privacy issues in personal data, and (c) private ownership of data.

The case of non-personal data coming out of sensor readings, or aggregated data which has been anonymised, is different, as it is not produced with a creative human effort. Hence the intellectual property associated with such data is not at par with a design or a formulation or a trade secret.

The Government of India recently received a report from the ‘committee of experts’ working under the chairmanship of Kris Gopalakrishnan. This expert committee was set up to deliberate a ‘Non-Personal Data Governance Framework’ with the following terms of reference:

1. To study various issues relating to Non-Personal Data.

2. To make specific suggestions for consideration of the Central Government on the regulation of Non-Personal Data.

While aspects of personal data protection, individual privacy and liabilities of various stakeholders are well covered under the (proposed Personal Data Protection Bill, 2019, the current report opens a Pandora’s box in terms of ownership, economic utility, ethics and governance framework for non-personal and aggregated data.

Today’s economy is fast turning into a data economy, and market forces have created giant monopolies which hoard personal and non-personal data from various interactions and sensor readings. These data points streaming out of personal devices, cameras, measuring meters, QR code scans, administrative data from smart cities can lead to enormous gains in understanding about public health, security, economy and governance measures.

Adam Thierer in his book, Permission less Innovation: The Continuing Case for Comprehensive Technological Freedom, asks a fundamental question: “Should the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations?”

The answer to this question is polemical. The rise of tech giants which thrive on user generated data has created data monopolies and data barons. These behemoths not only create ‘big data’ every moment, but they have deployed huge compute and complex architectures which are beyond the reach of any innovator or new entrant to collect, access or process, let alone derive value from it. They also shape the environment in which businesses operate to create huge entry barriers utilizing a first mover advantage. It is time that public data is considered as a species of commons and not the sole property of the business or organisation which generates it during the course of its transactions or commerce. While data as a commodity is being monetised through data brokers, it is not available to researchers, governments, startups and the public at large.

 Unlocking of big data from the confinements of proprietary ownership will need to have standards, interoperability and norms of sharing in place before we reap its benefits. Apart from the commercial value of the data, there is a great potential to improve dimensions of human life like: (a) public health; (b) personal safety and (c) violence against the person. And with benefits comes the potential for misuse as the dramatic reduction in the cost of conversion, copying and transmission of digital content between carriers significantly reduces the natural excludability barriers conferred on information by its material carrier and technology becomes more ubiquitous.

 Data has a net asset value, and despite the rapidly growing volume and economic importance of data in the digital economy, legal aspects surrounding data are somewhat ambiguous because there is no well-established property right regime for data. Ambiguity on aspects of data ownership, access and trade, and De facto data ownership dominates and often leads to fragmentation or anti-commons problems in data. Similarly, there are multiple areas of law or different legislative regimes that surround or cover data but none of them covers the whole field of data related issues. For actors within the data economy, this scattered legislation presents significant challenges. This is especially true regarding non-personal data, since the rules under the Information Technology Act and pending Personal Data Protection Bill provide lex generalis for personal data while the free flow of non-personal data regulation only regulates specific issues. Some issues are regulated whilst some are not.

Data trustees and stewardship

In order to ensure that data sharing processes are transparent, privacy is safeguarded and individual control over data is enabled, the data stewardship models will play an important role. This can be implemented effectively if principles of independent governance, transparency and purpose limitation are adhered to.

The defining qualities of stewards: (a) to be able to exercise independent governance and (b) act as impartial and neutral actors with no conflicting interests or desire to commodify data, can be put in action by instating a trustee board that provides oversight and checks for compliance of the steward.

In order to increase transparency, information about key decisions or actions taken by the steward that may have implications for the sharing of stakeholder data must be made available to concerned parties. Purpose limitation requires that the steward restrict data processing for anything outside the scope of consent that was negotiated with beneficiaries. The possible routes to achieve this are via consultations to secure consent and build data use policies and form data sharing agreements.

 The world will generate about 90 zettabytes (approximately a billion terabytes) of data in 2020. By 2025, worldwide data is expected to grow to 175 zettabytes. Digital Information has replaced oil as the world’s most valuable commodity. In order to become a digital economy, India needs to develop a new architecture for systematic data collection and grading, data access and sharing, and data analytics among a wide variety of organisations.

 Data value chains that cut across organisations currently do not exist. The risks and uncertainties associated with data sharing between organisations, even between divisions or branches in the same organisation, are inhibiting data sharing and therefore the need for foundational standards to bring clarity to intended users across new data value chains, establish common parameters, allow for interoperability, and set verifiable data governance rules to establish and maintain trust between participants and with regulators.

 India’s effort to regulate the non-personal data space stirs up various questions, whose answers will determine the course of business, economy, citizen rights and national sovereignty. A fresh approach to non-personal data should lead to greater digital transparency, removal of entry barriers for smaller players, improve choice and efficiency, improve competition and create a level playing field for all.

Brijesh Singh is Inspector General of Police, Maharashtra, and Khushbu Jain is a practising advocate in the Supreme Court. Views expressed are personal.


Unveiling 103rd Parliamentary Standing Committee interim report on functioning of virtual courts

Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process improvement through mechanisation is a primitive first step. Technology in the judicial system needs to unfurl its true potential; today, blockchain artificial intelligence, algorithms and the technology of command have the capacity for calling attention to a fundamental transformation of the judicial process, dispute containment, ensuring only those conflicts requiring judicial resolution enter the court system.



The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinised as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide, i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018, live proceeding was permitted. The Committee persuades the judiciary to speculate solutions viz mobile videoconferencing to licence advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity unless the hierarchy is bound to crumble.

“Vision without execution is hallucination”
—Thomas Alva Edison


COVID-19 descended without a warning, as many pandemics do as history tells us. Access to Justice cannot suffer a lockdown whatever be the circumstances; the criminal justice system can- not function without courts. The courtroom is a service liberating the witnesses meant to give testimony, Clients put out their confidence, Contracts get negotiated, Judges hang down their judgements, and Contracts result in legislation delineating statute. No doubt the British system of administration was superfluous but it has some gross deformities in context of adhering in In- dian Judicial System and has outnumbered repercussions.

Consider the most fertile and dangerous embodiment of disillusionment. Our minds can flip from defending the facts we know into a mode of tearing up the reality.

Taking cognizance of the same, on September 11, 2020, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee) after taking inputs from key stakeholders and best practices across the globe presented its interim report on “Functioning of Virtual Courts/Court Proceedings Through Video Conferencing” (Report) to the Hon’ble Chairman of Rajya Sabha.

How do we conceive of technology and what we can see as the role of technology in? It must be towards fortifying fundamental values of human dignity and equality; our court procedures are just too tardy, too expensive, and unintelligible to common citizens. Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process Improvement through mechanization is a primitive first step. Technology in the judicial system needs to unfurl its true potential, today blockchain artificial intelligence, algorithms and the technology of command today has the capacity for calling attention to a fundamental transformation of the judicial process, Dispute containment ensuring only those conflicts require judicial resolution, enter the court system. Dispute avoidance facilitates those processes which ensure that a dilemma does not reach the stage of an animosity. Disseminating knowledge about privileges and remedies available, so as to entrust citizens & Emphasising on virtual courts, and the future of technology. While Design structure stimulating technology is required to bolster the ambit of courts to implicate dispute avoidance and to endow dispute containment by the courts to mediation and foster dispute resolution. The UK civil justice council report proclaimed one’s incapable to do this would be a fluoride element in the law is asking when someone introduces fluoride into the water and stop to decay. So we’d be able to stop the decay of the system, and that would be a fluoride element in the law. Forthcoming justice that requires all information & data findings of the courts, as well as court proceedings themselves, should be understandable to non-lawyers. Paradoxically The Indian legal System rolled out virtual hearings by the dint of Article 142 of Indian Constitution on 6th April 2020 besides Turkey, Canada & Italy.

General Concern Surrounding Virtual Courts

The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinized as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018 live proceeding was permitted. The Committee persuades Judiciary to speculate solutions viz mobile videoconferencing to license advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity un- less the hierarchy is bound to crumble. If the efficient sub- ordinate judiciary is built, the amount of reducing the dependency on High Courts will reduce or limit their burden. The National Judicial Data Grid can be taken up for a 360-degree assessment of judicial officers not just in the terms of the cases they dispose but also how far the courts incorporate the ICT governance system. Clasping Technology becomes a major consideration as the majority of the advocates are not well versed. Specialized Course needs to be entertained to swap with digital platforms.

Poor Connectivity leading to glitches & crashing of systems. In the middle, both the ends have better connectivity that will facilitate better video conferencing. The need for good infrastructure is like the pre-requisite of a healthy body for a healthy mind. It is absolutely essential that there is an atmosphere conducive for good work and an individual needs to refurbish skills. Delay in justice delivery system or the judicial process is a very well-known problem in India, which is yet to overcome, it’s austere.

One ought to surmise that for a law or a penal provision to play a role of deterrence the fallout of a criminal trial in the shape of its final verdict and an actual feat of punishment on the censured is equally crucial that of the gravity of the retribution all this has to be rendered before the public memory fades. Halt and technicality are inoperative in civil actions alone. The condition is not better in criminal justice. Many criminals are never apprehended in contrast to corruption, favouritism.

The most efficacious mechanism to battle docket explosion with the utmost accountability is to unravel commercial disputes of an international nature. Expanding virtual courts becomes the prerogative. Certain laws have to be amended to legalise Virtual Hearings. The peculiar taking of things towards judicial administration heads back to the primary importance of rendering justice between man and man via virtual courts to administer distributive justice as it redeems time. Evaluating evidence becomes necessary to decipher conflict between the opposition. The transformation of handling witnesses, adversaries recoups both litigants & Courts time, undue penny too as the concept of speedy trial falls within the ambit of Article-21 is an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution Kartar Singh v. The State of Punjab. The common or mediocre ones that cannot even solicit the justice availed just because of financial deficit becomes a depreciating asset of their life toiling or haggling with the righteous intentions. Judiciary by the very nature does not have a majoritarian impulse. The attacks on the legal fraternity are out of the technology.

Key Recommendations

In furtherance to the various concerns received by the stake holders and the adverse prevailing situation owing to the on-going pandemic, the Committee also proposed certain recommendations in order to go on efficiently with the justice delivery system even after the pandemic and keep this avenue open for life long.

Some of the key recommendations included; (a) VCs should function in all the Courts even during non-pandemic time, with the consent of all par- ties for certain categories of cases like appeals etc. and final hearings where on- line virtual hearing would be sufficient. Transfer of certain cases from regular courts to VCs will reduce the pendency of cases. (b) A full-fledged VC should be piloted. This would enable the systems to be tested/ refined and further assist the judiciary in identify- ing the cases best suited to VCs. Petty cases should possibly be the first set of cases that may be disposed easily and quickly. (c) VCs may also be extended to cover arbitration hearings, conciliation and summary trials. If national and international arbitrations are allowed to be conducted through VCs, there will be hardly any requirement for real time travel to distant locations. (d) Further, VCs can be extended permanently to various appellate tribunals such as TDSAT, IPAB, NCLAT etc., located across the country which do not require personal appearances of the parties/ advocates. Permanent VCs can also be established for hearing matters relating to administrative and other tribunals at the time of final hearing.

The committee also took into consideration various infrastructural & training requirements that would be necessary to be taken up in order to be well equipped with the technology. The committee recommended the need for increasing broadband access across the populace by timely implementation of National Broadband Mission by The Ministry of Communications. Prevalence of tech brings concerns regarding the data safety and hence the committee also recommended that Ministry of Law and Justice and Ministry of Electronics and Information Technology should address the data privacy and data security concerns while developing an indigenous new platform for India’s judicial system. The said system could leverage block chain technology to improve reliability of evidence and security of transactions and also case files. The report also based its focus on Improving the quality of courtroom technology to overcome the negative impact on advocacy. Further, a study of courtroom design should be commissioned and customized software/ hardware to facilitate VC should be developed.

All such recommendation would go defeated if proper training is not given to both judges as well as advocates. So, in order to be well versed and adopt this technology in long run, the committee also addressed the need of training and opined that Conducting training and awareness programmes in all court complexes across the country needs to be taken. Along with this, Introduction of a computer course as one of the subjects to train future lawyers on digital platforms should be considered by Bar Council of India, so that the upcoming lawyers can be well equipped with digital justice.


Though, the present Report is only an interim report made by the Committee to bring forth the issues being currently faced by the Indian judicial system. While we await the Committee’s conclusive recommendations as per its final report, it seems that the Re- port has taken a holistic approach towards facilitating VCs and at the same time brings substantial judicial reforms. We are sure of that fact that, the adaptability of technology will not only act as an asset to the justice delivery system but proper implementation of the same will also reduce judicial stress of overburdened courts as well as human wealth.

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Legally Speaking

The case of SC gag order against Sudarshan News

One of the arguments advanced by the intervenors is that ‘hate speech’ is punishable under Sections 153A
and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive.

Siddharth Nayak, Vijay K Tyagi & Krishnagopal Abhay



There has always been a huge debate on this among various writers. Locke provides an interpretation to this as well. He sternly believes that ideas do require labour. Well we can’t expect that an idea to invent a bulb was without an extreme labour being done by Thomas Edison.

The evolving nature and spectrums of the mode of data distribution by the fourth pillar of Indian Democracy has given rise to dynamic challenges for the existing legal framework to control and regulate. Media being the fourth pillar is indeed playing a pivotal role in the society by trying to educate masses. The freedom of press ensures that citizens are vigilant, well informed, and therefore, can discharge their role in a democracy by fixing accountability.

Freedom of Press and Right to Know

The public’s “right to know” has become an increasingly popular political ideal in India. The essence of this right, for both the public and the press, has gained significance and acquired a new meaning in the contemporary era. Although the Constitution does not expressly guarantee the public the “right to know”, an increasing number of constitutional scholars argue that it is an implicit right guaranteed under Article 19 of the Constitution and by the general principles of constitutional democracy. Freedom of press constitutes not only the individual right of the owner of the news publications, the editor, or the journalist; it also includes the right of the citizens to be informed. It can be forcefully argued that the tenets of Article 19 offers within its ambit, the ‘right to know’ without any constitutional, statutory or executive frame- work to restrict or regulate the same before the cause of action arises. Comparatively speaking, the judicial discourse had long evolved since the days of classical Greek and Rome or the 16th century France which staunchly believed in prior restraints along with post- facto substantive measures.

Thus, freedom of press flows from the citizens’ right to know, which is conceived to be paramount. The Hon’ble Supreme Court of India, through several of its decisions on fundamental rights, has developed this jurisprudence. The courts have always been of the opinion and champion of the concept that censorship, since it necessarily restricts freedom, has always been and will continue to be unpopular with those who, from principle, perversity or for profit, insist on unbridled freedom.

Here, as the journalist is claiming that his show is based on his investigation and analysis of data avail- able in the public domain on the selection of students in UPSC Civil Services Examination, it is not only the journalistic freedom which is restricted by the gag order, but it’s also affecting the people’s right to know about the pattern of selection of students in UPSC-CSE.

Writ Jurisdiction when Alternative Remedy is Available

The petitioners approached the Court by way of Article 32 of the Constitution of India, which allows the citizens to approach the Apex Court for enforcement of Fundamental Rights directly. It is settled law that this jurisdiction can only be invoked in the absence of a redressal mechanism or alternative remedy, unless there are compelling circumstances warranting interference of the constitutional court for vindication of fundamental rights. The doctrine of exhaustion of remedies also cements this. The powers conferred and vested with the Apex Court under Article 32 is too infallible to adjudicate upon such issues as well (emphasis on the word ‘adjudicate’).

Rule 6 of the Cable and Television Networks (Regulation) Rules has adequate provisions which disallow the running of any programme, which is an attack on any religion, defamatory or communal. As noted by the Hon’ble Supreme Court in its order, if a show is found to be violative of the said rule, sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1955 are imposed. A bare reading of Sections 19 and 20 makes it amply clear that such sanctions/prohibitions will come from “any authorized officer” or the “Central Government” respectively. The Court, after mentioning the previous sections, took it upon themselves to exercise a power which must be kept outside of their reach.

One of the arguments advanced by the intervenors is that “hate speech” is punishable under Sections 153A and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.

Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive. Under no stretch of imagination can these be used by the Apex Court to issue a blanket order restricting the Freedom of Speech and Expression, which is guaranteed by Article 19(1)(a) of the Constitution. These provisions come into picture after the content is delivered/published, and if the person is found guilty, they shall be punished as per law. For the sake of argument, even if the Court interprets the said provisions to be preventive as well, it is well settled that Fundamental Rights will overpower statutory provisions if they are at loggerheads.

That right is not absolute; it comes with restrictions laid in Article 19(2). It is well settled that before restricting anyone’s freedom under Article 19(1)(a), the “speech/ expression” has to be examined; and if it passes the tests laid in Article 19(2) – post-examination – it may be restricted. One of the issues with this blanket gag order is that it was passed based on a “prima facie” view, formed after looking at some snippets of the show provided by the petitioners, even when the Counsel for Sudarshan TV requested the Court to watch and con- sider the series in toto. Quite interestingly, the Court did not enter the domain of Article 19(1)(a) vs. Article 19(2), but even if they had, it is not within the reach of the Court to pass gag orders invoking the restrictions laid in Article 19(2).

Notably, the constitutional text of Article 19(2) states that the State might make laws to restrict the right guaranteed under Article 19(1)(a). Firstly, it is the ‘State’ which can limit the right and secondly, it has to be done by bringing a ‘law’. In a long catena of judgments, the Hon’ble Apex Court has time and again held that judicial functions of the Judiciary are not under the ambit of “State” as per Article 12 of the Constitution. In the landmark judgment of K.A. Abbas vs The Union of India, the Hon’ble Apex Court held that pre-censorship is allowed as per Article 19(2), but the same has to be done by statutory bodies which are formed by the “State” as per law. It was also laid that statutory bodies will have to lay guidelines and clearly express what would not be permissible. The Court, while getting into the debate of free speech and hate speech, fails to observe that no such guidelines have been formulated as of now. The apex court could have directed the appropriate statutory body/executive body to con-sider the prior restraint position and take appropriate action instead of venturing into the content editorial domains. No matter how one justifies it, Sr. Counsel Shyam Divan’s submissions that a constitutional court should not enter into the fields of content regulation are legally sound.

In this case, the Ministry of Information & Broadcasting, News Broadcasters Association and the Press Council of India were asked to reply, but the order was passed before they could submit their response. Simply put, no stakeholders – including the judges – could examine whether the impugned show could be termed as “hate speech” before the voice was muffled.

On a petition seeking similar reliefs in Delhi High Court, the Ministry of I&B, in its order dated 9th September 2020 refused to ban the show and stated that if the show violates the Programme Code under the Cable Television Networks (Regulation) Act, suitable action will be taken.

Jurisprudence on Prior Restraint: Bypassing the Statutory Mechanism

Delving into the jurisprudence of Prior Restraint, we shall start with the gold- en words of Mr. William Blackstone which strike at the heart of the current issue:“The liberty of the press is
indeed essential to the nature of a free state”. He emphasized on laying no previous restraints on publication, rather punish the publisher after publication, as per the established law. In Patter- son vs Colorado [205 U.S. 454, 462], Holmes J. of The Supreme Court of The United States, while referring to the cherished First Amendment of the American Constitution stated that it was passed to prevent previous restraints upon publications. Article 5 of the Basic Law for the Federal Republic of Germany and Article 21 of The Constitution of Japan guarantees Freedom of Speech and Expression and prohibit censorship of any kind, categorically that of the Press. In India, there are a plethora of cases which have held that prior restraint orders shall not be passed. While hearing a PIL filed by the NGO Common Cause in 2017 praying for regulating the content of the media, the Hon’ble SC had opined that pre-broadcast or pre-publication censorship is not the business of the Court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.

The Counsel for the retired civil servants who intervened in the matter had argued that “hate speech undermines free market place of ideas”. Quite interestingly, in a blog, while defending free speech and criticizing blanket gag orders by the Apex Court, he had written: “Prior restraint is considered especially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere.” Subsequent to this, he also wrote: “we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech”. In another blog titled “Judicial Censorship: A Dangerous, Emerging Trend”, the Counsel had vehemently opposed the “trend” where Judiciary is passing gag orders which as per him is outside of the powers given to them by the Constitution of India. We, lawyers, have often been blamed for being biased towards our cause before the bench even though academically and legally we hold contradictory positions. But contradicting oneself with recorded writings is an insult to one’s own intelligence both as an academician and a lawyer.

It was argued that concession could be made in case of “hate speech”, which is distinguishable from “offensive speech”. For the sake of argument, even if we consider that the impugned show comes under the purview of hate speech, then also it has to be dealt with in accordance with the law. In Pravasi Bhalai Sangathan vs U.O.I. & Ors., the Hon’ble SC had laid: “As referred to here in above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of “hate speeches”. Thus, person aggrieved must resort to the remedy provided under a particular statute.” The precedents pertaining to categorization and classification of “hate speech” needs to be settled as well. Hate speech is an offence but dictating ‘prior restraint’ rationale akin to qui timet in the particular instance sets a dangerous precedent.

Observations of the Bench During Proceedings (Related to Constitution of a Committee of 5 Distinguished Individuals)

On Tuesday, in addition to free speech, self-regulation and legal restraint, the Court ventured into issues of ownership models of TV channels, revenue generation and the number of advertisements that the government gives to them. The discussion soon moved to the possibility of constitution of a committee of “distinguished individuals” to frame guidelines for the electronic media. Both the observations are deeply problematic because it’s not the domain of Judiciary to keep a check on the revenue model of media houses. The observation of the commis-be a case of judicial overreach.

Appointing committees and framing of regulations is a legislative and executive function. If someone believes in the idea of democracy, the concept of distinguished/eminent personalities can’t be said to conform with the high standards of constitutional democracy.

Hon’ble Justice Chandrachud observed that a pre-publication restraint is one of the rarest rationales to be exercised under extreme recourse and can take the Court down a slippery slope. The Court expressed its anguish but yet the gag order was not vacated and instead it went ahead with segments of content editorial suggestions. If one were to infer a ‘collateral bar rule’– which prevents any challenges to a court order if the party disobeys the order before first challenging it in court – arising out of such steps in the Indian context, it sets a duty of absolute obedience notwithstanding any constitutional rights un- less the concerned order has been set aside by a higher authority.

To conclude, the Court’s order of prior legal restraint is problematic in light of the availability of an alternative remedy under various Acts and the settled jurisprudence pertaining to the issue. It interferes with the people’s right to know. Moreover, it’s not the domain of Judiciary to keep a check on the revenue model of media houses; and the observation pertaining to the constitution of a commission, in our humble opinion, will be a case of judicial overreach.

Siddharth Nayak is Managing Partner, Atharva Legal. Vijay Tyagi is LL.M, Constitutional Law, Indian Law Institute and ex-LAMP Fellow. Krishnagopal Abhay is a 2nd-year student of LL.B at Campus Law Centre, University of Delhi.

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Cold War 2.0 is here

Joyeeta Basu



The battle lines are drawn. If anyone still believes that the world has not got divided into two blocs and the icy winds of Cold War 2.0 are not freezing relations, needs to take a look at the speeches delivered at the United Nations General Assembly this week to know which way things are headed. The UNGA is commemorating 75 years of the end of the Second World War, or “World Anti Fascist War” as Chinese President Xi Jinping termed it in his speech. On this forum the contours of the new world order are becoming clearer—a broadly bipolar world inside which multi- polarity functions. One of these two poles is occupied by communist China, while the other by the world’s premier superpower, the United States. China has pushed the world towards bipolarity, with the ultimate aim of fashioning a unipolar world where it is the sole imperial power and everyone else vassal states. At the UNGA, it was surreal the way Xi Jinping went about projecting himself as the global statesman in his speech, when the reality is a world harried by China’s misadventures, its push for influence, its debt trap diplomacy, its spying, its attempts to subvert democracies, its refusal to take responsibility for the coronavirus pandemic, its malignant and authoritarian core. In fact, almost everything Xi said can be countered as China doing exactly the opposite on the ground. He talked about countries sharing a “common future”;
about no country gaining from “others’ difficulties”; on why the world should avoid a “beggar-thy-neighbour policy”; “pursue win-win cooperation”; “rise above ideological disputes and do not fall into the trap of clash of civilizations”; that he is not interested in “cold War or hot war”, and so on and so forth. It was bizarre! In a not so-concealed barb at US President Donald Trump’s “America First” policy, the Chinese President added, “burying one’s head in the sand like an ostrich in the face of economic globalization or trying to fight it with Don Quixote’s lance goes against the trend of history”—it’s a different matter that this can be taken as an implicit admission of China being in economic trouble because of the trade war unleashed by Donald Trump. At the other end of the pole, the US President launched a no-holds-barred attack on the “invisible enemy” that is the “China virus”.

He compared the “mobilization” against the virus in his country being the “most aggressive” “since the second world war”, thus placing Xi Jinping’s China firmly in the company of Hitler’s Nazi
Germany—a comparison Xi has been attracting from many quarters courtesy his aggressive, expansionist policies and his treatment of minorities in his country. As for Russia, its President Vladimir Putin too did not mince words in identifying the United States and its al- lies as being the adversaries, who are not paying heed to Russia’s appeal for “mutual restraint” with regard “to deploying new missile systems”. Countries such as Cuba, Venezuela and Iran went a step further to denounce the “hegemony” and “imperialist ideas” of the US, apart from labelling it as the “greatest danger to international peace and security”—language that is straight out of the Cold War playbook. Interestingly, all of them talked about a multipolar world, while throw- ing their lot in with China, in what will likely be a unipolar world if the Chinese achieve their objective of displacing the US as the world’s number one superpower. And now the most important question: which side does India go with, now that Cold War 2.0 is here? While multipolarity is a good intention, the reality is bipolarity, and sooner or later, reality will clash with the intention. Will India stop waffling then? Will India choose correctly? Which way should India go? With the authoritarian and its rag-tag bunch of bankrupt dictatorships and losers of Cold War 1.0? Or with the free world that is trying to come together to take on the most malign power that this globe has witnessed in several decades, a power that has India’s dismemberment at the core of its Asian policy? The answer is a no- brainer.

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New education policy aims at fighting colonial hangover

NEP 2020 envisions providing students with the idea that only the job which ensures their happiness is a good job. Only a person who performs his job with perfection deserves respect.

KS Radakrishnan



Our knowledge society has been formulated by Eurocentric conceptual frames formulated by British experts on education. Eurocentrism is a theory which believes that Europe is the centre of science, social science, technology, art, literature, music, religion and philosophy—of all wisdom, knowledge, and information. It is a belief shared by the intellectual community of Europe, irrespective of their ideological differences.

The vision statement of the new National Education Policy 2020, formulated by a committee headed by Dr K. Kasturirangan, foresees a major change in the processes of the generation, dissemination and use of knowledge in society. It aims at a paradigm shift from the Euro- centric monolithic structure of education to a pluralistic contextual structure. The NEP envisions a shift from a stagnant knowledge society to a vibrant one.

It is not an easy task to effect changes in a society which has remained stagnant due to many reasons. Our knowledge society has been formulated by Euro- centric conceptual frames formulated by British ex- perts on education. Euro- centrism is a theory which believes that Europe is the centre of science, social science, technology, art, literature, music, religion and philosophy — of all wisdom, knowledge, and information. It is a belief shared by the intellectual community of Europe, irrespective of their ideological differences.

Eurocentric intellectuals, politicians and religious spiritualists believed that everything that is European is superior to what remains in the rest of the world. Europeans, they believed, were the group of people chosen to redeem others. They subscribed to the view that among the people of the world, Aryans are greater and among the Aryans, the Europeans are greater. Adolf Hitler extended the logic further, and thought that among the Europeans, Germans were the superior lot and declared that he himself was the most superior among the Germans. Hitler was not an accidental occurrence but the historical necessity of Eurocentric theory.

The shades of Hitler were evidently seen in the behavioural patterns of those who subscribe to Eurocentrism. They believed in a monolithic structure of life and society. They believed in one God, one text, one Son of God, and one redeemer. This monistic dogmatism of the Eurocentric outlook prompted them to believe in methodological monism, which is the hallmark of European science. They believed that inductivism was the only one valid scientific method and only those claims-to-know formulated by the method of inductivism alone could be considered as true science. They considered all other claims to knowledge as fake knowledge. So, they argued that everything that was non-European should be replaced by European models.

Such an unquestionable belief in Eurocentrism was shared by Lord Macaulay and Karl Marx alike. Like most of the European intellectuals of his era, Marx also believed that India was a land of uncivilised
and barbarous people. He also insisted on replacing the Indian patterns of life with the European models. The religious heads of the European church, ignoring their congregational differences, insisted that scientific Christianity should replace pagan religious practices. The Eurocentric masters who preached colonialism, irrespective of their fractional feuds, desired to establish political authority using religious, commercial, and military tools. This was evident in the preface, written by Lord Macaulay, to the policy draft to implement English education in India in 1835, in which he wrote that India did not have religion, philosophy, science, social science, art, literature, culture, etc. So, the superior European systems should replace all those inferior Indian systems of wisdom, knowledge and information. He concluded that the dissemination of Eurocentric wisdom could create people who were Indians in their appearance and Europeans in their spirit and culture.

Macaulay did not hesitate to reveal the real intention of the introduction of a Eurocentric education in India. In his address to the British council of India, he said that “unless we break the backbone of this nation (India), which is her spiritual and cultural heritage”, the British could never conquer India. He decided to use English education as a tool to create a population which was Indian in appearance and European in culture.

Mahatma Gandhi realised the hidden danger of English education and the European patterns of life. He exposed their illogicality and impracticability in his thought- provoking work Hind Swaraj in 1905. It was the first logically valid and intellectually sublime attack on Eurocentrism. He exposed the logical inconsistencies of methodological monism and he preached methodological pluralism in every form of human knowledge. The Eurocentric intellectuals criticised Gandhi severely in India and abroad. But Macaulay was absolutely correct because he could create educated Indians with an unconditional submission to Eurocentric enslavement. Jawaharlal Nehru, the first Prime Minister of India, was an ardent admirer of Euro-centrism. Gandhi and his teachings came to be treated as academic untouchables by the Indian academic community, and hence, we followed the Eurocentric paradigm in our system of education.

The vision statement of NEP 2020 reveals that it aims at a paradigm shift from such Eurocentrism to Indian contextual forms. The direct corollary of Eurocentrism is anthropocentrism, a belief shared by the Greco-Roman culture, which says that man is the centre of the universe and everything in the universe should be interpreted in terms of the interests of man. The Hellenic philosophy, the prophetic religions, and the Eurocentric sciences unanimously advocate for the establishment of the man-centred world. According to the Old Testament, man alone was created in the image of God. Further, it believed that God entrusted man to rule over the rest of the creations for and on behalf of God.

Therefore, it concluded that man is superior to the rest of the creations and there is nothing wrong with interpreting the universe to meet his interests.

Aristotle defined man as a rational animal. He placed man at the top of the order of the hierarchy of the phenomena of the universe. The Greek philosophy and culture declared that man was the measure of all things. Science placed man at the top of the ladder of evolution and admitted that there was no creature equal to man in the universe.

Religion, philosophy and science unanimously spread the belief that man enjoys unconditional rights over natural phenomena and that man was free to exploit nature to satisfy his unquenchable thirst to enjoy worldly pleasures. The unfettered exploitation of nature by human beings, which has been glorified by Eurocentrism, is the reason for ecological imbalance. The vision statement of the NEP, thus, designs a paradigm shift from anthropocentrism to ecocentrism. Ecocentrism is the view that reminds human beings that they are not the masters of the universe but only one among its many phenomena. Man cannot ensure his survival by ignoring the natural rights of other phenomena in the universe.

Nothing in the world should be controlled by anything other than the thing itself. Everything in the universe should be controlled by its own centre, not by an external force. It conceives the universe as the communion of self-regulated manifestations, where man is only one among the many, not the master of the rest. Similarly, the concepts of Swaraj or Aatmanirbhar Bharat aim at the creation of a world in which every phenomenon is controlled by the force inside it. Hence, the much-celebrated dependence on the enslavement to Eurocentrism of the Indian academic community should be replaced by the process of contextualisation.

Naturally, there should be a paradigm shift from the learning of abstract ideas to concrete and contextualised pragmatic knowledge. The present system of education insists that students mug up theories devoid of pragmatic use as part of their curriculum, which creates a lethargic mindset in the students. There are many students who secure a bachelor’s degree in technology only to do the job of an office assistant, which never provides a chance to use what they learnt as part of their curriculum. Such a state of affairs creates a feeling of alienation among them and they become lethargic in life. This is one of the bad outcomes of the present system of education as it bifurcates the courses of study into job- oriented courses and job- alienated courses. Hence, it creates the false notion that job-oriented courses are better because they guarantee good jobs. ‘Good jobs’ usually mean the jobs which ensure more security and financial gains for the candidate. This is the reason behind the rat race for getting admission to the so-called professional courses.

In this regard, the NEP en- visions providing students with the idea that only the job which ensures their happiness is a good job. Only a person who performs his job with perfection deserves respect. This is the reason that a first-rate barber commands more respect in society than a third-rate professor.

Dr K.S. Radhakrishnan is a writer, orator and academic. He is the former Vice Chancellor of the Sree Sankaracharya University of Sanskrit, Kalady, and former Chairman, Kerala Public Service Commission.

The views expressed are personal.

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Will PM Modi be able to deflect farmers’ anger?

Priya Sahgal



The politics regarding the three Ordinances have taken over Parliament’s Monsoon Session. As it is the session was a truncated one, to be held during the pandemic. And it was not without risk with 25 MPs and 56 of the staff testing positive. There were elaborate arrangements made, especially keeping social distancing in mind. MPs marked attendance via an app, RT-PCR tests were conducted within the complex and so on. But was the risk worth it?

 For, in the end, it was back to the old-fashioned way of doing politics, as opposition MPs rushed to the well claiming that the government had tried to bulldoze a voice vote through on the three controversial Ordinances that were brought about by the government soon after the marathon lockdown ended. This was a sad end to a fiery debate on the subject that saw some well-crafted arguments on both sides, not to mention high drama that flagged it all off with the resignation of a Cabinet minister at the start of the session. Why did Harsimrat Kaur Badal wait till the Ordinance reached Parliament before resigning, and did not do so at the time the Ordinances were passed, on 5 June 2020? Why did the Opposition wait as long before taking up the issue? Well the answer lies in the simple fact that it was only after the farmers hit the streets that the political parties realised the ramifications of this move and decided to join the cause with a very influential vote-bank.

 But first, a look at what these pro-farmer legislations are all about: The most controversial was Farmers’ Produce Trade and Commerce (Promotion and Facilitation) ordinance (now a Bill), which allows farmers to sell produce outside the markets notified under the various state agricultural produce market laws (state APMC Acts). The second one, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services legislation overrides all state APMC laws with reference to the sale and purchase of farm products, bringing uniformity into contractual farming rules (and state APMC Acts) across India. While the third seeks to bring changes into the list of essential items whose prices are regulated by the government.

 While the government claims that these are for the betterment of the farmers, it is clear that the targeted beneficiaries disagree. They see these changes as a move to please big firms, to do away with the MSP and pronounce a death knell on the farmers’ with small holdings (that comprises about 86 percent of the farming population). Seeing the farmers hit the streets the government clarified — with the PM himself issuing a statement — that this was a move aimed to reform the lives of farmers and that MSP would not be done away with but it was too late because the distrust had already set in. The Akali Dal, which is the BJP’s oldest ally, played it smart, realising that this was a move that was going to boomerang on its vote-bank. Don’t forget that the SAD is largely a rural-based party while it was the BJP that dominated the urban Punjabi voter. It has been a combination that worked, even during demonetisation. And so naturally the SAD is not keen to severe ties. Which is probably why during his intervention in Parliament SAD MP Naresh Gujral also reminded us about how much the Modi government had done for the farmers. But there was no way even an articulate orator like him could defend the Modi government’s latest move and so he ended his speech recalling what the Gurus have taught us about “qurbaani” and “zulm ka saamna karna” (sacrifice and taking on injustice). He pointed out that today the farmers feel that a “zulm” is being instigated against them and so the Akali Dal was standing by them. 

Other parties too such as the TMC, the AAP and the Congress have taken up cudgels against this move, while the AIADMK and the YSRCP have supported the government. However, it was the demand that the bills be sent to a standing committee (read delay) that had the government overruling this with a voice vote, and therein began the ruckus that saw the expulsion of eight MPs from the Rajya Sabha. 

Why didn’t the government agree to the standing committee, especially after seeing the farmers protest all over the neighbouring Haryana, Punjab and other states? There are many reasons but the obvious one is that there are no rollbacks in Modi’s playbook. Whether it was demonetization or the unwieldy GST, it is clear that once he has made up his mind (right or wrong) he doesn’t need popular approval. He has the numbers to push the decision through and this is what he does. And to give him credit, he also manages it to sell the same decision to the public when it comes to the crunch — voting time. For, don’t forget after demonetisation and GST everyone thought he had lost the BJPs critical vote-bank, the rural poor, traders, small shopkeepers and banias. But in the end, he ensured that first the party won the critical state of UP in 2017 and then the rest of the country in 2019. 

So before we write off the farmers’ vote away from the BJP, let’s wait and watch the one man who knows how to take a controversy and repackage it as an election winning move. Watch this space.

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Covid-19 pandemic is a big wake-up call for us

India’s situation is not unique; the same ills can be seen across the globe. It is a larger pandemic waiting
to explode. Let’s take the coronavirus crisis as nature’s warning to set our development model right.



“The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis”
– Dante Alighieri (1265 – 1321), Italian national epic poet

The coronavirus pandemic and the ensuing lockdowns which brought us face-to-face with the plight of migrant workers shocked many of us. So why were we shocked? Had we not seen the blank eyes or heard the silent cries of the teeming mass of men and women who crowded our cities, lived in shanties and hovels, having unclean water and food? They worked long hours in unhygienic and inhuman conditions. Penury and disease were a part of their lives. Their families in the villages depended on their meagre earnings, and they dared not raise their voice against the exploitation, because there were millions of others waiting to replace them.

Why are we always surprised when confronted with a crisis? Why is the default reaction one of finding an excuse or blaming someone else? Despite being one of the oldest civilisations, how is it that not one of us is able to foresee the outcome of our actions? Have we been sleepwalking, or have we been drugged by the ‘aspirational’ goal of creature comforts? Where are our brilliant men and women of science, technology, literature, economics, statistics, history, culture and strategic studies? 

The coronavirus pandemic and the ensuing lockdowns which brought us faceto-face with the plight of migrant workers shocked many of us. So why were we shocked? Had we not seen the blank eyes or heard the silent cries of the teeming mass of men and women who crowded our cities, lived in shanties and hovels, having unclean water and food? They worked long hours in unhygienic and inhuman conditions. Penury and disease were a part of their lives. Their families in the villages depended on their meagre earnings, and they dared not raise their voice against the exploitation, because there were millions of others waiting to replace them. Did we actually believe that it was fine to hire a man or a woman for less than Rs 10,000 per month, without any obligation for his social security, health, shelter, education or development needs? It needed countless of these unfortunate citizens to die on roads and rails and in railway trains for at least some of us to be jolted out of our reverie.

 Why are we expressing shock on learning that Chinese agencies were creating a massive database of over 10,000 Indian individuals and organisations, even while we were happily lapping up their free services of social media, games, and online shopping and payment platforms? Why are we surprised that social media is being weaponised to create discord and weaken nations. Why could someone not tell us that we were not evolving digitally, that we were leaving our doors ajar for the enemy to get into the house?

 Why is it that when China and Pakistan, or even Nepal, Sri Lanka or Bangladesh, make aggressive or unpleasant moves, we get shocked and react with panic — be it our military, diplomatic and now even economic moves? Why is it so difficult to understand that adversaries will work on our internal fault lines and look for weaknesses in the polity, economy and strategic preparedness; that emerging powers will do everything to increase their spheres of influence and safeguard their strategic interests, including their trade interests? Why needle the beast without doing a thorough war-gaming of our moves? Why are we shocked when the adversary uses its leverages in Kashmir and Ladakh, or now in Nagaland? 

 How and when did all this come to pass? When did we stop realising that in addition to capital and raw material, no enterprise can function without labour? When did we internalise the false narrative that promoters, investors and shareholders have an inherent claim over the profits and that the rights of labour can be disregarded? When did we forget that natural and human resources are not to be exploited but to be held in trust by the promoters? When did we start accepting that since semi-skilled and unskilled labour was being provided by contractors, they were not our responsibility? Why even talk about investing in skill development, nurturing holistic human development and building partnership with workers? Why not discredit the trade unions themselves! How come we also forgot that by suppressing wages we were destroying the market for our own goods and services, and that the model was eventually bound to destroy the economy?

 We forgot that taxation is not a ‘redistribution of wealth’, it is ‘just compensation’ and ‘reimbursement’ for society’s contribution to the creation of wealth. Instead of accepting that higher taxation is necessary for improving socio-economic indicators of health, education, housing, etc, we raised indirect taxes to fifty percent of our collection, thereby placing a disproportionate burden on the poor. The top one percent justified this preferential treatment by claiming to be extraordinarily intelligent and hard working vis-à-vis the poor who were stupid and lazy. This is an utterly false narrative. Something terrible has been going on in the last 35 to 40 years. Our public policy, instead of focusing on poverty and deprivation, inequality and disparity in literacy, mortality and nutrition, etc, has been creating conditions for the concentration of wealth into the hands of a few, while eroding the rightful claims of the masses.

 I am not an economist but over the last couple of decades I could see that the model has failed. Many of us had seen the growing pain behind the blank eyes and heard the screams behind the ominous silence of our toiling masses as well as the mounting number of the unemployed. We could hear the stifled cries of hunger and deprivation of these masses which were unable to raise their voice due to apathy, despair, fatalism, hopelessness and fear. The jobless are repressing their ennui, dejection, frustration and even anger. They were supposed to be our human capital, our population dividend!

 India’s situation is not unique; the same ills can be seen across the globe. It is a larger pandemic waiting to explode. Let’s take the coronavirus crisis as nature’s warning to set our development model right. Remember how visionary leaders faced the 1888 blizzard in New York to build the underground infrastructure of power and transit, the 1832 cholera outbreak in London to create a public health engineering framework, and the 1871 great fire in Chicago to pave the way for skyscrapers. The time to change is now. India should wake up. 

The writer is an Indian civil servant and a former Chairman of the Union Public Service Commission (UPSC). The views expressed are personal.

This is the first of a five-part series that will appear over a period of time. 

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