STATE GOVT ORDER PERMITTING ONLY A MUSLIM PRIEST TO PERFORM RITUALS AT DATTA PEETA VIOLATES RIGHT TO RELIGION OF BOTH HINDUS AND MUSLIMS: KARNATAKA HC - The Daily Guardian
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STATE GOVT ORDER PERMITTING ONLY A MUSLIM PRIEST TO PERFORM RITUALS AT DATTA PEETA VIOLATES RIGHT TO RELIGION OF BOTH HINDUS AND MUSLIMS: KARNATAKA HC

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It is most refreshing, most reassuring and most rejuvenating to see that the Karnataka High Court has as recently as on September 28, 2021 in a learned, laudable, landmark and latest judgment titled Sri Guru Dattatreya Peeta Devasthana Samvardhana Samithi vs The State of Karnataka and others in Writ Petition No. 18752 of 2018 (GM-R/C) minced just no words to make it absolutely clear that the Government’s order permitting only a Mujawar (Muslim Priest) to perform the rituals at the Datta Peeta – a holy cave shrine in Chikmaguluru which is revered both by Hindus and Muslims communities amount to a flagrant violation of both communities guaranteed by Article 25 of the Constitution of India. The Court very rightly said in its commendable, cogent, convincing and composed order that, “…the impugned order infringes the right of both communities guaranteed under Article 25 of the Constitution by preventing Hindus from performing pooja as per their faith and compelling the Mujawar to offer pooja contrary to his faith.” This was just not done! So, no wonder that the Karnataka High Court rightly termed it as a flagrant violation of right to religion of both Hindus and Muslims.

To start with, this brief, brilliant, bold and balanced 40-page judgment by a single Judge Bench comprising of Justice PS Dinesh Kumar of Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “Shri Guru Dattatreya Peetha Samvardhana Samithi (Petitioner – Trust) has presented this writ petition with a prayer inter alia to issue a writ of certiorari and to quash the impugned Government Order (No. RD 14 Muzarai 2009 dated 19.03.2018) ; and to direct the State Government to implement Endowment Commissioner’s Report dated 10.03.2010.”

While elaborating on the petition averments, the Bench then enunciates in para 2 that, “As per petition averments, petitioner is a religious and charitable Trust registered under the provisions of the Indian Trust Act inter alia with aims and objectives to protect and develop Shri. Guru Dattatreya Peetha Devasthana, the Cave Temple at Inam Dattatreya Peetha village in Chandradrona Parvatha, Chickmagaluru.”

Furthermore, the Bench then elaborates upon in para 3 that, “The ‘Peetha’ is a major Muzarai Temple under Mysore Religious and Charitable Institutions Act, 1927. On 06.04.1973, the Karnataka State Board of Wakf took over the management of the Peetha. Two devotees namely Sriyuths. B.C. Nagaraja Rao and C. Chandra Shekar filed a suit before the learned Civil Judge, Chickmagaluru for a declaration that plaint schedule Institution is a holy place of worship belonging to Hindus and Mohammedans and upon transfer to the Court of learned District Judge, it was registered as O.S. No.25/1978; and decreed on 29.02.1980. The Karnataka State Board of Wakf challenged the judgment and decree in RFA No.119/1980 before this Court and it stood dismissed vide judgment dated 07.01.1991. The SLP (Civil) No. 17040/1991 filed thereon, also stood dismissed on 01.11.1991.”

To put things in perspective, the Bench then envisages in para 4 that, “The Tahasildar, Chickmagaluru called upon fifth respondent’s father to submit accounts with regard to the rents collected during the festivals. Fifth respondents father challenged the same in W.P. No.2294/1984 contending inter alia that he was the Sajjada Nasheen of Shri Guru Dattatreya Bababudan Swamy Darga and the direction issued by the Tahasildar, infringed his right of management of the Institution. This Court noticed that the decree passed in suit was not challenged by the State Government, but the RFA filed by the Wakf Board was pending consideration in this Court. It also noted that the State Government and the Muzarai Officers were required to act in terms of the decree and as such, the State Government had directed on more than one occasion that the Institution be restored to the Sajjada Nasheen to be administered as per practice prevailing prior to 1975, but no enquiry was made with regard to practices prevailing prior to June 1975. On 01.03.1985, this Court has disposed of the writ petition with following directions:

“The Commissioner for Religious and Charitable Endowments in Karnataka shall have the matter enquired into through the Muzrai Officer and report made to him, regarding the practice that was being followed or prevailing prior to June, 1975 in respect of management of the affairs of “Sri Guru Dattathreya Swamy Peeta” otherwise known as “Sree Gurudattathreya Bababudnaswamy Dargha” including conducting of Urs or festival, its property and all other matters pertaining to the institution. The Petitioner and devotees of the institution shall be afforded an opportunity in the course of the enquiry. A Public Notice shall also be issued in this regard. The commissioner shall on receipt of the report, take a decision after affording an opportunity of hearing to the Petitioner and other persons concerned, if any. On such decision being taken by the Commissioner, it is open to the Petitioner to challenge the same in accordance with law. The enquiry shall be completed and the decision shall be taken on or before the end of August 1985.””

Needless to say, the Bench then discloses in para 5 that, “Pursuant to the above directions, the Endowment Commissioner, submitted a Report dated 25.02.1989 codifying the religious practice prior to 1975.”

As it turned out, the Bench then discloses in para 6 that, “Petitioner filed a public interest writ petition registered as W.P. No.31580/2000 with a payer inter alia for a direction against the Deputy Commissioner, Chickmagaluru to handover the management of the Temple to the petitioners. This Court, while disposing of the said petition, has observed that steps were taken by the authorities to appoint the Managing Committee and the same had been challenged in Writ Petitions No.52801 & 38148/2000, and it was open for the petitioner to implead itself in the said proceedings. Petitioner got itself impleaded in W.P. No.38148/2000 and also filed a separate writ petition registered as W.P.No.43621/2003 challenging Endowment Commissioner’s order dated 25.02.1989. It was considered along with W.P. No.38148/2000 and W.P. No.4262/2002; and disposed of by common order dated 14.02.2007. The order passed by the Endowment Commissioner was quashed. The matter was remitted to the Endowment Commissioner to pass fresh orders. The State Government challenged the said order in Writ Appeal No.886/2007 and the same stood dismissed vide order dated 04.08.2008.”

Simply put, the Bench then reveals in para 7 that, “An organization by name ‘Citizens for Justice and Peace’ challenged the order passed by the Division Bench in SLP. No.29429/2008. The Hon’ble Supreme Court of India passed an interim order on 01.12.2008 and directed the Endowment Commissioner to submit his Report and directed to maintain status-quo as per earlier report of the Endowment Commissioner dated 25.02.1989.”

Be it noted, the Bench then brings out in para 8 that, “The Endowment Commissioner submitted his Report dated 10.03.2010 before the Apex Court suggesting inter alia that a Hindu Archak be appointed by the Management Committee for performing daily pooja. The Sajjada Nasheen and some contesting respondents raised objections to the said Report. The State Government took a stand before the Apex Court that in view of the sensitive nature of the issues involved in the case, it was required to be considered by the State Cabinet and a decision would be taken thereafter. The Civil Appeal No.2685/2010 (SLP No.29429/2008) and Civil Appeal No.2686/2010 were disposed of on 03.09.2015 with the following order:

“2. Objections to the said Report have been raised by the appellant in C.A No.2686 of 2010 who claim to be Sajjada Nashin and also by some of the contesting respondents in the present appeal i.e. C.A No.2685 of 2010. 3. Shri Basava Prabhu S. Patil, learned senior counsel appearing on behalf of the State has submitted that in view of the sensitive nature of the issues involved the Report of the Commissioner is required to be considered by the State Cabinet and a decision thereon will be taken after considering the various pros and cons of the matter. Having regard to the issues involved and the stand taken by Shri. Patil on behalf of the State, we are of the view that, at this stage, the State should be left free to take its decision on the result of the Enquiry of the Commissioner as indicated in his Report. The State Government will naturally be duty bound to take into account all objections that may be raised against the said Report including the objections raised by the parties to the present appeals, as indicated above. Thereafter, the State Government will decide the matter. In case any of the contesting parties have any grievance against such decision that the State Government may take, it will be open for them to seek recourse to the legal remedies as may be available.

4. In view of the aforesaid directions, we do not consider it necessary to keep the civil appeals pending any longer. Both the civil appeals and the contempt petition shall stand disposed of in terms of the above.

5. Status quo granted by this Court on 1st December, 2008 will continue until the State Government decides the matter in accordance with the present directions.” (Emphasis supplied).”

It cannot be glossed over that the Bench then reveals in para 9 that, “The State Government appointed a High level Committee consisting of a former Judge of this Court and two others, to consider among other things, the recommendation made by the Endowment Commissioner in his order dated 10.03.2010. The High Level Committee submitted its Report on 03.12.2017 with a recommendation to continue the nature and character of religious practices, which were prevailing as on 15th August 1947. Pursuant thereto, State Government have issued the impugned order.”

As we see, the Bench then observes in para 17 that, “Undisputed facts of the case are, suit in O.S.No.25/1978 has been decreed on 29.02.1980 in following terms;

“This suit coming on for final disposal before Sri.P.Jayaram, B.A., LL.B., District Judge, Chikmagalur in the presence of Sri. D. Lakshmikanta Iyengar, Advocate for the plaintiffs and by Sri. K. Durgoji Rao, Government Pleader for D1 and D-3 and by Pleader Sri. M.D. Vasantha Kumar for D-4 and D-2 absent. It is ordered and decreed that not only in favour of plaintiffs, but also in favour of the Hindu Devotees or disciples of “Sri Guru Dathathreya Swamy Peeta” declaring that the plaint schedule Institution is a religious institution being a holy place of worship belonging to or of the Hindus and Mohammadans alike where they worship, it is not a Wakf property and therefore, the inclusion of the plaint schedule property in the list of wakfs by the second defendant is improper and illegal, and such inclusion will not affect the rights of the plaintiffs or the Hindus, and that the 2nd defendant has no right to control or manage the suit schedule institution, the administration, management and control of the said suit schedule property be retransferred from the control of the second defendant to the third defendant as it was being managed prior to June 1975, the 2nd defendant is hereby restrained by means of a permanent injunction not to interfere with the plaintiffs’ or Hindus’ rights in respect of the plaint schedule institution or property. Since it is a suit on behalf of the entire community of Hindus and it is against the order of the Government in transferring the suit schedule property from its Muzrai Department to the Wakf board and as it is not the fault of the 2nd defendant in including the suit schedule property in the list of wakfs, I feel that in the circumstances to direct the parties to bear their own costs of the suit. Advocate fee of Rs.100/- (Emphasis Supplied).”

To be sure, the Bench then reminds in para 41 that, “It is settled principle of law that justice should not only be done but be seen to be done. Nearly, a century back, Lord Hewart, CJ, has stated that it is not merely of some importance, but of fundamental importance that justice should both be done and be manifestly seen to be done ( R Vs. Sussex Justices (1923) All ER 233 at 234).”

Most significantly, what cannot be missed out and what is most troubling to note is that the Bench then holds in para 50 that, “Article 25 of the Constitution guarantees Freedom of Conscience and free profession, practice and propagation of religion. By the impugned order, firstly, the State have infringed upon the right of Hindu Community to have the pooja and archana done in the manner as per their faith. Secondly, State have imposed upon the Mujawar to perform ‘paduka pooja’ and to light ‘nanda deepa’ contrary to his faith. Both these acts amount to flagrant violation of rights of both communities guaranteed by Article 25 of the Constitution of India.”

It also cannot be lost on us that the Bench then also points out in para 51 that, “Though the versions of large number of devotees recorded by the Endowment Commissioner including that of the Mujawar who was working during 1975, demonstrate that both Hindus and Muslims were worshipping as per their respective customs, the State Government have chosen to accept the High Level Committee’s recommendation to reject Endowment Commissioner’s Report. As recorded hereinabove, the High Level Committee Report is not free from the vice of bias.”

What’s more, the Bench then underscores in para 52 while citing the relevant case law that, “The Constitution Bench of the Hon’ble Supreme Court of India, in M.Siddique Vs. Mahanth Suresh Das, the Ram Janma Bhumi Temple case 6 (2020)1 SCC 1 (para 809) has held that faith is a matter for the individual believer. Once the Court has intrinsic material to accept that the faith or belief is genuine, it must defer to the belief of the worshipper. The relevant portion in the passage reads thus:

“809. ……. Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshipper This, we must do well to recognise, applies across the spectrum of religious and their texts, Hinduism and Islam being among them. The value of a secular Constitution lies in a tradition of equal deference.” (Emphasis supplied)”

Most remarkably, the Bench then hastens to add in para 53 that, “Therefore, the impugned order is unsustainable in law for more than one reason:

• Firstly, because, contrary to the stand taken before the Hon’ble Supreme Court of India that the Cabinet would consider the pros and cons and take a decision, the State Government have delegated the consideration to a High Level Committee;

• Secondly because, the recommendation of the Sub-Committee, has been incorrectly extracted in the impugned order. The recommendation extracted gives an impression that the practices recommended are in consonance with the order of this Court (Common order dated 14.02.2007 in W.Ps. No.38148/2000, 4262/2002 & 43621/2003), which is factually incorrect because, the six recommendations recorded in the impugned order are those contained in the earlier Report of the Endowment Commissioner dated 25.02.1989 which has been quashed by this Court. Therefore, the decision arrived at, is on an incorrect premise and hence vitiated;

• Thirdly because, the High Level Committee has mis-directed itself with regard to the 1991 Act, when the issue in dispute has attained finality as per the decree in O.S. No.25/1978;

• Fourthly because, it is nobody’s case that the place of worship is being converted. On the other hand, it is the common case of both communities that it is a place of worship for both Hindus and Muslims;

• Fifthly, because, the High Level Committee Report is not free from bias, as Shri. Rehamat Tarikere, one of its Members has deposed before the Endowment Commissioner and the Committee has recommended rejection of his Report;

• Sixthly, because, the impugned order infringes the right of both communities guaranteed under Article 25 of the Constitution by preventing Hindus from performing pooja as per their faith and compelling the Mujawar to offer pooja contrary to his faith.”

For the sake of clarity, the Bench then mentions in para 54 that, “So far as the contentions urged by Smt. Neela Gokhale are concerned, the same are noted only to be rejected because, according to her, the only option for the petitioner is to seek review of the order of the Apex Court dated 06.04.2018. That order was passed on the contempt side and Hon’ble Supreme Court of India, in its order dated 03.09.2015 has granted liberty to any contesting party to seek recourse to a legal remedy as may be available. Her next contention with regard to the locus standi is also untenable because, petitioner was a party respondent in SLP No.29429/2008.”

Finally, the Bench then holds in para 55 that, “In the light of the above discussion, the question formulated by this Court at para 16 is answered in the affirmative. Resultantly, the impugned order is clearly unsustainable in law and liable to be quashed. Hence, the following:

ORDER

(a) Writ Petition is allowed.

(b) The order dated 19.03.2018 passed by the first respondent, State Government is quashed.

(c) The matter is remitted to the State Government with a direction to reconsider the matter afresh in accordance with law without reference to the Report of the High Level Committee.

No costs.”

In conclusion, the Karnataka High Court has very rightly and firmly affirmed the concept of equality and has also reiterated that the Karnataka State Government order permitting only a Muslim priest to perform rituals at Datta Peeta violates right to religion of both Hindus and Muslims and so it cannot be justified under any circumstances. What the State Government of Karnataka did was patently wrong and this alone explains why the Karnataka High Court most commendably quashed the order of the State Government and remitted the matter to the State Government with a direction to consider it afresh in accordance with law! Of course, the same now must be urgently done with accordingly by the State Government of Karnataka!

Sanjeev Sirohi, Advocate.

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Policy & Politics

Mera Aadhar, Meri Pehchaan: Privacy and security concerns

Ritansha Laxmi

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Privacy, a right essential to sovereignty of an individual and also the protection of human dignity.1 Privacy authorizes individual to make barriers around and to manage boundaries, protecting themselves from unwarranted interference in the lives, and allows people to be who they are exactly and the way they would like to interact with the world around them. Privacy helps people to create boundaries around them to restrict who has access to their body, places and things, as well as the communications and information. And State being the duty bearers for the protection of privacy.2 Therefore, the role of the state is to strike a balance between freedom and protection, rights and responsibilities. In 2001 a meeting of ministers headed by

L.K. Advani presented its report in May and acknowledged proposal for an id card, Aadhaar an identification card having 12- digit number.3 It was then issued by the government of India to each individual residing in the country. However, it has come across some privacy issues from different sections of society. Issuance of unique identification number with an aim to provide its every individual with different schemes like gas subsidy, MGNREGA, Jan Dhan yojna like benefits but it clubbed with breaching the privacy of an individual, moreover the informational privacy of the people.4 This article attempts to explore the security and privacy concerns from the perspective of people, legal and Government on Mera Aadhar, meri pehchan thereby trying to settle whether there is an infringement of the privacy or not?

AADHAAR, A BRIEF INTRODUCTION:

The conception of idea about Aadhar card came into existence in 2004 with the amendment of citizenship act by the then ruling Indian National Congress (INC) led UPA government to make a way for the National Population Register (NPR)5, a database record of all the residents of India preserved by the Census Commissioner of India and Register General. With the administrative approval for the project, Unique ID for Below Poverty Line (BPL) families by the ministry of Communication and Information Technology, the first work regarding issuing Unique IDs to BPL residents of India truly started in the year, 2008.6 It saw the amalgamation of National Population Register (NPR) under the Citizenship Act, 1955 with the UID project to comprehend Aadhaar card.7 While discussing the legal viewpoint, some jurists in their verdicts have dealt with diverse facets of privacy with regards to Aadhar and its linking, concerning the security and privacy threats.8 The judgments concerning privacy issues would be going to help as a brick for development of the idea of protection of privacy for the people of India. With these judgements and recommendations, the safe, secure, socially and politically justified legal framework can be created protecting privacy.

The perspective according to government is that it contends that the fundamental right status does not make privacy the absolute right and hence is archaic by other major apprehensions of the nation state that is to say national security of its people, frauds and fake registrations of people.

The Supreme Court in its judgment of K.s Puttaswamy9 has overruled verdicts given in the Kharak Singh case and the M.P. Sharma case, both of which said that the right to privacy is not protected under the constitution of India. On 27 March 2017, the supreme Court directed that Aadhaar card mandatory for availing benefits under welfare schemes and it cannot be done without aadhaar number. Though government tried to check every possibility of making it compulsory for other purposes such as income tax filings, bank accounts, sim card purpose etc. In April 2017, a constitution Bench of the supreme court taking into consideration the legality of Aadhar on the ground of right to privacy. A nine-judge bench of the Supreme Court has given verdict that citizens of India enjoy a fundamental right to privacy that it is intrinsic to life and liberty and covered under Article 21 of the constitution of India.10 Regarding privacy issue the Supreme court directed concerned government authorities not to share personal information of Aadhar card holders with any private or unauthorized sources.

Analysing the judgement of Justice K.S. Puttaswamy (Retd) vs Union of India and Ors., 2017 & 2018 pertaining privacy issues:

In the year 2017, a nine-judge bench of the Supreme Court of India in Justice K.S. Puttaswamy vs Union of India11 passed a landmark judgment upholding the constitutional right to privacy. It acknowledged privacy, an essential component of the Constitution of India under Part III of it, which lays down the fundamental rights, ranging from rights concerning to equality, freedom of speech and expression, freedom of movement, protection of life and personal liberty etc. These rights which are fundamental in nature cannot be given or taken away by law, and all laws and administrative actions must stand by these fundamental rights. The Supreme Court proclaimed that the government must cautiously balance individual privacy and the legitimate concerns of the state, even if national security is at stake. The Court also declared that any incursion on privacy must satisfy the triple test, established i.e.,

1. Need12, legitimate state concern is necessary. The law should seek to achieve a legitimate aim of the state.

2. Proportionality13, in least invasive manner. There should be a balanced relationship between the objects and the means adopted to achieve them. The degree of interference must be proportional to the need and;

3. Legality14, backed by law. The existence of a Law.

The judgement of K.s Puttaswamy which has been signed by all nine judges, holds: The decision in M P Sharma15 and Kharak Singh16 both stands over-ruled and uphold that the right to privacy considered as an intrinsic part of the right to life & personal liberty under Article 21, Part III of the Constitution of India. This verdict has re-shaped the domain of fundamental rights in the constitutional history of India. It has given the government of India an opportunity to re-think its data protection mechanism, both in light of individual privacy and the welfares of the state.

While analysing the “Justice KS Puttaswamy (Retd) and Another versus Union of India and Others,2018” also called as Aadhaar judgement17, and applying the above triple test proposed in previous judgement to the Aadhar scheme, A five-judge constitution bench test the validity of Aadhaar from the aspect of privacy as a Fundamental Right held that Aadhaar would remain obligatory for filing of Income Tax returns(ITR) and applying for allotment of Permanent Account Number (PAN), and it would not be mandatory to link Aadhaar to bank accounts and the telecom service providers cannot demand for Aadhar number for the purpose of its linking for mobile connections.18

The judges of supreme court in this case also held that there is a need to introduce a data protection regime in India. The Judges conferred the right to privacy with respect to the protection of informational privacy and the right to preserve individual reputation.19 Also held that privacy is one of the most important rights to be protected both against both State and non- State actors and be recognized as a fundamental right subjected to some restrictions like national security. Also, the decision makes it clear that the Indian Government is now concerned to establish an online data protection regime for the protection of the privacy of every people which is need of the hour and also as India is lagging behind in online data privacy regime i.e., proper laws and regulations regarding collection, preservation, and compliance of personal data and related enforcement mechanisms.

The population who are being asked to link their personal documents, identity and information to their Aadhar Card have to decide between two conflicting options of Advantages to the Society in general of which they are a part, and loss of their personal privacy. It is considered as a trade-off without monetary benefits.

CONCLUSION

It is well known fact that India does not have a law on privacy till now. In fact, then chairman of UIDAI, Nandan Nilekani, penned to the Prime Minister in May 2010 recommending the need of a data protection and privacy law in India.20 Therefore, the privacy bill should be the primary action towards the issues of breach in privacy. Correspondingly, people should be educated on the risk involved with ID thefts and fraud happening in digital world. IT laws should be strengthened and the liability should be bounded on companies handling data to escape the mishap from data mishandling. Some of the recommendations which I believe is important are, First, Aadhar should focus and incorporate privacy by design itself, the technology and process towards collecting privet information should be protected parallelly. Second, there is a need of collecting minimum set of data that would be sufficient from residents, like name, age, address of resident and thumb impression. Third, Prohibiting the extensive use of Aadhar number for every authentication or Proof of document. Use of Aadhar number should be only for required purpose like linking with direct subsidy and welfare schemes from central or state government example: Gas subsidy, BPL subsidy schemes etc.

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Policy & Politics

Private sector to play prominent role leveraging technologies like 5G and satellite communication

Speaking at the conference, P. Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years.Private sector to play prominent role leveraging technologies like 5G and Satellite communication to help in reaching the hinterland more effectively and efficiently said by Guest of Honour, Alok Chaturvedi, CEO, CSC Wi-Fi Choupal Service India Pvt. Ltd, MeiTY, GoI. He mentioned that today there are about 3.76 lakh CSC centres in the country covering all Gram Panchayats and important villages run by a village level entrepreneur, a change agent, who could be an individual or an organization promoting rural entrepreneurship and rural employment opportunities. He opined, government has to ensure that quality broadband internet services are availing to the residents in Gram Panchayats and Villages.

Umang Das, Summit Chairman and Chairman, Foreign Investors India Forum in his address said that Govt and the private sector to weave an unpreceded wave of digitisation that will drive Industry 4.0 and significantly improve the day-to-day lives of a billion Indians. The telecom sector is at of the cusp of transformation and Indian tech companies can attract global investors who’ve burnt their hands in Chinese tech companies added by Mr Das.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare and education.

CII -Deloitte paper launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

In his address, Amit Marwah, Head of Marketing and Corporate Affairs, Nokia India said, 5G will be a huge leap towards a connected digital society adding value beyond connectivity to economy as well as deliver social impact. He also said that the government, regulators and the telecom industry in India need to collaborate on initiatives that will facilitate faster 5G roll-out and adoption, to accelerate socio-economic growth.

Speaking at the conference, P Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years. The telecom sector and our network warriors have catalysed the economy in the last 18 months and has fast-tracked digital adoption at an unprecedented scale, both at individual and organizational level and provided a robust platform for the digital society enabling Healthcare, Education, e-Commerce, Fintech and Manufacturing to deliver services to consumers and enterprises highlighted by Mr Balaji.

Space open for Industry further would excite everyone for the future growth translate the potential of IoT into tangible benefits on the ground said by Dr Rishi M Bhatnagar, President, Aeries communications India in his address. IoT projects through solutions would meet various end uses such as improving supply chain efficiency, enhancing customer experience, tracking and monitoring assets, improving logistics and empowering smart cities through a bouquet of solutions added by Dr Bhatnagar.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that “ Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare, and education. CII-Deloitte paper report launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

As the industry transcends from ‘digital-first’ to ‘digital-throughout’, technology will play a critical role in creating a ubiquitous presence amongst consumers and diversify revenue streams for enterprises moving “beyond connectivity” built strategically with the strong support and commitment from the GOI towards sustainable growth of the nation”. said by Mr Vaish.

The virtual summit aimed to provide a platform for telecom players to discuss the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise. The conference saw speakers from Quadgen, Ericsson,COAI, Bharti Airtel and others.The summit was attended by over 175 participants

Tarun Nangia

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Private sector to play prominent role leveraging technologies like 5G and Satellite communication to help in reaching the hinterland more effectively and efficiently said by Guest of Honour, Alok Chaturvedi, CEO, CSC Wi-Fi Choupal Service India Pvt. Ltd, MeiTY, GoI. He mentioned that today there are about 3.76 lakh CSC centres in the country covering all Gram Panchayats and important villages run by a village level entrepreneur, a change agent, who could be an individual or an organization promoting rural entrepreneurship and rural employment opportunities. He opined, government has to ensure that quality broadband internet services are availing to the residents in Gram Panchayats and Villages.

Umang Das, Summit Chairman and Chairman, Foreign Investors India Forum in his address said that Govt and the private sector to weave an unpreceded wave of digitisation that will drive Industry 4.0 and significantly improve the day-to-day lives of a billion Indians. The telecom sector is at of the cusp of transformation and Indian tech companies can attract global investors who’ve burnt their hands in Chinese tech companies added by Mr Das.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare and education.

CII -Deloitte paper launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

In his address, Amit Marwah, Head of Marketing and Corporate Affairs, Nokia India said, 5G will be a huge leap towards a connected digital society adding value beyond connectivity to economy as well as deliver social impact. He also said that the government, regulators and the telecom industry in India need to collaborate on initiatives that will facilitate faster 5G roll-out and adoption, to accelerate socio-economic growth.

Speaking at the conference, P Balaji Summit Co-Chairman and Chief Regulatory & Corporate Affairs Officer, Vodafone India said that with 5G on the anvil, IoT and AI will unleash the next digital revolution helping India meet our trillion dollar digital economy goal in the coming years. The telecom sector and our network warriors have catalysed the economy in the last 18 months and has fast-tracked digital adoption at an unprecedented scale, both at individual and organizational level and provided a robust platform for the digital society enabling Healthcare, Education, e-Commerce, Fintech and Manufacturing to deliver services to consumers and enterprises highlighted by Mr Balaji.

Space open for Industry further would excite everyone for the future growth translate the potential of IoT into tangible benefits on the ground said by Dr Rishi M Bhatnagar, President, Aeries communications India in his address. IoT projects through solutions would meet various end uses such as improving supply chain efficiency, enhancing customer experience, tracking and monitoring assets, improving logistics and empowering smart cities through a bouquet of solutions added by Dr Bhatnagar.

Peeyush Vaish, Partner & Telecom Leader, Deloitte India in theme introduction mentioned that “ Convergence amongst the telecom ecosystem with the power of technology will pave the way for bridging the urban−rural divide across sectors, including banking, healthcare, and education. CII-Deloitte paper report launched, called “Digital Reset – Touching a billion Indians” aptly highlights the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise business and easing the lives of the common man.

As the industry transcends from ‘digital-first’ to ‘digital-throughout’, technology will play a critical role in creating a ubiquitous presence amongst consumers and diversify revenue streams for enterprises moving “beyond connectivity” built strategically with the strong support and commitment from the GOI towards sustainable growth of the nation”. said by Mr Vaish.

The virtual summit aimed to provide a platform for telecom players to discuss the relevance of technological advancements like 5G technology that are poised to act as a key enabler and contributor to the success of the enterprise. The conference saw speakers from Quadgen, Ericsson,COAI, Bharti Airtel and others.The summit was attended by over 175 participants

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Key legal challenges associated with artificial intelligence in India

Naina Pachnanda

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INTRODUCTION

Artificial Intelligence (hereinafter referred to as “AI”) and related technologies are crucial to the business ecosystem and are permeating into every sector. As AI gains more control over common subjects and services, it is bound to become potentially unpredictable and cause harm. While research on AI is being conducted all over the world, there are certain potential legal questions raised when it comes to the usage of AI. These range from criminal liability to data privacy concerns. This article addresses some of the key legal issues that crop up with respect to AI, across different sectors, as with an exciting new generation of AI solutions being developed it is essential that the same is regulated by a legal framework which allows AI to make the best possible impact in the economy.

In the event that there exists no legal definition for Artificial Intelligence, for the purpose of this article, Artificial Intelligence is defined as “a constellation of technologies that enable machines to act with higher levels of intelligence and emulate the human capabilities of sense, comprehend and act.”

Before one aims to pin point issues that arise with respect to an AI technology and attribute any liability to an AI technology, it is essential to determine the nature of the AI’s existence. This becomes important as the attribution of any liability would be based on the status granted to the AI in the country. To ensure their accountability under the law, AI entities could be treated as legal personalities, like corporations. Corporate liability of an individual was limited to motivate people to engage in commercial activities through corporations. The same principle could be extended to AI entities. This enables a number of advantages to the existing legal system to tackle upcoming challenges by AI without the need to make drastic changes in the legal system, to effectively solve AI related problems as AI developers are largely concerned about the liability arising from its actions.

KEY LEGAL

CHALLENGES

As mentioned above, assuming that an AI technology is given the status of legal personhood, in India, principles of tort law may be applied, in case of default by the AI technology. When an AI software is defective or use of such software injures the party using the software, it results in legal proceedings under the tort principle of negligence. In the case of AI, the software developer/programmer owes a duty of care to the customer/user. It is of course difficult to decide on the standard of care to be owed to the customer/user. The kind of software being implemented might assist in deciding the standard of duty of care that may be attributed to the software developer/programmer. For instance, if the system involved amounts to an “expert system” the befitting standard of care that would be that of an expert or a professional. Similarly, we could reason that if a person can be held liable for the wrongdoing of a human helper, the recipient of such support could be equally liable if they outsource their duties to a non-human helper instead, considering that such delegation is equally advantageous to them. The policy contention is quite compelling that using the assistance of a self-learning and autonomous machine should not be treated any differently from employing a human auxiliary, if such assistance leads to the harm of a third party . However, to hold the principal liable for the wrongdoing of another, it may be challenging to determine the standard against which the operations of non-human helpers will be assessed in order to emulate the degree of misconduct, as in human auxiliaries. The potential standard should take into consideration, that in many areas of application non-human auxiliaries are more safe and less likely to cause damage to others than human beings, and the law should at least not dissuade their relevance.

Again, assuming that an AI technology is granted the status of a legal person, the AI technology can be held liable under the criminal law system. For criminal liability to be established both the elements of mens rea( mental element) and actus reus (physical act) are essential to be present. The pertinent question that arises here is that how does an AI technology fulfil these two essential aspects of criminal liability? And how is an AI technology liable directly for the commission of an offence?

Assuming an AI is an innocent agent , the obvious question that arises is that who shall be held liable for the crime committed? Here there are two candidates at play, i.e. the programmer of the Al software and the user of the AI software. A programmer of an Al software might design a program in order to commit offences through the Al entity. Both the programmer or the user do not perform any physical act in the commission of the crime and therefore, they do not meet the actus reus requirement of the offence. The legal result of this is that the programmer and the user should be criminally liable, as the principle of mens rea or malafide intention is attributed to them for the specific offence committed, while the Al entity has no criminal liability whatsoever.

In another scenario, assuming there is excess involvement of the programmers or the users in the day to day activities of the Al entity, but without any intention of committing an offence by way of the Al entity, negligence or recklessness should be considered as the standard of mens rea.

Yet another viewpoint suggests that an Al algorithm might have many characteristics and qualifications that exceed those of an average human being, but all such qualities are not essential in order to impose criminal liability. As far as a human or a corporation is concerned, if they are able to fulfil both the essentials of the mental and physical elements, only then can criminal liability be imposed. Similarly, if an AI technology is capable of fulfilling both the essentials of mens rea and actus reus, then criminal liability can be imposed on the AI as well. So long as an AI technology, controls a mechanical or other mechanism to move its moving parts, any act by the AI technology here may be considered as performed by the Al technology itself, thereby fulfilling the requirement of the physical component, i.e. actus reus. As far as the mental element or mens rea is concerned, the only essential requirements that need to be fulfilled under the general ambit of criminal law are knowledge, intent, negligence, etc. Knowledge is defined as sensory reception of factual data and the understanding of that data. Most Al technologies are well- prepared for such kind of reception. The process of analysis in Al systems parallels that of human understanding. The cognitive ability of the human brain understands the data received by senses such as eyes, ears, hands, etc., by analyzing that data. Similarly, advanced AI algorithms are trying to emulate human cognitive patterns. Therefore, if a human being can be held criminally liable for an offence by fulfilling the two criteria of intention and physical act, why should an AI be exempt from the same?

Another potential legal issue that crops up is that of the AI being defective in nature. This attracts product liability. As per the concept of product liability in case of any defect in the product, the manufacturer or the seller of the product is to be held liable for any defect in the product. However, as far as equating an AI technology to a product is concerned, the question that often pops up is that is it fair to hold the creator liable for any injury or harm caused by the AI, as this would inevitably draw an analogy with the principle of strict liability. It is essential that all AI technologies should have limits placed on their ability to cause harm, and it could be argued that there is no better person than the creator to be able to prevent any such harm caused by the AI as well as compensate for any financial losses resulting from such harm.

With an increasing shift in business towards the digital set up, and an increase in the demand of software products, another area of concern, is that of Intellectual Property Rights, particularly the Patent law. As far as protection of AI innovation is concerned, the Patent Act,1970 currently provides protection only to the true and first inventor, which implies a legal person , which includes either a natural person or an artificial person, i.e. a corporation. Section 3(k) of Patent Act 1970 clearly states that “mathematical or business method or computer programme per se or algorithms are excluded from patentability. However, in the recent order by a quasi-judicial body, in the case of Ferid Allani v Union of India has stated that computer inventions that meet the criteria of a ‘technical effect’ , are patentable under the law. This order opens the doors for an enormous corpus of innovation to now become protectable and more valuable as patent protection for innovations in India is essential to foster innovation.

Any discussion on AI is incomplete without addressing the issue of data protection. The functioning of AI is based on the dataset that is used to train the AI’s actions. Therefore, it is essential that such data should be utilized in a safe manner. Since there is a wide range of data collected at an individual’s end, to be utilized, the problem lies with respect to the safe usage of such data. In the event that the Personal Data Protection Bill, 2019 ( hereinafter referred to as “PDP Bill”), is pending before Parliament, the Information Technology Act, 2000 alongside the Information Technology(Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 provide a framework, for protection of sensitive personal information, as far as body corporates are concerned. This apart, the Ministry of Electronics and Information Technology ( hereinafter referred to as “MeitY”) has acknowledged the imbalance with a few companies dominating the market and has recommended that there should be mandatory data sharing mandatory to open up competition in any concerned sector enabling startups, or for other community/ public interest purposes. This is to ensure startups and small medium enterprises are given equal opportunity as compared to big corporate giants and there is no monopoly by corporate giants.

CONCLUSION

Given that AI is a growing industry and India has a tremendous corpus of AI innovators, with the development of an imaginative legal framework to govern the same, AI innovation can be safely unlocked and fostered, in a fashion that is safe and yet dynamic.

DISCLAIMER

The views expressed in this article are that of the author alone and do not reflect the views by any organization.

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Policy & Politics

INDIA-ASEAN TRADE COULD REACH US$200 BN: PIYUSH GOYAL

Tarun Nangia

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Piyush Goyal

Addressing trade barriers could take India-ASEAN trade to USD 200 billion, stated Piyush Goyal, Minister of Commerce & Industry, Consumer Affairs & Food & Public Distribution and Textiles, Government of India, while addressing the Indo – ASEAN Business Summit & Expo organised by Confederation of Indian Industry (CII) in partnership with the Ministry of External Affairs on 7 – 8 October, 2021.

The Minister stated that India considers ASEAN a valued partner and has contributed to the ASEAN COVID-19 Response Fund. He highlighted that during the pandemic India had not only met international service commitments, but had also shown to the world its capabilities of self-sufficiency by producing critical medicines, medical equipment, and vaccines, for domestic and export purposes, which has earned India the reputation of being the ‘pharmacy of the world.’

Today, 70 percent of the world’s vaccines are manufactured in India and the country’s prowess in producing affordable, standardised medicines make India a strong partner in mitigating the global health risks that are a top priority of Governments, affirmed Shri Goyal. India’s business friendly policies under the ambit of the Aatmanirbhar Bharat vision with Production Linked Incentive schemes amounting to USD 30 bn constituting APIs, drugs and medical devices open up a plethora of investment and partnership opportunities, he opined.

The India-ASEAN bilateral trade has grown significantly and stands at USD 80 bn and we should look at taking this to USD 200 bn. This is possible with strong collaborations between the countries and addressing the impediments on the way, said Shri Goyal. Misuse of the trade agreement including by third parties should be discouraged and this could instil more confidence in both sides to reduce tariffs for inter-ASEAN and Indian trade, he added.

Ministers from 7 ASEAN countries addressed the session.

Utilisation of digital and technology, especially in the 4th industrial revolution era can further strengthen the supply chain. One of the areas that we must work on is to build a vibrant and resilient supply chains through deeper trade and investment in the region, said H E Dr Khampheng Saysompheng, Hon’ble Minister of Industry and Commerce, Lao PDR. There must be a reduction in trade barriers such as non-tariff and technical trade barriers to ensure constant flow of goods and skilled man force across countries, he added.

Cambodia is highly committed to cooperating with India and ASEAN to seize the opportunity to make an environment for sustainable development, said H E Mr Chhuon Dara, Secretary of State, Ministry of Commerce, Royal Government of Cambodia. Enhancing trade efficiency through improving competitiveness by further strengthening the current trade facilitation mechanism is beneficial for trade within the region to be fast-flowing and efficient, he added.

India remains one of ASEAN’S largest trading partners, said H E Yang Berhormat Dato Seri Setia Dr Awang Haji Mohd Amin Liew bin Abdullah, Minister of Finance and Economy, Brunei Darussalam.

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Bilaterally, Brunei Darussalam has a steady trade economic relationship with India. In 2020, India is our 6th largest trading partner with a total trade value of over 583 million USD, he stated.

FTAs and enhanced economic cooperation are important, said Ramon Lopez, Secretary, Department of Trade & Industry, Philippines. Philippines looks forward to a more strategic, and wider economic partnership with India and ASEAN. ASEAN & India can work with other trading partners to seize the opportunity, he stated.

We should enhance economic cooperation through capacity building and technical assistance programmes, workshops, and seminars as well as outreach activities. Making strategic decisions will support the implementation and utilisation of ASEAN India treaty area, said H E Dr Pwint Sann, Union Minister, Ministry of Commerce, Myanmar.

It is important that ASEAN & India join hands in recovering from the adverse impact of the pandemic on the economy of the region, said H E Dr Jerry Sambuaga, Vice Minister of Trade, Indonesia. We need to keep our markets open, especially for medical & healthcare products and other essential goods, encourage trade facilitation, digital economy, produce assistance to our MSMEs, he added.

With the combined population of 2 billion people and the combined GDP of USD 5.6 trillion, ASEAN and India should work closely together to ensure open trade development and enhance entrepreneurial competitiveness, said H E Dr Sansern Samalapa, Vice Minister for Commerce, Thailand. Both sides should seek to transform farmers into smart farmers by making digital technology an integral part of their farming operations, he added.

Both India and ASEAN are home to rapidly growing markets and have a number of emerging opportunities in common sectors of interest including manufacturing, human development, logistics and transport, retail and human development, among others. Both sides together can contribute to building and diversifying supply chains, noted Mr T V Narendran, President, CII and CEO & Managing Director, Tata Steel Limited.

Business cooperation between India and ASEAN in areas of mutual interest such as FinTech, start-ups, and innovation, empowerment of youth and women and the development of MSMEs are important factors to take this multilateral connection to a higher growth trajectory, said Chandrajit Banerjee, Director General, CII.

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Sr. Adv. Vivek Tankha (MP) requests Australian High Commissioner for Diwali as optional holiday, reduction of fees for Indian students

Tarun Nangia

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Sr. Adv. Vivek Tankha (MP), met Barrt O Farrell, the Australian High Commissioner to India on October 14th at Tankha’s residence. He requested Farell that it would be a great gesture if Government of Australia could kindly consider the Diwali day, November 4th, 2021 as an “optional holiday” in Australia for the people of Indian origin and similarly placed persons since it is a day of rejoicing and festivity. Also, he requested for working towards getting direct flight services operational for New Delhi to Sydney or Melbourne. Tanka also highlighted that the fee charged from Indian students in Australia is much more than what is charged from local residents, and requested it to be reduced.

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Policy & Politics

Freedom of speech and expression on social media: Exploring the contours of a new paradigm

The innate relationship between FSE and social media has been explained aptly by Barlow. According to him, the internet promotes democratic values and gives its users an opportunity to express and share views and opinions with other people of the world. ‘That has made it the best place for self-expression.’

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I . INTRODUCTION The shift from Times of India to Twitter, from job update corners of the daily newspaper to LinkedIn, from collecting photos in photo albums to Facebook and Instagram posts, from All India Radio to all time accessible YouTube, & from writing letters to texting on WhatsApp, this age of digitalization has revolutionized the life of all human beings. ‘Trending’, ‘texting’, ‘story’, ‘status’ etc. are the buzzwords of the 21st era. Expressing one’s views on social media is deeply related with the non-instrumental theory of freedom of speech and expression (for short ‘FSE’).

In this backdrop, it becomes quite pertinent to understand the pros and cons of the transformation brought by social media. In this article, the author endeavors to explain social media, FSE and their relationship with each other. Furthermore, it deliberates over the new challenges posed by social media, questions the ability of existing laws to curb them and then provides some probable solutions to tackle the same.

II. SOCIAL MEDIA VIS A VIS THE NON – INSTRUMENTAL THEORY Social media is an online platform where users from all over the world present their opinion freely by commenting, uploading and sharing their views in the form of text messages, photographs, and video or audio clips. Its features like openness, participation and interactivity are some crucial reasons behind its worldwide popularity. In the status quo, it is one of the most used tools for communicating and expressing one’s belief and opinion. The US judiciary in Reno v. ACLU has held that the written, spoken and visual expression posted on the internet is protected under the First Amendment. It further said that internet is “the most participatory form of mass speech yet developed.” The Indian Supreme Court in the case of Shreya Singhal v. Union of India has also held that citizen’s right of FSE over the internet is constitutionally protected.

The jurisprudence behind validation of FSE over the internet emanates from the non-instrumental theory. According to this theory, “speech and expression are essential to the development of the autonomy of an individual regardless of their utility and this is a desirable end in and of itself.” In layman terms, FSE helps a human being attain self-fulfillment by providing him/her the “right to rebelliously, vigorously and practically converse one’s mind”. FSE is not a means to achieve something but an end in itself. It provides the capability to articulate one’s views and opinions and present them sensibly and audaciously in front of others. The Hon’ble Supreme Court has also affirmed the same in the following words; “Freedom of expression has four broad social purposes to serve: (i) it helps an individual to attain selffulfillment… All members of society should be able to form their own beliefs and communicate them freely to others.” It further elaborated FSE as realization of an individual’s earnest desires and competence.

The innate relationship between FSE and social media has been explained aptly by Barlow . According to him, the internet promotes democratic values and gives its users an opportunity to express and share views and opinions with other people of the world. “That has made it the best place for self-expression.” Everybody is a performer on the stage of social media. It provides all participants (users) an equal and all time accessible platform to put forth their views. The expression of one’s fundamental beliefs and thoughts on social media is not necessarily done to promote democratic values (instrumental theory) but is more inclined towards attaining self-fulfillment & self-realization. The author argues that before the advent of social media the non-instrumental theory didn’t had much relevance in the discussions revolving around FSE but the emergence and rise of social media has provided a strong validation to the same.

III. FREEDOM OF SPEECH AND EXPRESSION & ITS RELATIONSHIP WITH SOCIAL MEDIA

In the words of Voltaire, “I may disapprove of what you say, but I will defend to death your right to say it.” These words very aptly summarize the law of FSE enumerated under Article 19(1)(a) of the Indian Constitution. These rights are not absolute and have been restricted with the help of provisions under Article 19(2) . The right to FSE is regarded as an essential step towards attaining liberty and is the hallmark of democracy. It occupies a prominent place in the order of priorities of liberty & is considered as the mother of all liberties. Justice Patanjali Sastri has rightly observed, “Freedom of speech… lays the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible” Social media is an important means of communication in the present world. We can’t imagine our lives without these platforms. These platforms transgress all geographical boundaries and help in exchanging and sharing information all across the globe. The reasons behind growth of social media include the increased use of internet, technological advancements, easy accessibility, inexpensive form of media and most importantly free space and ease of participation. It is popular among the youth as it is the best form of networking in the modern times. It helps them in creating their network and grab learning opportunities. It also provides a platform to the citizens of a nation-state to put forth their grievances and concerns & the state also at times has given due acknowledgement to the same. In the recent case of Lipika Pual v. State of Tripura , the Tripura High Court emphatically held that FSE over the internet is constitutionally protected. In this case, Smt. Lipika Paul was working at the post of UDC in the Department of Fisheries, Govt. of Tripura. It has alleged that she has violated Rule 5(4) of the Tripura Civil Services (conduct) Rules,1988 by posting comments on Facebook against a political leader which amounted to canvasing against the said leader. The Hon’ble Court held that the content posted didn’t amount to canvassing. Moreover, the same is protected under Article 19(1)(a) of the Indian Constitution.

IV. PROS AND CONS OF SOCIAL MEDIA

 As everything has 2 sides, social media too has its own share of praises and criticisms. On the brighter side, it provides voice to all the under privileged sections of the society. It has slowly turned into a powerful tool of protest. Numerous social movements across the globe such as the “Black Lives Matter”, “Arab Spring” , “Occupy Wall Street”, “Shahbag movement” along with various Indian instances such as the “hokkolorob” , “CAA-NRC” agitations, farmers protest, scrapping of Article 370 etc. are a testimony to the important role played by social networking sites in the rise of these movements. It has been aptly stated that “The use of digital media had radically transformed on-line individuals from passive receivers into active shapers of content, from observers of activism into activists themselves.” The Apex Court has also held that FSE on the internet is constitutionally protected and indefinite extension of internet shutdowns shall be unconstitutional as the same is a hurdle in the enjoyment of FSE and hence violates Article 19(1) (a). Dutton has referred the current use of Internet and other digital information and communication technologies as Fifth Estate. He said that “the growing use of related digital technologies and Internet is generating a platform for networking individuals in ways that enable a new source of accountability in government, politics and other sectors. … establishing another independent source of accountability, what has been called as ‘Fifth Estate’.” As aforementioned, social media has turned observers into activists. But the problem occurs when these activists turn into hyper-activists by crossing the realm of law. It has been seen that at times things have turned ugly leading to incidents of riots and mob-lynching. The violence that took place in Bengaluru last year was because of a communal Facebook post , the murder of Nilotpal Das and Abhijit Nath in Assam because of the rumor that they were child-lifters spread through WhatsApp , murder of Kaluram in Karnataka occurred because of a fake video spread through WhatsApp forwards, and other numerous incidents testify the grave dangers posed by social media. According to an India Spend report, out of the 69 mob violence cases reported, 77% of them were the result of fake news forwards. WhatsApp was the chief source of spreading misinformation in 28% or 19 of the 69 cases. These websites are also used for polarization of the masses. They are used to set narratives that are completely opposite to actual realities. These social media platforms can very easily build a positive/negative impression of a person, organization or community. Once the news/information goes “trending”, no one endeavors to do a fact check and accepts the same as truth.

V. SELF REGULATION V. STATE REGULATION Stringent regulations are required to counter the above mentioned problems. The pertinent question here is ‘how’ to do the same. To draw a line between curbing of fake news and regulation of FSE is a difficult task. A straight jacket formula can’t be devised to counter the same. The second issue is the capacity to manage sheer volume of ‘user generated content’. It is an arduous task to fact check all the content generated. The third issue is to devise a way that would stop forwarding of fake messages without intruding the privacy of a person. There are two ways to manage all these issues: i) Self-regulation: Here, self-regulation denotes two meanings. The first meaning corresponds to the social media companies such as Facebook, Twitter etc. These organizations as the owner of such platforms have a bigger onus in terms of managing content and curbing misinformation. Secondly, they are certainly in a better position in managing all these issues and taking appropriate actions as and when required. To narrow down the huge bulk of user generated content, they should keep vigilance on the trending information and when the same is found untrue it should be taken down as soon as possible along with a statement by the organization that the said information lacked authority. They should incorporate appropriate safeguards for curbing fake accounts. The second meaning corresponds to the users that they should always do a preliminary fact check before sharing/forwarding any information on such platforms. ii) State-regulation – The second method is regulation by state through the means of laws, rules and regulations. State being the custodian of the life and limb of all its citizens has a duty to protect them from any mishappenings. In India, the reasonable restrictions imposed under Article 19(2) of the Indian Constitution do provide certain safeguards. Along with these, Chapter XI of the Information Technology Act, 2000 also includes provisions for regulating information on social media. However, when the state regulates these platforms, it generally tends to use the same in its own favor and forbids dissenting opinions infringing FSE. At times, actions by the state also amounts to intrusion into a person’s privacy.

VI. CONCLUSION

 Social media has developed as the ‘fifth estate’ of the modern world whereas FSE has been one of the fundamental underpinnings of all libertarian regimes since ages. FSE is the bulwark of democracy and social media platforms strengthen the same by promoting exchange of opinions, views, information, ideas, beliefs and much more all across the globe. The challenge before us is to balance the scales in such a manner so that an individual can enjoy his/her FSE without getting trapped into the cycle of misinformation. The author is of the opinion that self-regulation should be preferred over state regulation because of two prime reasons. Firstly, the owner organizations are in a better position to handle the situation when compared with the state and secondly, when power is in the hands of state it uses the same as a means to silence dissent. Hence, it is high time to promote and practice self-regulation as a means to uphold the principles of freedom of speech and expression.

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