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Policy & Politics

Stateless, homeless but not futureless: A saga of refugees

According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country’.

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In 2019, when we all were relishing our New Year’s Eve and making new year resolutions to achieve different set of goals, somewhere, a midget virus took birth to show its humongous impact, which led to global pandemic, which only got deepens with time. To fight a battle against novel coronavirus, government of different nations laid down akin guidelines which are wearing masks, using sanitizer, washing hands and maintaining social distancing. We all reside within our safe spaces and could easily adhere to the said guidelines but there are people living under altogether different set of circumstances, those people are Refugees. The refugees are forced to leave their native place to avoid war, financial crisis, etc. Human rights and health of refugees are one of the major concerns for any country. The refugees were already living under harsh circumstances with the outbreak of Covid-19, the situation has worsened and had impacted them in terms of health and income. This pandemic showed us the real operations of laws implemented for betterment of refugees. The refugees faced a lot of hurdles in keeping themselves safe during this pandemic as they have very small space to reside, which made it difficult for them to keep a safe distance and lack of funds for proper sanitization and medical safety. There are various international conventions, protocol and agreements to protect the rights of refugees which are UN Convention Relating to the Status of Refugee, 1951, Protocol Relating to the Status of Refugees, 1967, New York Declaration for Refugees and Migrants, 2016, with many other Indian constitutional rights. United Nations Human Rights Council actively implement laws and statues to safeguard refugees, in which India is not a signatory but actively participates which affirms rights to all person whether citizen or non- citizen. To look into the hopeful prospect, Refugees contributed efficiently to win battle against the pandemic by serving as medical staff in hospitals whether it is as nurse or cleaning the rubbish, sewing masks, conducting educational drives. The time has changed and refugees are proving themselves as an asset to the country they are residing in.

INTRODUCTION

When a person is tuck in a bad situation the first thought which comes to mind is to escape the situation, find a better and safe space to avoid the harsh outcome of that situation but what if one cannot find safe space around, this is the exact situation which is faced by lots of people who ultimately have to leave their home, state, country and most importantly their identity at their native place and are identified as Refugees.

According to Article 1 of United Nations Convention on Status of Refugees, refugees are those who are “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”

India is a country which perpetually keep debating on the rights of refugees and keep participating in many regulations made to safeguards rights of refugees. In India, there are many refugees’ groups from neighbouring countries but it does not have any proper laws and statutes for Refugees neither it is signatory to the 1951 UN Convention nor 1967 protocol on Status of Refugees. India always tries to help refugees on humanitarian grounds.

A BRIEF CHRONICLE OF REFUGEES IN INDIA

India is considered to be the second populated country and is one of the countries experiencing refugees lately. The Partition of India–Pakistan resulted in a huge number of people migrating to different counties. After India got its Independence, almost 20 million people came to India and to address such huge number of refugees India had to set up many relief camps. People started coming in from Bangladesh, Pakistan. Eventually, it passed the Rehabilitation Financial Administration Act in the year 1948 to deal with these issues with funding. A Huge number of people were displaced from India to Pakistan and vice versa. Another instance was happened in 1959 when Dalai Lama with his followers approached India as refugees and India provided them a Political Asylum. The year of 1971 saw many refugees transmitting from East Pakistan to India. In 1983 and 1986 India had refugees approaching in from Sri Lanka and Bangladesh respectively. By the end of 1992, India has hosted 237,000 displaced persons and 2,000,000 migrants. India always has some or the other Refugees presence throughout its history.

MAJOR GROUP OF REFUGEES

Around the globe, people leave their home to protect their families and themselves from many undesirable activities. Behind the records are people filled with exceptional life experiences and dreams for the future. There are mothers longing to return home, fathers desire to work again, children looking for a childhood.

At the moment, we see around 80 million people are displaced from their homes. We are witnessing shift in humanity like never before.

Over half of total refugees come from just five countries: Syria, Afghanistan, South Sudan, Myanmar and Somalia. All those refugees have suffered incredible loss, whether they are displaced in their own country or located overseas for safety. Yet they are filled with potential and the strength to triumph over misfortune.

THE COUNTRIES TO WHICH REFUGEE CRISIS ARE HITTING HARD

• Syria

The Syria crisis has accelerated melod3ramatically than any crisis on planet, and Syrians are still the largest forcibly displaced population in the world. After war erupted in March 2011, it took 2 years for 1 million people to find a place. Another million were displaced within six months. Now 9 years on, more than half of the pre-war population has been internally displaced or forced to seek safety in neighbouring countries. There are more than 13.2 million people on run, counting more than 6.6 million people who have fled across the borders.

• Afghanistan

The factors which have led to a massive migration from Afghanistan are years of unemployment, insecurity and political instability. More than 2.7 million people have been pushed to leave the country to Iran, Europe or Pakistan, whilst more than 2.5 million people are assessed to be living in new and prolonged displacement.

The United Nations evaluates that an average 1,100 people a day — mostly women and children — were forcibly displaced by violence in 2017, and over the years more than half of people displaced by disruptions in Afghanistan have been displaced at least twice, compared to just 7 percent five years before.

• South Sudan

The situation in South Sudan is dire, and the largest refugee crisis in Africa. More than 4 million people have been relocated from their homes since the start of a brutal civil war in 2013, including approximately 2.2 million people who have been made to cross into neighbouring countries, the majority of them were women and children.

What is already a perilous humanitarian crisis continue to worsen by ongoing warfare, flooding and drought. There are need for clean water, health care, sanitation, food, shelter, and protection across the country, and millions of people over there now require urgent support to survive.

• Myanmar

In August 2017, violence broke out in Myanmar’s northern Rakhine State, over 7,42,000 Rohingya have fled to southeast Bangladesh. Even before the crisis, Bangladesh was grappling with humanitarian challenges, and accommodating around 2,12,000 Rohingya who had escaped Myanmar during periods of violence and persecution. More than half of them are children.

Today, there are around 860,000 Rohingya in search of refuge in Bangladesh and at least 1.3 million people — Rohingya refugees and Bangladeshi host communities — who bank on humanitarian assistance by other counties to meet their basic needs. These populations live in congested camps and communities, highly vulnerable to harsh weather conditions and cyclone seasons.

• Somalia

With more than two decades of unending conflict and natural hazards which have driven nearly 1 million Somalis to live in poor refugee camps in the Horn of Africa and Yemen, whilst around 2.6 million people remain expatriate.

Across the country, many people are in dire need of assistance. In the early 2020, it was assessed that 1.2 million people had to face acute food insecurity — a number that is anticipated to increase as swarms of desert locusts infest farmland in the Horn of Africa and East Africa.

CHALLENGES FACED BY REFUGEES

Refugees who ended up in different set of camps or different countries deal with many problems in their life. They are prone to harsh living conditions. They have limited resources to fulfil their needs, live in tents, have limited food, water, clothing. They survive without adequate shelter and have to face many difficulties. Those who do not wish to join refugee camps and shift to countries, often deal with unexpected hardships, they also face cultural and language problems. The refugee children are the ones who have to face the real struggle as they find it very hard to continue with their schooling and fail to understand the situation at such a tender age. Most refugees take up some or the other labour work which feed them in the country they are living and are often exploited by the recruiters. Different countries have different set of rules and regulations foe handling refugees, some countries grant citizenship in lesser number of years than the other. The benefit of being a refugee in one country are different than the other. They face financial difficulties, discrimination, and are psychologically affected.

Despite of all the struggle they face, refugees are strong and battle with their situation to make most out of it. They are grateful for the opportunities they get. Most of them had such basic desires: to have their children succeed in school and to be able to put a roof over their heads. After everything they had already been through, they were doing all that they could to keep their families afloat in the new and scary place called refugee camps.

LEGISLATION FOR REFUGEES: INTERNATIONAL STATUES

Universally, there are various conventions, declarations and protocol for refugees. Some of them are UN Declaration on Territorial Asylum (1948), Universal Declaration of Human Rights (1948), Convention relating to the Status of Refugees (1951) and Protocol (1949), Convention relating to the status of Stateless Persons (1954), International Convention on Civil and Political Rights, Convention on the Reduction of Statelessness (1961), Convention on the Elimination of Discrimination against Women (1979), Guiding Principles on Internal Displacement (1998). Some of the Regional Refugee Laws are Cartagena Declaration (1984), Asian African Legal Consultative Committee Principles (1996).

The UN Convention concerning the Status of Refugee of 1951 was adopted on 28 July 1951 and entered into force on 22 April 1954. It repealed previous laws and set a most comprehensive codification of the rights of refugees. The Convention deals with General Provisions, Juridical acts, Lucrative Employment, Welfare schemes, Administrative measures, Executory and Transitory powers. These chapters are already defined and therefore they serve the aim of aiding refugees. Article 1 of the convention defines the term ‘refugee’, Article 12 and 13 deals with personal status and Movable and Immovable property respectfully. Article 16 deals with access to courts because the 1951 Convention only give blanket to those people who became refugees as a result of events occurred before 1951, Protocol concerning the Status of Refugees was entered into force on 4 October 1967, because new refugee situations have arisen after the convention and therefore the new refugee didn’t fall into the Convention. So, this protocol makes sure that equality reaches to all refugees.

INDIAN STATUES

The Constitution of India contains few articles which are applicable to the refugees during their stay in India. The most important of all is Article 21 which deals with Right to Life and personal liberty, it applies to all irrespective of their citizenship. Many judgements have been delivered by the apex court based on Article 21 in respect of refugees.  Article 14 assures the person right to equality before the law.  Article 5, 6, 7, 8, 9, 10,11,12, 20, 22,25-28, 32, 226 are also available for non-citizens of India including Refugees. 

In the case of Visakha v. State of Rajasthan 1997 (6) SCC 241, the court has held that “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein”. In the case of Louis De Raedt v. Union of India, 1991 (3) SCC 554, the court held that the fundamental rights to life, liberty, dignity are available to everyone irrespective of their citizenship.

Some fundamental rights are guaranteed to non-citizens of India. In the case of NHRC v. State of Arunachal Pradesh 1996 (1) SCC 742, the court asked the government to safeguard the life and health of Chakma tribe that are in the state and that their application for citizenship should be sent to the authorities concerned instantly. 

There are definitely a plenty number of protections given to the refugees staying in India under the Constitution of India but are hardly in practice. The provisions of the Constitution give a hint about ambition towards refugees, but due to its own reasons India doesn’t sign any Conventions related to it.Other than Constitution of India, India does not have any laws which specifically deal with Refugees. But India is in dire need of one, considering the recent conflicts for land by the refugees in different states of India.

STATUTORY BODIES TO SAFEGUARD RIGHTS OF REFUGEES

United Nations Human Rights Council (UNHRC) is a body dedicated to foster and protects the rights of refugees across the globe, established on 15 March 2006, the Geneva, Switzerland.

The main objective of UNHRC is to investigate claims of human rights abuse in member states of the United Nations and ensure that the said human rights matters are addressed and upheld to the maximum extent.

In India, UNHRC got involved since the issue of Tibetan refugees and the Bangladesh crisis in 1971. The UNHRC office located in Delhi, works to help refugees become self-sufficient with income-generating activates with the help of NGO’s. The main duty of UNHRC in India is to make sure that the refugees are not involuntary sent back to their country from which they have fled until the conflict rests in their country.

National Human Rights Council (NHRC) is a standalone entity of the Government of India which promotes and protects human rights, established in 1993 and amended in 2006. In 1994, NHRC gave directions to Tamil Nadu Government to deliver medical help to Sri Lankan refugees. In 1995, it filed a PIL on Arunachal Pradesh Government regarding the government officials not supporting Chakmas tribe, and got the decision of the court ordering the government to provide necessary help to the group. NHRC is always on the frontline in the matters which talks about rights of refugees and offering them better living standard.

REFUGEES AFFECTED BY OUTBREAK OF COVID-19

With the Covid-19 pandemic spread, human rights organizations warned adverse impact the coronavirus will have on the world’s most helpless populations which include refugees.

Refugees live in small area with great density but it varies by refugee population and what the status of the pandemic is where they are living. Refugees are infected and affected in a similar way to their host communities. Yet refugees are more vulnerable. They are not well-equipped with the medical facility as there aren’t many hospitals having good facility of ICU and ventilators, as there are not many qualified doctors to deal with adverse health condition caused by coronavirus.

But at the same time, they came out as a strong individual by providing helping hand in battle against this outbreak, they worked as frontline workers in healthcare sectors and also as essential workers. The demand of soaps and sanitizers soared high as people are advised to use them as cleaning agents against coronavirus, so, refugees manufactured it and made them more accessible to those in need. The pandemic caused the largest disruption to education in recent history, putting millions of children’s future and schooling at risk. Some refugees have stepped up to ensure that children of their community can continue learning and prepare themselves for better future.

CONCLUSION

Around the globe, though there are a number of conventions and laws protecting rights of refugees but they still have to fight for their basic rights. When a country as big and developing as India doesn’t have a Refugee Law, we can fathom that many countries have the same picture and are on the same ride. If UNHCR and NHRC work together to develop a better world for refugees, there will be much more development in the area of Refugee Law. There is definitely a need for India to set up a Law safeguarding Refugees, as in the future there may be many more concerns due to various reasons. Whenever UNHCR tries to do something regarding refugees NGOs should actively lend them the helping hand. Though Constitution of India protects the rights of refugees, still there needs to be a uniform Law that give equal rights to all the refugees. India continues to help refugees on the humanitarian view. Bearing the security issues in mind due to which India is not a signatory to the 1951 Convention, it should give due attention to all issues and rectify it accordingly. India should make stringent refugees’ laws and also take care that those law is not mistreated and mis-utilized by people who come to seek opportunities. By far Indian judiciary has done some really good work in regard to refugees by delivering many judgements like in the case of Dongh Lian Kham vs. Union of India (2016), the apex Court stated that the principle of non-refoulement is part of the guarantee under Article 21 of the Constitution of India irrespective of nationality. Many Rohingya refugees living in India are receiving aid, but India is planning to deport them to their terrain. In the past NHRC submitted a report for the need of Refuge law but didn’t receive a response but if UNHCR and NHRC join their hands, there could be a light at the end of tunnel.

Covid-19 showed us the real operations of laws implemented for betterment of refugees. The refugees faced a lot of hurdles in keeping themselves safe during this pandemic as they have very small space to reside, which made it difficult for them to keep a safe distance and lack of funds for proper sanitisation and medical safety.

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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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Policy & Politics

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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