Comparative Approaches in Law and Policy 9819944597, 9789819944590

Table of contents :
Preface
Acknowledgments
Introduction to Comparative Law—A New Approach to the Emerging Field of Law
Contents
Editors and Contributors
Abbreviations
Comparing Constitutionally: Modes of Comparison
1 Introduction to Comparing Constitutionally
1.1 Borrowing or Transfer Oriented Comparison
1.2 Deliberative Comparison
1.3 Empirical Comparison
1.4 Reflective and Moral Cosmopolitan Comparison
2 Conclusion
References
Imperatives of the Basic Structure Doctrine: A Semi-centennial Concept
1 Introduction
2 Brief History
3 Evolution and Development
3.1 Shankari Prasad’s Case: The Underprivileged Issue
3.2 Sajjan Singh’s Case: Parliamentary Supremacy Upheld
3.3 Golak Nath’s Case: Parliamentary Powers Curtailed
4 System of Checks and Balances and the Nature of the Constitution
5 Constituents of the Basic Structure
5.1 Parliament and the constitutional evaluation for Supremacy-Post 1973
5.2 Role of the Basic Structure in Current Scenario
6 Conclusion
References
Equality, Merit and Affirmative Action: India and USA
1 Introduction
2 Understanding the Expression ‘Equality’ from the Lens of Egalitarianism and Affirmative Action
3 Historical Reasons for Evolution of Reservation System and Affirmative Action in India
4 Constitution of India, Reservation and Affirmative Action
5 Efforts of the Hon’ble Supreme Court of India in Knitting the Reservation and Merit Jurisprudence Together
6 Migration from this 50 to that 50
7 What’s New in Neil Aurelio Nunes and Ors v. Union of India (2022)
8 Affirmative Action in United States of America
9 Conclusion
References
Separation of Power and Judicial Independence in the Context of the United States and the Indian Constitution: A Cratologial Critique
1 Introduction
2 Part I—Separation of Power: A Cratological Brief
2.1 Constitution of the United States and Separation of Powers
2.2 Constitution of India and Separation of Powers
3 Part II—Establishment of Constitutional Court
4 Part III—Appointment of Judges
4.1 US Constitutional Context
5 Indian Constitutional Context
6 Part IV—Conclusion
References
Constitutional Obligation and Responsibilities of the Judges in a Contemporary Era: A Critical Study
1 Introduction
2 Concept of the Judicial Accountability
3 Judicial Independence and Judicial Accountability
4 Need for Making Judicial Accountability and Independency
5 Judicial Accountability in New Zealand
5.1 Transparent and Standardized Procedures
5.2 Disciplinary Principles for Judges
5.3 Judicial Complaints Process
6 Judicial Accountability in USA
6.1 The National Courts of the United States
6.2 Appointments of Judges
6.3 Removal and Discipline of Federal Court Judges
6.4 Current Methods of Selection
7 Judicial Accountability in Australia
7.1 Judicial Appointment
7.2 Removal of Judges
7.3 Judicial Complaints Process
8 Indolence in Indian Judiciary
8.1 The Justice V. Ramaswamy Case
8.2 Lily Thomas Advocate v. Speaker, Lok Sabha
8.3 Justice K. Veeraswami Case
9 Delay in Judicial System
9.1 Corruption Issue
9.2 Extent of Corruption in Judiciary
10 Criticism on Collegium System and NJAC
11 Conclusion
References
The Rule of Law and Legal Controversies—The Impact of Covid-19 in Bhutan
1 Background
1.1 Separation of Power
1.2 The Foundations and Origins of the Rule of Law
1.3 The Rule of Law—Soul of the Constitution
2 State Emergency
2.1 The Option to Declare a State Emergency to Deal with the Pandemic
3 Legal Controversies—The Threat to the Rule of Law
3.1 Tobacco Control and Pay Revision Laws
3.2 Pay Revision Act, 2019
4 Possible Arbitrary Arrest
5 Inconsistent Enforcement of Laws
6 Law Applied to Citizens but not the Government When They Breached the Protocols
6.1 Paro International Airport Incident
6.2 Lapses in the Southern Borders
6.3 Wangdu Outbreak—National Lockdown
7 Conclusion
Cross Border Judicial Dialogue: A Look at Indian Supreme Court’s Engagement with Australian Jurisprudence in National Legal Services Authority V. Union of India
1 Jurocomparatology, Indian Constitutional Interpretation and NLSA
1.1 NLSA—An Overview
1.2 Jurocomparatology and Constitutional Interpretation
1.3 Jurocomparatology and NLSA
2 NLSA and Australian Jurisprudence
2.1 Sex Re-assignment Surgery (SRS), Gender Identity and the Rejection of Corbett Principle of Biological Test
2.2 Interpretation of Word ‘Sex’ Beyond the Binary ‘Male and Female’
2.3 Reference to Australian Legislations
References
Climate Change and Human Mobility: Responsibilities Under International Environmental Law
1 Introduction
2 Climate-Related Human Mobility Requires Support, Compensation, Assistance, and Funding
3 Responsibilities Under International Environmental Law (IEL)
3.1 The Polluter Pays Principle
3.2 No-Harm Principle
3.3 The Principle of ‘Common but Differentiated Responsibilities and Respective Capabilities’ (CBDR&RC)
4 Conclusion
References
Do Australian and Indian Courts Have ‘Get-Out-of-Text Free Cards’ Like the US Supreme Court in Order to Limit Environmental Executive Power?
1 Introduction
2 West Virginia v. EPA
3 Could West Virginia v. EPA Happen in India and Australia?
3.1 Constitutional Law and the Environment: The Indian Experience
3.2 Constitutional Law and the Environment: The Australian Experience
4 Conclusion
Reference
Affirmative Action and Social Discrimination: A Functional Comparative Study of India, USA and South Africa
1 Introduction
2 Historical Context
3 Constitutional Obligations
4 Form and Quantum
5 Beneficiaries
6 Functional Assessment
7 Conclusion
References
Maran Shipping: A Ray of Hope in a Darkening Landscape for Inter-state Civil Actions—Forum Non-conveniens Versus Duty of Care
1 Introduction
2 Bhopal—A Prey of Forum Non-conveniens
3 How Maran Shipping Differs from Forum Non Conveniens Approach of Bhopal
4 Maran Shipping—An Inter-state Tort Action for Adequate Remedy
5 Would Maran Shipping Affect Future Litigations Similar to Bhopal?
6 Evaluation of Maran Shipping for Future Victims in a Global Business Similar to Shipbreaking
7 Conclusion
References
Impacts of the Use of a Family Violence Report to Determine Interests in Residential Tenancy Agreements: A Comparative Study Between Western Australian and Albertan (Canada) Legislation
1 Introduction
2 Comparison Between Statutory Framework of WA and Alberta
2.1 Defining Relevant Terms and Parties of RT Agreements
2.2 Termination of RT Agreements on Grounds of FV/DV
3 Comparison of the Implications on Parties of RT Agreements
3.1 Implications for FV/DV Victims
3.2 Implications for Lessors
4 Impacts on Co-tenants
5 Conclusion
References
Live-in-Relationship Vis-À-Vis Marriage: A Congruence Among Indian and Australian Laws
1 Introduction
2 Development of the Concept of Live-in-Relationships in India
3 Gradual Change in the Mindset of Society in the Present Day Scenario
4 Live-in-Relationship: Threat to Marriage Institution
5 Legislative and Judicial Framework Regarding Live-in-Relationship in India
6 Conclusion
Reference
Tainted Chocolate? A Systemic Review of the Cocoa Industry in Ghana and Brazil
1 Introduction
2 Why Child Labour?
3 Child Labour and Modern Slavery Defined
4 Consumption and Consumerism
5 The Role of the Chocolate Confectioners
5.1 Brazil Cocoa and Child Labour History
5.2 Ghana Cocoa and Child Labour History
6 International Conventions on Child Labour
7 Domestic Laws and Policies
7.1 Ghana
7.2 Brazil
7.3 Discussion
8 Conclusion
References
Metaverse and Non-fungible Tokens—A Comparative Study
1 Metaverse and NFT’s—A Conceptual Introduction
1.1 Web 3.0
1.2 Blockchain
1.3 Decentralization
1.4 Cryptocurrency
1.5 Metaverse and NFT’s—What Do They Mean?
2 The Metaversal Marketplace—Impact of the Metaverse on Business
3 Consumers Behaviour in the Metaverse
3.1 Metaverse and the Internet of Things
3.2 Key Statistics Regarding the Metaverse in 2022
4 Non-fungible Tokens (NFTs)
4.1 Mining an NFT
4.2 How Do NFT’s Work?
4.3 Using NFT’s
4.4 Key Statistics Regarding NFTs
5 Laws Applicable to the Metaverse and NFTs
5.1 Prospective Solutions for a Way Forward
5.2 Legislation Regarding the Metaverse
5.3 Legislation of NFTs
6 Indian Perspective
7 Conclusion
References
A Comparative Study of Blockchain and Cryptocurrency Regulations Between Western Australian and Albertan (Canada) Legislation
1 Introduction
2 Origin of Blockchain and Cryptocurrency
3 Purpose of Cryptocurrency and Blockchain
4 Benefits and Drawbacks of Blockchain
4.1 Benefits of Drawbacks
4.2 Drawbacks of Blockchain
5 Blockchain and DLT (Distributed Ledger Technology)
6 Regulations of Cryptocurrency Around the World
7 Legal Issues Associated with Blockchain
8 Current Position of Cryptocurrency in India
8.1 Is Cryptocurrency a Legal Tender or Accepted as Payments in India?
9 Conclusion
References
A Comparative Analysis of Indian Pre-packaged Insolvency Process with that of US and UK
1 Introduction
2 Corporate Insolvency Resolution Process: Need for PPIRP
3 Overview of PPIR and Its Role in MSME
4 MSMEs and the Pre-packaged Process
5 Pre-packaged Insolvency Resolution Process (PPIRP): Issues and Challenges
6 Takeaway from USA and UK
7 Conclusion
References
Entering into Food Processing Market in India—Methodology of Obtaining the Food Registration and Food Licenses
1 Introduction
2 Licenses and Registration of Food Business Under FSSAI
3 Food Safety and Standards (Licensing and Registration of Food Businesses, Regulation, 2011)
3.1 Documents Needed for the Purpose of Registration and License
3.2 Processing the Application for License
3.3 Annual Returns
3.4 Hygienic and Sanitary Practices to Be Followed by Food Business Operators
3.5 Conditions of License
3.6 Fee for Procurement of License
3.7 Validity and Renewal of Registration and License
3.8 Renewal of Registration and License
3.9 Guarantee
3.10 Suspension or Cancellation of the Registration Certificate or License
4 Conclusion
An Australian-Based View on Reconstructing Copyright Licensing Laws
1 Introduction
2 The Openness Movement
2.1 Justifications for the Open Access Practice
3 Australian Perspective on Open Access
3.1 Timeline of Open Access Development in Australia
4 Examples of International Jurisdictions and the Contribution of Governmental Agencies in Australia
4.1 Copyright and the Digital Economy: Drawing Lessons from International Jurisdictions
4.2 Measures Undertaken in the Australia Context
4.3 APC: Final Report on Intellectual Property Arrangements Inquiry
4.4 Uniting Australian Key Stakeholders
5 Conclusion
5.1 Open Access as a Tool to Enhance Copyright Licencing Laws and Primary Thoughts
References
Regulating Strategic Communications Investigation: The Investigatory Powers Act 2016 (UK) as an Exemplar for India
1 Introduction
2 The Transparently Secret UKIPA
2.1 The UKIPA as a Model of Social Evaluation for Westminster Legislatures
2.2 Is Australia Following the UK’s ‘Social Evaluation’ Legislative Process?
2.3 What Does the UKIPA Actually Do?
3 Strategic Interception of Communications and Data
3.1 Equipment Interference
3.2 What Is Meant by the Term ‘Strategic Interception’?
3.3 Bulk Interception or Mass Surveillance?
3.4 The Rationales for Bulk Interception of Communications
3.5 Understanding the Nature and Operational Case for ‘Bulk’ Investigative Power
3.6 ‘Transparent Secrecy’ in Primary Legislation
3.7 The Case for Avowal
3.8 The IPA 2016 as a Paradigm of Compliance with Internationally Recognised Human Rights Norms
4 Strategic Policy (and Thus Regulatory) Alignment?
References
Analysis of Laws in Different Countries on Sedition
1 Introduction—Indian Laws Pertaining to Sedition
2 Sedition Laws of USA
3 Sedition Laws of Australia
4 Laws of Sedition of England
5 Conclusion
References
Bargained Justice: Legal Psychological Analysis of Plea-Bargaining in India and USA
1 Prelude
2 Origin
3 Indian Adaptation of Plea Bargaining
3.1 Critical Analysis of the Main Features of Plea Bargaining
4 Plea Bargaining and Judicial Pronouncements
5 Psychological Influences Affecting Plea Bargaining
5.1 Public Prosecutors
5.2 Police Officers
5.3 Defence Lawyers
5.4 Judges
5.5 Accused
5.6 Victim
6 Comparative Analysis Between India and USA
7 Conclusion and Suggestions
References

Citation preview

Joshua Aston Aditya Tomer Jane Eyre Mathew   Editors

Comparative Approaches in Law and Policy

Comparative Approaches in Law and Policy

Joshua Aston · Aditya Tomer · Jane Eyre Mathew Editors

Comparative Approaches in Law and Policy

Editors Joshua Aston School of Business and Law Edith Cowan University Joondalup, WA, Australia

Aditya Tomer Amity Law School Amity University Noida, Uttar Pradesh, India

Jane Eyre Mathew Amity Law School Amity University Noida, Uttar Pradesh, India

ISBN 978-981-99-4459-0 ISBN 978-981-99-4460-6 (eBook) https://doi.org/10.1007/978-981-99-4460-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

The field of law and policy is a dynamic and constantly evolving arena that plays a pivotal role in shaping our societies. Laws and policies regulate a wide range of activities, from economic transactions to social relationships, and they have a significant impact on the lives of individuals and communities. As a result, there is a growing need for comparative approaches to studying law and policy. This book explores comparative approaches in law and policy, highlighting the challenges and opportunities that arise when different legal and policy systems interact. By analysing the similarities and differences in legal and policy frameworks across different countries and cultures, this book aims to provide a comprehensive understanding of how law and policy function in a globalized world. Drawing on the expertise of scholars and practitioners from around the world, this book covers a wide range of topics, including human rights, environmental law, intellectual property, international trade, and more. Each chapter provides a comparative analysis of different legal and policy approaches, examining the factors that shape these approaches and the impact they have on society. The aim of this book is to encourage a deeper understanding of how law and policy work in different contexts and to provide insights into how we can work together to develop more effective legal and policy frameworks that are better suited to the challenges of the twenty-first century. We hope that this book will be a valuable resource for students, scholars, policymakers, and practitioners who are interested in understanding the importance of comparative approaches in the study of law and policy. Joondalup, Australia Noida, India Noida, India March 2023

Joshua Aston Aditya Tomer Jane Eyre Mathew

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Acknowledgments

This publication explores the diverse aspects of comparative law in order to gain a comprehensive understanding of various areas such as comparative constitutional law, comparative criminal law, comparative business law, and comparative technology and intellectual property laws. The book is the result of the dedicated efforts of many individuals who contributed to its success. We would like to express our appreciation to some of our colleagues who assisted us in producing the best possible version of this book. Our sincere thanks go to Kate Hewit, Mr. Rupendra Singh, and Dr. Sumitra Singh for their valuable support in this undertaking. We are deeply grateful to all the authors who have made significant contributions to turning this book into a reality. We would like to thank Lucie Bartonek and Karthikeyan Krishnan from Springer for their continued support in this project. Lastly, we would like to acknowledge and express our gratitude for the support we received from our respective universities, which enabled us to produce this book on comparative law.

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Introduction to Comparative Law—A New Approach to the Emerging Field of Law

The genesis of comparative law dates to the seventeenth century when it was confined to a process or method for comparing the legal systems of two or more jurisdictions. However, the ambit of comparative law goes beyond boundaries of the field of law, to have a better understanding of laws and being instruments of justice. Various social actors have greatly raised the significance of comparative law in the current era of globalization. The study of comparative law focuses on an analytical, in-depth examination of the parallels and discrepancies as well as legislative and judicial reactions to the doctrinal issues that have arisen in the legal profession. Lawmakers, academics, policymakers, researchers, and practitioners of law have employed comparative methods to support or refute the theory developed during their research. Comparative law expects a thorough investigation and comprehension of the fundamental legal principles that each nation has adopted into its system of government. Comparative law focuses on a comparative understanding of how constitutions are created, how civil, political, and economic policy and laws evolve, and how they are applied. We can better comprehend laws and legal systems and improve the system by using comparative analytical study. It broadens the range of possibilities and aids in overcoming legal and constitutional ethnocentrism. Comparisons can be done in two ways, either microcomparison or macrocomparison. Microcomparison is the preferred mode of comparison as it requires comparison between one or two jurisdictions relating to the same areas of law, whereas regarding macrocomparison it is a more extensive research-oriented work wherein one needs to identify and master the law of different jurisdictions to bring in a substantial difference and value to the findings in the research. One of the major areas of comparative law is comparative constitutional law. The goal of comparative constitutional law is to provide an alternative to established constitutional norms at the national level. When viewed from the outside, constitutional systems often reveal their unique historical characteristics, such as the similarities and differences between constitutional concepts and the ingrained political nature of various constitutional institutions, climate change, greenhouse gas emissions, environmental pollution, deforestation, and the spread of disease are all examples of global legal issues that affect everyone.

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Introduction to Comparative Law—A New Approach to the Emerging …

These problems need systemic solutions, including new legislation and revisions to existing statutes. The broad theme of ‘comparative law’ encompasses the following beliefs: ‘(1) comparative law is a transnational legal system; (2) it is a science facilitating the unification of different legal systems or anticipating the unification (or, failing that, the homogenisation) inherent in the evolution of legal systems on a global scale; (3) it is the science of foreign legal systems; and (4) it is a science that assists in resolving individual cases before the courts Comparative law objectives broadly can be classified into three, namely (1) practical or professional, (2) scientific, and (3) cultural or humanistic’. Practical or professional purposes are the ones that attorneys, judges, and academics use comparative law for most frequently. This includes, among other things, international litigation, contract drafting, legal harmonization, law reform, and actions involving law and development. However, a scientific application of comparative law, such as one based on economics or sociology, is typically the purview of academics. As in German legal science, which has its roots in the historical school of jurisprudence of the nineteenth century, the systemic study and elaboration of principles based on legal rules and doctrine tend to be nation specific. Using sociology to test broad explanatory claims about law and legal institutions or economics to evaluate efficiency or distribution issues across nations would be a more comparative approach. The third use, which is humanistic or societal, lacks a direct utilitarian goal. The goal can be as simple as a person’s enjoyment of learning about other cultures or as complex as their wish for global understanding. The methods applied in the study of comparative law include but not limited to the following ten methods1 : (1) (2) (3) (4) (5) (6) (7) (8) (9) (10)

1

Natural law; Legal transplants: import and export; Examination of a nation’s Volksgeist: emphasizing differences; Legal harmonization and unification; Legal traditions, legal systems, and pluralism; Functionalism: emphasizing similarities; Ideal types; Nation building: law and development initiatives; Law, rhetoric, and culture: critical studies; and Economic analysis of the law.

David S. Clark, Comparative Law Methods in the United States, Roger Williams Law Review, Vol 16 Issue 1.

Introduction to Comparative Law—A New Approach to the Emerging …

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Researchers concur that comparative legal studies have been helpful in empirically testing the claims of legal theory.2 All jurisprudential approaches (historical, philosophical, sociological, and analytic) depend on the comparative method, making comparative law essential to understanding law, as Paton argued.3 Since law is universal, a comparative study or investigation of multiple legal systems is necessary for jurists to acquire the knowledge they need to develop methods for the accurate construction of legal phenomena. The study of comparative law provides the jurist with a wider range of viewpoints from which to form a more holistic knowledge of the law. It introduces novel ideas, styles, organizational frameworks, and categorizations; it also creates new avenues of inquiry into the very nature of law, allowing lawyers to do their jobs more efficiently. In addition, the field of comparative law provides scholars of law with a wealth of information. To better understand the similarities and differences between different legal systems, sociologists have begun to look beyond narrow country boundaries and examine the social functions of law. The impact of social, economic, political, cultural, and geographical variables on the evolution of the law is examined in depth. Sociologists of law can learn from comparative law about the efficacy of various legal approaches to addressing social issues. Even when the same base language is used in more than one legal system, comparing various systems of law requires the crossing of linguistic borders. Different legal systems have different linguistic practices; they use different conventions for representing and conveying information, such as different degrees of abstraction, writing styles, and value systems that favour different types of arguments. The Indian Constitution was enacted after an in-depth study of different constitutions of the world, including Constitution of USA, The Constitution of Ireland, The French Constitution, and the Australian Constitution and has adopted the features of those constitution. The Indian Constitution being relatively young, the Indian Supreme Court has relied upon foreign judgement to interpret the provisions the Indian Constitution. This stance of the Supreme Court of India is also a mode of understanding the laws of several other jurisdictions and being able to apply the same at the domestic level. Similarities are quite visible among the laws of India, Australia, UK, and many more. In both India and Australia, constitutionalism rests on the rule of law. In India, Article 141 expressly makes the law declared by the Supreme Court binding upon all the courts. This theory of precedents has been adopted by India based on English practice of doctrine of staire decis. Hence, comparative law is without doubt concerned with more matters than merely law, but its object is ultimately law. The present book has ventured into the aspects pertaining to basic structure doctrine, separation of powers and judicial independence, responsibility of the judges towards the society, and the concept of rule of law, designing democracy under the comparative constitutional law. These areas of research are more significant with the changing times, and it is all the more relevant for upholding democratic 2

Lawson, F. H. (1977). The Comparison, Selected Essays II. Amsterdam and New York: Elsevier/ North Holland. 3 Paton, G. W. (1972). A Textbook of Jurisprudence. Oxford: Clarendon Press.

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rights. Judiciary plays a major role in terms of interpreting the laws and as a watch dog for protecting and promoting the rights of the citizens and the public at large. Another set of chapters in this book revolves around interstate civil actions, affirmative action, social discrimination, environmental aspects, family violence, insolvency, blockchain and cryptocurrency, non-fungible tokens, etc. With comparative laws coming into the foray, it has bridged the gap between the different fields of law. Now the areas of laws are not confined to a particular family, comparative law has made it possible to compare the laws which makes it more realistic, logical, and just. With the chapters in this book, some of the key emerging areas of laws are discussed and suggestions put forth to bring it the required changes in this contemporary world.

Contents

Comparing Constitutionally: Modes of Comparison . . . . . . . . . . . . . . . . . . Rosalind Dixon Imperatives of the Basic Structure Doctrine: A Semi-centennial Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arvind P. Bhanu, Ambika Dilwali, and Adityaraj Patodia Equality, Merit and Affirmative Action:India and USA . . . . . . . . . . . . . . . Sreenivasa Murthy M. R. and Syamala Kandadai Separation of Power and Judicial Independence in the Context of the United States and the Indian Constitution: A Cratologial Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Irfan Rasool Najar Constitutional Obligation and Responsibilities of the Judges in a Contemporary Era: A Critical Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . Showkat Ahmad Wani

1

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The Rule of Law and Legal Controversies—The Impact of Covid-19 in Bhutan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Sonam Tshering Cross Border Judicial Dialogue: A Look at Indian Supreme Court’s Engagement with Australian Jurisprudence in National Legal Services Authority V. Union of India . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Hakim Yasir Abbas Climate Change and Human Mobility: Responsibilities Under International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Hossain Mohammad Reza and Mostafa Mahmud Naser

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Contents

Do Australian and Indian Courts Have ‘Get-Out-of-Text Free Cards’ Like the US Supreme Court in Order to Limit Environmental Executive Power? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Haydn Rigby Affirmative Action and Social Discrimination: A Functional Comparative Study of India, USA and South Africa . . . . . . . . . . . . . . . . . . 171 Sakshi Parashar Maran Shipping: A Ray of Hope in a Darkening Landscape for Inter-state Civil Actions—Forum Non-conveniens Versus Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Mohammad Zulfikar Ali and Prafula Pearce Impacts of the Use of a Family Violence Report to Determine Interests in Residential Tenancy Agreements: A Comparative Study Between Western Australian and Albertan (Canada) Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Laura Tripp and Tanzim Afroz Live-in-Relationship Vis-À-Vis Marriage: A Congruence Among Indian and Australian Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Rupam Jagota and Rishma Bal Tainted Chocolate? A Systemic Review of the Cocoa Industry in Ghana and Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 Cecilia Anthony Das and Joshua Aston Metaverse and Non-fungible Tokens—A Comparative Study . . . . . . . . . . 247 Vikrant Rana A Comparative Study of Blockchain and Cryptocurrency Regulations Between Western Australian and Albertan (Canada) Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Harsh Kumar and Pooja A Comparative Analysis of Indian Pre-packaged Insolvency Process with that of US and UK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 Sujatha S. Patil Entering into Food Processing Market in India—Methodology of Obtaining the Food Registration and Food Licenses . . . . . . . . . . . . . . . . 301 Rathna Malhotra Gaur An Australian-Based View on Reconstructing Copyright Licensing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Robert Cunningham, Marinos Papadopoulos, and Nikos Koutras

Contents

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Regulating Strategic Communications Investigation: The Investigatory Powers Act 2016 (UK) as an Exemplar for India . . . . . . . . . 337 Phil Glover Analysis of Laws in Different Countries on Sedition . . . . . . . . . . . . . . . . . . 361 Abhinav Tomer, Rupendra Singh, and Sumitra Singh Bargained Justice: Legal Psychological Analysis of Plea-Bargaining in India and USA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 Komal Vig, Ruchi Lal, and Priyanka Ghai

Editors and Contributors

About the Editors Associate Professor Joshua Aston is Associate Dean of Law and Member of the School Executive at the School of Business and Law, Edith Cowan University. In his past roles, he has served as Assistant Professor, Dean (SW), and Officer on Special Duty to Vice Chancellor, Gujarat National Law University based in Gandhinagar. Prior to that, he served as Assistant Professor and Deputy Director of Symbiosis Law School, Pune. He is Adjunct Associate Professor of Law at Amity University based in India. He is Recipient of the (Deutscher Akademischer Austauschdienst) DAAD scholarship from Germany and served as Research Scholar in the Institute of Air, Space and Cyber Law, University of Cologne, Germany, for a period of three months. He is also Asian Law Institute Fellow and was invited by the National University of Singapore, Singapore for 2 months. He received the Israeli Government Scholarship channelized through the Ministry of Human Resource Development, Government of India, and served as Research Fellow at Buchmann Faculty of Law, Tel Aviv University, Israel, for a period of eight months. He is Member of the Council of Australian Law Deans (peak body representing Australia’s 39 University Law Schools) since 2019 and has been representing ECU at this forum. He is also Member of the Evaluation, Assistance, and Certification Committee of the International Association of Law Schools which has a network of over 250 Law Schools across the globe. He is Author of 11 books; some of the acclaimed text are Trafficking of Women and Children, Article 7 of the Rome Statute (2015) and Torture Behind Bars: Role of the Police Force in India (2020) both published by Oxford University Press. Professor Aditya Tomer is presently Additional Director/Joint Head of Amity Law School, Noida, Amity University. He is Academician with varied and interdisciplinary interests. He has to his credit more than 35 publications including books, monographs, chapters, research papers, articles in magazines, and newspapers. He is Keen Researcher and has supervised researches leading to the award of Ph.D. in law and also LLM. He focuses more on empirical and multidisciplinary

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research. His expertise lies in the field of Right to Information, Arbitration and Mediation, Human Right and Business Law. His stewardship has deeply impacted in enhancing the quality of Amity International Journal of Juridical Sciences, Journal of Multi-disciplinary Studies, Journal of Legal Studies and Research, and Ami Code 3-Newsletter of Law. He has also contributed to the development of Law School by organizing many national and international conferences, workshops, FDPs, panel discussions and moot court competitions, legal aid campus, etc., of high repute. He has been paper setter and evaluator for Tripura State, Public Service Commission; UPSSC judicial exams. He is also Life Member of All India Law Teachers Congress. Dr. Jane Eyre Mathew received her Ph.D. degree in Criminology from the University of Madras and pursued her Master’s programme from the University of Turin, Italy. From 2016 to 2020, she taught at School of Law, Lovely Professional University, and prior to this, she has worked with a few NGOs. Presently, she is serving as Assistant Professor of Law at Amity Law School, Noida, Amity University. Her key areas of interest include constitutional law, international law, research methodology, and criminal law. She is immensely interested in empirical research and has authored numerous articles. She has several research papers to her credit and has also edited a book.

Contributors Tanzim Afroz School of Business and Law, Edith Cowan University, Joondalup, WA, Australia Mohammad Zulfikar Ali Associate Lecturer, Curtin Law School, Curtin University, Perth, WA, Australia Joshua Aston School of Business and Law, Edith Cowan University, Joondalup, WA, Australia Rishma Bal University Institute of Legal Studies, Chandigarh University, Chandigarh, India Arvind P. Bhanu Professor of Law and Research and Addl. Director, Amity Law School, Noida, India Robert Cunningham Curtin Law School, Curtin University, Perth, WA, Australia Cecilia Anthony Das School of Business and Law, Edith Cowan University, Joondalup, WA, Australia Ambika Dilwali Associate, Saikrishna & Associates (New Delhi, India); Former Law Researcher-cum-Judicial Clerk, High Court of Delhi, New Delhi, India Rosalind Dixon University of New South Wales, Sydney, NSW, Australia

Editors and Contributors

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Rathna Malhotra Gaur Amity Law School, Amity University, Noida, India Priyanka Ghai Amity Law School, Amity University, Noida, India Phil Glover School of Business and Law, Edith Cowan University, Perth, WA, Australia Hakim Yasir Abbas School of Law, University of Kashmir, Srinagar, India Rupam Jagota Department of Laws, GNDU (RC) Jalandhar, Jalandhar, India Syamala Kandadai National University of Study and Research in Law, Ranchi, India Nikos Koutras Curtin Law School, Curtin University, Perth, WA, Australia Harsh Kumar School of Law, IMS Unison University, Dehradun, India Ruchi Lal Sharda School of Law, Sharda University, Greater Noida, India Irfan Rasool Najar CAIL, Bengaluru, India Mostafa Mahmud Naser School of Business and Law, Edith Cowan University Australia, Joondalup, Australia; Centre for People, Place & Planet (CPPP), ECU, Joondalup, Australia Marinos Papadopoulos Athens Bar Association, Athens, Greece Sakshi Parashar Symbiosis Law School, Noida, India; Symbiosis International (Deemed University), Pune, India Sujatha S. Patil School of Business and Law, Navrachana University, Vadodara, India Adityaraj Patodia Judicial Law Clerk-cum-Research Associate, Supreme Court of India, Delhi, India Prafula Pearce School of Business and Law, Edith Cowan University, Joondalup, WA, Australia Pooja School of Law, IMS Unison University, Dehradun, India Vikrant Rana S. S. Rana & Co., New Delhi, India Hossain Mohammad Reza Bangladesh Judicial Service, Government of the People’s Republic of Bangladesh, Dhaka, Bangladesh Haydn Rigby School of Business and Law, Edith Cowan University, Joondalup, WA, Australia Rupendra Singh Amity Law School, Amity University, Noida, India Sumitra Singh Amity Law School, Amity University, Noida, India Sreenivasa Murthy M. R. National University of Study and Research in Law, Ranchi, India

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Abhinav Tomer Amity Law School, Amity University, Noida, India Laura Tripp Statutory Insurance, Perth, WA, Australia Sonam Tshering Jigme Singye Wangchuck, Paro, Bhutan Komal Vig Sharda School of Law, Sharda University, Greater Noida, India Showkat Ahmad Wani NMIMS, Bengaluru, India

Abbreviations

AI AIoT AIR ALRC Anr APC AR ARC Art(s) ASD ATS BDFL BFP BLRC BOAI BPR BRUSA BSA BTC CA CAUL CD CDBR&RC CDR CFTC CIRP CJI CLMRS CMR CNE

Artificial Intelligence Artificial Intelligence of Things All India Reporter Australian Law Reform Commission Another Australian Productivity Commission Augmented Reality Australian Research Council Article(s) Australian Signals Directorate Alien Tort Statute Bhutan Duty Free Limited Bolsa Familia Programme Bankruptcy Law Reforms Committee Budapest Open Access Initiative Bulk Powers Review British-US Communication Intelligence Agreement Bank Secrecy Act Bitcoin Children’s Act Council of Australian University Librarians Corporate Debtor Common but Differentiated Responsibilities and Respective Capabilities Corporate Debt Restructuring Commodities and Futures Trading Commission Corporate Insolvency Resolution Process Chief Justice of India Child Labour Monitoring and Remediation System Chief Metaverse Officer Computer Network Exploitation xxi

xxii

CO2 CoC COP CPP CrPC CSE DAO DASR DCA DeFi DLT DMCA DPT DV ECHR ECtHR Ed EPA ERCIM EU EWS FCA FDI FEFO FEMA FIFO FinCEN FOSCOS FSA FSSAI FV GCF GCHQ GDP GEF GHG GISCO GST Harv. L. Rev HRC IBC ICO IEL IIR ILC

Abbreviations

Carbon Dioxide Committee of Creditors Conference of the Parties Clean Power Plan Criminal Procedure Code Civil Service Examination Distributed Autonomous Organization Draft Articles on State Responsibility Department of Communication and the Arts Decentralized Finance Distributed Ledger Technology Digital Millennium Copyright Act Digital Payment Token Domestic Violence European Convention on Human Rights European Court of Human Rights Edition Environmental Protection Authority European Research Consortium for Informatics and Mathematics European Union Economically Weaker Sections Financial Conduct Authority Foreign Direct Investment First Expire-First Out Foreign Exchange Management Act, 1999 First in, First Out Financial Crimes Enforcement Network Food Safety Compliance System Financial Services Agency Food Safety and Standards Act, 2006 Family Violence Green Climate Fund Government Communications Headquarters Gross Domestic Product Global Environment Facility Greenhouse Gas German Initiative on Sustainable Cocoa Goods and Services Tax Harvard Law Review Human Resource Committee Insolvency and Bankruptcy Code Initial Coin Offering International Environmental Law Independent Intelligence Review International Law Commission

Abbreviations

ILO IOCA IOCC IoT IP IPC IPCC IPCO IPT IRP IRs IRS IRTL JLF KYC LDC LDCF Ltd MBBS MEAs MiCA ML MMORPG MRS MSME MTE NCLAT NCLT NCRB NEET NFT NGO NHMRC NIT NJAC NLSA OA OAA OAG OBC OECD OEIGWG OEP Ors P/p

xxiii

International Labour Organization Interception of Communications Act Interception of Communications Commissioner Internet of Things Intellectual Property Indian Penal Code Intergovernmental Panel on Climate Change Investigatory Powers Commissioner’s Office Investigatory Powers Tribunal Insolvency Resolution Professional Institutional Repositories Internal Revenue Service Independent Reviewer of Terrorism Legislation Joint Lenders Forum Know Your Customers Least Developed Countries Least Developed Countries Fund Limited Bachelor of Medicine and Bachelor of Surgery Multilateral Environmental Agreements Markets in Crypto Assets Regulation Machine Learning Massively Multiplayer Online Role-Playing Games Meritorious Reserved Category Micro, Small, and Medium Enterprises Ministry of Labour National Company Law Appellate Tribunal National Company Law Tribunal National Crime Records Bureau National Eligibility cum Entrance Test Non-Fungible Tokens Non-Governmental Organisation National Health and Medical Research Council National Inspection Team National Judicial Appointment Commission National Legal Services Authority Open Access Open Access Australasia Office of the Attorney General Other Backward Class Organisation for Economic Co-operation and Development Open-Ended International Working Group Open Educational Practice Others Page

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PBOC PG PoS PoW PPE PPIR QR QUAD QUT RBI RBP RFV RIPA RIPR ROA ROAR RPLTA RPoW RSA RT RTAA SC SCt SCC SCCF SCR SDR SEC SFFA SHO SI SIP SLP SP SPA SRS ST Stan. L. Rev Tex L. Rev TP UAE UG UIF UK UKIPA

Abbreviations

People’s Bank of China Postgraduate Proof of Stake Proof of Work Personal Protection Equipment Pre-packaged Insolvency Resolution Process Quick Response Quadrilateral Security Dialogue Queensland University of Technology Reserve Bank of India Royal Bhutan Police Report of Family Violence Regulation of Investigatory Powers Act, 2000 Report of the Investigatory Powers Review Restraining Orders Act Registry of Open Access Repositories Residential Parks (Long Stay Tenants) Act, 2006 Reusable Proof of Work Rivest Shamir Adleman Residential Tenancy Residential Tenancies Act Scheduled Caste Supreme Court Supreme Court Cases Special Climate Change Fund Supreme Court Review Strategic Debt Restructuring Securities and Exchange Commission Students for Fair Admission Station House Officer Statutory Interpretation Statements of Insolvency Practice Special Leave Petition Superintendent of Police Strategic Priority on Adaptation Sex Re-assignment Surgery Scheduled Tribe Stanford Law Review Texas Law Review Transgender Persons United Arab Emirates Undergraduate Financial Information Unit United Kingdom United Kingdom’s Investigatory Powers Act, 2016

Abbreviations

UKPISC UN UNFCCC UNSW UOI UP US USA Vol VR WA WWW

xxv

United Kingdom’s Parliament’s Intelligence and Security Committee United Nations United Nations Framework Convention on Climate Change University of New South Wales Union of India Uttar Pradesh United States United States of America Volume Virtual Reality Western Australia World Wide Web

Comparing Constitutionally: Modes of Comparison Rosalind Dixon

1 Introduction to Comparing Constitutionally In this paper, I want to discuss primarily why we might compare in a constitutional context and the different modes of comparison that are available to us, depending upon our role and position. Further, I wish to offer some cautions about what is required to be done while doing a comparison of each kind. The value of a discussion of this kind is to help situate rich contextual aspects of comparative law and provide a shared framework for discussion and evaluation of both the promise and pitfalls of comparative insights. In my deliberation, I am drawing from a paper titled “How to Compare Constitutionally: An Essay in Honour of Mark Tushnet” that I have published in an edited collection in honour of Professor Mark Tushnet of Harvard Law School who is one of the leading scholars and founders of comparative constitutional studies as a modern discipline.1 Why we compare can be answered by drawing out attention to five different modes of comparison, each of which has a somewhat different focus. So the first mode of comparison is borrowing or transferoriented. Professor Henkin2 called this mode of comparison a ‘genetic influence’ and Professor Sujit Chaudhary3 calls it ‘genealogical’, where it is about a shared set of ongoing conversations among countries with common origins. Of course, India and Australia have that genealogical connection in ways that make this conference especially interesting and valuable.

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Dixon [1]. Henkin [2]. 3 Choudhry [3]. 2

R. Dixon (B) University of New South Wales, Sydney, NSW, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_1

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1.1 Borrowing or Transfer Oriented Comparison The focus of borrowing is on making new constitutional texts, creating a new constitution or amending it or creating institutions that are in some other ways novel, even if at the sub-constitutional or quasi-constitutional level. The focus is on text, structure or on doctrine. Where it is on doctrine, the aim is to understand the foreign systems which have developed doctrinal solutions to a common doctrinal or legal challenge. As lawyers, we are quite commonly encouraged to practice doctrinal comparison in ways that are under-theorized and yet reasonably well accepted. The only place where this has been controversial is in the United States of America where there tends to be resistance to any form of comparison. Other borrowing-oriented forms of comparison focus on constitutional texts and structures. And if this kind of comparison occurs at the stage of drafting a constitution, it can give rise to interesting ongoing genetic and genealogical comparisons for those who are interested in constitutional history as a source of interpretation. That is, it can lead to a form of originalist or “genetic” mode of comparison. On the other hand, a more common law-style genealogical approach will focus on how certain common language or structures have been understood over time, in comparable, similarly influenced countries. This kind of “genealogical approach” is very likely to occur in a range of common law systems that share Anglo-British heritage and where common law doctrines such as habeas corpus and some other writs will be the focus of comparison.

1.2 Deliberative Comparison The second mode of comparison is relatively uncontroversial. It is called a deliberative comparison. It is focused on arguments that have been presented and ventilated in other countries in a common context. Sometimes those arguments might appear in an academic journal, sometimes they might appear in legislative debates. More often, they will appear in the pages of law reports, but less in the judgements of superior courts or appellate courts but more in the transcript of arguments where, especially in the adversarial context, we would expect to see counsel making arguments that may be of assistance to lawyers, judges elsewhere thinking through issues that their jurisdiction has not had multiple opportunities to test and consider argumentatively. So the deliberative comparison is relatively benign from a perspective of any concerns about comparison and offers you real promise that varies depending upon how novel the issue is for a domestic audience: The better trodden an issue is, the less need there may be for a wide-ranging global deliberative engagement, whereas the newer or more challenging an issue is, the more value there is to that kind of comparison.

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1.3 Empirical Comparison The third kind of comparison is empirical in nature. This kind of comparison is either thin or thick, but it is ultimately oriented to understanding practices or consequences of various legal choices. So at the thinnest level, it is simply looking around the world to see what are the possible range of choices available in a certain context. For example: should we ban something? Should we regulate it? Should it be regulated with certain conditions attached? If you are the decision maker, whether legislative, constitutional or judicial, you might look around the world to see the range of available alternatives. This is the thinnest form of empirical comparison as it is simply about the existence of practices and not their consequences. But some forms of empirical comparison are thicker, which are more ambitious as they ask us to understand what causes things to arise or what comes out of some doctrinal legal choices in terms of consequences. This kind of comparison is more ambitious in what it requires of us as lawyers.

1.4 Reflective and Moral Cosmopolitan Comparison The fourth and fifth modes of comparison are ‘reflective’ and ‘moral cosmopolitan’, and primarily focused on values as opposed to legal doctrinal, textual or practical consequences. Reflective modes of comparison are about understanding ourselves. As a constitutional polity, we understand ourselves better when we see ourselves in relation to others. This mode of comparison can be compared to looking in the mirror. Professor Frank of Harvard Law School, calls it ‘reflective’.4 Others think about it as an analogy to a kind of critical self-reflection that is reflexive. As scholars, we are all engaged in a practice of reflective comparison and learning from each other, not only about each other’s systems but also our own, because to understand our system we must be able to put it in some kind of broader context, to situate, to position it, to understand how it differs as well as it is similar to relevant comparative jurisdictions. Moral cosmopolitan comparison on the other hand aims not to unpack or understand the particularity in our values or our approaches, but to identify common principles, universal ideas that transcend the particular context and are shared among a large number of countries worldwide. This might be all constitutional democracies or free democracies or Global South democracies or transformative constitutional systems but there is a list of shared sets of understandings and practices among those countries that give them a quasi-universal source or generalisable quality. This kind of comparison can take two forms, one form advocated by Professor Jeremy Waldron of NYU is a form of deliberative Global comparison that generates something akin 4

Michelman [4].

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to a jus gentium, general principles achieved through global dialogue among equal partners.5 A very idealized conception of the world perhaps, nonetheless a very normatively desirable one. The second mode of moral cosmopolitan comparison is more statistical. It draws on the ‘law of large numbers’, or what social scientists call ‘Condorcet’s jury theorem’. Professor Eric Posner and Cass Sunstein have developed this in the comparative context to mean that the laws of the nation might be representative of the individual judgements by individual states as to what is right and good in terms of justice.6 Each of these modes of comparison has value and is something to be encouraged including by conferences such as these. However, each has a particular focus, textual doctrine, history perhaps, arguments, consequences or practices or values. Further, it is important to understand what they demand of us in the kinds of material they require us to look at. Borrowing-oriented comparison will tend to look either at the text of the constitutional elsewhere or the decisions of other countries as well as received understandings of how they worked in practice in ways that blend into empirical comparison. Deliberative comparison involves looking at a select number of countries that have addressed similar challenges to see what arguments they can identify. And it is perfectly appropriate and legitimate to look at courts that have done the best job thinking about the issues from an argumentative perspective. Empirical comparison, however, invites and requires lawyers to go beyond the textbooks, and law reports and to see how things have worked out in the real world in practice and that requires engaging with sociology, political science, economics, econometrics and tools of statistical analysis and causal analysis that allows us to understand whether if A came before B, A did cause B? Or whether they are simply correlated in a non-causal way. Empirical comparison is an underdeveloped aspect of our collective field, both as the scholarly and judicial and practitioner matter but one that needs to be encouraged on the understanding that along with it goes certain disciplinary and interdisciplinary demands and challenges. Reflective comparison asks not a lot from us other than honesty and openness and a critical reflectivity around our understanding and practices. In that sense perhaps it asks the most from us. However, moral cosmopolitan comparison demands the most work. It requires us to look at a large number of countries. The tendency historically has been to focus on a relatively small number of global north Western countries as a representative of the globe when it comes to things like customary international law, general principles of international law or the equivalent general principle that must guide a comparative moral cosmopolitan approach. Thinking about India’s contribution to global knowledge and the contribution of many other countries in the Global South forces us to remember that truly moral cosmopolitan comparison must 5 6

Waldron [5]. Posner and Sunstein [4].

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grapple with large numbers of countries’ experiences and choices. If not 190 plus then 80 plus constitutional democracies, so it is not the most demanding in terms of orientation or psychology or even training but certainly the most demanding in terms of workload and it is not to be done lightly or equated with a causal glance across an ocean to one or two easily accessible comparable systems.

2 Conclusion Understanding comparison in this way shifts our attention from why compare generally to why compare in a specific context. It invites us to think more closely about who is comparing and for what purpose. Further, it calls on us to ask more searching questions about the kinds of countries that are being considered and whether they are the right countries to be examined to answer the question that the lawyer or scholar is posing. So I am an enthusiastic scholar of comparative constitutional law who believes deeply in the promise of my field, but I also think that as we embrace its promise and seek to expand it across institutions and countries we must be reminded of the work that is needed to do it well and to do it properly and try to train our students and colleagues to understand that and to develop an appropriately rigorous approach to comparative constitutional studies.

References 1. Dixon, Rosalind, How to Compare Constitutionally: An Essay in Honour of Mark Tushnet (May 17, 2020). UNSW Law Research Paper No. 21, Available at SSRN: https://ssrn.com/abstract= 3603683 or https://doi.org/10.2139/ssrn.3603683 2. Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, 14 Cardozo L. Rev. 533 (1993) 3. Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L.. 819 (1999) 4. Frank I. Michelman, Reflection: Symposium: Comparative Avenues in Constitutional Law – Borrowing, 82 Tex. L. Rev. 1737 (2004) 5. Jeremy Waldron, Foreign Law and the Modern Ius Gentium, 119 Harv. L. Rev. 129 (2005) 6. Eric A. Posner & Cass R. Sunstein, The Law of Other States, 69 Stan L. Rev. 131 (2006)

Rosalind Dixon is a Professor of Law, at the University of New South Wales, Faculty of Law. She is co-editor (with Mark Tushnet and Susan Rose-Ackermann) of the Edward Elgar series on Constitutional and Administrative Law and editor of the Constitutions of the World series for Hart Publishing. Dixon is a Manos Research Fellow, Director of the Gilbert + Tobin Centre of Public Law, Deputy Director of the Herbert Smith Freehills Initiative on Law and Economics. She is a Fellow of the Australian Academy of Law and Australian Academy of Social Sciences, and ARC Future Fellow working on Constitutions and Democratic Resilience.

Imperatives of the Basic Structure Doctrine: A Semi-centennial Concept Arvind P. Bhanu, Ambika Dilwali, and Adityaraj Patodia

Constitutional morality is not a natural sentiment. It has to be cultivated. —Dr BR Ambedkar

1 Introduction The concept of basic structure evolved from rights jurisprudence aligned to natural law theory. Initially, this doctrine was introduced by the Indian judiciary to stem executive overreach. But now, with the changes in human affairs, the doctrine has expanded and its application is found beyond such limited scopes. There is no single definition of basic structure, but the idea is vividly conveyed by the constitution. Its constant objective is to safeguard the originalism of the framework1 in order to maintain a living constitution.2 Speaking from a jurisprudential point of view, a country’s constitution refers to the Grundnorm-the basic norm-containing fundamental principles. When we broach the topic of basic structure, the only possible outcome that we can arrive at is the

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Balkin [1]. Strauss [2].

A. P. Bhanu (B) Professor of Law and Research and Addl. Director, Amity Law School, Noida, India e-mail: [email protected] A. Dilwali Associate, Saikrishna & Associates (New Delhi, India); Former Law Researcher-cum-Judicial Clerk, High Court of Delhi, New Delhi, India A. Patodia Judicial Law Clerk-cum-Research Associate, Supreme Court of India, Delhi, India

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_2

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upkeep of the ‘fundamentals of the fundamentals’ and preserve the thicker concept3 of the rule of law. The subsistence of basic structure has been condemned too by various critics,4 they consider its presence unreal, constitutionally illegitimate, and a vehicle for judicial aggrandizement of power.5 There are two distinct powers under the Constitutional framework. First, a ‘constituent power’, allows representatives of the assembly to primarily focus on the establishment of the Constitution. Second, the ‘constituted power’, is exercised by the various organs of the State, like the judiciary, executive and legislature, and is settled and limited by the constitution itself.6 The Indian Constitution empowers the Parliament with powers to create laws. This includes the strength to amend subsisting laws as well.7 Albeit, this power is not absolute. All laws, including amendments, are open to judicial review whereby the judiciary can adjudicate upon the validity of those laws and the extent to which they are enforceable on the touchstone of the basic structure doctrine.

2 Brief History The procedure for amending laws has been defined in various constitutions. Countries like Germany8 and Italy9 have expressly restricted the power of the legislature to amend laws. In contrast, many have not.10 In India, the roots of the basic structure doctrine can be found in the German Constitution, which was amended following the Nazi era to protect some fundamental laws.11 The journey of the basic structure began from implied limitations.12 In 1953, with the case of Sajjan Singh,13 JR Mudholkar, J. in his dissent was the first to explore the tenets of basic structure, he observed that56. It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368? (Emphasis Supplied)

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Tamanaha [3]. Cooley [4]. 5 District Bar Association v. Federation of Pakistan, (2015) PLD SC 401 (Pakistan). 6 De Chueiri [5]. 7 Indian Const. art. 368. 8 German Const. art. 79, cl. 3. 9 Italian Const. art. 139. 10 Roznai [6]. 11 Noorani [7]. 12 Baxi [8]. 13 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. 4

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The term ‘basic structure’ or ‘basic feature’ of the Constitution had been referred to by the Top Court even before Sajjan Singh,14 for instance, in Beruberi’s case15 and State of West Bengal v. UOI.16 However, the same was used in a much looser sense and not concerning the implied limitations of the amending power under Article 368. The principle was formally inaugurated in 1973 with Kesavananda Bharti’s case,17 better known as the “Fundamental Rights case”, wherein 13 judges pondered for 68 days to produce the Basic Structure doctrine which traces the evolving jurisprudence of essentialism in the turbulent backdrop of the late sixties and early seventies. This case was not just another landmark in India’s Constitutional Law, but rather a turning point in constitutional history. Subsequently, the Supreme Court of Bangladesh18 adopted this doctrine placing its reliance on Kesavananda. In Pakistan, the Lahore High Court19 and the Baluchistan High Court20 opted for the same view. The idea of basic structure is ever-evolving and has been redefined repeatedly to meet the situations’ needs. Judges and jurists have used the doctrine’s flexibility to expound it and bring clarity. Mathew, J. in Indira Nehru Gandhi’s case21 explained that, 357… The concept of a basic structure, as brooding omnipresence in the sky, apart from specific provisions of the constitution, is too vague and indefinite to provide a yardstick for the validity of an ordinary law. (Emphasis Supplied)

In 2008, the Apex court in Ashoka Kumar Thakur v. UOI,22 expanded the meaning of basic structure. The eloquent observation made by KG Balakrishnan, CJI, meant that a larger principle is implied in the basic structure doctrine, which should be applied by keeping in view the ‘expanding future’, envisaging ‘the various changes that may take place in human affairs’. He stated that, 115. The basic structure of the Constitution is to be taken as a larger principle on which the Constitution itself is framed and some of the illustrations given as to what constitutes the basic structure of the Constitution would show that they are not confined to the alteration or modification of any of the Fundamental Rights alone or any of the provisions of the Constitution. Of course, if any of the basic rights enshrined in the Constitution are completely taken out, it may be argued that it amounts to alteration of the Basic Structure of the Constitution. For example, the federal character of the Constitution is considered to be the basic structure of the Constitution. There are large numbers of provisions in the Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. 14

AIR 1965 SC 845. In re, Berubari Union (I), AIR 1960 SC 845. 16 State of West Bengal v. Union of India, AIR 1963 SC 1241. 17 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. 18 Anwar Hossain Chohwdhury v. Bangladesh, 41 DLR 1989 App Div 16 (Bangladesh). 19 Darwesh Anbey v. Federation of Pakistan, PLD 1980 Lah 206 (Pakistan). 20 Suleman v. President, Special Military Cant., NLR 1980 Cir. Quota 873 (Pakistan). 21 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. 22 (2008) 6 SCC 1. 15

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A. P. Bhanu et al. Various fundamental rights are given in the Constitution dealing with various aspects of human life. The Constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs. 121. It has been held in many decisions that when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star and the Directive Principles of State Policy as the ’Book of Interpretation’. The Preamble embodies the hopes and aspirations of the people and Directive Principles set out the proximate grounds in the governance of this country. (Emphasis Supplied) 23

Relying on the above Ashok Kumar’s case, Senior Advocate Arvind Datar wrote that negating the basic structure doctrine would create a scenario wherein it would not be difficult for populist figures to create a totalitarian regime.24 In a nutshell, the framers of the constitution were intelligent to predict that if the constitution is left very flexible, then it would be moulded as per the convenience of the ruling party, and if it is very rigid, then it would be arduous to foster changes as per the growing exigent needs of the society. Hence, they took a middle course and subjected the Parliament’s unlimited power to only one restriction, i.e. it should not breach the basic structure of the constitution.

3 Evolution and Development 3.1 Shankari Prasad’s Case: The Underprivileged Issue In the case of Shankari Prasad Singh Deo v. UOI,25 the Petitioner challenged the Parliament’s power under Article 36826 to amend the Fundamental rights. Here, the constitutional validity of the First Amendment,27 also known as the ‘abolition of Zamindari System’, which breached the right to property, was challenged as being violative of Article 13 of the Constitution.28 The question of law which arose before the Supreme Court was whether the Parliament could amend Fundamental Rights. This amendment introduced two new articles, 31A and 31B,29 to secure the constitutional validity of zamindari abolition and other agrarian reform legislation. Relying on literal interpretations, the Supreme Court resolved the conflict and upheld the 23

Ibid. Jain et al. [9]. 25 AIR 1951 SC 458. 26 Indian Const. art. 368. 27 The Constitution (First Amendment) Act, 1951. 28 Indian Const. art. 13. 29 Indian Const. arts. 31A and 31B. 24

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validity of the First Amendment. The scope of Article 13 was narrowed down significantly by holding that the word ‘law’ includes laws made by ordinary legislative power within its scope and not the constitutional amendment acts passed in exercise of the constituent power under Article 368. M. Patanjali Sastri, J. observed that15… We are of opinion that in the context of Article 13 “law” must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power, with the result that Article 13(2) does not affect amendments made under Article 368. (Emphasis Supplied)

Article 368 was termed as “perfectly general…, without any exception whatsoever”, and the Court inferred that it would’ve been easy for the Parliament to add a saving clause if they intended to protect the fundamental rights. In the absence of such a clause, the issue was done away with under the guise of harmonious construction. The Court held that15… we have here two Articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other… (Emphasis Supplied)

Summarily, the Court held that Fundamental Rights could be abridged or struck down by the Parliament under Article 368. The amending clause sanctions the Parliament to amend the Constitution without any exception, and Fundamental Rights are within the scope of amendment. Although the Parliament cannot violate Part III rights using its ordinary legislative power, but it can modify or restrict them using its constituent power, which was beyond the scope of judicial review.30 Hence, supremacy of the Parliament was established over that of the Judiciary.

3.2 Sajjan Singh’s Case: Parliamentary Supremacy Upheld Almost after 13 years and 17 amendments later, there was another case in this aspect: Sajjan Singh v. State of Rajasthan,31 wherein the validity of the 17th Amendment32 was challenged before the Supreme Court. The amendment shifted numerous statutes, including the Mysore Land Reforms Act,33 affecting the property rights, to the Ninth Schedule of the Constitution placing them beyond the scope of judicial review. The law that Parliament’s constituent power was beyond judicial review, as laid down in Shankari Prasad,34 was accepted by a majority of 3:2 led by Chief Justice Gajendragadkar in this decision. The majority opinion was that the ‘pith and substance’ of 30

Nariman [10]. AIR 1965 SC 845. 32 The Constitution (Seventeenth Amendment) Act, 1964. 33 The Mysore Land Reforms Act, 1961 (Mysore Act X of 1962). 34 AIR 1951 SC 458. 31

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an amendment was to amend the Fundamental Rights guaranteed by Part III as they were not intended to be eternal, inviolable and beyond the reach of Article 368.35 The theory of basic structure was introduced for the first time in this case by the dissenting judgment of Justice Mudholkar. His point of view was that every constitution had certain basic features, which is an unamendable norm. Constitution, through its written and unwritten provisions, contains a ‘solemn and dignified’ structure that is fundamental to the document.36 He made a constructive jurisprudential connection between India and Pakistan by importing the concept of basic structure from Pakistan’s Supreme Court.37 Cornelius, CJ., of the Supreme Court of Pakistan had held that the President of Pakistan who was empowered to remove difficulties could not alter the fundamental features of the Constitution. Even Justice Hidayatullah,38 doubting the correctness of the majority, observed that he needed more substantial reasons than given in Shankari Prasad,39 to believe that Fundamental Rights were intended to be within the purview amendment in common with other parts of the Constitution. He highlighted that the language used in Part III of the Constitution demonstrated permanency, indicating that it was not easily amendable. He disagreed with the majority’s view that ‘law’ found in Article 13(2) did not include a law made by the Parliament in its constituent power. To support his decision, he compared Article 13(2)’s language with that of the Japanese40 and American41 Constitutions and concluded that when the Constituent Assembly used the expression ‘fundamental right’ it meant that the right was ‘eternal and inviolate’. Therefore, both these judges forming the minority in this case, noticed that apart from simply the creation of Fundamental Rights, the ‘basic structure’ embedded these rights in the Indian Constitution. They identified a doctrine that became the backbone of the society and the foundation of several future judgments.

3.3 Golak Nath’s Case: Parliamentary Powers Curtailed I.C. Golak Nath v. State of Punjab42 was a consequence of the prolonged constitutional crisis between the Parliament and the Judiciary. The ruling, in this case, went a step far too ahead by holding that one cannot amend fundamental rights at all. The 17th Amendment43 was taken up for reconsideration in this matter basis

35

India Const. art. 368. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 (Mudholkar, J. Dissenting). 37 Fazlul Quader Chowdhry v. Mohd. Abdul Haque, 1963 PLD 486 (Pakistan). 38 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 (Hidayatullah, J. Dissenting). 39 Shankari Prasad Singh Deo v. UOI, AIR 1951 SC 458. 40 Japanese Const. arts. 11. 41 American Federal Const. arts. 13 & 5. 42 AIR 1967 SC 1643. 43 The Constitution (Seventeenth Amendment) Act, 1964. 36

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that the impugned amendment was within the ambit of ‘law’44 and it violated the right to property conferred by Article 31.45 A bench of 11 judges heard the matter considering two Constitution Benches had already dismissed a similar question of law.46 By a slim majority of 6:5, the Apex Court overruled Shankari Prasad and Sajjan Singh,47 and held that a Constitutional amendment was ‘law’ within the meaning of Article 13(2) and, therefore, any amendment which took away or abridged any provision of Part III would be void. The Court worried that if Parliament’s power became absolute, fundamental rights won’t survive, and India would become a totalitarian regime. Thus, a judicial check was placed on the unlimited power of amendment. The Court declared the 1st Amendment48 and 17th Amendment49 as violative of the Fundamental Rights and ultra vires to the Constitution. The Supreme Court passed this order based on the view that there was no difference between the ordinary statutory law made by the legislature and the law in the form of Constitutional Amendment as per Article 368. Majority declared that both fall within the meaning of ‘law’ under Article 13. They conceptualised their vision of fundamental rights as ‘transcendental, inalienable and primordial’. Part III did not confer fundamental rights but merely confirmed their existence; hence if the Parliament was to enforce any Directive Principles, it had to be done in harmony with the fundamental rights. The doctrine of ‘implied limitations’ was also introduced in this case but was not accepted. The majority considered it to be a cogent argument and was shelved to be dealt with later on when the Parliament sought to destroy the structure of the Constitution outside Part III. It is pertinent to mention this doctrine as the same evolved into the doctrine of ‘basic structure’ that we know today via Kesavananda Bharati’s case.50 In order to prevent any chaos in the country, Chief Justice Subba Rao did not strike down the ultra vires amendments. Instead, he invoked the ‘prospective overruling’ doctrine, which did not last beyond this case. This aimed to save all the amendments, including the impugned one. The meaning of this doctrine is that the law laid down in this judgment will be applicable only in the future, acting as a warning to the Parliament to be cautious in amending the Constitution and keeping Part III in mind while doing so.

44

India Const. art. 13(2). India Const. art. 31. 46 Shankari Prasad Singh Deo v. UOI, AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. 47 Ibid. 48 The Constitution (First Amendment) Act, 1951. 49 The Constitution (Seventeenth Amendment) Act, 1964. 50 AIR 1973 SC 1461. 45

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The Parliament was left with no power to amend any provisions of Part III. The ruling party was not ready to accept this situation and rolled out a spate of amendments. The 24th Amendment51 amended Article 368, enabling the Parliament, “in exercise of its constituent power”, to amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down therein. Further, it amended that nothing in Article 13 shall apply to any amendment made under Article 368. The 25th Amendment52 had amended Article 3153 and inserted a new Article 31(C), the word ‘compensation’ was substituted in place of ‘amount’ in Article 13(2) to avoid judicial review of the adequacy of the compensation in lieu of the acquisition of property and excluded the application of Article 19(1)(f)54 to a law made under Article 31(2). The 26th Amendment55 abolished ‘privy purses’ and the status of native rulers, and finally, two Kerala Acts were inserted into Ninth Schedule through the 29th Amendment.56 These amendments were further challenged before the Top Court, giving birth to the landmark decision of Kesavananda Bharati’s case.57 Hence, without Golak Nath there would have been no Kesavananda Bharati leading to a dictatorship by way of constitutional amendments.

4 System of Checks and Balances and the Nature of the Constitution In India, the concept of checks and balances ensures that there is no supremacy in one organ of the state viz. Legislature, Judiciary and Executive. The constituent assembly by virtue of dividing powers among all the organs of the state ensured that no one organ has supremacy over the others. The Constitution adopts the compromise condition of two supremacies. Furthermore, the Constitution endows the judiciary with power of judicial review in order to declare a law made by legislature unconstitutional. If any law, beyond legislative power, is in contravention of the Fundamental Rights or any other mandatory provision of Constitution, the power of Judicial Review can be exercised by the Supreme Court.58 The legislative policy is beyond the power of Judicial Review. The power of Judicial review is derived from Article 13 of the Constitution and it is incumbent upon the Court to determine the constitutionality of a 51

The Constitution (Twenty-Fourth Amendment) Act, 1971. The Constitution (Twenty-Fifth Amendment) Act, 1971. 53 India Const. art. 31. 54 India Const. art. 19(1)(f). 55 The Constitution (Twenty-Sixth Amendment) Act, 1971. 56 The Constitution (Twenty-Ninth Amendment) Act, 1972. 57 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. 58 S. P. Sampath Kumar v. Union of India, AIR 1987 SC 386. 52

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Statute when it is challenged before it. Thus, the supremacy is a compromised condition between the power of judicial review of the Supreme Court and the Legislative Power of the Parliament.59 There has been a constitutional crisis between how much amending power should be given to the Parliament under Article 368 of the Constitution. Several rounds of deliberations have ultimately resulted in deciding how rigid or flexible the Constitution should be. If the Constitution is too rigid, it would not be able to keep pace with the growth and development of the Country, at the same time, if the Constitution is too flexible, it would be subjected to misuse. Hence, the amending procedure is not too rigid or flexible, but a middle ground approach has been adopted and is a combination of both. Pandit Nehru has stated that the Constitution should have some substance to it, yet should not attain a state of permanence and have scope for flexibility in the following words: While we want this constitution to be solid and permanent as we make it, there is no permanence in constitution. There should a certain flexibility. If you make anything rigid and permanent, you stop the nation’s growth.……..in any event, we could not make this constitution so rigid that it can not be adapted to changing condition….60 (Emphasis Supplied)

The changing conditions in the Constitution should be adopted by virtue of an amending provision. Similarly, flexibility in the amending provision of the Constitution is also subject to the need of such amendment and cannot be in an arbitrary manner. The procedure of amendment of the Constitution is divided on the basis of majority of the Parliament and Ratification by the State Legislatures. Some Articles in the Constitution can be amended by virtue of Simple Majority in the Parliament. Whereas, some Articles of the Constitution, two-third majority of members who are present and voting is required for the purpose of Amendment. Lastly, for certain Articles, two-third majority along with ratification by not less than half the States are required for amendment of the Constitution. This procedure ensures that the combination of rigidity and flexibility ensures that rigidity and flexibility are carefully exercised.

5 Constituents of the Basic Structure Famously described as “The Fundamental Rights case”, the Kesavananda Bharati Case61 did not define an exhaustive list of principles comprising of the Basic Structure. However, when the components of the Basic Structure are not defined, it could 59

Shourie [11]. See, Sudhir Krishnaswamy ‘Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, Oxford Press, p. xvi. 60 Constituent Assembly Debate, Vol VII, 8th November 1948, pp. 322–323. See Pylee, M. V., Constitutional Government in India 761 (2nd Ed. 1965). 61 His Holiness Kesavanada Bharati Sripadagalavaru v. State of Kerala and Another, 1973 (4) SCC 1461.

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lead to unlimited power and control over the basic structure by the Parliament and the Supreme Court.62 Thus, the Supreme Court, in a catena of judgments tried to bring certain elements of the Constitution under the purview of Basic Structure. These included the Supremacy of the Constitution,63 Rule of a Welfare State, Democratic nature of the polity-Unity of India, Preamble and Democracy ensuring the equal status and opportunity,64 Independence of Judiciary and Judicial Review,65 Doctrine of Equality and Secularism,66 Democracy and Federalism enshrined under the Constitution, for instances. In the words of H.M. Seervai, it would be a tedious to task to determine the exact constituents of the Basic Structure67 : [a] precise formulation of the basic features would be a task of greatest difficulty and would add to the uncertainty of interpreting the scope of Art 368.

Kesavananda Bharati case led the 13-judge bench to reconsider the ratio of Golak Nath case which held that fundamental rights could not be amended by merely a Constitutional Amendment. The 24th Constitutional Amendment Act, 1971 by the Parliament empowered them to amend the fundamental rights. The main issue in Kesavananda Bharati case has been surrounding the Parliament’s power to amend Fundamental Rights. It is interesting to note that the Golak Nath case explicitly held that fundamental rights could not be amended, whereas Kesavananda Bharati case did not state that fundamental rights could not be amended as they were a part of the basic structure.

5.1 Parliament and the constitutional evaluation for Supremacy-Post 1973 Parliament exercises its constituent and ordinary legislative powers under Article 368 of the Constitution. If any law has to be legislated, ordinary powers have to be exercised for the said purpose. In Keshavananda Bharati Case, it was held that through the constituent power of the Parliament, any provision can be amended, however, the basic structure is to be left untouched by any act of amendment. After the Landmark judgment of Keshavananda Bharti, in 1975, the Parliament added Clause 4 to Article 329 by way of the 39th Amendment Act. By virtue of this clause, the Prime Minister and Speaker of Lok Sabha were kept outside the purview 62

See, Anuranjan Sethi, Basic Structure Doctrine: Some Reflections, http://ssrn.com/abstract= 835165, pp. 6–8, 26, 27. 63 Supra Note 3. 64 Indira Gandhi v. Rajnarain AIR 1975 SC, 2299 (1975) 3 SCC 34, Kihoto Hollohon AIR, 1993, SC 412. 65 Bhagwati J., Union of India v. Sankal Chand, Himmatlal Sheth, AIR 1977 SC 2328, Kumar Padma Prasad v. Union of India (1993) 4 SCC 441; AIR 1994 SC 268. 66 S. R. Bommai v. Union of India, AIR 1994 SC 1918; Poudyal v. Union of India (1994) Supp.1 SCC 324. 67 Seervai, H. M., Constitutional Law of India, Ed. 2001, pp. 3161–3162.

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of scrutiny by the Courts. In Indira Gandhi v. Raj Narain,68 the Courts held that the 39th Amendment was unconstitutional and the Doctrine of Basic Structure was revived. It was further held that it takes away from the principle of free and fair election by striking the rule of law and abolishing judicial determination in election disputes. Post Kesavananda Bharati and Indira Gandhi, The Constitution (42nd Amendment) Act, 1976 was passed which led to the addition of two novel clauses of 4 and 5 to Article 368 of the Constitution, thereby keeping Constitutional Amendments outside the scope of Judicial Review. This clearly meant to be an overreach of the preceding judgments. The 42nd Amendment provided that the Courts shall not be competent to invalidate any Constitutional Amendments even on the ground of procedure or non-compliance. However, this attempt by the Parliament to avoid interference by the other organs of the State, was stuck down in Minerva Mills Ltd. v. Union of India,69 With the judgment in Minerva Mills Case,70 the unbridled power over the Constitutional amendments and elimination of Judicial Review by the Parliament were curtailed. However, a shift in the approach of the Supreme Court can be evinced after the Kesavananda Bharati and the Golak Nath. The verdict of Kesavananda Bharati Case held that Right to Property was not a part of the basic structure. Hence, the Parliament was entrusted to deliberate the extent of property rights under the Constitution. By way of the 44th Amendment Act, 1978 right to property which was a fundamental right under Article 19(1)(f) and Article 31 was deleted and Article 300A was inserted as a right to not be deprived of property without the sanction and authority of law. Between 1954 and 1976, Supreme Court seemed to have confined itself to the developments surrounding the right to property which lay as a challenge to the economic laws and policies of the government and less to do with personal rights of individuals.71 However, after the Kesavananda Bharati, judiciary became inclined towards dealing with the personal freedoms of the individual with the liberal interpretation of the right to protection of life and personal liberty guaranteed under Article 21 of the Constitution.72 As evident from the Supreme Court’s judicial activism towards economic and property cases and the subsequent move towards Kesavananda Bharati, it can be stated that Parliament and the Government were successful in their struggle as much as the Supreme Court’s attempt to contain Parliament’s power of amendment.73

68

AIR 1975 SC 2299. AIR 1980 SC 1789. 70 Ibid. See, Waman Rao v. Union of India, AIR 1981 SC 271. 71 See West Bengal v. Subodh Gopal Bose, 1954 SCR 587; West Bengal v. Bela Banerjee, AIR 1954 SC 170; K. K. Kochuni v. Kerala, (1960) 3 SCR 887, P. Vajravelu Mudaliar v. Special DeputyCollector, AIR 1965 SC 1017; R. C. Cooper v. Union of India, AIR 1970 SC 564. 72 See Maneka Gandhi v. Union of India, (1978) 1 SCC 248. 73 See T. R. Andhyarujina, The Kesavananda Bharati Case: The Untold Story of Struggle For Supremacy By Supreme Court and Parliament, Ed 2019, P. 114–118. 69

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The imperatives and the underlying reasons for the Basic Structure to evolve was due to the Legislature’s attempt to attain supremacy and attack on the principles of Separation of Powers and checks and balances between the organs of the State.74 Through the 45th Amendment Bill, the Bhartiya Janta Government made efforts to recast the provisions of Article 368 and introduce the concept of a ‘Referendum’ for effecting change in the Basic Structure of the Constitution but failed to do so since they could not attain a two–third majority in Rajya Sabha.75

5.2 Role of the Basic Structure in Current Scenario Recently, a five-judge bench in Pramati Educational and Cultural Trust (Registered) and Others v. Union of India and Others76 decided upon the validity of Article 21A and 15(5) of the Constitution. The court propounded two substantial questions of law viz., whether insertion of Clause 5 to Article 15 through the Ninety-Third Amendment constituted alteration of the basic structure and whether insertion of Article 21A by virtue of the Eighty-Sixth Amendment amounted to alteration of the framework of the Constitution. While referring to the Society for Unaided Private Schools of Rajasthan v. Union of India & Anr.,77 the Court held that Clause (5) of Article 15 of the Constitution is Constitutional and is not violative of the Basic Structure of the Constitution to the extent it relates to the State supervised institutions and aided educational institutions. However the case of Ashoka Kumar left the question of validity of Article 15(5) open in cases of “private unaided” educational institutions.78 The court held that the object of Article 15(5) is to promote education and provide equality of opportunity to students belonging to SEBCs, STs and STs. Thus, it could not be said that Clause (5) was in violation of Article 15 of the Constitution. Moreover, the Courts have themselves interpreted that Right to Education should be a part of enjoyment of life and thus, should be covered under Right to Life.79 Further, while assessing the validity of Article 21A of the Constitution, it was held that Right to Education does not conflict with Article 19(1)(g) of the Constitution or Article 30(1). However, it conferred upon the State to determine the manner in which it shall fulfill the obligation by legislating laws.

74

Baxi [12]. M. P. Jain ‘Indian Constitution Law’, Fifth Edition, 2003 p. 1926. 76 (2014) 8 SCC 1. 77 (2012) 6 SCC 102. 78 See Ashoka Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1. 79 Mohini Jain (Miss) v. State of Karnataka & Ors., (1992) 3 SCC 666. 75

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In M. Nagaraj v. Union of India,80 the Court opined that an amendment should not destruct the constitutional identity and it is the Basic Structure theory which determines the validity of a constitutional amendment. Furthermore, in I. R. Coelho v. State of Tamil Nadu,81 the Supreme Court reiterated the Basic Structure Doctrine and stated: All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a Constitutional amendment, its provision would be open to attack on the ground that they destroy or damage the Basic Structure if the fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.

Thus, it is worth to note that the Basic Structure Doctrine plays an essential role to keep the actions of the Legislature in check. Any amendments made to the Constitution which constitutes a part of the Basic Structure are well within the purview of judicial scrutiny. This ensures that the Separation of Powers enshrined under the Constitution are kept under check and no one organ exercises extreme control over the others.

6 Conclusion The doctrine of Basic Structure continues to be a matter of extensive deliberations in the past as well as present times. Constitutional Amendments have been used as a tool by the Parliament to exercise unbridled powers. However, judicial activism has enabled the curtailment of such acts of the Parliament. It may be argued that the Supreme Court exerts pressure on the Parliament by weaponizing judicial review. However, the Doctrine of Checks and Balances has provided for the monitoring of actions by the Organs of the State. There has been a long-standing struggle between the nature of the Constitution, whether it should be rigid or flexible. However, given the Parliamentary actions and the clashing Judicial reactions, the Basic Structure Doctrine provides a structure to the Constitution by restricting any acts which are violative of it. Thus, by introducing the Basic Structure Doctrine, separation of powers among Judiciary, Legislature and Executive were insured by setting up a ‘via media’ course and no absolute power was given to any one organ. The nature of amendment is not too rigid or flexible and is flexible enough to keep pace with the changing dynamics and requirements of the law and rigid enough to withstand any changes to the fundamental principles 80 81

(2006) 8 SCC 212. AIR 2007 SC 861. May also visit https://www.youtube.com/watch?v=zm4CkIWScgU

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imbibed in the Constitution. Even today, the roars of the Basic Structure Doctrine can be evinced in the Judicial decisions wherein Courts have reiterated its importance and stated that any Constitutional Amendment carried out should be in conformity.

References 1. Jack M. Balkin, “Framework Originalism and the Living Constitution” 103 Northwstn. Univ. Law Rev. 550 (2009). 2. David A. Strauss, “Do we have a Living Constitution”59 Drake L. Rev. 973 (2011). 3. Brian Z. Tamanaha, “On the Rule of Law, History, Politics, Theory” 32 Journal of Law and Society 657 (2005). 4. Thomas M. Cooley, The General Principles of Constitutional Law in the USA 46–47 (Little, Brown and Co., 3rd ed. 1891). 5. Vera Karam de Chueiri, Is there such thing as a Radical Constitution ?, Democratizing Constitutional Law, 236 (Thomas Bustamante & Bernardo Goncalves Fernandes eds., Springer 2016). See also, P.T. Babie & A.P Bhanu, The Form and Formation of Constitutionalism in India. Laws, 11(2), 33 (2022). https://doi.org/10.3390/laws11020033 6. Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers 56 (Oxford University Press 2017). 7. A.G. Noorani, “Behind the Basic Structure Doctrine- On India’s debt to a German Jurist, Professor Dietrich Conrad” 18 (9) Frontline (April 28- May 11, 2001). 8. Upendra Baxi, “Some Reflections on the Nature of Constituent Power” in Rajeev Dhavan and Alice Jacob (eds.), Indian Constitution Trends and Issues 122 (1978a). 9. Sanjay S. Jain Et Al., The Basic Structure Doctrine - A 37-Year Journey, In Basic Structure Constitutionalism: Revisiting Kesavananda Bharati 370 (1st ed. 2011). 10. F.S. Nariman, The Judiciary and the Role of the Pathfinders, (1987) 3 SCC J-1. 11. A. Shourie, Courts and their judgments; Promises, Prerequisites, Consequences, New Delhi: Rupa &Co., 2011, p. 440 12. Upendra Baxi “Some Reflections on the Nature of Constituent Power” in Trends and Issues, p. 142 (Indian Law Institute, 1978b).

Equality, Merit and Affirmative Action: India and USA Sreenivasa Murthy M. R. and Syamala Kandadai

1 Introduction Some inequalities may remain, some may vary, some may vanish…. I know I am not equal to you today…intellectually backward… Whoever made me like this….I am still part of this society…. With whatever ability I have, I am qualified to get what I deserve… No one can deny me…I am not at mercy of you… I have right to be treated equally… I have right to social justice… This is my right…. neither you granted it, nor I begged you to grant it to me… I earned it because I am part of this society…Our Constitution guaranteed me this right I can enjoy this right with all dignity… Because neither I am taking away your right nor taking out something which I don’t deserve.

A backward will never remain backward forever. When backwardness is removed, they are uplifted, they can compete with the meritorious class. Backwardness is a social inequality created artificially through social standards. No social inequality will remain forever. Once the vulnerable persons are strengthened by providing equal opportunities, the related social inequalities will vanish. The objective of egalitarianism is not based on segregation or integration, it is based on inclusion of depressed classes of society into the mainstream. Egalitarianism talks about inclusive development with dignity, equality of opportunity and liberty. This idea of egalitarianism and equality is adopted in India through reservation system for uplifting the backward classes.

M. R. Sreenivasa Murthy · S. Kandadai (B) National University of Study and Research in Law, Ranchi, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_3

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But reservation system is always perceived popularly as anti-meritorian. ‘Reservation versus merit’ is the long-standing controversy in India which raised many contradictions. Through the plethora of judgments, Hon’ble Supreme Court, time and again directed the reservation system towards the egalitarian objective, stating that the same is not an exception to equality clause, rather it is a facet of equality.1 Reservation system shall work for ensuring Justice—Social, Economic and Political spheres which is enshrined in Preamble and Part IV of the Indian Constitution by balancing the conflicting interests of the merit class and the backward classes. The equality of opportunity shall be provided to all sections of the society either by treating all equal or by treating equals, equally. The approach and the process may vary, but direction and destination of the egalitarian action shall be towards inclusive development. To achieve the egalitarian objective and to provide equality of opportunity to the suppressed sections of society, the concept of affirmative action has been brought in. Reservation is considered necessary by the constitutional makers in India for transcending caste but cautioned to use it in limited sense. The discretion is vested in the hands of the State to decide about the reservation, however, with a limitation, that the reservation shall be in proportion to the inadequacy of representation in public employment. In M.Nagraj v. Union of India,2 the apex court held, ‘General class seeks equity….backward classes seek justice….efficiency in services deals with merit…..equilibrium to be maintained between justice to the backwards, equity for the forwards and efficiency for the entire system.’ In Indira Sawhney case,3 the apex court while referring to the creamy layer clarified that backwards can never remain backward and after receiving special treatment, upliftment happens and those who have been uplifted, cannot continue to receive the benefits of reservation and affirmative action, hence the creamy layer lose the privilege of reservation and are to compete in the merit class only. The Hon’ble Supreme Court of India time and again clarified that reservation if is followed with the clear conscience of balancing equality, justice, and merit by keeping in mind the egalitarian principle, one day there won’t be any backward class, and reservation system will vanish. But the judicial affirmation of the reservations for OBCs and EWS in the All-India Quota Seats in NEET for UG and PG medical courses, in Neil Aurelio Nunes and Ors v. Union of India,4 triggered public criticism followed by severe unrest with the following slogans: • Destruction of merit • This is why this country will always be backward and never be like America • I will not get treated with a doctor who got through EWS quota 1

State of Kerala v. NM Thomas AIR 1976 SC 490. M. Nagraj v. Union of India (2006) 8 SCC 212. 3 Indra Sawhney v. Union of India 1992 supp. (3) SCC 217. 4 Neil Aurelio Nunes and Ors v. Union of India 2022 SCC OnLine SC 75. 2

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• Murder of Merit • Say No to Caste based reservation • Why are SC/ST/OBCs with low marks snatching the seats of general category candidates? Different arguments were put forward by analysts, debaters for and against the judgment of Neil Aurora. When judiciary is directing the reservation system in India with clear vision, where the misunderstanding occurred? Why popular understanding of the reservation system is claiming that merit is being murdered or destructed? Can merit be solely on the basis of mathematic calculations based on marks, leaving apart the duty of the society to eradicate the social inequalities and the right to equality of opportunity of backward classes? The Hon’ble Supreme Court of India in Neil Aurelio Nunes and Ors v. Union of India,5 stated Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity….. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character…. High scores in an examination are not a proxy for merit…Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value….In such a context, reservation is not at odds with merit but furthers its distributive consequences’. In M. Nagraj,6 the apex court said, ‘Merit is a fixed absolute concept; the content of merit is context-specific which derives its meaning from particular conditions and purposes…the impact of any affirmative action policy on merit depends on how that policy is designed’. It has been cleared for many years that a reservation policy which is not following the egalitarian principle, is antithesis to merit, hence do not qualify to exist in India. Amartya Sen, in his chapter, ‘Merit and Justice’, stated ‘The idea of merit is fundamentally derivative of our views of a good society…even though the typical ‘objective function’ that are implicitly invoked in most countries to define and assess what is to count as merit tend to be indifferent to (or negligent of) distributive aspects of outcomes, there is no necessity to accept that adhoc characterization. This is not a matter of ‘natural order’ or merit that is independent of our value system’.7

5

Id. M. Nagraj and Ors v. Union of India & Ors, supra note 2. 7 Amartya Sen, Merit and Justice, (June 14, 2022, 10.04 AM) http://assets.press.princeton.edu/cha pters/s6818.pdf. 6

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Further, Marc Galanter stated that the following broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of ‘merit’: • Economic resources • Social and cultural resources • Intrinsic ability and hard work. According to Marc Galanter, the first two conditions are dependent on the birth and growth circumstances. Equality is the fundamental necessity and natural urge of every human being. Life without dignity, equality and liberty will be worthless even if provided with the plenty of food, clothing and shelter. Equality is one of the deepest liberal thoughts which is a natural and rational right. The US Declaration of Independence States: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. Demanding for the pure doctrine of equality, i.e., treating all human beings alike can never be realistic unless all of them do not share the similar features as per the requirement of the needed treatment. A complete social equality, i.e., everything and everybody should be as similar as possible to everything and everybody else is an ideal theory of equality. ‘Every man to count for one and no one to count for more than one’, the formula of utilitarian philosophers is the strict application of doctrine of equality. This statement that each man is to count for one may, of course, be conceived as flowing from the recognition of natural rights possessed by all men and such rights ‘inherent’ in being a man at all—whether innate or conferred at birth by a divine act—and so an ‘inalienable’ element in the ultimate structure of reality. According to ValdimirBukovsky, ‘This dream of absolute, universal equality is amazing, terrifying, and inhuman. And the moment it captures people’s minds, the result is mountains of corpses and rivers of blood’. The reservation versus merit is a context-specific and is tailored according to the social history of each jurisdiction. In USA, there is no reservation system, the affirmative policies are not based on quota system, rather provide equality of opportunity by eliminating racial disparities. In University of California v. Bakke,8 the Hon’ble Supreme Court of USA held that using quotas in university admissions is unconstitutional, but the race can be used as a ‘plus’ factor to evaluate a candidate as an individual; that is race can be used as a factor to consider an applicant’s candidacy holistically.

8

Simonne Kapadia, A Comparison of the Reservation System in India to Affirmative Action Policies in the United States, (March 22, 2021), MICHIGAN STATE UNIVERSITY, COLLEGE OF LAW, INTERNATIONAL LAW REVIEW, (June 17, 2022 11.00 PM) https://www.msuilr.org/new-blog/2021/3/22/a-comparison-of-the-reservation-systemin-india-to-affirmative-action-policies-in-the-united-states.

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This paper will provide a detailed overview about the inter-relationship between equality, reservation, and affirmative action from the lens of egalitarianism, a detailed analysis of the historical reasons behind the evolution of reservation system in India, the landmark judicial pronouncements which shaped the present reservation system in India, the popular misunderstanding about the reservation system of India. This chapter will also provide a comparative analysis of the reservation system of USA with India and the recent controversy raised after Neil Aurora judgment with regard to the need for context-specific derivation of the term ‘merit’ in the light of the egalitarianism, constitutional morality and reservation.

2 Understanding the Expression ‘Equality’ from the Lens of Egalitarianism and Affirmative Action Equality is a multi-faced concept, described as a ‘treacherously simple concept’, yet a diverse spectrum of opinions about what is equality and what should a society do to incorporate and promote the value of equality.9 The US Declaration of Independence States: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. This concept of treating all humans equally in all circumstances and situations is termed as the formal equality or prescriptive equality. A complete social equality, i.e., everything and everybody should be as similar as possible to everything and everybody else is an ideal theory of equality. ‘Every man to count for one and no one to count for more than one’, the formula of utilitarian philosophers is the strict application of doctrine of equality. Though the strict doctrine of equality flows from the notion of natural law right, which when implemented requires to form classes for practical application. Equality is also described as a normative concept. As a normative concept, equality is the notion that there is some special respect in which all human beings are in fact equal.10 The idea of formal equality can be traced back to Aristotle. Formal equality is generally associated with the concept of ‘equality before the law’. It requires that persons ‘who have equal status in at least one normatively relevant respect…. Must be treated equally with regard to this respect’.11 The liberal conception of formal equality is one of consistency, i.e., likes must be treated alike. In other words, it requires consistency of treatment: similarly situated persons should be treated in a similar manner, unless differential treatment can be shown to be clearly justified. 9

Holtmaat [1]. See also, (June 18, 2022 11.00 AM) https://www.equalrightstrust.org/ertdocume ntbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and% 20Substantive%20Equality.pdf. 10 NICHOLAS CAPALDI, THE MEANING OF EQUALITY, CHAP. 1, HOOVER PRESS: MACHAN (EQUALITY). 11 Gosepath [2].

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Such consistency of treatment is widely viewed as an intrinsic good, on the basis that it manifests respect for equality of status. Formal equality promotes individual justice as the basis for a moral claim to virtue and is reliant upon the proposition that fairness requires consistent or equal treatment.12 According to Aristotle, ‘It is when equals have or are assigned unequal shares, or people who are not equal, equal shares, that quarrels, and complaints break out.” Hence comes the egalitarian principle, ‘similar cases call for similar treatment’. The Aristotelian’s principle of equality, that is ‘same treatment of similar persons’, termed as the egalitarian formula, albeit comes into application while interpreting the word equality before law, and permits the legislation to create classes for applying the principle by creating privileges. There is an another principle which provides for specific application in the form of egalitarian formula, namely, similar cases call for similar treatment. Given that there is a class of human beings, it will follow that all members of this class, namely men, should in every respect be treated in a uniform and identical manner, unless there is sufficient reason not to do so. The central argument for equality is the argument, not that there are no differences between people, but that differences in circumstances have to be justified. According to egalitarian principle, laws are meant to discriminate by embracing only equals who fall under its purview and discriminate those who fall outside its ambit. According to egalitarianism, every law is a discriminatory legislation, providing for special treatment to the people who are similarly situated. This special treatment may mean ensuring identical treatment, or it may mean differential treatment to restore them to or to aid them in reaching or realizing the specific factual state. Formal equality is essentially concerned with consistency of treatment, and substantive equality targets demeaning discrimination. Formal equality seeks ‘equal treatment’ as a general rule, the substantive equality is focused on redressing specific forms of injustice. The formal approach to equality and non-discrimination supports the position that a person’s individual physical or personal characteristics should be viewed as irrelevant in determining whether they have a right to some social benefit or gain. As a descriptive concept, equality is, by definition, an adjectival relation between entities that are identical in some specific respect. Special treatment may mean ensuring identical treatment, or it may mean differential treatment to restore them to or to aid them in reaching or realizing the specific factual state.13 Substantive equality requires that persons not be subject to treatment that denies or undermines their intrinsic equality of status i.e., that they not be discriminated against on grounds that offend their dignity, or otherwise deny their equal worth. This can include stereotyping, harassment, and other forms of unjustified discrimination which are predicated on assumptions about the lesser worth of particular

12 13

Wesson [3]. NICHOLAS CAPALDI, supra note 10.

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social groups.14 Substantive equality is conceptualized through a four dimensional framework, first, the right to substantive equality should aim to redress disadvantage; second, it should counter prejudice, stigma, stereotyping, humiliation and violence based on a protected characteristic; third, it should enhance voice and participation, countering both political and social exclusion; finally, it should accommodate difference and achieve structural change.15 Affirmative action is a pro-active step taken up by the State to eliminate social inequalities based on gender, caste, race or any other. Equal opportunity is a passive policy that ensure that discrimination will not be tolerated once it is detected whereas affirmative action is a pro-active policy taken up not only to subvert, but also to avert, discrimination. Affirmative action’s objective is to provide equality of opportunity by creating discriminations with an objective of eliminating the social inequalities. In other words, the State is obligated to provide level playing field to the oppressed classes by providing special treatment through laws and policies to provide equal opportunity. The objective is to integrate the segregated sections of the society based on race, caste or religion etc., first, and then to include them into the mainstream. Affirmative action though is to promote the equality and inclusiveness, the methods of achieving these objectives vary from jurisdiction to jurisdiction. Affirmative action is considered to be one of the best tool to redress the social inequalities, but the opponents contend that it is unfair and anti-meritorious. This argument can be seen in every jurisdiction where affirmative action is in practice. According to opponents, affirmative action leads to preferential treatment and reverse discrimination, and provides quota system. Though time and again, it was cautioned that affirmative action should not interfere with the aspirations and expectations of the meritorious, but still the affirmative policies are criticized for being excessive. The reason for such excessiveness may be for vote bank policy or eagerness to eradicate the social inequalities or may be something else, but excessiveness results in reverse discrimination. Affirmative action stops where reverse discrimination begins. Hence, whether an affirmative action is turning into reverse discrimination depends on its impact on merit.

3 Historical Reasons for Evolution of Reservation System and Affirmative Action in India The historical background of reservation in India is based on caste system mainly. In ancient India, basing on the capabilities and the social roles required to be performed, there were four different classes, Brahmin (Intellectuals), Kshatriya (warriors),

14

Colm O’Cinneide, Equality—A Core Common Law Principle, or ‘Mere’ Rationality? https://dis covery.ucl.ac.uk/id/eprint/10102595/3/O%27Cinneide_O%27Cinneide%20final%20draft%20cl% 20equality%20chapter%2014%20July%202019.pdf. 15 Fredman [4].

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Vaishya (businessmen) and Sudra (other persons who do not fit into the aforementioned three). Basing on this classification and the needs of a society, the occupations of the persons were decided in ancient India. The traces of varna system mainly can be seen in Rigveda in vedic period and Manusmriti in non-vedic period.16 Varna system in ancient India is interchangeable, flexible as Verna is not birth-based but based on the function rendered by one at a given moment of time to society; a Brahmin could go to Shudra Varna and Shudra to Brahmin like Vyasa and Valmiki.17 There are traces in the history, that Shudras were kings, money lenders, artisans, landlords, peasants, knights, traders, sea farers, service providers and soldiers and the same is the case with other classes of varna system.18 There are many illustrations in our ancient scripts and epics which proves that varna system in India is not birth-based, but based on the capability to render a function. Ramayana written by Maharshi Valmiki, where the Valmiki community in today’s context is referred to as Shudra. Originally, caste is the profession that one adapts for his/her livelihood and in India, the castes are having some or other traditional profession. Many professions are outdated, vanished or replaced by the modern technologies, but caste remained with the society. Caste originated on the basis of profession, but not on the basis of birth. After the invasion of Muslim, Turk and European countries, the social development converted the profession based caste system to birth based.19 During the Mughals period, written decrees were used to be issued on the status of individual castes, but there were no attempts to organize and schedule all of the castes in an official document until the advent of the British census. In the nineteenth Century, when Britishers took over the ruling, India’s social structure and class system became the most complex issue. British looked at religion and caste system as a way to classify the Indian society. The enumeration of caste started from the census of the North-Western Provinces in 1865, later census of Oudh in 1867. During 1871–1872, Henry Beverly, Inspector General of Registration in Bengal conducted census to understand the Indian population. It was a direct survey of population; instead of surmising or using textual references, the enumerators went to the people with questionnaire to know about their number and attributes. The main purpose of the census was to count the population and classify it under different heads such as age, sex, religion, caste, occupation etc.20 The attempts were made to estimate populations in various regions of the country, but due to the methodological flaws in the census, the results obtained were erroneous.21 During 1871 itself, the Criminal Tribes Act of 1871 was passed, which stated that: ‘when we speak of ‘professional criminals’, we… [mean] a tribe whose ancestors were criminals from 16

Sonawani [5]. Waghodekar [6]. 18 Sanjay Sonawani, supra note 16. 19 Heath [7]. 20 Samarendra [8]. 21 Hobson [9]. 17

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time immemorial, who are themselves destined by the usage of caste to commit crime, and whose descendants will be offenders against the law, until the whole tribe is exterminated or accounted for in the manner of thugs’. It clearly indicates that Britishers are referring to a section of people who were grouped as criminals not for socio-economic reasons, but because of the caste into which they had been born. The identification and classification of caste encountered serious problems while collecting the data as apart from the four classes specified in varna system, there were jatis, communities with unfamiliar names, uneven status and unalike characteristics. As Macdonell states, ‘Turning to the old law-books, of which the code of Manu is the most representative for our purposes, we are confronted with a society that is already strictly organized on a basis of castes’.22 To overcome the failure, in 1882 WC Plowden, the outgoing census commissioner, recommended that in every province ‘some officer who has a taste for, and a knowledge of, archaeological research’ should be deputed to compile information about caste. Responding to his recommendation, the Government of Bengal appointed H H Risley, in 1885 to conduct the survey of castes and occupations of the people of the province. The results of the survey of Bengal undertaken by Risley were published in 1891 in four volumes with the title ‘Tribes and Castes of Bengal’; and a glossaries of communities were compiled and published for the North-Western Provinces and Oudh (1896), South India (1909), Punjab and North Western Provinces (1911) and the Central Provinces (1916).23 It can be said that the census of India attempted not only to count, but to define and explain the classes and castes existing. The Indian reaction to judgments made within the censuses can be seen from the claims of castes that they should have higher ranking following the census of 1901. For example, the Mahtons claimed that they should be granted the status of Rajputs because of both history and the fact they followed Rajput customs. The reason behind such claim is that their desire to join an army regiment which is open only to those who have Rajput status. Since they did not receive the claimed status in 1901, they requested to change it in 1911 census. Their request was rejected, not on the basis of any existing impediment but on the basis of the 1881 census which stated that the Mahtons were an offshoot of the Mahtams who were hunters/scavengers.24 From this example, it can be seen that the Mahton, a rural agricultural group, were fully aware that the change of status would allow their members to obtain direct benefits. This clearly shows that the actions of British in classifying and enumerating castes within the census had heightened indigenous awareness of the caste system and had added an economic aspect that the Indian people were willing and anxious to exploit.25

22

Macdonell [10]. PadmanabhSamarendra, supra note 20. 24 Kevin Hobson, supra note 21. 25 Id. 23

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It can be said that censuses conducted by Britishers made the social structure of India static or stereotype social structures, by fixing them into certain classes and castes based on certain parameters and the same caste tag continued with the next generations on the basis of their birth. The data and the statistics developed by Britishers is purely influenced by the British notions of race and their past experiences relating to anthropology and phrenology. Indians adopted the social structure based on caste developed by the Britishers and tried to organize their own castes to improve the status within the system. This ran contrary to traditional views of the purpose of caste system and imposed an economic basis, doing away with the spiritual meaning, and adopting the materialistic meaning. The caste became a permanent identity and also created social barriers, resulting into economic inequalities. The upper castes received better social environment, providing them the opportunity to enjoy high economic status, educational facilities, living standards, whereas lower castes were deprived of the same due to their lower income. This economic inequality and social discrimination further lowered the living standards of the lower castes, resulting into denial of the equal opportunities.26 This development of socio-economic understanding of caste based status, created social inequalities, causing craving among the classes for improving the status through caste politics, which resulted into the reservation system which is at present prevalent in India. This ‘Divide and Rule’ policy of Britishers and the introduction of English as official language further created a barrier for the Dalits and Backwards castes from employment and educational opportunities.27 During Lord Macaulay’s period, it was decided that while Madrassas and Sanskrit schools would be allowed to function, official business was to be conducted in English. The cause of English was still further advanced by the regulation introduced by the first Lord Hardinge that all public services were to be filled by an open competitive examination held by the Council, preference being given to the knowledge of English. Hence, knowing English language is the only gate way to enter into higher appointments reserved to the Indians in the British administration. Brahmins in the Madras presidency and the Bhadralok in the Bengal Presidency took advantage of the new education policy and occupied most of the posts available in administration. In princely State of Mysore, the Tamil brahmins monopolised all jobs, leaving back the Kanndiga brahmins. The Maharaja of Mysore took note of it and introduced reformed with a view to give a larger share to the Kannada brahmins, vokkaligas and lingayats beside the untouchable castes and the Muslims, a major share in public administration. Muslims who decided not to learn English language, had a very less share in public administration.28

26

Sanjay Sonawani, supra note 16. Caste or Economic Status: What Should We Base Reservations On?, ECONOMIC and POLITICAL WEEKLY, (June 14, 2022, 3.00 PM), https://www.epw.in/node/153560/pdf. 28 Das [11]. 27

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The traces of evolution of reservation system can be seen through certain historical facts such as, in 1902 for the first time by Shahu, the Maharaja of the princely State of Kolhapur, introduces reservation in favour of non-Brahmin and backward classes in education; in 1921, Mysore initiated reservation for backward castes after a decade long social justice movement against the repression of non-Brahmin castes etc. In the Government of India Acts of 1909 and 1919, Muslims were given due share and other facilities after hearing their representation regarding less representation of their community in the public administration. The untouchables or the depressed classes were allowed to join the presidency armies and provided them the first opportunity to read and write. They were also allowed to work as domestic servants to the British families. The question of reservation was discussed in the Round Table Conferences. On 19th January 1931, the Minorities Sub Committee made a report during the first Round Table Conference with the following opinion: “That in order to secure the cooperation of all communities which is essential to the successful working of responsible government in India, it was necessary, that the new constitution should contain provisions designed to assure the communities that their interests would not be prejudiced, and that it was particularly desirable that some agreement should be come to, between the major communities in order to facilitate the consideration of the whole question”. The issues of minorities were discussed in the second Round Table Conference, where Mahatma Gandhi said, ‘and that mention of the ‘Mussulman’ brings me to the baffling problem of minorities. Believe me, that problem exists here, and I repeat what I used to say in India. I have not forgotten those words that without the problem of minorities being solved, there is no Swaraj for India, there is no freedom for India’. Dr Ambedkar produced the document titled ‘Minorities Pact’, which demanded separate ‘Untouchable’ electorates.29 After the failed negotiations to come up with a scheme, the Communal Award was passed by the Prime Minister in August, 1932. The British Prime Minister, Ramsay McDonald, announced the Communal Award which provided for separate electorates for the ‘Depressed Classes’, the Muslims, the Europeans, the Sikhs, the Anglo-Indians and the Indian-based Christians. It also created new minorities such as the commercial and industrial classes, landholders, labour, the universities and the Mahrattas. In addition, the Award introduced a special provision for the ‘Untouchables’ in that they were to be part of the general electorates, and also have a separate electorate of their won. They were given two votes each, one in the general electorates to elect one of the candidates in the general constituencies, and the other to elect candidates from the ‘Untouchables’ only.30 It reserved 71 seats in the Central Legislature for the depressed classes.

29 30

Biswas [12]. Sircar [13].

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Though Britishers claimed it as an initiative towards establishing responsible government, Gandhi looked at it as a danger to Hinduism and threatened to go on a fast unto death.31 He looked at it as the ‘Divide and Rule’ policy to weaken the national movement. Ambedkar was in agreement with the Communal Award, as for him political solutions are the workable solutions for the upliftment of the depressed classes. As a result of disagreements and agreements, Poona Pact came out as a result of negotiations between Dr Ambedkar and Mahatma Gandhi.32 In a settlement negotiated with Gandhi, Ambedkar agreed for depressed class candidates to be elected by a joint electorate, and assured a fair representation of the depressed classes in the public services while earmarking a portion of the educational grant for the uplift.33 This resulted into the birth of the world’s largest affirmative action programme launched after the commencement of the Constitution i.e., the reservation system of India. In 1942, basing upon the memorandum submitted by Dr B R Ambedkar ‘On the Grievances of the Scheduled Castes’ detailing their grievances, and also demanding reservation in public services, scholarships and stipends for study within the country and abroad, a share in contracts, and so on, the Scheduled castes were allowed 8.5% reservation in central services and other facilities for the first time in the history of India.34

4 Constitution of India, Reservation and Affirmative Action The Preamble of the Constitution provides for Justice, social economic and political; Equality of status and opportunity; and Fraternity assuring the dignity of the individual. To achieve these goals, in the Constitution of India certain provisions were introduced to provide equality of opportunity to the vulnerable sections of the society in political, social and economic spheres of the society. After the transfer of power in 1947, a drafting committee with Dr B R Ambedkar as chairman was set up to draft the Constitution of India. Amidst opposition from several members of the Constituent Assembly, the under Article 334, provision for reservation of seats in favour of Scheduled Castes, Scheduled Tribes has been introduced for 10 years, ending in 1960.35 The 10 years limitation introduced, has been extended 31

Bhagwan Das, supra note 28. Poona Pact 1932 (B. R. Ambedkar and M. K. Gandhi) 24th September 1932, (June 21, 2022 7.00 PM), https://www.constitutionofindia.net/historical_constitutions/poona_pact_1932__ b_r_ambedkar_and_m_k_gandhi__24th%20September%201932. 33 Balkrishnan [14]. 34 Bhagwan Das, supra note 28. 35 INDIA CONST. art. 334: Reservation of seats and special representation to cease after certain period. 32

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further and further till now.36 Article 334 reflects the moto of the constitutional makers in ensuring political justice to the backward classes. Further, National Commission for Scheduled Castes,37 National Commission for Scheduled Tribes38 and National Commission for Backward Classes39 were introduced to investigate and monitor all matters relating to safeguarding the provisions for those classes under the Constitution and evaluating the working of those safeguards. These provisions were introduced to ensure social and economic welfare of the backward classes, Scheduled Castes and Scheduled Tribes. Under Part III of the Indian Constitution, the provisions relating to equality of opportunity, elimination of discrimination and also provisions for reservation (as an facet of the equality, though originally interpreted as exception to equality) were introduced. Articles 14–18 provides for social and economic equality by providing equality of opportunity in matters of social life by providing for eradication of untouchability, economic justice by providing provisions for reservation in education and employment. Article 14 states, ‘the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. Article 14 is a general clause related to equality and Articles 15 and 16 specially deals with inter-sectional equality. To put in other way, formal equality is confined to Article 14 only and Articles 15, 16, 17 and 18 provides for particular equality. Article 15 bars the discrimination of intersectional equality only to ‘religion, race, caste, sex, place of birth or any of them’ as a necessary corollary to the advancement of the goal of an egalitarian society. Article 15(2) states, ‘No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to- (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Article 15(3) empowers the State to make special provisions for women. Article 15(3) provides for particular equality or a substantive equality doctrine which stands against disadvantage; the hierarchy of men over women.

36

Subs. by the Constitution (One Hundred and Fourth Amendment) Act, 2019, s. 2, for the words “seventy years” (w.e.f. 25-1-2020). The words “seventy years” were subs. for the words “sixty years” by the Constitution (Ninety-fifth Amendment) Act, 2009, s. 2. (w.e.f. 25-1-2010). The words “sixty years” were subs. for the words “fifty years” by the Constitution (Seventy-ninth Amendment) Act, 1999, s. 2. (w.e.f. 25-1-2000). The words “fifty years” were subs. for the words “forty years” by the Constitution (Sixty-second Amendment) Act, 1989, s. 2. The words “forty years” were subs. for the original words “thirty years” by the Constitution (Forty-fifth Amendment) Act, 1980, s. 2. 37 INDIA CONST. art. 338. 38 INDIA CONST. art. 338A. 39 INDIA CONST. art. 338B.

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Article 15(4) empowers State to make provisions for the advancement of any socially and educationally backward classes, Scheduled Castes and the Scheduled Tribes;40 Article 15(5) empowers the State to make provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions;41 Article 15(6) empowers the State to make special provisions for the advancement of any economically weaker sections of the citizens other than the classes mentioned in Article 15(4) and (5) in general,42 and also relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.43 Article 16(1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.Article 16(4) is an enabling provision which empowers the State with discretionary powers to make provision for the reservation of appointments or posts in favour of any backward classes of citizens which, in the opinion of the State, is not adequately represented in the services under the State.44 Article 16(4A)45 empowered the State to make any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Article 16(4B) was introduced by empowering the State from considering any unfiled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.46 Article 16(6) was introduced to empower the State from making any provisions for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten percent.47

40

Inserted by the Constitution (First Amendment) Act, 1951. Inserted by the Constitution (Ninety-third Amendment) Act, 2005. 42 INDIA CONST. art. 15(6)(a). 43 INDIA CONST. art. 15(6)(b). 44 Mohan Kumar Singhania v. Union of India AIR 1992 SC 1. 45 Ins. By the Constitution (77th Amendment) Act, 1995, Section 2 (w.e.f. 17-6-1995); the words ‘in matters of promotion, with consequential seniority, to any class’ was substituted by the Constitution (85th Amendment) Act, 2001, Section 2 for certain words (retrospectively w.e.f. 17-6-1995). 46 Ins. By the Constitution (81st Amendment) Act, 2000, Section 2 (w.e.f. 9-6-2000). 47 Ins. by the Constitution (One Hundred and Third Amendment) Act, 2019, s. 3 (w.e.f. 14-1-2019). 41

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Articles 15(3) to 15(6) and Articles 16(4) to (6), which are specific to providing special privileges to the vulnerable sections of the society are the facets of the equality, introduced to provide equality of opportunity to those who are for different reasons suppressed by the society, deprived of social dignity and justice. Article 16(4) is being interpreted always in the background of Article 336 which provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Under Part IV of the Constitution i.e., the Directive Principles of State Policy, certain constitutional directions are provided to the State about the way in which the social inequalities are to be eliminated and the interests of the backward classes is to be safeguarded. Article 38(2) provides, ‘The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations’. Article 46 provides that ‘the State shall promote with special care the educational and economic interests of the weaker sections of the people, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.’ The aforementioned constitutional provisions provides that equality to be ensured among equals and recognizes the fact that the backward classes are the vulnerable sections of the society, who needs to be provided legislative privileges to uplift them to provide a level playing field in terms of education and employment. According to constitution, economic empowerment will eliminate social inequalities existing in the society to a larger extent and rest of the social discriminations shall be dealt through Article 15(2), Article 1748 and other related provisions.

5 Efforts of the Hon’ble Supreme Court of India in Knitting the Reservation and Merit Jurisprudence Together State of Madras v. Champakam Dorairajan49 is the first case, which brought the reservation issue before the Hon’ble Supreme Court. In the absence of Article 15(4) in the Constitution, the Communal order issues by the Province of Madras allotting quotas with regard to the admission of students to the engineering and medical colleges of the State was declared invalid on the ground of violation of Articles 15(1) and 29(2).This judgment prevented the State from making special provisions 48

INDIA CONST. art. 17: Abolition of Untouchability—Untouchability is abolished and its practice in any form is forbidden The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law. 49 State of Madras v. Champakam Dorairajan AIR 1951 SC 226, The same interpretation is being followed by the Bombay High Court in Jagwant Kaur v. State of Bombay, AIR 1952 Bom 461.

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or taking up supporting measures to uplift the Scheduled Castes and Scheduled Tribes and to implement the egalitarian principle. The State felt that to achieve pure doctrine of equality, first of all, it is required to eliminate the inequalities existing in the country by virtue of social, economic and cultural reasons, and to do so, State shall introduce the affirmative action. Only on this ground, Article 15(4) was inserted into the Constitution to empower the State to make special provision for Backward classes, Scheduled Castes and Scheduled Tribes. There is no problem with reference to the reservation in employment, because Article 16(4) was there within the constitutional framework from the day of the commencement of the Constitution. In 1953, the Kaka Kalelkar Commission (the first Backward Classes Commission) was constituted to identify the backward classes. The Commission finally prepared the report with regard to the classifying of the backward classes by taking into account the following socio-economic factors: • Traditional apathy for education on account of social and environmental conditions or occupational handicaps • Poverty and lack of educational institutions in rural areas • Living in inaccessible areas Though the report finally completed, it did not receive the approval as it did not satisfy both the Central Government and Mr. Kaka Kalelkar himself. Mr. Kaka Kalelkar felt that the caste based classification shall be eliminated from the society to serve the extremely poor and deserving candidates; preference ought to be given to those who come from traditionally neglected social classes. The Memorandum of action appended to the Report of the Commission, placed before the Parliament on September 03, 1956 pointed out that the existing caste system based on birth is the greatest hindrance in the way of our progress to egalitarian society. After the introduction of Article 15(4), the State started introducing the reservation in education. The reasons for such policies of reservation introduced by the Government may be related to the ‘vote bank policy’, but judiciary used to interfere whenever such policies lost the colour of affirmative action, becomes excessive and violates Articles 15(1) and 29(2). One of such case is M. R. Balaji v. State of Mysore.50 In this case, there are two important aspects, first, introduction of the expression ‘more backward classes’; second, reserving 75% (Government Order No.1) and 68% (Government Order No.2) of seats in educational institutions for the identified socially and educationally backward classes in the admissions to the State medical and engineering colleges, leaving only respectively, 25 and 32% seats to the merit pool. These Government orders and classification of socially and educationally backward classes was made on the basis of Kaka Kalelkar Commission and Nagan Gowda Committee and interestingly, here Lingayats were considered forward and Vokkalingas excluding Bhunts and all Muslims, Christians and Jains were regarded as socially and educationally backward.

50

M. R. Balaji v. State of Mysore AIR 1963 SC 649.

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The important issue raised is, to what extent State is competent to make special provisions under Article 15(4)? Interestingly, the court considered Article 15(4) as exception to Articles 15(1) and 29(2) in this case. It gave a broad scope to the State to introduce reservation according to their will and wish, because as a rule of interpretation once a provision is declared to be exception, it will override the general provision. That means, by virtue of declaring Article 15(4) as an exception, Article 15(1) lost control over it and State is empowered to introduce reservations even on the basis of the grounds mentioned therein. The same interpretation is applied to Article 16 also in T. Devadasan v Union of India.51 In this case, while dealing with the reservation in public employment, the Hon’ble Supreme Court of India considered Article 16(4) as an exception to Article 16(1). M. R. Balaji and T. Devadasan, further referred to the 50% ceiling limit to the reservation, because Articles 15(4) and 16(4) were used by the State was in odds with the notion of formal equality under Article 15(1), which is broadly understood as complying with the principle of merit. This struggle of regulating the State’s unreasonable actions through ceiling limit, the rationality behind classifying certain classes of the society as backward, maintenance of the efficiency of the administration, balancing the national interest and community interest etc., was proved to be hard. The reservation is to be tested within Articles 15(4) and 16(4), and no reliance can be made on Articles 15(1) and 16(2). The result is the identification of backward classes for the purpose of Articles 15(4) and 16(4) started having caste as a dominant factor, though not the sole factor. This is the danger anticipated by the Kaka Kalelkar, who said caste is the cancer, which is will destroy the Indian society, hence no reliance to be made on it while providing for reservation. In Chitralekha v. State of Mysore,52 the apex court held that Article 15(4) talks about class, not of caste, hence caste cannot be a sole or dominant test in determining the backward classes. As a result, the State started clubbing caste with economic status to overcome the judicial impediment to the reservation policies.53 The situation changed in State of Kerala v. N M Thomas.54 In this case, nine judge bench held that Article 16(4) is designed to reconcile the conflicting pulls of Articles 16(1), 46 and 335. According to the Bench, to achieve equality, differential treatment of persons who are unequal is permissible and this is to be characterized as ‘Compensatory discrimination or affirmative action’. In this case, the apex court overruled the Devdasan judgment and held, Article 16(4) as not an exception to Article 16(1), rather as a facet of equality enshrined under Article 14 and Article 16(1). The apex court also held that the State shall take Articles 46, 335, 16(1) and 16(4) as constitutional package and not read in isolation.55

51

T. Devadasan v Union of IndiaAIR 1964 SC 179. Chitralekha v. State of MysoreAIR 1964 SC 1823. 53 K. S. Jayashree v. State of Kerala AIR 1976 SC 2381. 54 State of Kerala v. N M ThomasAIR 1976 SC 490. 55 Akhil BharatiyaSoshitKarmachari Singh (Railway) v. Union of India AIR 1981 SC 298. 52

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The result of considering Article 16(4) as a facet of equality is to make it subject to Article 16(1) and (2), eliminate caste based classification (to counter the popular belief existing at that time that caste is considered as quintessential to identify the class), to counter the unreasonable excessive exercise of power by the State under Article 16(4), and to ensure equality of opportunity with egalitarian approach. This introduced a constitutional restraint on introducing class legislation which has no rational classification on the basis of Articles 14, 15(1), 16(1) and 16(2). The result is the gain of control over Articles 15(4) by 16(4) by these aforementioned Articles. Justice KK Mathew, Justice Krishna Iyer and Justice Fazal Ali in their concurring judgments held that Article 16(1) provide for formal equality which aims to provide equality of opportunity to sections that face structural barriers to their advancement and functions to equalise group inequalities. According to Justice Krishna Iyer, if Article 16(4) is considered as exception to Article 16(1), it confers pro tanto monopoly, leading to rigidity to the reservation structure, leading to no scope for considering Articles 46 and 335. Justice Fazl Ali stated that the result of considering Article 16(4) as facet of Article 16(1) will forbid the possibility of inducing hostile discrimination in the name of promoting the backward classes. Finally, it can be said that considering Article 15(4) or 16(4) as facet of equality keeps a check on converting reservation policies by the State as reverse discriminations for their political moto. In Akhil Bhartiya SoshitKarmachari Sangh (Railway) v. Union of India56 Justice Chinnappa Reddy held, ‘Article 16(4) to be read not as an exception to Article 16(1) rather facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an underprivileged and deprived class of citizens to when egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). In K C Vasanth Kumar v. State of Karnataka,57 the question raised referred to the conflict between ‘the meritorian principle’ and the ‘compensatory principle of discrimination’ in the matters of admission to educational institutions and appointment to public offices. In this case, the five judge bench while dealing with the issue, ‘what is the statutory construction of the word Backward classes?, stated the following: ‘Nowhere in the world, castes, classes and communities queue up for the sake of gaining the backward status…no where else in the world there is competition to assert backwardness and to claim “we are more backward than you”…. This is an unhappy and disquieting situation, but it is start reality….. Reservation is a ‘preferential principle’ or ‘protective or compensatory discrimination against superior, patronising and paternalist attitudes…no one can remain backward for ever. After enjoying the fruits of positive discrimination, upliftment must have been done’.

56 57

Id. K. C. Vasanth Kumar v. State of KarnatakaAIR 1985 SC 1495.

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In this case, Justice Chandrachud proposed the following propositions: • Reservation in favour of SCs and STs must continue without means test for further fifteen years • The means test, the test of economic backwardness should be made applicable for SCs and STs after fifteen years • For other backward classes, means test shall be applied even from now onwards • Policy of reservation in employment and education shall be reviewed every 5 years • There shall be public debate on reservation In this case, the first leap towards the introduction of creamy layer concept was taken up. In Indira Sawhney v. Union of India,58 the apex court while interpreting the term ‘social and educational backwardness’ clarified that, since Article 15(4) is now a facet of equality guaranteed under Articles 14 and 15(1), caste cannot be made one of the criteria for determining the SEBs, because rule of expression uniusest exclusion alteriusapplies. The predominant and only favour for making special provision under Article 15(4) or 16(4) should be poverty and that caste should be used only for the purpose of identification of groups comparable to SCs or STs. The apex court in this case held that the equality of opportunities resolve around the following two dominant principles: first, traditional value of equality of opportunity; second, newly conceived idea of equality of results. The apex court while comparing Article 16(4) with Article 15(4) held that first one is broader than the subsequent one. The apex court said, Article 15(4) is a positive action programme and Article 16(4) is a positive discrimination. While interpreting the expression ‘backward classes’ referred to in Article 16(4), the apex court said the same is not limited to ‘socially and educationally backward classes’ referred to in Article 15(4). According to apex court, in India backwardness of a class is closely intertwined with the social, educational and economic factors. With regard to the ceiling limit to the reservation, the apex court said, in general reservation quota should not exceed more than 50%, but in exceptional circumstances, the same may be relaxed if found reasonability in crossing the borderline. While answering the question, whether reservations are anti-meritorian?, the court said though reservation is anti-meritorian, but imposed for a legitimate purpose, hence it is inevitable to achieve the egalitarianism. The issues such as reservation in matters of promotion, accelerated promotion, consequential seniority etc., were dealt in Ajit Singh (I) v. State of Punjab,59 Ajit Singh (II) v. State of Punjab.60 As a result of the judgment delivered in this case restraining the accelerated consequential seniority, Article 16(4A) was introduced into the Constitution via Constitution (77th Amendment) Act, 1995 and Constitution (85th Amendment) Act, 2001. 58

Indra Sawhney v. Union of India, supra note 3. Ajit Singh (I) v. State of Punjab(1996) 2 SCC 715. 60 Ajit Singh (II) v. State of Punjab(1999) 7 SCC 209. 59

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In Ajit Singh (II) v. State of Punjab,61 while dealing with the issue, ‘Is right to be considered for promotion a fundamental right?, the apex court held that ‘Reservation is an affirmative action… affirmative action stops where reverse discrimination begins… promotion is not a fundamental right unless it is covered under Articles 16(4) and 16(4A). Later Article 16(4B) was introduced into the Constitution via Constitution (81st Amendment) Act, 2000. The amendment provides that the unfilled reserved vacancies in a year are to be carried forward to subsequent years and that these vacancies are to be treated as distinct and separate from the current vacancies during any year. The rule of 50% reservation laid down by the Supreme Court in Indira Sawhney is to be applied only to the normal vacancies and not the post of backlog (carry forward) of reserved vacancies. This means that the unfilled vacancies are to be carried forward from the year to year without any limit, and are to be filled separately from the normal vacancies. In M. Nagraj v. Union of India,62 the constitutional validity of Article 16(4A) was challenged. According to the petitioners, the said provision is violative of basic structure doctrine and reverses the decisions laid down in Virpal Singh,63 Ajit Singh I,64 II 65 and III 66 as well as Indira Sawhney and Ors v. Union of India.67 According to the petitioners, Article 16(1) connotes ‘accelerated promotion’ so as not to include consequential seniority. By attaching the consequential seniority to the accelerated promotion, the impugned amendment violates equality embodied in Articles 14 and 16(1). Further, the petition also challenged the constitutional validity of Article 16(4B). The apex court in this case clarified that reservation quotas are subject to quantitative limits and qualitative exclusions. For example, quantitative limit means, reserving 15% posts for Scheduled Castes and quantitative limit means, maximum permissible limit/ceiling limit of reservation is 50%. Hence, according to the apex court, the power the State can exercise under Articles 16(4), (4A) and (4B) are subjected to Articles 14 & 16. The apex court while dealing with the concepts, Equity, Justice and Merit, clarified that all these three concepts are independent variables which can be applied in public employment on the basis of quantifiable data in each case. These three concepts were described by the apex court in the following way: • General class in public employment seeks equity • Backward classes seek justice • Efficiency in service deals with merit.

61

Ajit Singh (I) v. State of Punjab, supra note 59. M. Nagraj v. Union of India(2006) 8 SCC 212. 63 Union of India v. Virpal Singh Chauhan Etc., 1995 (6) SCC 684. 64 Ajit Singh (I) v. State of Punjab, supra note 59. 65 Ajit Singh (II) v. State of Punjab, supra note 60. 66 Ajit Singh (III) v. State of Punjab Review Petitions (C) Nos. 1504-06 of 1999 in IAs Nos. 1-3 of 1997 in Civil Appeals Nos. 3792-94 of 1989, decided on December 8, 1999. 67 Indra Sawhney and Ors v. Union of India, supra note 3. 62

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Equilibrium to be maintained between justice to the backward classes, equity for the forwards and efficiency in entire system. Merit is a fixed absolute concept; the content of merit is context-specific which derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on merit depends on how that policy is designed. The entire debate is dependent upon the facts and statistics relating to the backwardness of the classes which are to be included under the reservation system. Apex court mentioned that reservation is necessary for transcending cate and not perpetuating it. Reservation has to be used in limited sense otherwise it will perpetuate casteism in the country. The discretion of the state is, however, subject to the existence of backwardness and inadequacy of representation in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist, and this is where judicial review comes in. whether reservation in a given case is desirable or not, as a policy, is not for the court to decide as long as the parameters mentioned in Articles 16(4), 16(4A) and 16(4B) are maintained. Equity, justice and merit/efficiency are variables which can only be identified and measured by the State. While dealing with the question, whether there is any upper limit beyond which reservation is not permissible?, the apex court stated that the same is closely linked to the issue, whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) is an application of Article 16(1). Apex court said, if Article 16(4) is an exception to Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article 16(1). But if Article 16(4) is taken as an application of Article 16(1) then the two articles have to be harmonized keeping in view the interests of certain sections of the society as against the interest of the individual citizens of the society. Hence, Articles 16(1) and 16(4) shall be balanced and neither should be allowed to eclipse the other. With reference to the consequential seniority and accelerated consequential promotion, the apex court said that apex court referred to the catch-up rule laid down in Virpalcase, which states that if a senior candidate of a general category is promoted after SC/ST candidates, he would regain his seniority in promotion over the juniors who were promoted ahead of him under the reserved vacancies. According to the apex court obliteration of catch-up rule would violate the basic structure of equality code enshrined in Articles 14, 15 and 16. The apex court in this case clarified that backwardness is based on data and statistics and the State can use discretion to provide reservation quota for certain classes under Articles 15 and 16, only when there is quantifiable data to show backwardness and inadequacy. As long as State succeeds in identifying and implementing the controlling factors in reservation, there would be no excessiveness and reverse discrimination.

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In Jarnail Singh v. LachhmiNarain Gupta,68 the application of the requirement of quantified data to prove the backwardness of the SCs and STs laid down in M. Nagraj v. Union of India was challenged for being in direct violation of Indira Sawhney judgment which stated that SCs and STs are most backward among backward and it is presumed that once they are in Presidential list under Articles 341 and 342, there is no requirement of further proving their backwardness. Further, Indira Sawhney also laid down that creamy layer is not applicable to SCs and STs. In B. K. Pavitra (II) v. Union of India69 the apex court stated the following: ‘for equality to be truly effective or substantive, the principle must recognize existing inequalities in the society. Reservation is not an exception to the euqlaity of opportunity rather it is a facet of equality. If Article 16(1) postulates formal equality of opportunity and Article 16(4) enables substantive equality, then acts as an exception. If Article 16(1) postulates as substantive equality, Article 16(4) becomes facet of equality and also enables substantive equality. Hence, distribution shall be on the basis of three criteria’s, i.e., rights, deserts and needs and proportional equality is to be guaranteed by taking into consideration these three criteria. Proportional equality expects the State to take affirmative action in favour of disadvantaged sections of society within the framework of liberal democracy. In Dr Jaishri Laxman Rao Patil v. The Chief Minister &Ors,70 the issue raised is, ‘whether judgment in case of Indra Sawhney v. Union of India needs to be referred to larger bench or require re-look by the larger bench in the light of the subsequent Constitutional amendments, judgments and changed social dynamics of the society etc.,? Whether 50–50 rule is strict in application, or may be loosened when there are extraordinary circumstances?’ In this the apex court said that, since Article 15(4) is no more an exception to Article 15(1) and vice versa the Article 16(4) and 16(1), the very basis of fixing the ceiling of 50% has gone. For providing equity guaranteed with equality and justice to the backward classes, State can relax the 50–50 rule when there are extraordinary circumstances. Neither Article 15(4) or Article 16(4) contains any percentage, hence if exceeding 50–50 rule is required for serving the egalitarian need of the society, it is permissible. Moreover, in St. Stephen’s College vs University of Delhi71 , the apex court while upholding the procedure for admission of students in aided minority educational institutions which ceiling limit of 50% has been set aside by 11-Judge bench judgment in T. M. A. Pai Foundation case,72 hence the ceiling of 50% is no longer available to be relied on even for purposes of Articles 15 and 16. Now coming to the question, what should be the interpretation of the term ‘exceptional circumstances and or extra-ordinary situations?, the apex court said that political dominance cannot be a ground.

68

Jarnail Singh v. Lachhmi Narain Gupta2018(10) SCC 396. B. K. Pavitra (II) v. Union of India (2019) 16 SCC 129. 70 Dr Jaishri Laxman Rao Patil v. The Chief Minister &Ors 2021 SCC OnLine SC 362. 71 St. Stephen’s College vs University of Delhi(1992) 1 SCC 558. 72 T. M. A. Pai Foundation vs. State of Karnataka AIR 1994 SC 2372. 69

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6 Migration from this 50 to that 50 The backward sections of the society when performs above the cut off, set for the merit class, then such candidates shall be counted not in the reserved quota, but in the merit quota. The discussion about migration from this 50 to that 50 of reserved classes was discussed in V. V. Giri v. Dippala Suri Dora and Ors.73 Though this case is related to elections, still the issue becomes relevant here. As per the facts of the case, in a double member Parliamentary constituency, one seat was reserved for the Scheduled Tribes and other was General. Four persons filed their nominations for the election, G1 and G2 for the general seat and S1 and S2 for the reserved seat. At the polls, the number of votes received by the candidates were in the following order: S1, S2, G1 and G2. In accordance with the provisions of Section 54(4) of the Representation of People Act, 1951, S1 was declared elected to the reserved seat and S2, who had received the largest number of votes out of the remaining candidates, was declared elected to the general seat. G1 filled an election petition for a declaration that he had himself been duly elected to the general seat. The petition was based on three grounds viz., (i) that upon a proper interpretation of Section 54(4), a candidate who had filled his nomination for the reserved seat could not be declared elected to the general seat; (ii) that if the interpretation be otherwise then Section 54(4) was ultra vires; and (iii) that S2 had ceased to be a member of a Scheduled Tribe at the relevant time and his nomination was improperly accepted. With regard to the first and second issues, the apex court held that, S2 was properly and validly declared elected. The provisions of the Constitution and of the Act show that the election in a double member constituency was held for the whole constituency and not for the seats and a candidate who had filed nomination as a member of the Scheduled Tribes was entitled to contest for both the seats. On a fair and reasonable construction of Section 54(4) of the Act there could be no doubt that in a case like the present, after S1 was declared duly elected to the reserved seat, the votes secured by the remaining three candidates had to be considered before declaring the election for the general seat. A member of the scheduled tribe or caste did not forego his right to seek election to the general seat merely because he availed himself of the additional concession of standing for the reserved seat by making the prescribed declaration for that purpose. It was necessary for him to file two nomination papers for the two seats. With regard to the second issue, the court held, ‘whatever may have been the origin of Hindu castes and tribes in ancient times, gradually castes came to be based on birth alone. A person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste by virtue of his volition, education, culture and status. The caste status of a person had to be determined in the light of the recognition received by him from the members of the caste into which he sought an entry; unilateral acts of such a person asserting a higher status were not enough to establish the higher status. It is to be hoped that this position will change, and in course of time the cherished ideal of casteless 73

V. V. Giri v. Dippala Suri Dora and OrsAIR 1959 SC 1318.

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society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co-religionists’. In Indra Sawhney v. Union of India,74 Jeevan Reddy J., observed, ‘it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates’. In R. K. Sabharwal v. State of Punjab,75 the apex court clarified that a reserved candidate if secured more than general cut off, can be considered against the general category seats/posts, but the general category candidate cannot be considered against the reserved category seat/post, simply because no qualified reserved candidate is available. In Ritesh R Shah v. Dr Y. L. Yamul,76 while dealing with the question that whether a Reserved category candidate who is entitled to be selected for admission in open competition on the basis of his/her own merit should be counted against the quota meant for the Reserved Category or should he be treated as a general candidate, the apex court held that when a candidate is admitted to an educational institution on his own merit, then such admission is not to be counted against the quota reserved for Scheduled Castes or any other Reserved Category. In State of Bihar v. M. Neeti Chandra,77 the apex court held that the meritorious reserved candidates if are allotted under the General Category by virtue of acquired more marks than cut off marks, then they can be considered against the General Category seat only when they are receiving the higher choice when compared to the choice they would get by being considered under the reserved category. If the interpretation is done in the other way, it would have a harsh impact on the meritorious reserved candidate, who will lose the right to choose the best choice for him, simply because he is meritorious and eligible to be considered in the general category. In Post Graduate Institute of Medical Education and Research v. Faculty Association,78 the apex court while referring to 50–50 rule held, ‘Articles 14, 15 and 16 including Articles 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong 74

Indra Sawhney v. Union of India, supra note 3. R. K. Sabharwal v. State of Punjab(1996) 2 SCC 745. 76 Ritesh R Shah v. Dr Y. L. Yamul(1996) 3 SCC 253. 77 State of Bihar v. M. Neeti Chandra(1996) 6 SCC 36. 78 Post Graduate Institute of Medical Education and Research v. Faculty Association(1998) 4 SCC 1. 75

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to reserved classes. In Balaji, Devadasan, Sabharwal and Indra Sawhney cases, the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible…..in making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens…. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality’. In Rajesh Kumar Daria etc., v. Rajasthan Public Service Commission and Ors79 , the bench of three judges of the apex court considered the difference between vertical and horizontal reservation with respect to migration of meritorious reserved candidates into the general category. According to apex court, ‘Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for nonreserved posts and if they are appointed to the nonreserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste women”. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.’80 In Union of India v. Ramesh Ram &Ors,81 the Hon’ble Supreme Court while dealing with the constitutional validity of sub-rules (2) to (5) of Rule 16 of the Civil Service Examination Rules relating to civil services examinations held by the Union Public Service Commission in the years 2005 to 2007, held that candidates in ‘Meritorious Reserved Category’ (MRC) selected on merit and placed in the general/ unreserved category’ in the Central Civil Services Examination could be given a 79

Rajesh Kumar Daria etc., v. Rajasthan Public Service Commission and Ors (2007) 8 SCC 785. See also Public Service Commission, Uttaranchal etc. v. Mamta Bisht and Ors (2010) 12 SCC 204. 81 Union of India v. Ramesh Ram &Ors AIR 2010 SC 2691. 80

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choice to opt for a service of higher preference in terms of Rule 16(2) of the CSE Rules. Rule 16(2) says: ‘While making service allocation, candidates belonging to SC/ST or OBCs recommended against unreserved candidates may be adjusted against reserved vacancies by the government if by this process they get a service of higher choice in the order of their preference’. The apex court said: ‘The reserved candidates belonging to the OBC/SC/ST categories who are selected on merit and placed in the list of general/unreserved category can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged under Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution.82 The apex court said: ‘By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him/her the chance to be allotted to a more preferred service. The amended Rule 16(2) only seeks to recognize the inter se merit between two classes (a) meritorious reserved category candidates and (b) relatively low ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them….. when MRC candidates are put in general list on their own merit they do not automatically relinquish their reserved status. By operation of Rule 16(2) the reserved status of an MRC candidate is protected so that his/her better performance does not deny such candidate the chance to be allotted to a more preferred service’. K. G. Balakrishnan, CJI., said, ‘MRC candidates who avail themselves of the benefit of Rule 16(2) and are adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will be offered to general category candidates’. The apex court clarified that providing an advantageous position by providing right to choose the best option to the Meritorious Reserved Category candidates is to arrest arbitrariness and to protect their interests…..hence the impugned rule in essence and spirit protects the pledge outlined in the Preamble of the Constitution which conceives of equality of status and opportunity. The apex court felt that the reserved candidates, who showed the merit by working hard, if are kept at a disadvantageous position by arbitrarily moving from Reserved Category to General Category will not only affect their equal opportunity guaranteed under Article 14 and 16, but also will discourage them from being meritorious. The apex court decision can be illustrated with the following example: Suppose, there are 100 total posts among which 20 are reserved for Scheduled Castes. Out of 40 Scheduled Caste qualified candidates, 10 are meritorious reserved candidates and are in advantage if are counted against the General Category posts. If they are counted in the General Category, out of remaining 30 Scheduled Caste qualified candidates, 20 can be accommodated via the reservation quota. That means no disadvantage is 82

Venkatesan [15].

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being caused to the Meritorious Reserved Category, and further 10 more Scheduled Caste qualified candidates were given opportunity of being uplifting themselves. That means, the affirmative action is reaching to large number of reserved candidates and speeding up the process of upliftment of backward classes. According to the apex court, the affirmative action measures should be securitized as per the standard of proportionality. This means that the criteria for any form of differential treatment should bear a rational correlation with a legitimate governmental objective. Migration of Meritorious Reserved candidates to the General Category, is not consistent with Article 14, because it provides for equality among equals, Article 16(1) and 16(4), because it provides equality of opportunity it ensures the best choice option for the Meritorious Reserved Candidate without being arbitrary as well as by counting them in General Category, providing space under reserved quota for more number of reserved candidates for availing benefit and also not violative of Article 335, because when meritorious are being accommodated by balancing 50–50 rule, the efficiency of administration is being maintained. In Jitendra Kumar Singh &Anr v. State of UP &Ors,83 the apex court clarified that if a reserved category candidate has secured marks more than last General Category candidate, he is entitled to be selected against the unreserved seat without being adjusted against the reserved seat, and such would not result in reverse discrimination. The reserved candidates who were considered under General Category will not be counted for the purpose of interpreting the 50% ceiling limit. But the question is whether to consider such reserved candidates who availed age relaxation, fee relaxation and other benefits, available for reserved candidates only, under the General Category because they earned marks more than general cut-off. The apex court opined that the relaxation in fee or age is not a bar the reserved candidates an opportunity to compete against the General Category candidates, as long as the selection process and preparation of final merit/select list are done without any concession. As long as the reserved candidate competes in selection process without any concession, on par with the general category candidate, the concession in age, fee and other benefits do not in any manner tilt the balance in favour of the reserved category candidates. It is permissible for the State under Articles 14, 15, 16 and 38 of the Constitution to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation, by creating a level playing field. Since merit list/select list is prepared without any concessions to any particular category, ‘maintenance of efficiency in administration’ laid down under Article 335 will be maintained. The purpose of

83

Jitendra Kumar Singh &Anr v. State of UP &Ors(2010) 3 SCC 119.

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reservation is not to distribute largesse, but to create empowerment among the disadvantaged. The test is, therefore, ‘adequacy’, not mechanical over-empowerment, which must be constantly maintained. Article 16(4)(a)(b) of the Constitution of India are all enabling provisions and subject to (a) creamy layer, (b) 50% cap, (c) compelling reasons and (d) proportionality. In K. Krishna Murthy (Dr.) and Ors v. Union of India and Ors,84 a Constitution Bench observed that seats earmarked for women belonging to the General Category are not accounted for, if one has to gauge whether the upper ceiling of 50% has been breached. The Gujarat High Court followed the same in Gujarat Public Service Commission, v. Parmar Nilesh Rajendra Kumar,85 wherein it was held that all those candidates belonging to the reserved category if avail the benefit of age relaxation, it is held to be relaxation in the standard, and therefore, are not entitled to their cases being considered for General Category vacancies and that their cases are required to be considered for the reserved category vacancies. In UP Power Corporation Ltd., v. Nitin Kumar,86 D. Y. Chandrachud, CJ., held that an unreserved post or seat/general category seat is one in which every individual, irrespective of the category to which the person belongs, can compete in open merit. In Deepa E.V. v. Union of India,87 it was contended that a candidate belonging to the OBC category and had availed age relaxation, should be considered under general category on the grounds, firstly, there are no general category candidates who secured the minimum cut-off, second, the OBC candidate secured the minimum cut-off set for general category. The apex court placed reliance upon the existing rules and proceedings applicable in this case, which stated that, ‘when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example, in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies’. In Saurav Yadav and Ors v. State of Uttar Pradesh and Ors,88 the apex court reiterated the principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in ‘Open or General Category’ is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong.

84

K. Krishna Murthy (Dr.) and Ors v. Union of India and Ors(2010) 7 SCC 202. Gujarat Public Service Commission, v. Parmar Nilesh Rajendra Kumar2015 (3) GLH 481. 86 UP Power Corporation Ltd., v. Nitin Kumar (Special Appeal No.310 of 2015) judgment dated 19.05.2015. 87 Deepa E.V. v. Union of India (2017) 12 SCC 630. 88 Saurav Yadav &Ors v. State of Uttar Pradesh &Ors (2021) 4 SCC 542. 85

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This case, Public Service Commission, Uttaranchal etc. v. Mamta Bisht and Ors89 is with regard to the question, whether a reserved category candidate who is availing quota under horizontal reservation, whether can migrate to the open category and occupy the horizontal reservation quota there?, the apex court while referring to the different High Court judgments held that, when a male candidate belonging to the reserved category is migrating into the open category by virtue of merit, the women candidate belonging to the reserved category also has equal right to migrate into the open category, if acquired the requisite merit. Hence, there is no difference between horizontal reservation and vertical reservation, when matter is about considering the meritorious reserved category candidate under open category. If any such discrimination is made between men and women because of inequal application of uniform rule for horizontal and vertical reservation will lead to discriminatory treatment to the women reserved candidates. In Dr Jaishri Laxman Rao Patil v. Chief Minister,90 while dealing with the issue of providing reservation to Maratha community beyond 50% cap laid down in Indra Sawhney v. Union of India91 under exceptional circumstances, the apex court reiterated that majority view in Indra Sawhney v. Union of India held 50% is not a ceiling limit for reservation, the rule can be breached under exceptional circumstances. The Apex court stated that neither the constitutional provisions relating to reservation provide for any percentage, nor the courts mandated 50–50 rule as unbreachable. According to the Apex court, after the 11-judge bench judgment in T. M. A. Pai Foundation case,92 50–50 rule is no longer available to be relied upon for the purposes of Articles 15 and 16. According to the Apex court, the illustrations provided in Indra Sawhney is only illustrative, not exhaustive and far flung, and there may be other circumstances where States are entitled to exceed the 50 percent ceiling limit. The Constitution being transformative, shall be in a position to embrace the changing social dimensions. The issue pertaining to the constitutional validity of Articles 15(6) and 16(6) is awaiting the larger bench decision.93

7 What’s New in Neil Aurelio Nunes and Ors v. Union of India (2022) The apex court in Neil Aurelio Nunes and Ors v. Union of India,94 dealt with respect to the reservations for OBCs and EWS in the All-India Quota Seats in NEET for UG and PG medical courses. In this case, with regard to the reservation for PG seats, the 89

Public Service Commission, Uttaranchal etc. v. Mamta Bisht &Ors(2010) 12 SCC 204. Dr Jaishri Laxman Rao Patil v. The Chief Minister &Ors 2021, supra note 70. 91 Indra Sawhney v. Union of India, supra note 3. 92 T. M. A. Pai Foundation vs. State of Karnataka AIR 1994 SC 2372. 93 Janhit Abhiyan v. Union of India W.P.(C) No.55 of 2019, decided on 5th August 2020. 94 Neil Aurelio Nunes &Ors v. Union of India, supra note 4. 90

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petitioners argued, ‘reservation becomes antiethical to establishing meritocracy’. While referring to the Constituent Assembly debates, the court found that amidst opposition to reservation from certain members of the Assembly such as Shri Loknath Mishra, Shri Damodar Swarup Seth etc., who want to create binary between merit and reservation, Article 16 was supported by some like Shri K M Munshi who observed that merit or efficiency in service is distinct from concerns of advancement of backward classes. They were of the opinion that ‘merit cannot be separated from the function of the existing inequalities in society and social justice must be read into the promise of equality of opportunity; otherwise the latter merely advances the interests of the privileged’. Dr P S Deshmukh while participating in the debates on draft Article 286 which is pertained to the functions of the Public Service Commission with regard to appointments to public posts, argued that, those who are arguing for reservation are referred to be speaking communalism…interested in promoting few communities which are backward, did not receive even primary education….but in fact is those who are opposing reservation are the once who are favouring certain privileged communities…it is the duty of the State to bring the backward classes into the main stream of life, guarantee them social justice. Shri Phool Singh, gave the following illustration while supporting his argument that equal merit pre-supposes equal opportunity: ‘asking a man on bicycle to compete with another on a motorcycle, is nothing but absurd….. this cry, this bogey of merit and fair-play is being raised by those who are in an advantageous position and who stand to suffer if others also come into the picture’.95 The apex court here referred to the two-judge bench made the following observation in B. K. Pavithra v. Union of India,96 with regard to the impact of neutral systems of examination on social inequalities: ‘merit is not solely one’s own making…the rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one’s advancement….thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not their own making…..examinations, marks and score are not the sole criteria to decide the performance abilities of an individual….examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities and excellence which are also shaped by lived experiences, subsequent training and individual character…the meaning of merit cannot be reduced to marks even if it is convenient way of distributing educational resources….merit cannot be promoted by ignoring the social inequalities and need for promoting egalitarianism, equality of opportunity, constitutional morality, ensuring social justice and promoting the dignity of individual…..examinations though are necessary and convenient method to allocate educational resources, they are not effective makers of merit…’.

95

Volume 9, Constituent Assembly of India Debates, 23 August 1949, (June 29, 2022, 11.00 AM), https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-23. 96 B. K. Pavitra (II) v. Union of India, supra note 69.

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With reference to the allocation of seats for MBBS course on the basis of All India Quota, the apex court in Pradeep Jain,97 the court observed that owing to the fact that certain States in India are backward in comparison to others, there is existence of inequality in the society, and admission based on all-India examination will lead to inequality. For reducing the inequality, it is required to reserve seats on the basis of residence. The apex court in its conclusion to the case held that, ‘merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contribute to their success in such examinations…. High scores in an examination are not a proxy of merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences….’

8 Affirmative Action in United States of America In the United States of America, the Fourteenth Amendment provides, ‘…….nor deny to any person within its jurisdiction the equal protection of laws’. This equal protection clause prevented States from discriminating against blacks. The affirmative policies in the United States of America are mostly race-sensitive, and opened doors especially in higher education.98 The affirmative action in United States, do not refer to the preferences or privileges. The constitutional validity of the affirmative action there relies upon an implied justification for such classifications under the Equal Protection Clause.99 According to the history of United States of America, Brown v. Board of Education100 is the first of such case to be dealt by the US Supreme court with regard to the affirmative action, equal protection clause and removal of segregation. In this case, the US Supreme Court ruled that segregation of white and Negro children in public schools of State solely on the basis of race, denies Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment is unconstitutional. The court denied the argument of the school that the physical facilities and other 97

Dr Pradeep Jain Etc., v. Union of India &Ors 1984 SCR (3) 942. Garrison-Wade and Lewis [16]. 99 Wasby [17]. 100 Brown v. Board od Education of Topeka 347 U.S. 483 (1954). 98

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‘tangible’ factors of white and Negro schools are equal, held equal protection clause addresses the issue of not only segregation but also integration. The court held that the equal protection clause guarantees inclusive education to all. The ‘separate but equal’ doctrine adopted in Plessy v. Ferguson,101 has no place in the field of public education. Title VI, 42 U.S.C. § 2000 et seq., was enacted as part of the Civil Rights Act, 1964. This prohibits discrimination on the basis of race, color and national origin in programs and activities receiving federal financial assistance. Title VI provides that if a recipient of federal assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency providing the assistance should either initiate fund termination proceedings or refer the matter to the Department of Justice for appropriate legal action. In 1963, President John F. Kennedy said, ‘Simple justice requires that public funds, to which all taxpayers of all races (colors, and national origins) contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial (color or national origin) discrimination’.102 Title VII of the Civil Rights Act of 1964 prohibits in different employment circumstances, discrimination based on race, color, religion, sex and national origin. The purpose of Title VII’s protection is to ‘level the playing field’ by forcing employers to consider only objective, job-related criteria in making employment decisions. The Act also makes it unlawful to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.103 For example, it would not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to bona fide seniority, merit or incentive systems, as long as such differences were not the result of an intention to discriminate on the grounds of race, color, religion, sex or national origin.104 This provision is similar to that of Article 16(2) of the Indian Constitution. Title VII did not impose Affirmative action duties on employers, it authorised courts to order appropriate affirmative action as a remedy upon a finding of an intentional unlawful employment practice. U.S. President Lyndon B. Johnson in his Commencement Address at Howard University delivered on 4thJune, 1965 said, “You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair…. This is the next and more profound stage of battle for civil rights. We seek not just freedom but opportunity—not legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a 101

Plessy v. Ferguson163 U.S.537. Title VI of the Civil Rights Act of 1984, the United States Department of Justice, (June 30, 2022, 12.00 PM), https://www.justice.gov/crt/fcs/TitleVI. 103 Laws Enforced by the Employment Litigation Section, Title VII of the Civil Rights Act of 1984, the United States Department of Justice, https://www.justice.gov/crt/laws-enforced-employmentlitigation-section. 104 This provision is similar to that of Article 16(2) of the Indian Constitution. 102

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result…. That beginning is freedom; and the barriers to that freedom are tumbling down. Freedom is the right to share, share fully and equally, in American society…to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others…. For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in the society, to develop their abilities—physical, mental and spiritual, and to pursue their individual happiness…’. He further said, ‘to this end equal opportunity is essential, but not enough, not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family that you live with, and the neighbourhood you live in—by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man’.105 As a result of the Title VII of the Civil Rights Act, 1964, many colleges and professional schools started to recruit minority students as a part of their education mission. Ultimately, this led to these institutions initiating admission policies that took race into consideration. These policies increased admission for African Americans and Hispanics at predominately white institutions. In Regents of University of California v. Bakke,106 for the first time in U.S. the question about the legality of affirmative action policies in higher education was raised. This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission of a specified number of students from certain minority groups. In this case, the Superior Court of California held that the Regents of University of California special admission programme violated the California Constitution, Title VI of the Civil Rights Act, 1964, and the Equal Protection Clause of the Fourteenth Amendment. According to the facts of the case, a special program consisted of a separate admission process for increasing the representation of disadvantaged students in medical school operating in coordination with the regular admission process is being started by the Regents University. The cut-off for the special admission for disadvantaged groups was lower compared to the regular admission. Bakke who did not comply with the cut-off for regular admission, protested that the special admissions program reserved for disadvantaged section, having lower cut-off is operating as a racial and ethnic quota. The U.S. Supreme Court stated that ‘in order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary…. to the accomplishment’ of its purpose or the safeguarding of its interest….The special admissions program purports to serve the purposes of: (i) ‘reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical 105 106

Johnson [11]. Regents of University of California v. Bakke, 438 U.S. 265 (1978).

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profession; (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently undeserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which if any, of these purposes is substantial enough to support the use of a suspect classification’. According to the U.S. Supreme Court stated that a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. The Regents University’s broad mission is education, and not to make any statutory policies. The purpose of helping certain groups whom the Regents University perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admission programme are thought to have suffered. With reference to the argument of the Regents University, about the goal of attainment of diverse student body, the apex court held that the academic freedom, though not a specially enumerated constitutional right, long has been viewed as a special concern of the First Amendment, hence it is the freedom of the University to make its own judgments as to education includes the selection of its student body. According to Mr. Justice Frankfurter, among the four essential freedoms, one is the academic freedom.107 The apex court agreed that ethnic diversity on campus is one of the essential facets of academic freedom of educational institution, but to attain this objective, whether racial classification through special admission process is essential is the issue to be considered, when they are disregarding the individual rights guaranteed by the U.S. Constitution. The U.S. Supreme Court ruled that the establishment or use of “racial quotas” in determining admission violates the Equal Protection Clause of the fourteenth Amendment; however, institutions of higher learning can still consider race as one factor, among many, in the admission process. According to Justice Powell, no quota system, but race sensitive admissions are permitted. Bakke and Thomas rulings belong to same era. Comparing both the case-laws and the affirmative programmes of US and India, it can be said that while Bakke invalidated the use of quotas, Thomas upheld the quotas, though both the cases dealt with ‘reverse discrimination’. Bakke judgment, though restricted the quota based reservation system, but left the door open for benign preferences to continue. The issue of constitutional validity over the permissibility of affirmative action under the Equal Protection Clause of the Fourteenth Amendment still is not solved.

107

Sweezy v. New Hampshire, 354 U.S.234, 263 (1957) (concurring result).

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Later, in United States v. Paradise,108 the U.S. supreme court approved the ‘temporary quotas’ which are intended to achieve a certain percentage of minorities in the work force. The court in this case ordered that ‘for a period of time’, at least 50% of those promoted to corporal must be black, if qualified black candidates were available, and imposed a 50% promotional requirement in the other upper ranks, but only if there were qualified black candidates, if a particular rank were less that 25% black, and if the Department had not developed and implemented a promotion plan without adverse impact for the relevant rank. This case reflects that under Title VII, mathematical ratios and ‘membership goals’ were upheld.109 From Bekke onwards, different debates were in lime light about the affirmative action policies in higher education. After 25 years, i.e., in Grutter v. Bollinger,110 again the question regarding affirmative action policies in higher education is being raised. As per the facts of this case, the University of Michigan Law School follows an official admission policy that seeks to achieve student body diversity. Focusing on students’ academic ability coupled with a flexible assessment of their talents, experiences, and potential, the policy requires admissions officials to evaluate each applicant based on all the information available in the file and the applicant’s undergraduate grade point average and Law School Admission Test score. Additionally, officials must look beyond grades and scores to other characteristics of the student. The policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for ‘substantial weight’ but it does reaffirm the Law school’s commitment to diversity with special reference to the inclusion of certain racial background, who otherwise might not be represented in the student body in meaningful numbers. When the admission policy is being challenged for violation of equal protection clause, Title VI of the Civil Rights Act, 1964. The U.S. Supreme Court in this case held that the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI. Justice Sandra O’Connor who delivered the opinion of the Court, stated that the policy does not restrict the types of diversity contributions eligible for ‘substantial weight’ in the admissions process, but instead recognizes ‘many possible bases for diversity admissions’. The policy reaffirms the Law Schools’ longstanding commitment to ‘one particular type of diversity’, that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated, who without this commitment might not be represented in our student body in meaningful numbers.

108

United States v. Paradise 480 U.S. 149 (1987). See also Local 28, Sheet Metal Workers Int’l Ass’n v. EEOC, 478 U.S. 421 (1986), United Steelworkers of America v. Weber, 433 U.S. 193 (1979); Fullilove v. Klutznick, 448 U.S. 448 (1980). 110 Grutter v. Bollinger 539 U.S. 306 (2003). 109

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He further stated that, ‘We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups… Since this court’s splintered decision in Bakke, Justice Powell’s opinion announcing the judgment of the court has served as the touchstone for constitutional analysis of race-conscious admissions policies. …..Justice Powell rejected an interest in “reducing the historic deficit of traditionally disfavoured minorities in medical schools and in the medical profession” as an unlawful interest in racial balancing……..Justice Powell rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered…. Justice Powell approved the University’s use of race to further only one interest: “the attainment of a diverse student body.”… As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students”… the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce…. Those benefits are substantial. As the District Court emphasized, the Law School’s admission policy promotes “cross-racial understanding.” Helps to break down racial stereotypes, and “enables students to better understand persons of different races”…….. we agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admission program does not unduly harm nonminority applicants…….. In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.’ Justice Thomas and Justice Scalia who concurred in part and dissented in part with the majority judgment held that, ‘I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admission policies when such devotion ripens into racial discrimination….The majority upholds the Law School’s racial discrimination not by interpreting the people’s constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the court’s opinion… I agree with the court’s holding that racial discrimination in higher education admissions will be illegal in 25 years….. I respectfully dissent from the remainder of the court’s opinion and the judgment, however, because I believe that the law School’s current use of race violates the Equal Protection clause and that the Constitution means the same thing today as it will in 300 months… The Constitution abhors classifications based on race, not only because those classifications can harm favoured races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.’

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Justice Thomas in his dissenting opinion, referred to the speech of Frederick Douglass, delivered in Boston, Massachusetts on 26th January 1865, ‘In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us…. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! …. And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!…. Yours intereference is doing him positive injury.” He said that the majority in this case upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti. In Gratz v. Regents,111 decided in the same year as Grutter, the U.S. Supreme Court ruled that the university’s undergraduate College of Literature, Science, and Arts could not use an admission process that awarded points based on an applicant’s race and ethnicity. The decisions by the Supreme Court have now changed the future of affirmative action in the undergraduate admission process, given that race and ethnicity cannot be awarded “extra” points to help admit certain applicants. On May 9, 2022, in Students for Fair Admissions Inc. (SFFA), v. President and Fellows of Harvard College and Et Al.,112 the U.S. Supreme Court while answering the petition filed by SFFA alleging that Harvard University, that its raceconscious admission program discriminated against Asian American applicants.113 The Supreme court in this case stated that Grutter endorsed racial objectives that are amorphous and unmeasurable and thus incapable of narrow tailing. According to the court, ‘unsurprisingly then, Universities have used Grutter as a licence to engage in outright racial balancing……’.Reiterating the dissenting opinion of Mosk J., in Price v. Civil Serv. Comm’n,114 ‘Our nation gave its word over and over again: it promised in every document of more than two centuries of history that all persons shall be treated equality…’the apex court quoted Justice Harlan, ‘Our Constitution, is color-blind, and neither knows nor tolerates classes among citizens’.115 In this case, the Supreme Court said that ‘Harvard’s flagrant violations of Title VI, it fails strict scrutiny even under Grutter…..Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less 111

Gratz v. Regents 539 U.S. 244 (2003). Students for Fair Admissions Inc. (SFFA), v. President and Fellows of Harvard College and Et Al., 980 F.3d 157 (1st Cir. 2020). 113 Students for Fair Admissions Inc. (SFFA), v. President and Fellows of Harvard College and Et Al., Constitutional Law, HARVARD LAW REVIEW, (July 2, 2022, 4.00 PM), https://harvardlawre view.org/2021/05/students-for-fair-admissions-inc-v-president-and-fellows-of-harvard-college/. 114 Price v. Civil Serv. Comm’n604 P.2d 1365, 1390 (Cal. 1980) (Mosk J., Judgment). 115 Plessy v. Ferugson, 163 U.S. 537, 559 (1896) (Harlan J., dissenting). 112

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likable and kind. This is reason enough to grant review. That Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort. All of this makes intervention that much more urgent’. In this case, the U.S. Supreme Court overruled Grutterand held Brown right. The Supreme Court in this regard quoted the dissenting judgment of Justice Harlan in Plessy116 that, ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. According to the Supreme Court, Grutter conflicted with the Fourteenth Amendment’s ‘historical meaning’ and also the equal protection jurisprudence.117 According to the court, creating a racially diverse faculty to provide ‘role models’ for minority students, providing racially diversified environment to the students to prepare them for an increasingly diverse workforce and society isn’t compelling reason…it is treating the minorities as tools of learning for the others, mostly white students…the law presumes that racial classifications ‘exacerbate rather than reduce racial prejudice’. The court in this case held that Grutter has spawned significant negative consequences. Brown is ‘the single most important and greatest decision in the history of U.S. Constitution and Grutter cannot be a law’. According to court, racial preferences are poisonous and will stimulate our society’s latent race consciousness…..the Grutter policies are far from pursuing integration, openly embracing segregation….’ This case reflects that in U.S.A., there is no quota system and affirmative action promoting equal opportunities is only accepted as long as the policies are color-blind.

9 Conclusion Equality is one of the deepest liberal thoughts and is a natural and rational right. Equality is the fundamental necessity and natural urge of every human being. Life without dignity, equality and liberty will be worthless even if provided with the plenty of food, clothing, and shelter. Inequalities are part of society, and no inequality can or will continue forever. The objective of affirmative action shall be to eliminate inequality, not to promote inequality. As laid down by the U.S. Supreme Court in Students for Fair Admissions case, if affirmative action is promoting racial imbalance, leading to segregation, such affirmative action is in actual form class legislation & excessive affirmative action leading to reverse discrimination, and do not form part of equality. The affirmative action of every country is dependent upon the nature and manner constitutional right to equality guaranteed In U.S.A. the 14th Amendment promotes equality and provides affirmative action not on the basis of quota system, but on the basis of equal treatment of all races, a color-blind approach. In India, the affirmative

116

Id. Fourteenth Amendment enshrines the principle that ‘free government demands the abolition of all distinctions founded on color and race’.

117

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action is based on quota system and in order to eliminate the social inequality, legislative inequality is created. In U.S.A., the major social issue is the color discrimination, whereas in India the complex social structure consisting of various ethnicities, races, castes, religions, geographical differences, economic and social disparities cumulatively impact on social inequalities. The forefathers of the Indian Constitution at that time felt that reservation or quota system is the best choice to speed up the process of elimination of social inequality and achieve egalitarianism. Even after 75 years of Independence, the reservation system is still in existence and time and again the efforts are made to meet the demands of both General classes and Backward classes. While addressing the issue of OBCs, concept of creamy layer is being introduced, SCs and STs are exempted from the same. The demand to include certain communities under these quota categories is another highlighted drama faced by the Government, which also has been dealt in a way of balancing the quota and merit.118 50–50 rule is being laid down to balance the merit and quota, but EWS reservation is introduced to meet up the extraordinary circumstances. The understanding that this 50 is for General Class and that 50 is for reserved class is the beginning point of confusion which led to chaos when Neil case started. No one understood that 50 that is presumed to be belonging to the General Class, is actually the merit class and this popular misunderstanding is preventing us to see the meaning of ‘merit’ from the lens of social justice. ‘General Class quota’ when is clarified as ‘Merit Class quota’, the General Classes received the first blow and when ‘Meritorious backward classes’ are transferred to the ‘Merit Class quota’, they received second blow (as the number of General Classes getting into Merit class has drastically reduced as the number of meritorious backward classes has increased), the third blow is the introduction of EWS which overridden the 50–50 rule. As per the statistics, in recent years either in employment or education, under the merit quota 40–45% of seats are occupied by the meritorious backward classes and anyways in reservation quota, their presence is there. It can be illustrated in the following way: If out of 100 seats, 60 are quota seats, they will be anyhow occupied by reserved categories, in the remaining 40, 35 seats are occupied by the meritorious backward classes and only 5 seats are occupied by the General Classes. This frustration is the result of criticism of the judicial affirmation of the reservations for OBCs and EWS in the All-India Quota Seats in NEET for UG and PG medical courses, in Neil Aurelio Nunes and Ors v. Union of India.119 The General Classes felt left out as the reservation has curtailed their opportunities, and quota classes are felt deprived as they yet to achieve social justice. This triggered an unhealthy social division, distancing the Indian society from the reality of social justice and egalitarianism.

118 119

Dr Jaishri Laxman Rao Patil v. The Chief Minister &Ors supra note 70. Neil Aurelio Nunes and Ors v. Union of India, supra note 4.

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The repercussions of such unhealthy social division may be on the social fabric of the society, leading to disharmony among the general classes and the reserved classes. There are even arguments that, ‘in this way, the reservation will never end…and one day General classes may require the reservation because of their zero representation in government services’. This danger of promoting inequality, by way of legislatively permitted affirmative inequality is to be answered with a perfect strategy. Some of the suggestions may be as follows: • • • • •

Strict application of creamy layer among OBCs Strict requirements and compliances for EWSs Exploring the possibility of introduction of creamy layer among SCs and STs Limiting the reservation percentage to 50–50 rule Ironfist approach against misuse of the reservation system.

The contentions of the General Class that those reserved class candidates who are already in Government jobs, drawing high salaries, enjoying good economic, political and social status are still enjoying the fruits of reservation, should be addressed so that social justice do not become excessive burden on the rest of the society, and at the same time have negative effect on the noble cause behind the introduction of quota system.

References 1. Holtmaat, Rikki. “The Concept of Discrimination”,ACADEMY OF EUROPEAN LAW CONFERENCE PAPER, 2, (2004) (June 18, 2022 11.00 AM). http://www.era.int/web/en/ resources/5_1095_2953_file_en.4193.pdf. 2. S. Gosepath, ‘Equality’,STANFORD ENCYCLOPAEDIA OF PHILOSOPHY, (June 20, 2022, 12.00 PM), https://plato.stanford.edu/entries/equality/#ForEqu. 3. WESSON, MURRAY. “EQUALITY AND SOCIAL RIGHTS: AN EXPLORATION IN LIGHT OF THE SOUTH AFRICAN CONSTITUTION”, PUBLIC LAW, 751 (2007). 4. Sandra Fredman, Substantive equality revisited,14 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, 3, 712–738, (2016). 5. Sanjay Sonawani, The Origins of Caste System: A New Perspective,(June 14, 2022, 12.00 AM) https://www.researchgate.net/publication/321299546. 6. Dr Prabhakar Harishchandra Waghodekar, Indian Journey from Varnashrama to Caste based Reservation Policy: An Overview,6 Social Vision 3(2019), ((June 14, 2022, 12.00 AM) https://www.researchgate.net/publication/339041201_Indian_journey_from_Var nashrama_to_Caste_based_Reservation_Policy_An_overview. 7. Ben Heath, The Impact of European Colonialism on the Indian Caste System,EINTERNATIONAL RELATIONS, November 26, 2012, (June 14, 2022, 12.30 AM) https:// www.e-ir.info/2012/11/26/the-impact-of-european-colonialism-on-the-indian-caste-system/. 8. Padmanabh Samarendra, Census in Colonial India and the Birth of Caste, 33 EPW JOURNAL 46, (2011), (June 21, 2022, 9 AM), https://www.epw.in/journal/2011/33/special-articles/cen sus-colonial-india-and-birth-caste.html. 9. Kevin Hobson, Ethnographic Mapping and the Construction of the British Census in India, The Indian Caste System and the British, The British Empire,(June 21, 2022, 9 AM), https:// www.britishempire.co.uk/article/castesystem.htm.

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10. Macdonell. A. A, ‘The Early History of Caste’, 19 THE AMERICAN HISTORICAL REVIEW, 2, 234, (1914). 11. Bhagwan Das, Moments in a History of Reservations, ECONOMIC AND POLITICAL WEEKLY, 3821–3834, (2000), (June 24, 2022, 5.00 PM), http://www.ambedkar.org/research/ Bhagwandas.pdf. 12. Sujay Biswas, Gandhi, Ambedkar and British policy on the Communal Award, 5 STUDIES IN PEOPLE’S HISTORY, 1, 48–64, (2018). 13. SIR N.N.SIRCAR, KT, BENGAL UNDER COMMUNAL AWARD AND POONA PACT,(Servants of India Society’s, Branch Library, Bombay, The Book Company Ltd., Calcutta, 1933), (June 14, 2022, 7.00 PM), https://dspace.gipe.ac.in/xmlui/bitstream/handle/ 10973/49517/GIPE-064844.pdf?sequence=3. 14. Uday Balkrishnan, Ambedkar and the Poona Pact, The Hindu, April 13, 2020, (June 21, 2002, 7.30 PM) https://www.thehindu.com/opinion/op-ed/ambedkar-and-the-poona-pact/art icle31333684.ece. 15. Venkatesan J., Merit candidates can migrate to reserved category in civil services: court, THE HINDU, May 8, 2010, (June 28, 2022 10.00 AM), https://www.thehindu.com/news/Merit-can didates-can-migrate-to-reserved-category-in-civil-services-court/article16299183.ece?hom epage=true. 16. Dorothy F. Garrison-Wade and Dr.ChanceW.Lewis, Affirmative Action: History and Analysis, Journal of College Admission, 23–26 (Summer, 2004), (June 29, 2022, 12.00 AM), https:// files.eric.ed.gov/fulltext/EJ682488.pdf. 17. Stephen L. Wasby, “Compensatory Discrimination” and American “Affirmative Action”: Some Parallels - A Review of Galanter’s Competing Equalities, 8 LAW & POL’Y 379, 380 (1986). 18. Lyndon B. Johnson, 36th President of the United States: 1963 – 1969, Commencement Address at Howard University: “To Fulfill these Rights”, June 04, 1964, The American Presidency Project, (July 1, 2022, 1.00 PM), https://www.presidency.ucsb.edu/documents/commencem ent-address-howard-university-fulfill-these-rights.

Separation of Power and Judicial Independence in the Context of the United States and the Indian Constitution: A Cratologial Critique Irfan Rasool Najar

1 Introduction Separation of power, as it is argued in constitutional discourse, is an ideal to which the legal and constitutional arrangements of a modern state ought to conform and occupies a position of deep ambivalence. Separation of power,1 at least in its classical perspective,2 means division3 between the three organs of the state. The origin of

1 According to Aileen, it is a legal and constitutional arrangement to which modern states confirm to. See Kavanagh [1]. 2 According to Gwyn, the concept of separated powers as a political doctrine has, of course, existed at least since the middle of the seventeenth century. Of the various theorists who wrote of the need to divide governmental powers among different institutions, Montesquieu most influenced the Framers.” See Gwyn [2]. See also THE FEDERALIST No. 78, 523 (J. Cooke ed. 1961) (recognizing the celebrated status of Montesquieu on the issue of separation of powers). For further details refer to Burns and Markman [3]. 3 Aileen Kavanagh expounds what he calls ‘the pure view’ of the separation of powers comprising of a separation of institutions, a separation of functions, and a separation of personnel. See supra note 1, at 225.

I. R. Najar (B) CAIL, Bengaluru, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_4

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separation of power, according to Robinson, can be attributed to Aristotle’s treaties on Politics where he described three agencies of government.4 John Locke5 and Baron de Montesquieu,6 can be said, further expanded the theory. For M.J.C. Vile for the establishment and maintenance of political liberty it was essential that the government be divided into three branches or departments, the legislature, the executive and the judiciary with corresponding identifiable functions and in this way each of the branches will be a check to others.7 Separation of power within the organization of state implies not only dividing the responsibilities8 amongst three separate branches and enumerating what they can and cannot do, but also, within its broader perspective, involves the power to keep checks and balances.9

4

See for details Robinson [4]. With the birth of Parliament, the theory of three branches of government reappeared, this time embodied in John Locke’s Two Treatises of Government (1689), where these three powers were defined as “legislative,” “executive,” and “federative.” Locke, however, did not consider the three branches to be co-equal, nor were they designed to operate independently. Locke considered the legislative branch to be supreme, while the executive and federative functions-internal and external affairs, respectively-were left within the control of the monarch, a scheme which obviously corresponded with the dual form of government prevailing in England at the time, the Parliament and the King. See for example See Gwyn [2]; see also Shestack [5]. It is stated by Jerome that “the theory of three branches of government was embodied in John Locke’s Two Treaties of Government which was refined and expanded by Baron de Montesquieu, whose Spirit of the Laws and made a clear delineations among the three branches.” It may be noted that John Locke did not treat judging as a separate power in the Two Treatises of Government. 6 The doctrine was refined and expanded by Baron de Montesquieu, whose Spirit of the Laws appeared in 1748 and was well known to many members of the Constitutional Convention. Montesquieu wrote: When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or the people, to exercise those three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cases of individuals. See generally THE SPIRIT OF LAW: CHARLES DE SECONDAT BARON DE MONTESQUIEU 173 (Tr., Thomas Nugent, 1752) (available at: https://socialsciences.mcmaster. ca/econ/ugcm/3ll3/montesquieu/spiritoflaws.pdf) (Last visited 10 Dec. 2021). 7 Vile [6]. 8 See Arnold supra note at 575. 9 Separation of power does not operate alone, as identified by Jeremy Waldron, as a canonical principle of constitutionalism but work both separately and together, which include ‘checks and balances principle’, as one among the other four, as touchstone of institutional legitimacy. See Waldron [7]. 5

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The creation of the culture of judicial independence has been a combined process of theory of an autonomous body, separation of power, and the ability of the judges to declare law without fear and influence.10 This process consisting of an autonomous body, separation of power, and power of judicial review is normally assured through the Constitution. In this article, in the given context, an attempt is made to cratologically analyze the doctrine of separation of powers and judicial independence within the context of power spectrum in relation to US and Indian Constitutions. For this purpose the paper has been divided into four parts. Part I deals with the cratological perspective of separation of powers. Part II of the paper deals with the establishment of constitutional courts, as an essential part of separation of power principle. Part III lays bare on the appointment of judges and Part IV bares reference to the conclusion.

2 Part I—Separation of Power: A Cratological Brief A constitution is a set of norms governing the relations between the power holders and the power addressees, as identified by Karl Loewenstein, as well as the interactions of the power holders in the formation of the will of the state. Constitutions are of two main kinds11 : normative or nominal. Where norms for exercise of power are set down in the Constitution itself, having specific provisions indicating the constraints, instruction and division of power within the organization of the State, it becomes a controlling Constitution and wherein the judiciary is conceived as policy controlling having the authority to declare the law. Written constitutions can be nominal as in the case of Russia, China or Sri Lanka where the Parliament is made supreme by 10

According to M P Singh, “the independence of the judiciary is not a new concept but its meaning is still imprecise. The starting and the central point of the concept is apparently the doctrine of the separation of powers. Therefore, primarily it means the independence of the judiciary from the executive and the legislature… The independence of the judiciary does not mean just the creation of an autonomous institution free from the control and influence of the executive and the legislature. The underlying purpose of the independence of the judiciary is that judges must be able to decide a dispute before them according to law, uninfluenced by any other factor.” See Singh [8]. See also Shetreet who has argued that judiciary is “the organ of government not forming part of the executive or the legislative, which is not subject to personal, substantive and collective controls, and which performs the primary function of adjudication.” He has further argued that by judicial independence, it connotes both the “judge’s substantive”, meaning subjection to no power other than the law and “personal independence”, meaning securing terms of tenure and office. See for details Shetreet [9]. See also Shetreet [10]. Shetreet argues that the “principles of independence in the judiciary are essential for ensuring the rule of law, protecting human rights, and securing the continued preservation and development of democratic societies.” 11 For a details classification of constitutions based on the power and control of power, refer to LOEWENSTEIN [11]. See also Jenkins [12] (describing constitutions either to be paradigmatic, operating primarily upon the underlying normativity or definitive, operating on the basis of institutional structures and procedures, circumscribe the limits of government actions beyond where they cannot stray, as opposed to where they should not stray.)

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allowing it to override judicial decisions without any need to amend the written Constitution, or the courts are denied power to review laws, it becomes only a broad guide of what can be done till the supreme legislature decides otherwise.

2.1 Constitution of the United States and Separation of Powers The principle of separation of powers is a defining politico-legal characteristic of the US Constitution.12 The doctrine of separation of powers, it can be said, was reasonably well developed by 1787 when the framers of the American Constitution13 met to draft the provisions of the Constitution.14 When the Founding Fathers gathered in Philadelphia in 1787 to draft the United States Constitution,15 the concept of separation of powers was a fundamental political maxim which dominated the thinking of many of the members of the Constitutional Convention. A substantial number of the draftsmen arrived predisposed toward creating a government separated into three co-equal branches-the executive, the legislative, and the judicial.16 The US Constitution confers and distributes amongst the three branches the sum of the national government power, stating that all legislative powers shall vest in the Congress, that the executive power shall vest in a President and that the judicial power shall vest

12

The principle of separation of powers may be said to “define the very character of the American political system,” WOOD [13]. See for example observation of the Supreme Court in the case of Nixon v. Administrator of Gen. Servs. (1977) that “Indeed, the principle of separation of powers was “the characteristic that distinguished our system from all others conceived up to the time of our Constitution.”” See also Cooper [14]. Cooper has stated that “the doctrine of separation of powers continues to shape American constitutional structure.” 13 For contra see Manning [15]. Manning make a proposition that separation of power was not a principle of the US Constitution and it unmistakably lies behind the Constitution, but it was not adopted as a wholesale. See also Burns and Markman [3]. Arnold and Stephen has argued that “it would be a mistake to assume that Montesquieu’s view of separation of powers - or any other particular view, for that matter - was specifically incorporated into the Constitution or intended to dictate our understanding of the constitutional structure of our government.” 14 Ervin [16]. 15 In Buckley v. Valeo, 424 U.S. 1, 124 (1976), it was observed the court that “the principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.” Also in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) Frankfurter, J., in a concurring opinion held that “to be sure, the content of the three authorities of government is not to be derived from an abstract analysis …. The Constitution is a framework for government.” 16 See supra note 14.

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in the supreme court of the United States.17 Thus, the text18 of the US Constitution makes clear separation of powers19 with only the Congress having the power to make policies, while policy implementation and policy adjudication is confined to the President and the US Supreme Court respectively.20

2.2 Constitution of India and Separation of Powers In Indian perspective,21 which I argue is not the case, it is generally presumed that separation of powers has no place in strict sense, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the government could not usurp the function of another. The Supreme Courts has also

17

Fellman [17]. See for example Entin, who argued that though “the term “separation of powers” appears nowhere in the Constitution. Nevertheless, the division of federal authority among three distinct but interdependent branches is one of the defining features of the American governmental system.” See Entin [18]. 19 For details see Fairlie [19]; see also Ervin [20]. 20 It may be noted that at many occasions the United States Supreme Court held that powers assigned to each organ are to be performed alone by vestees only. See for example the decision of the Supreme Court in the case of Field v Clark (1892) in which the court ruled in accordance with Locke’s principle and states that “Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” See also in the case of J W Hampton & Co v United States in which the court ruled that “the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President.” 21 See for example as observed by Bakshi that “there is no express declaration of the doctrine of separation of powers in the Indian Constitution.” See Bakshi [21]. 18

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at many occasions maintained that the separation of powers cannot be practiced in its classical sense,22 however its political usefulness23 is widely recognized.24 It is pertinent to note that Article 53(1) vests the executive powers of the Union with the President and so also, Article 154(1) vests the executive powers of the state with the Governor. What is vested by the Constitution, remains vested there? It is also to be noted that the same Articles, respectively, allows the power to be exercised directly by the vestees or through officers subordinate to them but in accordance with this Constitution. In this context Articles 256, 257(1) and 356(1) also becomes relevant. These vesting articles in their respective clause 3 allows legislature to allocate functions only by law to other authorities but that will not, legally speaking, effect the significance of Article 53(1) or 154(1) which vests the powers to be exercised by the President and Governors or officers subordinate to them. Also Article 74 and 163 of the Constitution speak to functions only and not to powers. The executive power thus stands strictly separated out and vested with indications as to where and as to how it can flow. Article 245 which reads as “Subject to the provisions of this Constitution” among which Article 13(1) and 13(2) stand out for denying power to laws which fall to their axes, they make them void ab initio, not voidable. This also means that the legislature can only allocate functions, what to be done, and by whom.

22

It has been laid down by the Supreme Court in the case of Ram Jawaya Kapoor v State of Punjab that: Indian constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our constitution does not contemplate assumption by one organ or part of the state of the functions that essentially belong to another. Also in the case of Sub-Committee on Judicial Accountability v. Union of India & Ors, Justice B.C. Ray opined that: Although the powers of State have been distributed by the Constitution amongst the three limbs, that is the Legislature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas...that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution. The same view has been taken by Y V Chandrachud J., in the case of A. K. Roy v. Union of India that: There is no place in our Constitution for the doctrine of the political question, since that doctrine is based on, and is a consequence of, a rigid separation of powers in the U.S Constitution and our Constitution is not based on a rigid separation of powers. 23 In Keshvananada case, the Supreme Court has however held that without detailing, that the separation of powers is basic structure of the Constitution. In Indira Gandhi v. Raj Narian where one of the grounds for the challenge was separation of powers, among others. The court in this case noted that there is a broad separation of powers in India, as opposed to the strict separation of powers as recognized in America. 24 See for example the observation of Chandrachud J., in the case of Indira Nehru Gandhi v. Raj Narain that “political usefulness of the doctrine of separation of powers is now widely recognized…”

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Article 129 and 215 speak of powers of the Supreme Court and High Courts. Article 32(2) speaks of the powers of the Supreme Court for enforcement of fundamental rights and thus judicial independence is in saying authoritatively what the law “is” without favour, affection or ill-will. So the Constitution of India has clear provisions of separation of power.

3 Part II—Establishment of Constitutional Court A constitutional court, constitutionally established organ of the State, is vested with the power to review only the policy making and policy implementation and declare whether they are constitutional within the framework of superior norm, usually a constitution.25 It may be noted that Hans Kelsen’s26 theory27 for the establishment of an extrajudicial28 body was instrumental, as argued, to effectively restrain the legislature and the executive organs of the state act contrarily to the spirit of constitutional philosophy29 and permitted power. The author, however, appreciating the difference between the constitutional courts and the Supreme Court, intends only to give limited interpretation to the term constitutional courts, meaning thereby a separate independent organ with the power to state what the law is. In this context, is it pertinent to refer to Article 124 of the Indian Constitution and Article III of the American Constitution. Article 124 of the Indian Constitution provides for the establishment of the Supreme Court as an autonomous body and having the power to declare the law which will be binding on all courts within the territory of India.30 Article III, Section 1 of the US Constitution provides that “the judicial power of the United States shall be vested on one Supreme Court and in such inferior courts as

25

(Available at: https://www.idea.int/sites/default/files/publications/the-fundamentals-of-constitut ional-courts.pdf) (Last visited 28 Dec. 2021). 26 For a general discussion, see A. STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (2000). Also see Kelsen [22]. 27 In conceptualizing the Austrian Constitutional Court Hans Kelsen followed in the footsteps of Georg Jellinek. Back in 1885 Jellinek had demanded a Constitutional Court for Austria. In his view such a court was sorely needed, given the existence of numerous cases of parliamentary injustice. See for further details Ehs [23]. 28 It is defined by Alec Stone Sweet as ‘a constitutionally established, independent organ of the state whose central purpose is to defend the normative superiority of constitutional law within the juridical order’. See Stone [24]. 29 Kelsen always used the design of constitutional courts in Austria as a prime example to justify the Pure Theory of Law against the allegation of being too abstract.…. The practical reason for introducing the term “constitutional court” for the first time in a constitution has been to defend the constitution itself against unconstitutional acts. See for details Tetzlaff [25]. 30 Article 141 of the Constitution reads as: The law declared by the Supreme Court shall be binding on all courts within the territory of India.

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the congress may from time to time ordain and establish31 ”. The very words that the “judicial power shall vest in one supreme court” implies for as separate and distinct organ of the State having the authority as mandated by the Constitution. As a constitutional tool, to check and balance other organs, independent judiciary is established to state authoritatively what the law is.32 This idea of separate institutions to be vested with distinct functions and powers however is a result of gradual development and has been refined slowly over many centuries by judiciary. To correct the abuse of power and check against tyranny,33 the founding fathers turned to the doctrine of separation of powers, including an independent judiciary and this has been consistently reminded off by the Supreme Court.

4 Part III—Appointment of Judges The most important aspect in the independence of the judiciary is its constitutional position, appointment of judges to the higher judiciary assumes utmost importance in the context of independence of the judiciary.34 Just as the constitution provides for the composition and powers of the executive and the legislature, it provides the composition for the judiciary, to ensure its independence and decision-making power without fear or favour.35 The selection of proper judges is of fundamental importance to the progress of the nation, and the selection of judges has necessarily to be made with the utmost care.

4.1 US Constitutional Context The judicial structure in United States is a hierarchy of two parallel judicial institutions with states having its own judicial hierarchy according to its own constitutions and a federal court structure with the Supreme Court of United States as the highest

31

In this context, it is pertinent to note that Article 247 of the Indian Constitution empowers the Parliament to establish additional courts for the better administration of justice. Also Article 32(3) empowers the Parliament to confer on any other court the power to exercise all or any powers of the Supreme Court. However even in this situation only the Supreme Court will have the power to declare the law by virtue of Article 141 of the Constitution. 32 For detailed discussion on the concept of independence of the judiciary. Refer to Salzberger [26]. 33 See for example the dissenting opinion of Justice Brandeis in the case of Myers v United States (1926) where he used the concept as an essential safeguard against tyranny: The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. 34 See Shetreet [27]. 35 As Harold J. Laski has observed “Judicial independence is the first requisite of judicial purity; it is the primary consideration to be satisfied in the making of selective criteria. Laski [28].

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federal court36 which deals with federal matters established by Congress.37 In US, the judges are appointed by the President with the advice and consent of the Senate, hold office for life and receive compensations that may not be diminished during their continuance in office. The President and the Senate operate in conjunction in the matter of appointing judges to the Supreme Court. Under the constitutional scheme,38 the initiation of the selection process is done by the President and the process culminates with the decision of the Senate. The power of nominating a person for the judgeship of the Supreme Court is the exclusive authority of the President. One peculiarity of the constitutional scheme of the United States concerning the appointment of Supreme Court judges is that, the Constitution prescribes no qualification for a person to be appointed as a judge of the Supreme Court, or for that matter, of any federal court. There is no constitutional or statutory requirement which must be fulfilled for a person to be appointed as a judge of the Supreme Court. Thus, the appointment process of a Supreme Court judge requires only the procedural mandate of nomination by the President and confirmation by the Senate for its constitutional validity.

5 Indian Constitutional Context The Constitution of India established the bare process for appointments to the Supreme Court.39 The appointment of Judges of the Supreme Court and their removal are governed by Article 124 of the Constitution of India.40 Articles.125 to 129 provide for certain incidental matters. The appointment and removal of the Judges of the High Courts are governed by Article 217.41 Articles 218–221 and 223–224A provide for certain matters incidental thereto. Article 222 provides for transfer of Judges from 36

Initially established under the Judiciary Act of 1789, the Federal Supreme Court of United States is the highest court in the federal structure and has historically been regarded as one of the most powerful and influential judicial institutions of the world. 37 See Miller [29]. 38 Tushnet [30]. 39 Austin [31]. 40 In respect of judges of the Supreme Court of India, Article 124(2) provides: Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the chief Justice, the Chief Justice of India shall always be consulted. 41 In respect of judges of the High Courts, Article 217(1) provides: Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

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one High Court to another. The Constitution of India has provided that the President of India is to appoint judges of the Supreme Court and the High Court’s after consultation with Chief Justice of India, and with such other judges and authorities mentioned in Articles 124(2) and 217(1). Initially the Law Commission of India in 1958 and 1976 highlighted in their reports the dire need to adopt the changes in the process and manner of the selection of judges to the Higher Judiciary. These reforms and methods proposed by the Law Commission were felt as an intrusion in the judicial independence. With this background of interference in judicial appointments, the supreme Court was led to decide and settle the question pertaining to the process of appointment of judges in three cases of S.P. Gupta v. Union of India,42 Supreme Court Advocates on Record Association v. Union of India43 and In re Presidential Reference,44 and Supreme Court Advocates on Record Association and another v. Union of India known for convenience as the First, Second, Third and Fourth Judge’s cases. In pursuit of finding alternate to the process of appointment of judges, Articles 124 and 217 were inter alia amended,45 and was also enacted the National Judicial Appointment Commission Act, 2014 (NJAC) which was declared unconstitutional and void in the case of Supreme Court Advocates on Record Association and another v. Union of India in 2015.46 It may be, 42

In this case the above stated appointment was challenged and the Hon’ble Supreme Court gave verdict in favour of upper hand in appointment given to the executive. The court stated that the constitution has provisions regarding ‘consultation’ with the CJI and judges of the SC and the HC and it does not imply ‘concurrence’ with the recommendation of the CJI. Hence, the executive continued to have final say in the appointment procedure. 43 This is the landmark judgment of the Apex Court that gave birth to the system for appointment of judges of the Supreme Court and the High Court, called the Collegium System.’ A nine judge Constitution bench over-ruled the verdict of SP Gupta case and brought the system of Collegium in place, whereby the CJI along with two senior most judges of the court was give power to recommend the names for the appointment. According to the Supreme Court, this recommendation was to be given effect by the executive. However, the executive was authorized to question the recommendation once and thereafter if the same decision is reached by the collegium again, that was supposed to be declared final. The court stated that, “The role of CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. The word ‘Consultation’ should be understood as ‘concurrence.’ 44 The decision of the constitution bench in the Second Judges Case was upheld by the Supreme Court. The court however increased the number of judges to be consulted by the CJI to four from existing two. The CJI was required to consult each and every one of the four judges and the same could be sent to the executive, only if passed unanimously. Hence, this collegium system is still in practice. 45 Articles 124A, 124B and 124C were inserted in the Constitution, through the Constitution (Ninety-Ninth Amendment) Act, 2014. 46 The challenge was on the ground that by virtue of the said amendment and the said Act, the basic structure of the Constitution of India has been altered and therefore, they should be set aside. However, the Union government defended the introduction of the new law saying that the two-decade-old collegium system where judges appointed judges was not free from defects and demanded a re-look at the 1993 and 1998 judgments in the Second and Third Judges’ Cases. The Bench, by a majority of 4:1, rejected the NJAC Act and the Constitutional Amendment as

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however, noted that under the NJAC Act, the National Judicial Appointment Commission had to recommend to the President the names of persons found eligible by them for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts. While this took away from the Collegium of judges the power to decide who shall be judges of the superior courts, a power they had usurped to themselves by a dubious interpretation of Article 124, the Act, itself apparently un-necessary to negative a per incuriam decision, attempted too little for ensuring independence of the judiciary and merely sought to substitute a constitutional Commission for a Collegium.

6 Part IV—Conclusion The doctrine of separation of powers counsels a qualitative separation of the different functions and powers of government—the legislature, the executive, and the judiciary. The justification for the separation of powers can be traced back to the writings of Aristotle, John Locke, Montesquieu, and stand reflected in the writings of Prof. Vile, etc., and many other political philosophers, political scientists. It can be safely stated that the American Constitution was the first attempt at a written text which necessarily compromised several opposing power factors to transit from the confederalism it was to a political federalism. The Federalist Papers give a detailed account of how the Constitution was drafted for the transition and how separation of powers was adopted as one of the politico-legal principles. Articles I, II, and III of the U.S. Constitution only purport to allocate powers to the three branches of the government. This separation of powers was also given tacit recognition by the U.S. Supreme Court in a number of decisions. On the other hand in the Indian context, the Supreme Court of India has failed to state authoritatively that separation of powers is a fundamental characteristic of the Constitution by a dubious interpretation to Articles 53, 74 and 124 of the Constitution. It has further failed to state that the Indian Constitution has specific provisions demarcating specifically the ‘functions’ and ‘powers’ of the organs of the state and therefore under the Indian Constitution, ‘functions’ and ‘powers’ are not interchangeable although they are inter-related. The least that can be said is that the Supreme Court has failed to read and interpret the power spectrum within the Constitution. A political system includes several patterns of institutions, all characterized by the existence of several independent power holders and who are required to co-operate, by pre-established constitutional procedurals, in the formations of the will of the “unconstitutional and void.” And the Supreme Court rejected the government’s demand to take a re-look at the Second and Third Judges’ Cases, which ushered in the Collegium system. The Court held that the Collegium system, as it existed before the NJAC, would again become “operative.” And the Court also rejected the plea of the Central Government that the petitions challenging the NJAC Act be referred to a larger bench.

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state. In this way constitutions are institutional frameworks which provide the basic rules and incentives concerning government formations, the conditions under which governments’ can continue to rule, and the conditions under which their actions can be terminated.47 This requires dividing the powers among various power-holders within which the courts allocated power to state authoritatively what the law is by faithfully submitting to the superior norm.

References 1. AILEEN KAVANAGH, THE CONSTITUTIONAL SEPARATION OF POWERS, 221 (Available at: https://www.law.ox.ac.uk/sites/files/oxlaw/ak_separation_of_powers_philfounds_b ook.pdf) (Last visited 6th Dec. 2021) 2. W.B. Gwyn, The Meaning of the Separation of Powers 9(IX) TULANE STUDIES IN POLITICAL SCIENCE (1965) 3. Arnold I. Burns and Stephen J. Markman, Understanding Separation of Powers, 7 PACE L REV 575 (1987) (available at https://core.ac.uk/download/pdf/46712358.pdf) (last visited 6th Dec. 2021) 4. Robinson, The Division of Governmental Power in Ancient Greece, 18 POLITICAL SCIENCE LAW QUARTERLY 614 (1930). 5. Shestack, Jerome J. The Risks to Judicial Independence 84(6) ABA JOURNAL, 8 (1998) (available at: www.jstor.org/stable/27840267) (Last visited 23 Apr. 2021) 6. MJC VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS, 14, 19 (Ed., 2nd, 1998) 7. Jeremy Waldron, Separation of Power in Thought and Practice? 53 BOSTON COLLEGE LAW REVIEW, 438, 433–467 (2013) 8. M P Singh, Securing the Independence of the Judiciary-The Indian Experience 10(2) Indiana International and Conmperative Law Review, 245, 246–247 (2000) (available at: https://mck inneylaw.iu.edu/iiclr/pdf/vol10p245.pdf) ( Last visited 20 Dec. 2021) 9. Shimon Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE 594 (Shimon Shetreet and Jules Deschenes eds., 1985) 10. Shetreet, Shimon, The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges, 10(1) CHICAGO JOURNAL OF INTERNATIONAL LAW (2009) (Available at: https://chicagounbound.uchicago.edu/cjil/ vol10/iss1/13) (Last visited 20 Dec.2021) 11. KARL LOEWENSTEIN, POLITICAL POWER AND THE GOVERNMENTAL PROCESS (2nd edn., 1965) 12. David Jenkins, From Unwritten to Written: Transformation in the British Common-Law Constitution 36 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 863, 909–911 (2003) (Available at: https://www.ius.uzh.ch/dam/jcr:55defd4d-32d1-4c43-bf71-7098f2475 33e/Transformation_98p.pdf) (Last visited 23 Dec. 2021) 13. G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, 151 (1969) 14. Cooper, Samuel W. Considering ‘Power’ in Separation of Powers 46(2) STANFORD LAW REVIEW, 361 (1994) (Available at: www.jstor.org/stable/1229187) (Last visited Accessed 1 May 2021) 15. John F. Manning,Separation of Powers as Ordinary Interpretation, 124, HARVARD LAW REVIEW, 1939, 1944 (2011) 47

Islami [32].

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16. Ervin, Sam J. Separation of Powers: Judicial Independence 35(1) LAW AND CONTEMPORARY PROBLEMS, 108–127 (1970) (Available at: www.jstor.org/stable/1191032) (Last visited 23 Apr. 20201) 17. Fellman, David The Separation of Powers and the Judiciary 37(3) THE REVIEW OF POLITICS, 357 (1975) (Available at: www.jstor.org/stable/1406203) (Last visited 1 May 20201) 18. Entin, Jonathan L., Separation of Powers, the Political Branches, and the Limits of Judicial Review 51 OHIO STATE LAW JOURNAL, 175 (1990) (available at: https://scholarlycommons. law.case.edu/cgi/viewcontent.cgi?article=1366&context=faculty_publications) (Last visited 25 Dec. 2021) 19. Fairlie, The Separation of Powers, 21 MICH. L. REV 398 (1922) 20. Sam J. Ervin, Jr., Separation Of Powers: Judicial Independence Law and Contemporary Problems, 108, 108- 127 (available at: https://scholarship.law.duke.edu/cgi/viewcontent.cgi? referer=https://www.google.co.in/&httpsredir=1&article=3279&context=lcp) (Last visited 25 Dec. 2021) 21. Bakshi, P. M. Comparative Law: Separation of Powers in India 42(6) AMERICAN BAR ASSOCIATION JOURNAL, 553 (1956) (Available at: www.jstor.org/stable/25719656) (Last visited 1 May 2021) 22. Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution, 4(2) JOURNAL OF POLITICS 183 (1942) 23. Tamara Ehs, FELIX FRANKFURTER, HANS KELSEN, AND THE PRACTICE OF JUDICIAL REVIEW, 458 (2013) (available at: https://www.zaoerv.de/73_2013/73_2013_3_a_451_ 482.pdf) (Last visited 30 Dec. 2021) 24. AS Stone, Oxford Handbook of Comparative Constitutional Law 2 (Eds., Michel Rosenfeld and Andras Sajo: 2012) 25. Thilo Tetzlaff, Kelsen’s Concept of Constitutional Review Accord in Europe and Asia: The Grand Justices in Taiwan 1(2) NATIONAL TAIWAN UNIVERSITY LAW REVIEW, 81, 82 (2006) (available at: http://www.law.ntu.edu.tw/ntulawreview/articles/1-2/1-2(4).pdf) (Last visited 30 Dec. 2021) 26. Eli M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary? 13 INTERNATIONAL LAW REVIEW AND ECONOMICS, 349 (1993) 27. SHIMON SHETREET, JUDGES ON TRIAL, 46 (1976) 28. HAROLD J. LASKI, STUDIES IN LAW AND POLITICS, 166 (1932) 29. Mark C Miller, A Comparison of the Judicial Role in the United States and in Canada, 1 SUFFOLK TRANSNATIONAL LAW REVIEW 22 (1998) 30. Mark Tushnet, Judicial Selection, Removal and Discipline in the United States, in JUDICIARIES IN COMPARATIVE PERSPECTIVE, 134, 135 (2011) 31. GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION- A HISTORY OF THE INDIAN EXPERIENCE, 124–125 (11th Impression, 2013) 32. Islami, Iliriana. Can Constitutionalism Build the Rule of Law? 19(2) JOURNAL FOR LABOUR AND SOCIAL AFFAIRS IN EASTERN EUROPE, 141- 152 (2016) (available at: www.jstor. org/stable/2637988) (Last Visited 5 May 2021)

Constitutional Obligation and Responsibilities of the Judges in a Contemporary Era: A Critical Study Showkat Ahmad Wani

1 Introduction The people of a nation may lose confidence in the Executive (The King), or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human rights and civil liberties. —Dr. B. R. Ambedkar

The word ‘accountable’ in the Oxford Dictionary means ‘responsible for your own decisions or actions and expected to explain to them when you are asked.’ Accountability is the sine qua non of democracy. The foundation of democracy and the rule of law is an impartial judiciary. The Judiciary offers the public a safeguard against legal rights and their violations, even when all other safeguards are inadequate. The Judiciary is accountable to the public. There is a common belief that the Judiciary plays an essential role in a civilized society. In modern democracies, the accountability for the Judiciary’s function in formerly authoritarian states is primarily absent and poorly studied. To make judges accountable, public accountability of the Judiciary through an authentic process becomes necessary in modern consequential jurisprudence. The rule of law and judicial accountability is practically challenging to restructure state institutions uniformly without also including the Judiciary as the third branch of government in the accountability process.1 In recent years, both the institution of the judiciary and the actions of individual judges have come under increased scrutiny in Western society. In any civilization, the rule of law is a crucial tool for progress. The judiciary frequently perishes in authoritarian and violent situations. However, its role in transitional societies is vital. The guardian of the rule of law is unavoidably the judiciary, which serves as a bulwark of 1

Yusuf [1].

S. A. Wani (B) NMIMS, Bengaluru, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_5

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freedom and the last line of defence for citizens against state tyranny. Therefore, it is imperative that, as a judicial institution, it should not escape scrutiny and accountability. In any constitutional democracy, the rule of law is crucial for making every institution accountable equally for their acts and omissions. The academicians in a democracy have neglected judicial accountability. The traditional concept of judicial independence needs to be reviewed to make judiciary more pellucid.2 The fundamental principles of the rule of law puts no one above the law, including the judicial officers. The judiciary always exercises significant influence over governance in one way or another. The fact that the executive and legislature hold political power is hardly disputed. The court mediates between individuals and the government. The judiciary has the authority to examine executive actions to assess their legality. Introducing a mechanism open to the public, such as a truth-seeking procedure, is necessary. Therefore, maintaining the rule of law and ensuring an efficient and accountable democratic system requires an independent judiciary.

2 Concept of the Judicial Accountability “A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or has won power over them”. —Jermy Taylor3

This quotation explains that a herd of wolves are better than men unless they have one partner in common or have one superior power over them. It shows that there cannot be any organized society without any law for the man, at least as those wolves; the law is equally applicable to all, equally abiding by all, and similarly accountable for the violation of law faculty, including judges of Higher Courts. The Judicial system is untouchable to the executive and the legislature, coupled with privileged immunities from legal action and the Contempt of Courts Act, 1971 to silence the critics; with no statutory process or system except impeachment, the judiciary is almost immune from any form of accountability.4 It is proven and nondebatable, though, that the human mind is such that it finds ways to misuse and abuse every power and privilege under the law.5 The judges shall seek a prominent equilibrium between judicial independence and accountability. Interpretation of law is one thing, and an actual social, political, and religious sentiment is another. Every individual may possess that attachment, but judges need to keep away that attachment from the court. The accountability must include the politicians, the bureaucrats, judges, and everyone invested with the 2

Id at 13. Fitzgerald [2]. 4 The Judges (Inquiry) Bill, 2006, available at http://www.commonlii.org/in/other/INPRSLS/tjb200 6lb372/ (last visited on 10–12-22). 5 Ibid. 3

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public owner.6 The judicial privilege is not the civil property of the judges; it is the belief and trust of the ordinary person residing in the post of the judge. In a constitutional democracy, Judges need to be accountable because they are trustees of the people. They are responsible in two ways firstly, by making decisions with reason and secondly, by being free from corruption; corruption is another reason for making them accountable. The World Bank stressed on the necessity for a fair and predictable judicial system. The World Bank said, “We need to deal with the cancer of corruption. In country after country, people are demanding action on this issue. They know that corruption diverts resources from the poor to the rich increases the cost of running business, distorts public expenditures, and deters foreign investors.”7 The behaviour and conduct of a judge must reaffirm the people’s faith in the judiciary’s integrity. Justice must not merely be done but also seen to be done. Judicial officers’ honesty and moral integrity plays a significant role because their ability and diligence build public trust in our society. Even if opinions about what it means may differ in different parts of the society, a judge must not just be a “good judge” but also a “good person.” According to the public, a judge has sworn to uphold and serve the principles of justice and truth that forms the cornerstones of the rule of law and democracy.8

3 Judicial Independence and Judicial Accountability Judges shall be free from any influence and respond to their work. It is the responsibility of judges to maintain integrity and honesty. In Bradley v. Fishers,9 the US Supreme Court stated, “a judicial officer, in exercising the authority vested in him, shall be free to act upon his convictions without apprehension of personal consequences to himself”. However, “independence of the judiciary is not absolute, it should not be interpreted in a manner to confer immunity from the demands of justice against misdeeds or protect a judge from investigation and censure for valid change.”10 Judges have a responsibility to demonstrate the utmost standard in their behaviour. The term judicial independence is used with impunity.

6

Bhagi [3]. Combating Corruption, The World Bank available at: https://www.worldbank.org/en/topic/gov ernance/brief/anti-corruption (last visited 03 December 2022). 8 United Nations Office on Drugs and Crime “Commentary on the Bangalore Principles of Judicial Conduct” 67. Available at https://www.unodc.org/res/ji/import/international_standards/commen tary_on_the_bangalore_principles_of_judicial_conduct/bangalore_principles_english.pdf (Last seen on 06–12-22). 9 Jena [4]. 10 Das and Chandra [5]. 7

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The independence and impartiality of the judiciary is a sine qua non because courts worldwide are portrayed as “guardian of social transformation.” The appointment of judges to such institutions and other higher judicial authorities and the accountability of the judicial officials chosen are both crucial. It is essential to distinguish between the practices and methods that enable the legality and those regulated to managerial demands.11 C.G. Geyh, in his article, mentioned that accountability is a complex and amorphous notion, which, in turn, increases the danger that it “can be co-opted and misused more easily”.12 Justice Bharuccha said that, “in India 20% higher judiciary is corrupted”,13 they are protected because of the following grounds. • There is no practical procedure to remove corrupt judges in India. • There is no proper authority available to enquire about the charges if levelled against the judge. • The power vested with the court/judges to initiate contempt proceedings against those who level charges against judges. The provisions of the Contempt of Court Act 1971 speak about the court’s power to impose penalties. Judicial accountability is generally accepted as an essential value of the judiciary; there are various views of authors who attempt to define judicial accountability. Some authors mentioned, “judicial accountability requires that the judiciary as a whole maintain some level of responsiveness to society, as well as a high level of professionalism and quality on the part of its members.”14 According to Tunde Ogowewo, the judiciary is also essential in the nation’s development apart from the legislative and executive. There is a common notion that the legislative and the executive are the key institutions in the developmental process. The judiciary, however, has largely gone unnoticed and neglected in its position as a vital component of and significant contributor to governance and development.15 Liberal democracies require an institutional framework to safeguard the populace from the executive function. It is expected that the courts will challenge the central government as it gains power. The infamous emergency era showed what could happen to democracy when courts turn a blind eye. The judiciary has been criticized for becoming an “executive court” in recent years, which is not very healthy in a thriving democracy. The modern idea of the rule of law depends on citizens being able to defend their rights against the government. There is no doubt regarding the judicial integrity and dedication of upholding the rule of law in the

11

HAKEEM O. YUSUF, Supra note 1, at 18. Geyh [6]. 13 Venkatesan [7]. 14 Garoupa and Ginsburg [8]. 15 Supra Note 1 at 11. See also LEWIS [9]. 12

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public interest and support of popular sovereignty.16 To safeguard liberal democracies from authoritarianism and fascism, there is an urgent need for a comprehensive reconfiguration of political institutions and public involvement in social rebuilding. The transformation of the judicial system is essential to reframing the rule of law as an organising principle that benefits rather than exploits society as a whole. It is not the Constitution that is important, but the Constitutionalism, which is very important for protecting rights. Therefore, it may be argued that judicial accountability during the transition to democracy and the rule of law is essential for utilitarianism.17

4 Need for Making Judicial Accountability and Independency Judges need to be accountable because they are the trustees of people, and as a trustee, they must be made responsible for their judicial conduct. Corruption is another reason for making judges accountable. World Bank has specifically cited the need for a ‘fair and predictable judicial system.’18 “The judicial system is created for protecting the individual’s rights and justice; the courts are increasingly displaying their elitist bias, and it appears they have seeded from the principles of the Constitution which set up a republic of the people who were guaranteed Justice-social, economic and political”.19 Time has come for enforcing Judicial Accountability, but it should be done by the judiciary itself any external effort would be dangerous for the judiciary’s independence.20

According to David Kosar,21 it is generally acknowledged that power and accountability go hand in hand, and thus there is no power without responsibility and the stronger the former, the greater the latter. The formula, ‘the stronger the power is given to an institution, the greater the need for its accountability,’ applies to the court also. There are various examples where the court’s power has emerged; they not only decide the constitutionality of the amendments but they also adjudge whether deciding the election and electoral process is unconstitutional or destroying prerogative royal powers. Courts nowadays enter into individuals’ social, economic, and political rights. They do not hesitate to claim these rights against the economic and social policy of the executive.

16

HAKEEM O. YUSUF, Supra note 1 at 13. Id. at 15. 18 Yashomati [10]. 19 Prashant Bhushan, Contempt Of Justice (Outlook) [last seen on 05-12-22] available https://www. outlookindia.com/website/story/contempt-of-justice/235275. 20 Hon’ble Justice Verma, “Aapki Baat BBC kesaath” BBC Hindi Special Programme, (BBC), https:/ /taxguru.in/excise-duty/judicial-accountability-for-its-judgments.html (Last visited on 05-12-22). 21 Moliterno and Curoš ˇ [11]. 17

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Judges are not la bouche de la loi (“the mouthpiece of law”), but also seriously involve in it’s adjudication and codification. Judicial accountability requires objectives like the rule of law, faith, institutional responsibility, a well-functioning judiciary, and broader social responsiveness. (1) to create principals which will monitor and evaluate the performance of judges; (2) to safeguard against the misuse of power by judges and take out good from bad judges; (3) improve the development of judges. Judicial accountability and responsibility are significant in favour of concluding the proper decision. The continuing faith of subjects in the judiciary must remain attached for the smooth running of the administration of Justice. As per Lord Hewart CJ, in R. v. Sussex,22 “justice should not only be done but also manifestly and undoubtedly seen to be done.” So, in today’s epoch, it has become pertinent to have translucent and transparent judicial and quasi-judicial systems to provide impartial justice to ordinary people. So, it is significant to study the real problems arising in the legal system. The reason and scope of corruption in the judicial system have to be analyzed in the proper sense, due to which we may be able to curtail evil like corruption in the judicial system. The fundamental doctrine underpinning the notion of judicial independence is to avoid potential limitations on exercising a judicial function. Institutional independence is required to maintain the judiciary’s position as the institution tasked with defending the individual against injustice. The requirement for judicial independence is strongly agreed upon, which is “everything but generally accepted as a necessary characteristic of the rule of law.” In their duties, judicial officers must be shielded from external impediments that could hinder or affect judicial function.23 The idea of judicial independence is recognized to be essential to the job of the judiciary. The majority of contemporary constitutions include this principle, and in nations with unwritten constitutions like Britain, the focus has often been embedded through centuries of the convention. The critical question is whether the institution should be shielded from public scrutiny, given its privileged status and solid foundation. The integrity of the rule of law is seriously threatened by corruption in the legal system, whether actual or perceived as such. By article 11 of the United Nations Convention against Corruption, the Global Judicial Integrity Network seeks to support judiciaries worldwide in enhancing judicial integrity and eliminating corruption in the legal system. The judicial community developed and ratified judicial ethics rules, which significantly guide judges’ daily and professional conduct. A judge’s need to uphold ethical standards stems from his legal and constitutional role. Based on universal moral principles, judicial ethics serve as an effective internal corporate mechanism to promote judicial accountability to civil society.24

22

[1923] All ER Rep 233. HAKEEM O. YUSUF, Supra note 1 at 17. 24 Abul-Ethem [12]. 23

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5 Judicial Accountability in New Zealand In New Zealand, there is a recent common public concern regarding judicial accountability. The Constitution Amendment Bill was introduced into the House in April 1999. It proposes minor alterations to the law relating to judicial appointments, removals, and immunities.25 The new procedure adopted in 1999 conferred responsibility for judicial appointments on the Attorney-General. Under this procedure, the appointments to the Supreme Court, High Courts, Court of Appeal, and all courts are made by the Attorney General. The Attorney–General also recommends the appointments of up to nine Associate Judges of the High Court.26 The only exceptions are the Chief Justice, recommended by the Prime Minister, and Maori Land Court Judges (guided by the Minister of Maori Affairs). Appointment processes for the District Court (including Judges of the Family Court, Youth Court, and Environment Court) and the director of the secretary of justice is the directory head of the Employment Court, and the Solicitor-General will be the directory head of the Court of Appeal and High Court.27 In 1997, the Minister of Justice introduced a new system for making appointments to the District Court. The system introduced public advertising of judicial positions, required prospective candidates to express interest in appointments formally, and established a selection process involving panel interviews. Appointment criteria and the process to be followed were made public. The Judicial Appointment Unit was established within the Ministry of Justice to administer the process.28

5.1 Transparent and Standardized Procedures Earlier, the appointment criteria were not publicized, judicial vacancies were not advertised, expressions of interest was not called for, candidates were not interviewed, and consultation procedure was ad hoc and uncertain.29 Whenever vacancies in the judiciary and judicial appointments unit of the Ministry of Justice commence the appointment process, the Unit undertakes consultations to obtain suitable candidates and calls for expressions of interest from practitioners wishing to be considered for judicial office.30 All the names which meet the criteria are held on a confidential database. The Solicitor General makes the Appointments of the Superior Court, and the appointment of judges will be under the direction of the Secretary of Justice. For 25

Neo and Whalen-Bridge [13] Judicature Act 1908 of New Zealand, sec. 26 C. 27 Hammond [14]. 28 Philip [15]. 29 Id. at 790. 30 Id. at 791. 26

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High Court appointments, the Attorney–General and Solicitor-General each consult a range of person’s representatives of the professional legal community. Appointments to the higher appellate courts occur through judicial promotion. Court of Appeal judges are typically recruited from the High Court Bench and appointed to the Supreme Court from the Court of Appeal Bench. Only five Court of Appeal judges have been appointed directly from the profession during the fifty years that the court has been permanently constituted.31

5.2 Disciplinary Principles for Judges All the common law countries have explored reforms that can moderate the demands for judicial accountability. In New Zealand also, these demands create the dilemma of how to dispense justice impartially through judicial independence and maintain Judicial Accountability. In one of the prominent cases,32 the judges of the High courts have observed that the statutory removal power of judges creates tension between accountability and judicial independence. Judges are sometimes an easy target of the media, and there is no bright-line distinction between promoting a judge’s accountability and inviting unwarranted attacks on the judiciary. According to one view mentioned that sometimes knowledge deficit, too, fuels the demand for judicial accountability.33 The authors express that Judges believe that the greatest threat to judicial independence is a lack of understanding of the judicial role and why a judge’s independence is fundamental to it; the principle of judicial independence is not well understood, exciting greater judicial accountability poses an untoward threat to judge’s independence which may have significant implication for civil society and the rule of law. So, this is also a fundamental observation that in the name of judicial accountability, judicial independence shall not be compromised. In New Zealand, there are no formal procedures for disciplining judges. Each judge is independent of all other judges, including the judge’s Head of Bench, “the chief justice, the President of the Court High Court Judge, etc. Head of the bench might exercise leadership and a degree of oversight over their colleague, but they do not have any discipline powers.” The only powers to discipline judges are those exercised under the “Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (JCCJCPA)”.

31

Bigwood [16]. Wilson v. Attorney General (2011)1 NZLR 399 at (41). 33 Eichelbaum and Elias [17]. 32

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5.3 Judicial Complaints Process The JCCJCPA codified the procedure for investigating complaints of judicial misconduct. In 1999, the judiciary adopted its internal complaint process; the process is essentially voluntary, based on a consensual jurisdiction. The JCCJCPA established a Judicial Conduct Commissioner to process complaints.34 This act set two goals: to provide an investigative process that might lead to a judge’s removal; and to protect judicial independence and rights of natural justice.35 Allegations of inappropriate conduct and serious misconduct are the two types of complaints that may initiate removal proceedings. All complaints must be directed through the commissioner, who conducts a preliminary investigation to ascertain whether complaints have substance. The commissioner must give notice to the judge and invite the judge respond.36

6 Judicial Accountability in USA Prof. Mark Tushnet said “The United States has many systems of judicial selection, discipline and removal. The national court and the fifty states differ quite substantially along these dimensions”.37 There are two important characteristics in the USA judicial system. (1) Judicial selection in all the systems is, with minor exceptions, tightly connected to ordinary politics and judges individually or through their hierarchies play a relatively minor role in judicial selection and removal;38 and (2) Judges are initially appointed from the practising bar at almost every level, with no strong expectation of promotion within the judicial hierarchy.39

6.1 The National Courts of the United States The national court system in the United States has four tiers. Initial decisions in many administrative matters, including immigration cases and disputed claims for payments to the disabled, are made by ‘administrative law judges. These judges are appointed through merit-based processes within the administrative agency or bureaucracy, although political appointees sometimes intervene in those processes. 34

The Judicial Conduct Commissioner and Judicial Conduct Panel Act, 2004, sec’s.7, 8. Id. at sec.4. 36 Id. at sec’s. 14 (1) (3), 15(2) (4) Section 14 “Commissioner must acknowledge complaint and deal with it promptly”. 37 Tushnet [18]. 38 Id. at 135. 39 Id. at 141. 35

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Within the federal courts, the lowest tier is occupied by ‘magistrate judges’, appointed within each district by the local judges and serving eight-year renewable terms. Magistrate judges make preliminary rulings in cases assigned to them by trial judges, make a recommendation to those judges on dispositive questions and may try criminal cases, primarily minor offences, with the defendant’s permission.40 The expression given by Professor Tushnet that, “The courts of appeals sit in panels of three judges, although in extraordinary cases the entire court of appeals will hear or rehear a case en banc. Final authority court is Supreme Court, consisting of nine justices. It has jurisdiction over all cases decided by the federal courts of appeals and over cases involving national law, including constitutional law, decided by state courts.”41

6.2 Appointments of Judges In the USA, the federal judges from the district court to the Supreme Court are nominated by the President and confirmed in their position by the Senate. Once confirmed, they serve “during good behaviour”, which means that unless removed by impeachment, federal judges serve until they die or choose to retire. The involvement of the President and the Senate in judicial appointments inevitably gives political loom. Political influence on judicial selection certainly affects judicial behaviour after the appointment. Appointments to the district and circuit courts were ordinary patronage appointments, with the senators for the states in which courts sat using whatever criteria they chose to reward political supporters with judicial position and with the President deferring to the senator’s choice.42 Over the years, the Senate has become more assertive in confirming nominations. The overall effect of the Senate’s assertiveness has been extending the time that nominations are pending before confirmation. There are no formal qualifications required for appointment to the federal court. District judges have varied backgrounds. Some have served as judges in state courts; others came from the private bar. Nomination and confirmation of Supreme Court justices are also political, but of course, different because the stakes are higher and the President plays the dominant role. Professor Tushnet said, “The President choose nominees to satisfy political demands on them, and senators vote to support or oppose confirmation to satisfy the different political demands they face”.43

40

William Hodes [19]. Tushnet [20]. 42 Id. at 134–150. 43 Id. at 140. 41

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6.3 Removal and Discipline of Federal Court Judges The federal judges can be removed from office only by impeachment, a process initiated by the House of Representatives by majority vote, concluded, and convicted by a two-thirds majority in the Senate. In the US History of the impeachment process, Justice Samual Chase’s case,44 against whom charges of improper judicial behaviour had been brought. One of the actions was that he ran his courtroom when sitting as a trial judge; a large portion of the charges rested on Chase’s legal ruling, with which the House of Representatives disagreed. The impeachment process failed, and the Court ruled that federal judges cannot be removed from office merely because the House and Senate disagree with a judge’s rulings on questions of law, including Constitutional Law. Ordinarily, the impeachment process follows a criminal prosecution; the Court ruled that “impeachment has occurred only when a federal judge has been charged with criminal misconduct, specifically corruption, such as bribe-taking.45 Federal judges are subject to ordinary criminal law, even for misconduct in connection with their office. In 1980, Congress created the first statute to conduct judicial discipline, The Judicial Conduct and Disability Act 1980.46 Under this act, anyone can file a complaint with the Circuit Court Clerk, alleging conduct “prejudicial to the effective and expeditious administration” of judicial functions. The Court of Appeals Chief Judge reviews the complaint and can appoint an investigation committee. The Circuit’s Judicial Council, which consists of a mix of trial and appellate judges in the circuit, can impose discipline ranging from a private or public censure through the removal of cases from the judge’s docket to a request that the judge shall voluntarily retire.

6.4 Current Methods of Selection The selection of judges is done mainly by way of election in state court. Two most influential actors in the state courts at the local level: judicial officers (i.e., justices, judges, commissioners, referees, magistrates, justices of the peace, by whatever names they are known) and court executive officers (i.e., court administrators or clerks of Court, by whatever names they are known). Judicial officers at these levels 44

Impeachment Trial of Justice Samuel Chase, 1804–05 (United States Senate), available at: https://www.senate.gov/about/powers-procedures/impeachment/impeachment-chase.htm#:~:text= The%20House%20voted%20to%20impeach,in%20two%20politically%20sensitive%20cases (last visited 01-10-2022). 45 W WILLIAM HODES, Supra note 40 at 392. 46 “The Judicial Conduct and Disability Act 1980”. This Act was enacted for the process and procedure to file a case against the federal judge based on misconduct.

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of state court arrive at their position in various ways. For general jurisdiction trial courts, judges are elected in partisan or non-partisan elections in 27 states, appointed by the governor in 19 states; and appointed by the legislature or other means in the remaining states.47 The governor and the legislature both play a role in the authorization for and funding of new judgeships; in about 35 states, requests for new judgeships are made based on a quantitative workload assessment methodology administered by the judiciary. In many states, more than one method of selecting judges is used, with different selection methods for judges at different court levels or in different geographic areas. Even when the same selection method is used for all judges in a state, there are variations in how the process works in practice. The terms of office for judges and the procedures used to determine whether judges will retain their seats differ from state to state.48

7 Judicial Accountability in Australia The Australian legal system inherited England’s common law more than 200 years ago. At the end of the nineteenth century, the people of the self-governing British colonies in Australia united in a Federation known as the Commonwealth of Australia. The Constitution of Australia, 1901 established what it described as a federal Supreme Court, to be called the High Court of Australia, which now consists of a Chief Justice and six other Justices.49

7.1 Judicial Appointment The executive government, state or federal, appoints judges. They have security in service tenure, which is constitutionally protected in the case of all federal and some state judges. In Australia, most judicial appointments are made without much publicity. Under the Constitution of Australia, the appointment of federal judges is made by the Governor-General in Council, whereas the General appoints the state judiciary in Council. Consultation between the executive and judiciary is not statutorily prescribed except in relation to the appointment of a High Court Judge.50

47

Hammond [21]. Id. at 201–210. 49 Thomas [22]. 50 Lee [23]. 48

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There are two opinions relating to the Consultation of judges; a former Chief Justice of the High Court said in 1987 that it may not be an appointment, it may be made without Consultation, or sometimes advice may be sought but may reject or overlooked.51 A consultation according to section 6 of the High Court of Australia Act 1979 is required. There is yet to be a statute governing the judge selection procedure. In Australia, a practice has been established in appointing a panel for judges of the Federal Court (other than the chief justice), family court and the Federal Magistrates Court. The role of the panel is advisory. “In 2009, The Senate Legal and Constitutional Affairs References Committee was established, the committee report52 said that the appointment process by the Attorney-General considering the Advisory Panel’s report and then appointing the person whom he thinks suitable is unfortunate.”53 The committee recommends also call for changes in judicial selection. The establishment of a judicial commission is one of them. Sir Garfield Barwick54 viewed that a body should have the responsibility to advise the executive government of the names of the person who, because of their training, knowledge, experience, character and disposition, will be suitable for the post of judge. He stressed on the appointment of a National Judicial Commission. However, no state or federal government have recently shown interest in establishing a judicial appointment commission because it may contradict section 72 of the Australian Constitution. There are six foundational principles in the Australian Constitution to acquire judicial accountability: the rule of law, separation of power, federalism, democracy, nationhood and responsibilities.

7.2 Removal of Judges Governor General can remove the federal judicial officer, and Governor can remove the state judicial officer giving an address in each House of the Parliament on the ground of ‘proved misbehaviour’ or incapacity’.55 In Australia, by this process, no federal judge has been removed up to now; but a different process was developed to remove and to control judicial incapacity in Australia. The New South Wales and the Queensland, both follow a different process. There are several instances in Australia 51

Id. at 37. Inquiry into Australia’s Judicial System and the Role of Judges, Australia Judicial System and the Role of Judges, 3–20 (The Senate Legal and Constitutional Affairs References Committee, 2009). 53 Id. at 5,8. 54 Id. at 25. 55 Taylor [24]. The Victorian Constitution provides an investigation committee appointed by the Attorney-General to determine whether facts exist could amount to prove misbehaviour or incapacity such as to warrant the removal of a judicial officer, prior to address of both Houses of Parliament. The three members comprising the investigation committee are taken from a panel of seven retired non-Victorian judges. 52

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to remove the judges; one of them is ‘The Murphy affair’ 56 and this case highlighted a series of problems in the Australian judicial system. This case started with the publication by a newspaper (The Age) of a series of articles based on telephonic conversations (taped illegally by the New South Wales police) of Sydney solicitor Morgan Ryan which were claimed to connect Justice Murphy. The discussion between Murphy and Ryan relating was illegal casinos, blackmail, and a real estate development in central Sydney; there was a possibility that J Murphy was supporting the reappointment of a person to a State statutory authority and interfering with the police investigation.57

These articles generated political heat, and therefore Attorney General (Senator Gareth Evans) sought an opinion from the Commonwealth Solicitor General on the meaning of ‘proved misbehaviour’. The senate appointed a committee to inquire about the allegation against Justice Murphy. A majority of the committee concluded that Justice Murphy had attempted to influence the course of justice in relation to the proceeding against Ryan and that the judge’s conduct fell within the scope of ‘proved misbehaviour’. The New South Wales Supreme Court convicted Justice Murphy. According to Sir Richard Blackburn, “proved misbehaviour refers to such misconduct ‘whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for the office of the judge in question”.58 Andrew Wells said that “conduct of the judge in or beyond the execution of his judicial office, that represents so serious a departure from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he will continue to do his duty under the pursuant to the Constitution”.59 These are the various views relating to the term ‘proved misbehaviour’ and through this definition, the parliament of Australia removed the Justice Murphy, because traditional parliament procedure was not satisfactory to decide whether misbehaviour occurred or not and if suppose occurred whether it would lead to the removal of judges.

7.3 Judicial Complaints Process A process to address Judicial Complaints has been adopted by the State of New South Wales. However, Australia lacks such a framework on federal level. In New South Wales, the state has a statutory body empowered to inspect objections next to judicial officers. “The Judicial Commission of New South wales created by the 56

Blackshield [25]. Lee and Morabito [26]. 58 Nettle [27]. 59 Ibid. 57

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Judicial Officers Act 1986 consist of 10 members”60 ; among the six are ex-official from the judiciary (including the Chief Justice of the Supreme Court of New South Wales), and four members appointed by the Governor on the nomination of the minister. Anyone may complain to the commission about a matter that concerns or may concern the ability or behaviour of a judicial officer.61 The State Attorney-General may establish a commission for investigation; if this is minor, it can be dismissed. A severe complaint in the opinion of the commission’s parliamentary involvement is necessary to remove the judicial officer. All serious complaints are referred to the Conduct Division. The attorney-General will submit the report before both houses of Parliament if the conduct division recommends it. Misbehaviour is one of the grounds on which a judicial officer can be removed by Parliament. Apart from examining complaints against judges, the commission has two other important functions: (1) assisting the courts to achieve consistency in sentencing; and (2) organizing and supervising continuing education and training for judicial officers.62

8 Indolence in Indian Judiciary “We can afford to lose a war but we can’t afford to lose a judiciary”. —Churchill, 2nd world war

Compared to other government organs, the judiciary has always been given a distinct and dignified status. In history, we can find hundreds of examples “when the legislature and executive faced credibility crisis, it was the judiciary that came to the rescue of the people. How great is that darkness if the lamp of justice goes out in the darkness? According to a scientific study of the possibility of corruption at different levels in the judiciary hierarchy, it rated that more than 33% of the people bribed the judiciary to the extent of Rs. 3718 Crore in just one year.”63 There shall not be any justification or reason why the judges of the highest level should be exempt from openness and transparency. Several instances in India have not come in public of corruption, misconduct, and misbehaviour of judges. There are various instances also which show misuse of power by the judiciary.

60

Id. at 260–263. The Judicial Officer Act of Australia 1986, sec. 15. 62 Thomas [28]. 63 Prashar [29]. 61

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8.1 The Justice V. Ramaswamy Case64 “In 1971, Justice V. Ramaswamy was appointed the chief justice of the Madras High Court; later, in 1987, he was transferred to the Chief Justice of Punjab and Haryana High Court. Finally, in 1989 he was elevated to the Supreme Court.”65 The complaint was filed that he had misused public funds while holding the post of Chief Justice of Punjab and Haryana. 108 Parliamentarians of the 10th Lok Sabha passed a motion for his impeachment, which was presented to the speaker of the Lok Sabha, who accepted it. Consequently, Article 124(4) and (5) of the Constitution was invoked, and under the Judges (Inquiry) Act of 1968, a judicial inquiry committee of three judges was constituted. After the inquiry was initiated, the Lok Sabha was dissolved. Justice Ramaswamy objected to the inquiry on the ground that since the Lok Sabha, which had passed the motion for his impeachment, had been dissolved, the resolution of the Committee of Inquiry also stood dissolved. The Supreme Court in Sub-Committee on Judicial Accountability v. Union of India,66 held that despite the dissolution of the Lok Sabha, the resolution would remain valid under the inquiry. The inquiry committee gave its report in December 1992; it was found in the report that Justice Ramaswamy was guilty of deliberately misusing his office and of using government money for his private purpose. When the matter was placed before the Lok Sabha to decide if the judge was to be removed, 176 votes were cast in favour of impeachment, but no one in the opposition voted in favour of impeachment because the Congress Party walked out. Therefore, Justice Ramaswamy could not be removed. By observing Justice Ramaswamy’s Case, it would not be wrong to say that the constitutional procedure for the removal of judges is so rigid and complex that it is uncertain whether a judge, despite proven misbehaviour, would be removed from office or not.

8.2 Lily Thomas Advocate v. Speaker, Lok Sabha67 The petitioner attempted to give flexibility to the procedure for removal by alleging that “the motion of impeachment against a sitting judge of the court moved in the Lok Sabha, should be deemed to have been carried by construing the expression, supported by a majority under Article 124(4) in such a manner that any member who obtains from voting should be deemed to have supported the motion.”68 “But 64

Committee on Judicial Accountability v. Justice V. Ramaswami (1995)1 SCC 5. Ibid. 66 (1991) 4 SCC 699. 67 (1993) 4 SCC 234. 68 Ibid. 65

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the Supreme Court held that the right to vote includes the right to remain neutral.” Therefore, nonparticipation from voting is legitimate and cannot be deemed as a vote supporting the motion.

8.3 Justice K. Veeraswami Case69 Justice K. Veeraswami was elevated to the bench as a permanent judge of the Madras High Court in 1969, and in 1976 he was appointed as its chief justice. On February 24, 1976, the CBI registered a case against him by registering a first information report in New Delhi against him for possessing pecuniary resources and property in massive amounts, disproportionate to the known sources of income, which he could not satisfactorily account for, and he had thereby committed the offence of criminal misconduct under Section 5(1) (e) of the Prevention of Corruption Act, 1947. While deciding this matter, the Supreme Court laid down strict guidelines to protect the independence of the judiciary. No FIR can be registered against a judge or CJ of the High Court or Judge of the Supreme Court without the sanction of CJI in the matter. In this case, the Supreme Court observed that a judge of the High Court or the Supreme Court comes within the definition of ‘public servant’ given under section 21 of the Indian Penal Code, 1860, in view of the provision for “removal” of a judge under Article 124 of the Constitution.

9 Delay in Judicial System An observation made by the Supreme Court in strong language about pendency that inordinate delay in the disposal of cases has eroded faith in the judiciary and left the people simply disgusted is a reflection of the anguish about a problem that is getting worse by the day. The Supreme Court had directed the central government that the judge-population ratio shall be raised to 50 per million in a phased manner. Indefensibly, successive governments have not done enough to address this issue; in the Tenth Plan, the judiciary was allocated a mere 0.078% of the total expenditure, a small crumb more than the 0.071% assigned in the Ninth Plan.70 According to the theory of separation of power, organs of the government must function separately. In a democracy, the ultimate power lies with the people, so they shall not forget 69

(1991) 3 SCC 655. Omir Kumar & Shubham Dutt, Understanding vacancies in the Indian judiciary, available at: https://prsindia.org/theprsblog/understanding-vacancies-in-the-indian-judiciary (last visited on 05 December 2022). 70

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this at the time of their functioning. If consideration that the “judicial system is independent and unaccountable then generally it gives leisure and comfort to the judges that ultimately it leads to delay in deciding the matters”.

9.1 Corruption Issue Corruption in India might still be widespread and continue increasing day by day. The Indian economy continues to face the problem of an underground economy. A 2006 estimate by the Swiss Banking Association suggests that India topped the worldwide list for black money, with almost $1456 billion stashed in Swiss banks. This amounts to 13 times the country’s total external debt.71

9.2 Extent of Corruption in Judiciary In a strong indictment of the judiciary, Union Law Minister Ram Jethmalani said that incompetence and corruption were corroding the countries justice system and there was an urgent need to stem the rot.” Mr. Jethmalani said, “The fatal combination of incompetence and corruption among police officers, prosecutors, witnesses and judges frustrated justice. The former Chief Justice of Supreme Court Sam Piroj Bharucha had suggested that up to 20% of judges in India were corrupt.”72 In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee,73 the Supreme Court suggested “an in-house method which is non-transparent, time-consuming and uncertain. The need for an alternative method of getting rid of judges of doubtful integrity is being felt acutely; it is possible to root out corruption in the Judiciary if a provision is made in the Constitution for premature retirement of public servants in the public interest on the ground of doubtful integrity regardless of the length of service put in. The power to retire will have to be in the hands of the Judiciary itself to maintain its independence.”

71

The 2011 Corruption Perceptions Index Measures The Perceived Levels Of Public Sector Corruption In 183 Countries And Territories Around The World (Transparency International: The Global Coalition Against Corruption) available at: https://www.transparency.org/en/cpi/2011 (last visited on 02 December 2022). 72 Ram Jethmalani, Judicially is fatally corrupt (The Hindu), 12 November 1999. 73 (1995) 5 SCC 457.

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10 Criticism on Collegium System and NJAC The appointments of Supreme Court and High Court judges are being completed according to Article 124(4) and Article 214 of the Constitution. In case S. C. Advocates on record Association v. Union of India74 ; laid down some following important propositions in relation to appointments in superior courts, these are following; • Initiation of the proposal for the appointment of a Supreme Court Judge must be made by the Chief Justice of India. • No appointment of any judge to SC can be made by the President unless it conforms with the final opinion of the Chief Justice of India. The makers of the Constitution in 1950 had never contemplated a judiciary of such magnitude and power that would become more than a coordinated branch of government and which, at times, attracts the description of government by the judiciary. The Indian Supreme Court has not subscribed to the theory of avoidance of a political question. It has never declined to exercise its powers merely because a legal question has political overtones. In case All India Judges Association and others v. Union of India,75 the Supreme Court has observed, The indication is that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the most significant weight; the selection should be made as a result of a participatory consultative process in which the executive should have the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum, and any political influence is eliminated. For this reason, the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to anyone, not even to the Chief Justice of India as an individual. SP Gupta case,76 in this case, SC held that, “the executive may reject the name taken for consideration as judge of the SC but for a reason to reject shall be very strong.” In this case, executive interference in the appointment of judges seems very strong. In case S. C. Advocates on record Association v. Union of India,77 the system of collegium is being started and the Chief Justice of India and members of the collegium system become independent from executive interference. Then in 1998, the Third Judges Appointments Case78 created more changes and enhancements in the same system of appointments.

74

AIR 1994 SC 425. AIR 2002 SC 1752. 76 S.P. Gupta v. President of India and Ors. AIR 1982 SC 149. 77 AIR 1994 SC 425. 78 In Re: Special Reference No. 1 of 1998, (1998) 7SCC 739. 75

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In 2014, “the National Judicial Appointment Commission bill was introduced to the Lok Sabha and it was enacted on December 31, 2014 as The National Judicial Appointments Commission Act. Along with the NJAC Act, the parliament also passed the Constitution (121st) Amendment Bill, 2014 that inserted Article 124A into the Constitution”. The NJAC Act was enacted to replace the collegium system with a new NJAC system for the appointment of judges to the SC and HC. However, suddenly it was challenged on October 16, 2015 before the Supreme Court, in the Fourth Judges Appointment Case,79 “five judges of the Supreme Court held that the NJAC Amendment unconstitutional as violating the basic structure of the Constitution. So, for Appointment and transfer of judges of Supreme Court and High Courts from 2015 to till now we are following the same collegium system in judiciary.” In Supreme Court Advocates-on Record Association v. Union of India,80 in all SC and HC recruitments Chief Justice Approval becomes more prominent as well as two senior-most judges opinions of SC also become prominent. “The uncertainty regarding judicial appointment was not cleared, the uncertainty arose with the then president K. R. Narayanan consigned this affair for Presidential reference. In 1998, in Re Presidential Reference which is also known as the third judges case”,81 in this case the Supreme Court held that, “in case of appointment and transfer HC Judges recommendation shall be consulted with two senior judges of SC”. In addition, at the time of appointment of SC Judge and Chief Justice of HC consultation with four senior judges of SC became compulsory. A study of social backgrounds of Supreme Court judges appointed between the period 1950–1990 reveal that over 40% of them were Brahmin at any point of time while close to 50% were from other forward castes and the percentage of Schedule Caste, Schedule Tribes and Other Backward Class barely crossed 10% at their highest.82 “Not much changed during the period of the collegiums system as in the year 2011 the report brought out by the National Commission for Schedule Caste83 noted that out of 850 judges of 21 High Courts of India, only 24 belonged to SC/STs. Even though courts have no obligation to appoint a particular group of people but continued absence of these groups of people can draw the implication that there is inbuilt bias against these groups of people. This kind of implication is in itself attached to the credibility, public confidence and legitimacy of the court.84

79

Supreme Court Advocates-on-Records Association v. Union of India (2016) 5 SCC 1. (1993) 4 SCC441. 81 Ibid. 82 Gadbois Jr [30]. 83 Law Commission of India, 121 Report on A new forum for Judicial Appointment, 1987 (July, 1987). 84 Kosala and Krishnaswamy [31]. 80

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The Court decoding the supply relating to appointment of judges by the government took over for itself the facility of appointment of judges. The judiciary has become a sort of self-perpetuating political system. There is no system followed within the choice of judges and there is no transparency with the system.85 It contends that the collegium system may lead to the abuse of power by the judiciary and that the entire system of “Judges Appointing Judges” is a strong representation of aristocracy and elitism that runs counter to the fundamental principles of the Constitution because it is opposed to both equality and democracy in general.86

11 Conclusion Accountability mechanism is not clearly present in the Indian judicial system. Because no law exists for judicial accountability in India and there is an absence of clear provisions or principles in the Indian legal system. No clear principles for judicial recusal, judicial post-retirement recruitments, judicial appointment and transfer, contempt of court, and right to information of judicial offices, etc. In chapters V and VII, the researcher especially pointed out these issues. Judges are not the law; they are like the institution of the State, and shall be responsible for accountability. There is no other way to remove the judges except the impeachment procedure, which is complicated and lengthy. “Appointment and transfer of judges” are being carried out through political interference in India. It is the bitter truth of the Indian Judicial System that the appointments in the higher judiciary are based on politics. Politics and judicial appointments are more apparent in higher judicial appointments than in lower judicial systems. The concept of judicial accountability is strongly available in foreign countries if we compare it with Indian judicial accountability. In foreign nations, positive comments and suggestions are accepted and approved by the judiciary. There are various developments approved on the subject of contempt laws, speed delivery of judgement, writing judgements, and the working process of the judicial system. In India, this type of development is still awaiting. For post-retirement recruitments, the Parliament of India shall create clear laws. Articles 124(7) and 220 of the Constitution shall be amended only then, irregularity in post-retirement assignments may be improved. There is room to have an independent commission for the appointments of post-retirement assignments of the SC and HC judges. Without commission or any superior authority over the judges who are retired or going to be retired, misused by the Executive.

85

Ibid. SCC, Shivkrit Rai & Nipun Arora, Judicial Appointments In India - A Critical Analysis, available at https://www.scconline.com/blog/post/2017/05/23/judicial-appointments-in-india-a-criticalanalysis/ (last seen 06 December 2022). 86

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Laws regulating judicial attitudes and powers are inadequate in India. Judges Inquiry Act 1968 is insufficient to curtail judicial conduct and power. In the present era, this legislation has failed to maintain the rule of law in India relating to judicial power despotism. The retirement age of Judges of higher Courts should be raised, or otherwise, there should be no post-retirement assignment for the retired judges of the Supreme Court/High Courts. Also, there should be a possibility to have a cooling period after the retirement of SC and HC judges. The assignments in various commissions, tribunals, boards, etc., should only be reserved for deserving advocates. The post-retirement postings of the Superior court justices are harming judicial accountability. Even though the Indian judiciary is the world’s most powerful, this fact cannot be changed. The Indian judicial system is an advocate for people’s basic rights.

References 1. HAKEEM O. YUSUF, TRANSITIONAL JUSTICE, JUDICIAL ACCOUNTABILITY AND THE RULE OF LAW 12 (Routledge Taylor & Francis Group, 2000) 2. P. J. FITZGERALD, SALMOND ON JURISPRUDENCE (12th ed. Sweet and Maxwell, 2008) 3. Avinash Bhagi, Judicial Accountability in India: An Illusion or Reality? 8 JLDP 1–162 (2018) 4. Prof. Dr. K.C. Jena, Judicial Independence and Accountability: A Critique 39 IBR 4 (2012) 5. CYRUS DAS AND K CHANDRA, JUDGES AND JUDICIAL ACCOUNTABILITY (Universal Law Publishing Co. Pvt. Ltd., 2004) 6. Charles Gardner Geyh, Rescuing Judicial Accountability from the Realm of Political Rhetoric Symposium: Judicial Independence and Judicial Accountability: Searching for the Right Balance 56 CWRLR 911–36 (2005) 7. V, Venkatesan, Here’s What the AG Wanted to Say About the Judiciary, Before Justice Arun Mishra Stopped Him (The Wire) [(last visited December 7, 2022)] available at: https://thewire. in/law/attorney-general-kk-venugopal-arun-mishra-prashant-bhushan 8. N. Garoupa and T. Ginsburg, The Comparative Law and Economics of Judicial Councils 53 BJIL 57 (2009) 9. P M LEWIS GROWING APART-OIL, POLITICS AND ECONOMIC CHANGE IN INDONESIA AND NIGERIA 238–245 (University of Michigan Press Ann Arbor 2007) 10. Ghosh Yashomati, Indian Judiciary: An Analysis of the Cynic Syndrome of Delay, Arrears and Pendency 5(1) AJLE 21–39 (2017) ˇ 11. James E. Moliterno & Peter Curoš, Recent Attacks on Judicial Independence: The Vulgar, the Systemic, and the Insidious 22 (GLJ) (Cambridge University Press 27 October 2021). Also available at https://www.cambridge.org/core/journals/german-law-journal/article/recentattacks-on-judicial-independence-the-vulgar-the-systemic-and-the-insidious/C17564C422E1 7580A3C36BD704342E26 (Last seen on 02-10-22) 12. Fahed Abul-Ethem, The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective 26:3 FILJ 765 (2003) 13. Jaclyn L Neo and Helena Whalen-Bridge, A judicial code of ethics: regulating judges and restoring public confidence in Malaysia Regulating Judges 5–9 (Edward Elgar Publishing, 2016). Also available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3152142 (Last seen on 15-11-22) 14. GRANT HAMMOND, JUDICIARIES IN COMPARATIVE PERSPECTIVE 196–236 (Cambridge University Press, Cambridge, 2011) 15. JOSEPH PHILIP (ED.), THE CONSTITUTIONAL AND ADMINISTRATIVE LAW IN NEW ZEALAND 789(Thomson Reuters, New Zealand, 2021)

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16. R. BIGWOOD (ED.), THE PERMANENT NEW ZEALAND COURT OF APPEAL: ESSAY ON THE FIRST 50 YEARS 39 (Oxford University Press, 2009) 17. Eichelbaum and Elias, The Next Revisit: Judicial Independence Seven years on 8 (CLR) 217 (2004), available at http://www.nzlii.org/nz/journals/CanterLawRw/2004/8.html (Last visited on 12-08-22) 18. MARK TUSHNET, JUDICIARIES IN COMPARATIVES STUDIES, JUDICIAL SELECTION, REMOVAL AND DISCIPLINE IN THE UNITED STATES 140–150(Cambridge University Press, 2011) 19. W. WILLIAM HODES, BIAS, THE APPEARANCES OF BIAS, AND JUDICIAL DISQUALIFICATION IN THE UNITED STATES 390 (Cambridge University Press, 2011) 20. MARK TUSHNET, JUDICIAL SELECTION, REMOVAL AND DISCIPLINE IN THE UNITED STATES 139 (Cambridge University Press, 2011) 21. GRANT HAMMOND, JUDGES AND FREE SPEECH IN NEW ZEALAND 213 (Cambridge University Press, Cambridge, 2011) 22. J. THOMAS, JUDICIAL ETHICS IN AUSTRALIA 225–230 (Sydney: LexisNexis Butterworths, 3rd ed. 2009) 23. H.P. LEE, APPOINTMENT, DISCIPLINE AND REMOVAL OF JUDGES IN AUSTRALIA 33–41 (Cambridge University Press, 2011) 24. G. TAYLOR,THE CONSTITUTION OF VICTORIA, 416–34 (Sydney: Federation Press, 2006) 25. A. R. BLACKSHIELD,THE APPOINTMENT AND REMOVAL OF FEDERAL JUDGES, 35 (Melbourne: Melbourne University Press, 2000) 26. H. P. Lee and V. Morabito, Removal of Judges - The Australian Experience 1992 SJLS 40–55 (National University of Singapore,1992) 27. Hon Geoffrey Nettle AC Q C, Removal of Judges from Office 45 MULR 241–76 (1986) 28. J. THOMAS, JUDICIAL ETHICS IN AUSTRALIA, 45 (3rd ed Sydney: LexisNexis Butterworths, 2009) 29. Raj Prashar, “Judicial Accountability- re visioning the role of judiciary” Lawyers Club India, 2013. Available at: https://www.lawyersclubindia.com/articles/judicial-accountability-re-vis ioning-the-role-of-judiciary--5533.asp (last visited 22 December 2021) 30. GEORGE H. GADBOIS JR, JUDGES OF THE SUPREME COURT OF INDIA: (1950– 1989) 41(Oxford University Press, 2011) 31. Madhav Kosala and Sudhir Krishnaswamy, Inside Our Supreme Court 46 (31) EPW 7–8 (2015)

The Rule of Law and Legal Controversies—The Impact of Covid-19 in Bhutan Sonam Tshering

1 Background Bhutan transitioned to Constitutional Democracy only in 2008. Unlike most other democracies, Bhutan’s democracy came from the throne as a direct imposition where the Fourth King of Bhutan himself initiated the drafting of the Constitution in 2001 and elections conducted in 2007 and Constitution adopted by the First Democratically elected Members of the Parliament in 2008.

1.1 Separation of Power Unlike most other constitutions, Bhutan’s constitution defines the separation of power explicitly. Article 1 Section 12 of Bhutan’s Constitution states: There shall be a separation of the Executive, the Legislature and the Judiciary and no encroachment of each other’s powers is permissible except to the extent provided for by this Constitution.

This provides quite a clear demarcation among the three branches of the states. This article also makes sure that only the constitution can provide exceptions to this principle and not otherwise. Meaning neither the legislature nor the judiciary or the executive can come up with their laws or rules when it comes to separation of power. However, in reality, a clear demarcation is easier said than done and some acceptability is there in the governance. For example, though the only legislature has the exclusive authority to make laws, the executive often makes lots of rules and regulations and even issues executive orders on various subjects. For example, S. Tshering (B) Jigme Singye Wangchuck, Paro, Bhutan e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_6

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parliament has not made any laws on public procurement or regulation of alcohol. But the executive came up with comprehensive regulations on these and it is implemented for years without any objection from the legislature or the judiciary. Further, Article 20 Section 8 explicitly prohibits the executive from performing certain legislative functions. This section expressly emphasizes that no executive order can be issued if such executive order is either inconsistent or have “effective of modifying, varying or superseding any provision of a law made by the parliament” or is already in place. The order is further defined as it includes “circular, rule or notification.” For example, in the case of Public Procurement or Alcohol regulations, there are no parliamentary laws and thus, are considered valid despite reservations if the executive can make such laws under Article 1 Section 12 of the Constitution. Further, Article 101 of the Constitution makes the legislative power a prerogative of the parliament. This indicates the sovereign power of the parliament when it comes to law-making. Thus, Article 1 Section 2, Article 20 Section 8 and Article 10 complement each other in terms of law-making power and separation of power.

1.2 The Foundations and Origins of the Rule of Law Bhutan’s monarchs hold special recognition and reverence in the country. The monarchs are seen as the symbol of strength, a source of inspiration and unity and enjoy unfettered love and affection from the public. The democracy in Bhutan is also unique as the democracy came from the throne without having to fight for it. Bhutan’s success in fighting COVID-19 is largely attributed to the King. When Bhutan first confirmed the COVID-19 case, the Queen was pregnant, yet the King came to the Ministry of Health and oversaw the response plans of the Ministry of the Health and government. As the pandemic continued, the Queen gave birth to a Prince, His Majesty instead of celebrating the birth of his Prince, left his Queen and Prince in the palace and went around the country mostly in high-risk areas to “review preparedness and response plans” of the government. He made a national address where he announced the “deferral of the loan payment, waived off interest and asked the nation to work in unison and together to fight the pandemic.2 This national address inspired thousands of Bhutanese and contributed significantly to fighting the pandemic. For example, right after the announcement many house owners waived off their rents for the tenants from a month to months, some entire amount and some certain percentage, hotels offered free quarantine facilities, farmers gave free vegetables for the frontliners, and some donated Personal Protection Equipment (PPE), thousands donated fund for COVID-19 Fund as well 1

Article 10 Section 1 states “there shall be a Parliament for Bhutan in which all legislative powers under this Constitution are vested and which shall consist of the Druk Gyalpo, the National Council and the National Assembly.” 2 Bhutan: The Role of the Constitutional Monarch in a Public Health Crisis Sonam Tshering* and Nima Dorji 279 to 292, in covid- 19 in asia, law and policy contexts (victor v. ramraj). 279–292.

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as His Majesty’s Fund. His Majesty instituted a volunteer group known as Dessung (Guardian of Peace) more than a decade ago to help the public in cases of national events and disasters or accidents who were trained in first-aid and other life-saving skills. The total intake used be only around 120 volunteers per batch of volunteer. However, during the pandemic the intake was increased almost to 2500 candidates. But the more than four times the total intake signed up to undergo volunteer training during the pandemic in each batch3 program. Teachers formed volunteer groups to compile teaching materials online as well as on national television. Thus, His Majesty’s role in Bhutan is significant and highly noticeable and any statements he makes are immediately considered an inspiration. The monarchs have repeatedly emphasized the importance of the rule of law and how the rule of law will contribute to building a strong and vibrant democracy. His Majesty said: Our immediate and foremost duty is the success of democracy. That is our foundation for the future success of Bhutan. But democracy can only flourish if all Bhutanese uphold the rule of law; if there is good governance; if corruption is eradicated and if the delivery of public services is fair and effective.4 I pray that with the support of our people, we strengthen the Rule of Law and through the Rule of Law, we consolidate institutions of check and balance, which in turn promote good governance.5 His Majesty6 ’s reigned with far-sighted vision; established democracy, rule of law, and good governance, and handed over to us. His Majesty’s mind was always, the rule of law. It is said that the failure of justice persecutes an individual, but the lack of adherence to rule of law persecutes an entire nation. Rule of law begets discipline, which in turn begets order, and peace, which leads to trust and stability. His Majesty has always maintained that such a nation will achieve untold prosperity.7 When my father and I introduced democracy in Bhutan in 2008, the most important objective we had in mind was to establish the rule of law, which would lead to good governance, which would further lead to transparency, fairness and impartiality in the working of the government and the realization of all our short term and long-term national goals.8

The repeated emphasis on the rule of law from the monarchs is a sign that the rule of law is fundamental to Bhutan’s democracy. The monarchs have also explained the role of the rule of law, its positive impacts on the growth and strength of democracy by adhering to the rule of law and finally the negative consequences if the government of the day fails to respect and uphold the rule of law. 3

This program was instituted almost a decade ago by His Majesty to inculcate sense of volunteerism in disasters and other public functions. With the national address, for a few thousand slots, thousands rushed, and, in a few minutes, the registration got closed and website even crashed. This shows the influence of His Majesty in uniting the nation. 4 opening ceremony of the seventh session of the first parliament (2011). 5 closing of the 10th session of the first parliament (2013). 6 Here “His Majesty” is referred to the Fourth King of Bhutan, the father of current king. 7 address to the nation on the celebration of his majesty the fourth druk gyalpo ‘s 60th birth anniversary, (2015). 8 address to the prime minister, cabinet, and member of parliament on the occasion of conferring of dakyen to prime minister, (2013).

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1.3 The Rule of Law—Soul of the Constitution Bhutan’s Constitution was drafted under the direct supervision and guidance of the Fourth King of Bhutan, often described as the father of democracy and architect of Bhutan’s constitution. He further made sure that the draft constitution was discussed with every household in the country and he9 led the team to hold consultations with the public which was later continued by the current king before the Constitution was adopted in 2008. Therefore, is it not wrong to assume that the fundamental guiding principles including the rule of law and due process of law were inspired by the kings in Bhutan way before democracy was established. Further, His Majesty even after the adoption of the Constitution continued to remind the nation and government of the importance of rule of law in strengthening democracy, reducing corruption, and ensuring checks and balances through the rule of law. Article 1 Section 9 states that “this Constitution is the Supreme Law of the State.” This mandates the state, the government, and the people that every law in the country must uphold the principles enshrined in the Constitution. Article 1 Section 11 mandates that Supreme Court is the guardian and final authority to interpret the constitution. Article 7 guarantees numerous fundamental rights similar to the Indian Constitution or Bill of Rights in the American Constitution. Among many rights, Section 1 of the Constitution states that “all persons shall have the right to life, liberty and security of person and shall not be deprived of such rights except in accordance with the due process of law.” Similarly, Section 15 of the Constitution states that “all persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or another status.” These provisions make any form of arrest or incarceration or discrimination a violation of the Constitution.

2 State Emergency Legally Bhutan’s Constitution, provides the umbrellaerella for declaring national emergency. However, Bhutan is yet to enact the Emergency Act but the Disaster Management Act provides some authority to declare a national emergency to deal with the situation. Under the Constitution,10 His Majesty upon the advice of the Prime Minister can proclaim a “public emergency or calamity, which threatens or 9

sonam tobgye, the constitution of bhutan - principles and philosophies. Bhutan’s Constitution provides three forms of emergency. The Article 33 Section 1 provides the State of emergency in case if the “if the sovereignty, security, and territorial integrity of Bhutan or any part thereof is threatened by an act of external aggression or armed rebellion.” Article 33 Section 2 public emergency as discussed, and Section 3 allows the Financial Emergency “if His Majesty is satisfied that a situation has arisen whereby the financial stability or credit of Bhutan is threatened.”

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affects the nation as a whole or part thereof, exist in which case the Government may take measures to the extent strictly required by the exigencies of the situation.” The emergency will remain in force for twenty-one days after unless parliament extend the duration. During the emergency, the government has the authority to “suspend rights conferred under Sections 2,11 3,12 5,13 1214 and 1915 of Article 716 ” of the Constitution. Second, Disaster Management Act 2013 allows the declaration of emergency17 in case of natural disasters or calamities. However, the government never declared any state of emergency during COVID-19. Though Bhutan closed its door to outside world under the premise of COVID-19 for more than two and half years.

2.1 The Option to Declare a State Emergency to Deal with the Pandemic As mentioned earlier, Legally Bhutan had two laws, the Constitution, and the Disaster Management Act to declare a national emergency to deal with the situation.18 First under the Constitution, the government could request His Majesty to declare the emergency. The Constitution is clear that His Majesty upon the advice of the Prime Minister can proclaim a “public emergency or calamity, which threatens or affects the nation as a whole or part thereof, exist in which case the Government may take measures to the extent strictly required by the exigencies of the situation.” Second, the government also had the option to use Disaster Management Act 2013 to declare the National Emergency19 in case of natural disasters or calamities which 11

Right to freedom of speech, opinion, and expression. Right to information. 13 “Freedom of the press, radio and television and other forms of dissemination of information, including electronic.” 14 “The right to freedom of peaceful assembly and freedom of association, other than membership of associations that are harmful to the peace and unity of the country and shall have the right not to be compelled to belong to any association.” 15 “A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation.” 16 Article 7 of the constitution provided the fundamental rights which is similar to Indian Constitution. 17 Section 3 of this Act restricts the emergency which is limited to Article 33 Section 2 of the Constitution only. 18 Bhutan’s Constitution provides three forms of emergency. The Article 33 Section 1 provides the State of emergency in case if the “if the sovereignty, security, and territorial integrity of Bhutan or any part thereof is threatened by an act of external aggression or armed rebellion.” Article 33 Section 2 public emergency as discussed, and Section 3 allows the Financial Emergency “if His Majesty is satisfied that a situation has arisen whereby the financial stability or credit of Bhutan is threatened.” 19 Section 3 of this Act restricts the emergency which is limited to Article 33 Section 2 of the Constitution only. 12

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include COVID-19. However, the government never declared any state of emergency during COVID-19. Yet in an unprecedented history, the government without having to use any legal mechanisms or declaring a state of emergency as requried by the Constitution declared three national lockdowns. The lockdowns extended for months and even had regional lockdowns. Yet Bhutan did not experience any protest against any of the lockdowns instead everyone respected and compiled to the lockdown protocols very well.20

3 Legal Controversies—The Threat to the Rule of Law With the pandemic, the government took numerous measures to control and prevent the transmission of COVID-19 in the country. The country is applauded by many including World Health Organization as a good example where COVID-19 was dealt with well. However, as stated before, several measures government has significant legal consequences. Following was some of the major setbacks the government took in terms of the rule of law.

3.1 Tobacco Control and Pay Revision Laws One of the major challenges Bhutan faced in controlling COVID-19 was guarding its borders, particularly between India and Bhutan. Bhutan and India share seven out of 20 districts with India running hundreds of kilometres which is porous. Though Bhutan closed all its official international borders in March 2020, guarding the porous border became a major challenge. Bhutan deputed hundreds of volunteers and armed forces to guard the borders. However, it remained a challenge throughout the two and half year COVID-19 situation in the country. In the early months, it was found that illegal borders were mainly due to the illegal trafficking of tobacco21 and drugs.22 There is some truth in what the government said going by the number of people arrested from March to July 2020 after Bhutan closed its borders. A report stated 20

This may be due to His Majesty the King. His Majesty the king is considered as the unifier in the country particularly in times of crisis or disaster. The democracy itself came as an imposition from the throne without having to fight for. Therefore, monarchs in Bhutan enjoy reverence, respect, and faith in His Majesty’s leadership. He made multiple visits to all affected areas risking his own life. Those visits inspired to people to adhere to lockdown conditions. 21 samtse topped the illegal border crossings kuensel online, https://kuenselonline. com/samtse-topped-the-illegal-border-crossings/ (last visited Jul 26, 2022). 22 Bhutan enacted Tobacco Control Act in 2010. This law made importation, distribution, exportation, manufacture, supply, sell and buy tobacco and tobacco products. The only exception was importation for personal use with payment of heavy taxes and duties. Violation of the law could land a person in prison. Bhutan also enacted the Narcotic Drugs, Psychotropic Substance and Substance Abuse Act, 2005 prohibiting any form of illegal importation or illicit trafficking of drugs.

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that “the Office of the Attorney General (OAG) has received 335 cases so far this year, including 105 COVID-19 related cases” of which the majority of the cases were “tobacco related cases, whereby there was an exchange of money and products across the international border.”23 One of the most controversial steps the government took was to allow the importation of tobacco and distribution in the country through a government-owned corporation, “Duty-Free.” While most common people did not have concerns, it generated serious informal discussion among the legal fraternity as it was seen as a possible violation of the constitutional provision and affected the separation of power severely. The law provides the following conditions: No person in the country shall: a) cultivate or harvest tobacco. b) manufacture, supply or distribute tobacco and tobacco products. c) sell and buy tobacco and tobacco products. Import and taxation24 A person may import tobacco and tobacco products for personal consumption as per the quantity approved by the Tobacco Control Board.25 Any person who contravenes the provision of sections 11 (a) and (b) shall be punishable with a felony of the fourth degree as per the Penal Code of Bhutan.26 Any person who contravenes the provision of section 11(c) shall be punishable with a misdemeanour if the source of supply is revealed. If the accused fails to disclose the source of supply, he or she shall be liable for the offence of smuggling in addition to the offence of misdemeanour.27

Section 11, 12, 50 and 51 bans the importation of tobacco products in the country and also supply or distribution. On 31 July 2020, the Office of the Prime Minister allowed duty-free outlets to import and sell tobacco. Gradually, the government allowed the local government officials to distribute and sell tobacco products. The government justified the measure stating that the “initiative is in line with the government’s decision to make tobacco products available through Bhutan Duty-Free Limited (BDFL) and curb smuggling in the wake of the pandemic.”28 Defending the government, the Office of the Attorney General said29 : With the closure of all entry points (land and air) into the country in the wake of the pandemic, deprived some individuals (users) to import tobacco products. Although section 11 (b) and (c) and section 34 of the Tobacco Control Act 2010, restricted the sale and buy of tobacco products, section 12 of the Act permitted an individual to import tobacco for personal 23

oag received 105 covid- 19 related cases so far the bhutanese, https://thebhutan ese.bt/oag-received-105-covid-19-related-cases-so-far/ (last visited Aug 10, 2022). 24 Section 11. 25 Section 12. 26 Section 50. 27 Section 51. 28 tobacco outlet | search results | kuensel online, https://kuenselonline.com/?s=tob acco+outlet (last visited Jul 2, 2022). 29 government has not breached tobacco act or constitution: ag kuensel online, https://kuenselonline.com/government-has-not-breached-tobacco-act-or-constitution-ag/ (last visited Jul 26, 2022).

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consumption as per the legally determined quantities and upon paying duties and taxes. However, the provision of the Act became nonoperational given the lockdown and closure of entry points—which were the initial outlets (port of entry and embarkation) for declaring tobacco products bought for personal consumption. Unlike during normal times, the right to import tobacco products as per the provision of the Act invariably became defunct during the exigency of the situation of Covid-19. Article 20 (8) of the Constitution shall apply enforced only in the normal circumstances where any executive order or circular contravening or overriding the law or Constitution can not be issued. “However, Covid-19 has already declared a pandemic, and hence executive order to address exigencies situation cannot be construed as a violation of law or the Constitution of which the actions of an executive is justified per interim.” The prosecutions and convictions against several tobacco smugglers along the borders stand as a testimony of the risk and vulnerability of local transmission the country could face with the increasing smuggling activities. If the government during a normal situation made a similar decision, it would have violated the Constitution and the Act. However, given the current exigent situation due to the pandemic, he said that the interim decision was justifiable to uphold the rights of the individuals (personal consumption).

This statement is confusing and does not have legal standing or justification. The term “exigency of the situation” is not defined by any laws in Bhutan. The Constitution already contemplated emergencies but the government decided not to invoke a state of emergency. While argument of risk and vulnerability of local transmission due to smuggling activities was valid, the tobacco smuggling not the sole reason. Another major smuggling issue was chilli30 and drugs.31 Yet the government did not make any exceptions to this product. The OAG also argued that allowing importation of tobacco products was to protect individual right to consume tobacco. How about the rights of people to consume chilli in their meals or drugs? It is interesting to read that the Attorney General, the Chief Legal Officer of the government justified that the steps taken by the government were justified because it is interim. The Constitution does not provide any such interim authority to the state or any agency. This argument was refuted by a political party, the People’s Democratic Party32 and issued a press release which stated that: This legislature explicitly prohibits the cultivation, manufacture, sale, and distribution of tobacco products and restricts the import of tobacco products for personal consumption only. The Prime Minister has recently justified the sale of tobacco products through Government owned Duty-free shops to curb the increasing smuggling of the products into the country during the COVID 19 pandemic. The gross transgression on an important legislature that had been passed by the Parliament. In trampling over the Tobacco Act the DNT33 government has also violated Article 20 section 8 of the Constitution of the Kingdom of Bhutan which prohibits the executive from ‘modifying, varying, and superseding any provisions of the law 30

Chili is considered an essential ingredient product and essential food item in Bhutan. The likelihood of negative impact due to withdrawal symptoms are more dangerous and medically risky than tobacco. There are hardly any reports where people died due to withdrawal symptoms of tobacco products. 32 PDP was a ruling government from 2013 to 2018 and also served as former opposition party during the first government after Bhutan transitioned into democracy (2008–2012). 33 DNT (Druk Nyamrup Tshogpa) is name of the political party which is currently ruling Bhutan. 31

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made by Parliament or a law in force. The ‘rule of law’ which forms the heart of democracy should not be allowed to be transgressed easily by elected governments. Institutions such as the opposition party, the National Council, the media, and other political parties that have a ‘Check and Balance’ role have the constitutional duty to hold the government accountable for its actions and inactions that are detrimental to democracy, rule of law and society at large. The blatant transgression of the Tobacco control act by the government should be concerning to all institutions who are established to uphold the laws and to hold the government accountable.

A member of the Former Opposition Party34 posted on his social media explaining the objectives and intentions of the law as he was one of the members who was then a member of parliament that: The whole argument was based on the ill effects of tobacco on health spearheaded by the Ministry of Health and backed by the Dratshang35 based on our spiritual beliefs. In all probability, it could have been a Tobacco Ban Act and not a Tobacco Control Act. As a lawyer, a former judge, and a lawmaker, I feel smuggling of tobacco products could have been tackled much more effectively through continued strict monitoring and vigilance.

3.2 Pay Revision Act, 2019 The Parliament of Bhutan enacted the Pay Revisions Act, 2019 repealing the previous Pay Revision Acts. The Act36 repeals any “provision of the Pay Revision Acts, Notifications, Circulars, Rules and Regulations on pay revision that are inconsistent with the provisions of this Bill and also states that37 any amendment of this Bill must be effected by Parliament”. But the government revised the daily allowances for the public servants including transfer grants without any regard to these section and involving the parliament. The government also added additional allowances and entitlements for those serving on COVID-19 duty. However, this time, no one even discussed the matter. It sailed silently and without38 any challenges even informally and some of the provisions in the notification remain in effect till now. The question, did the government have any option? The answer is yes. When the Bhutan first confirmed COVID-19 on 6 March 2020, the Parliament was in Session and concluded only later. This means, government could have requested the parliament to suspend the law and allow the executive to make other arrangements including amendment of the law or suspension of the specific provisions until the end of COVID-19 measures are lifted. 34

He was also former Attorney General, Former judge and practicing lawyer. Central Monastic Body. 36 Repeal 5. This Act repeals any provision of the Pay Revision Acts, Notifications, Circulars, Rules and Regulations on pay revision that are inconsistent with the provisions of this Bill. 37 Section 65. The amendment of this Bill shall be by the way of addition, variation or repeal effected by Parliament. 38 While I wrote a legal op-ed in the National Newspaper this time on this issue. But no other formal channels challenged this notification. 35

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The Possible Violation of the Due Process of Law

News reports further revealed that the conviction rate was 95 percents in July 2020. The interview with Attorney General in BBS and reports suggests that OAG was able to “review and charge sheet the case within forty-eight hours from the time of case assignment, and the court took only four days to pronounce the judgment.”39 The news reports also revealed that the Office of the Attorney General carried out prosecution through skype but also authorized police to prosecute. The parliament limited40 the power of the police to prosecute. However, authorizing the police to prosecute when the police is also an investigation agency. Particularly in case of felony offences raises doubts about how fair the administration of justice is when the same organization carries out the investigation, enforcement, and prosecution. One of the prosecutors was quoted “we can always present the defendant’s mistake and the offences they have committed, but when having to do it through Skype, we do not get the same satisfaction as we get in person.” Such a statement can be understood as negative where the prosecutor wanted to show his ability to prosecute and convict the accused which not only undermines the professionalism but also shows the possible vindictive nature of the prosecutors against those who breached the COVI-19 protocols. This portrays the possible attitude of the state agencies against the accused. Most people were charged with “criminal nuisance.”41 The

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Generally, though there is no written law which dictates when the courts should complete an adjudication of any cases, there is an informal process and instruction from the Supreme Court that every case must be resolved within twelve months after the case is registered by the court. The judges are required to explain the delay of any cases beyond 12 months whether criminal or civil. Going by the experience, most criminal cases take an average of three to four months to complete prosecution. However, conviction within a week or four days was an unprecedented speed in which the criminal trials were conducted. While there were no allegations or complaints against such prosecution, it was a trend of worry on the aspect of ensuring procedural rights to the accused. Numerous lockdowns and numerous restrictions due to COVID-19, access to right to counsel was not only challenging but practically difficult and, in some instances, impossible. The other worry is that even if the state agencies like Office of the Attorney General or police were determined to speed up to deter people from illegal crossing of the border, the judiciary seemed to be in the similar boat. There are no records where the judiciary refused to allow such prosecution. 40 Section 70, Police Act of Bhutan, 2009 states that “Police shall have the power to prosecute any person for any criminal offense other than misdemeanor and above.” Under the Penal Code of Bhutan, every crime in Bhutan is graded into two broad areas. The offences of felony and offences of non-felony. The felony offences are divided into four types, the first degree, the second degree, the third degree and the fourth degree. The prison term under felony ranges from minimum of three years and maximum upto life sentence. While non-felony offences are misdemeanor, petty misdemeanor and violation. Police can prosecute only for petty misdemeanor and violation. Violation means a fine up-to three months. However, most of the offences under COVID-19 were misdemeanor or above. 41 The Criminal Nuisance is defined under Section 410 of Penal Code of Bhutan 2004 (PCB).

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criminal nuisance is defined as if the defendant knowingly42 or recklessly43 creates or maintains a condition including spreading of dangerous disease that injures or endangers the safety or health of the public.” Here is the definition requires that the defendant knows or is aware of the outcome of his conduct and recklessly means understands the “substantial and unjustifiable risks of the defendant’s conduct”. Since this is a criminal case, the Civil and Criminal Procedure Act sets the standard of proof of “beyond reasonable doubt”44 and burden of proof on the prosecutor. Interestingly, looking at the conviction rate, the courts seemed to have accepted the mere confession that they breached the protocol and does not necessarily mean that they committed the crime. Further, in many instances the defendants tested negative, yet they were convicted. The fact that they did not test positive for COVID-19 should have given the benefit of the doubt to the defendant and must have been acquitted. The only straightforward case should have been if the person tested positive and breached the protocol intending to spread the disease. But in many instances, merely going outside or gathering was considered sufficient enough to be called a breach of protocol and conviction under the Penal Code.

3.2.2

The Violation of the Constitution and Non-interference of Courts

The Officiating Chief Justice of the Supreme Court Issued a notification targetting those arrested for breaching the COVID-19 protocols. While in times of such unprecedented authority of the Executive and law enforcement agencies, the courts play a major role in ensuring the citizens’ rights are protected and the rule of law has adhered to, but going by the reports and rate of conviction and other legal issues, it seemed like the Supreme Court submitted itself to the Executive pressure and asked the entire courts to follow the same. Further, differentiating the COVID-19 cases and other offences, the existence of differentiation violates the equality before the law as now one is treated differently only because they have breached COVID-19 protocol. Such actions were in contravention to Section 3 of the Civil Criminal Procedure Code of Bhutan, 2001 which guarantees every person equality before the law and the right to life and liberty can be deprived only due process of law established 42

The term “knowingly” is defined under Section 55 of the Penal Code of Bhutan. As per this provision, it is considered “knowingly” if the “defendant acts knowingly with respect to a material element of an offence, when the element involves, the nature of the defendant’s conduct or circumstances and the defendant is aware that his conduct is of that nature or that the circumstances exist; or a result of the defendant’s conduct and the defendant is aware that it is practically certain that his conduct will cause that result”. 43 The term “Recklessly” is defined under Section 56 of PCB. It is defined as “a defendant acts recklessly with respect to a material element of an offence when the defendant consciously disregards a substantial and unjustifiable risk that the material element exists or would result from the defendant’s conduct. The risk must be of the nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to the defendant, his disregard for the risk constitutes a gross deviation from the standard of conduct of a reasonable person in the defendant’s situation”. 44 Section 96.2 of CCP, 2001

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by the parliament. The Code also mandates conviction can be possible only if the prosecutor proves the accusations “satisfaction of the Court has established a proof beyond a reasonable doubt.”45 Under the Penal Code, the court is also required to consider mens rea and actus rea and also “mitigating and aggravating factors.”46 The notification circumvented all these primary aspects of criminal justice. This notification from the Supreme Court set an unprecedented precedent in Bhutan’s judicial system as it not only undermined the rule of law and procedural rights but also the Constitution itself. Due process is fundamental to rule of law and notification from the Supreme Court completely undermines this provision as if the maximum penalty is predetermined, the entire judicial process is a mere formality.

4 Possible Arbitrary Arrest As the lockdowns and restrictions on COVID-19 continued, the wearing of masks became more stringent. Reports in the media revealed that law enforcement officials took serious issues of wearing a mask in public places in some districts. Though the government never announced any fines or punishments for not wearing the mask, some district authorities-imposed fines and one district took people to the police station and released them only after writing statements which possibly amounts to arbitrary arrest. For instance, the Bhutan Broadcasting Service Corporation, the Bhutan only National Newspaper reported47 : The Punakha District COVID-19 Task Force started reinforcing the mandatory use of proper face masks in public places last month. About 250 people without wearing a face mask or wearing it improperly in public places were apprehended in the last two weeks. Police escort the defaulters from the spot directly to the nearest police station. They are only released with a warning after submitting their details to the police for future records. Defaulters have to give a thumb impression which will be used in the court as evidence if the offence is repeated.

Article 7 Section 1 of the Constitution of Bhutan states that “All persons shall have the right to life, liberty and security of person and shall not be deprived of such rights except in accordance with the due process of law.” This is further reiterated in the Civil and Criminal Procedure Code.48 There are two ways where the state is authorized to arrest a person. First, without a warrant, if the offences are cognizable and for all other arrests, there must be an arrest warrant. Otherwise, it will constitute arbitrary arrest both under the Constitution and the Procedure Law. However, in the case of Punakha, though the Police or authorities fell short of calling it an arrest, the conduct manifests well that it was a form of arrest. 45

Section 96.2 CCPC, 2004. Section 17, Penal Code of Bhutan, 2004. 47 not all are happy with the strict face mask protocol, punakha bbscl, http:// www.bbs.bt/news/?p=156875 (last visited Jun 26, 2022). 48 Section 158 of the Civil and Criminal Procedure Code states that “No person shall be subjected to arrest or detention, except in accordance with this Code.” 46

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Article 7 Section 20 states that “a person shall not be subjected to arbitrary arrest or detention.” Neither the Constitution nor the Procedure Code defines what constitutes an arrest. An arrest may be defined as “forcible restraint or taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.”49 By this definition, the police taking the people to the police station and asking them to provide a statement constitutes an arrest. Since taking them to the police for a short period, their freedom movement and liberty are curtailed momentarily. Infringement on their liberty violates the constitutional protection of the right to liberty as there is no law which authorizes the authorities like the police to take the people to the police station. The due process of law is not followed.

5 Inconsistent Enforcement of Laws Another controversial step taken by the government was on inconsistent enforcement of laws for different people. There is evidence of inconsistencies, yet the government or authorities did not even take cognizance of such measures. The following reports summarize those inconsistencies. Police have recently arrested two men for breaching the COVID-19 protocols in Phuentshogling. The suspects travelled to low-risk areas from a high-risk place without undergoing the 7-day mandatory quarantine. According to the Southern COVID-19 Task Force in Phuentshogling, the cases will be forwarded to the court and they will be charged with violating the provisions of the penal code of Bhutan for their complete disregard for the safety of the nation.50

Another report stated: On Friday, Punakha Police released two men on surety due to the pandemic situation in the district. Police arrested them on Thursday for allegedly breaching the COVID-19 protocols. They had walked to Punakha from Thimphu last month during the lockdown. Both of them tested negative for COVID. The men are from Kabisa in Punakha. They had entered Punakha from Langjophakha in Thimphu without informing the authorities. They walked for more than 15 hours through an old trail across Sinchula Mountain and reached Punakha on January 28. People alerted the local authorities about them. The duo told the police that they got tested for COVID-19 before starting the journey but did not get the result. The men were home quarantined and arrested after testing negative for RT-PCR on Thursday. Police said they will be charged with criminal nuisance and breach of public order and tranquillity.51

Contrary to the above incidences, when a similar breach was committed by medical professionals, the authorities took a completely different approach and 49

black’s law dictionary. two men arrested for breaching covid protocols bbscl, http://www.bbs.bt/news/? p=164328 (last visited Aug 7, 2022). 51 two arrested for allegedly breaching covid- 19 protocols in punakha bbscl, http://www.bbs.bt/news/?p=165499 (last visited Aug 7, 2022). 50

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considered it as a mere administrative issue and imposed administrative sanctions. The report is produced below: The health ministry’s human resource committee (HRC) recently decided to withhold the promotions of two doctors for breaching the Covid-19 protocol. The senior medical officer working at the Gedu Hospital had travelled to Phuentsholing and returned to his station without following the seven-day quarantine protocol. The existing protocol identifies Phuentsholing as a high-risk and Gedu as a low-risk area. Any individual travelling from a higher risk area has to mandatorily undergo the seven-day facility quarantine and get tested for Covid-19 at the place of origin before travelling to a lower-risk area.52

The two doctors who were professionals and experts in health breached the protocol. Yet the government refused to use the penal provisions to prosecute them. This clearly showed that the authorities took a liberal measure to water down the entire protocol. Now, the report further illustrates the inconsistencies. A 37-year-old businesswoman in Southern Bhutan was arrested and prosecuted for evading the mandatory seven-day quarantine. Before embarking on her journey, he went for the test and tested negative in the Central Regional Referral Hospital. She claimed that she inquired about the travel to officials on duty since she had the COVID-19 test certificate. The escort official issued her a road permit which was already signed by the Dzongkhag Incident Commander and the Superintendent of Police (SP) that jurisdiction.” She cited that her reason for travel was emergency since her stepson was sick and there was no one to look after his children.”53 The reports revealed that she was able to breach the protocol because officials seemed to have helped her out. This means, under the Penal Code, the authorities who let the woman escape without completing mandatory quarantine were due to assistance from the authorities,54 should also been charged under Penal Code with a criminal offence such as aiding and abetting in additional administrative actions. But both the prosecutors and courts decided to only prosecute the woman and not others and officials faced no action going by the available reports. This is a deviation from other criminal offences in the country. The woman appealed to the District Court. The District Court also upheld the decision of the lower court and the “police had appealed to the court that the accused was given the lowest penalty, a three-month prison term, for the breach of Covid-19 protocol.55 In this prosecution, the police appealed to have the maximum penalty while they never even charged the two doctors 52

two doctors penalised for breaching covid- 19 protocol kuensel online, https:/ /kuenselonline.com/two-doctors-penalised-for-breaching-covid-19-protocol/ (last visited Jul 26, 2022). 53 businesswoman accused of breaching covid- 19 travel protocol refutes allegations - - business bhutan, https://businessbhutan.bt/businesswoman-accused-of-breachingcovid-19-travel-protocol-refutes-allegations/ (last visited Aug 7, 2022). 54 Under Section 125 of the Penal Code of Bhutan, 2004 states that “A defendant shall be guilty of the offence of aiding and abetting a crime, if the defendant engages in a conduct designed to accommodate or help another person in the commission of a crime.” 55 drungkhag judgment on covid- 19 protocol breach upheld kuensel online, https://kuenselonline.com/drungkhag-judgment-on-covid-19-protocol-breach-upheld/ (last visited July 17, 2022).

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and the grounds for appeal were based on a standing order from the Supreme Court asking the lower courts to award the maximum sentences.56 Compared to two doctors who breached the quarantine protocol in a high-risk area, many others got convicted for merely coming out of their homes and playing in their jurisdiction. A report stated that “The Monggar District Court sentenced 16 men from Ngatshang Gewog and eight women from Saling Gewog in Monggar to six months in prison for breaching the COVID-19 protocols during the second nationwide lockdown. While the men were convicted for playing archery in Ngatshang Gewog, the women were sentenced for playing khuru during the Nyilo on January 2 and one of them tested positive for COVID-19.57

6 Law Applied to Citizens but not the Government When They Breached the Protocols While the public continues to face arrest, prosecution and incarceration, the government authorities operated with impunity. The national newspapers reported serious lapses which led to most national lockdowns. The reports include serious failures on the part of the state authorities including COVID-19 Taskforce-national and regional taskforce teams.

6.1 Paro International Airport Incident The report states that on a flight carrying 52 passengers and 6 crew members who travelled from Kolkata, more than 60% of the passengers tested positive for COVID19. Yet the authorities at the airport did not take adequate measures. The report revealed that drivers deputed to transport those passengers to quarantine facilities were not tested or stayed in the self-containment mode as per the protocol, sent home in the evening eventually testing 16 students as well as locals residing nearby the school where the school bus was used to transport the passengers. Some of the 56

Section 5 of Civil and Criminal Procedure Code, 2001 states that “the Courts shall decide matters before it impartially on the basis of fact and in accordance with the rule of law.” But in case of COVID-19 cases, the issuance of standing order to award maximum sentence is unprecedented and violates numerous CCPC provisions. “The Supreme Court issued an order on 27 April 2020 to lower courts instructing the judges to apply sections 187.3 (to meet the ends of justice, courts may alter or add to any charge before the judgment is pronounced) and 188 (right to a speedy trial) of CCPC and to impose the highest penalty as a “deterrence” to the accused.”every court is independent of each other when it comes to judicial decisions kuensel online, https://kuenselonline.com/every-court-is-independent-ofeach-other-when-it-comes-to-judicial-decisions/ (last visited June 29, 2022). 57 monggar district court sentences 16 men and eight women to six months in prison for breaching covid protocols bbscl, http://www.bbs.bt/news/?p=144422 (last visited Aug 8, 2022).

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residents took part in the archery tournament-super spreading event. There was a lack of coordination instead of confusion causing more breaches in the protocol. The report stated that “the health official said that the government is working on coming up with modalities looking at the protocol lapses. There needs to be better communication as the PMO and MoH need to talk to each other on the logistics issues and there needs to be better coordination in general.” The health minister was quoted as “COVID-19 came from Paro and was spread to Dechencholing, Dangrena where there were archery tournaments and holidays and so from there it spread to Norzin Wom cluster and from there to the Terma Linca cluster, Olakha cluster and then to the Debsi cluster. She said it is not about appropriating blame but improving the system and preventing future lapses by putting in place new plans and policies.” The report further stated that “PMO is in charge of the overall logistics and guidance when it comes to an area like Paro there is a team headed by the Dzongda as the Incident Commander to implement measures within the Dzongkhag.”58

6.2 Lapses in the Southern Borders59 The National Inspection Team (NIT) carried out an “inspection on Covid-19 health safety protocol adherence and compliance for Phuentsholing conducted between June 30 and July 7, 2021.” The report pointed out that “the probable cause of the continuous transmission of Covid-19 at forest colony was suspected to illegal exchange of goods with opposite buildings in India due to proximity—drop and pick through dry drains, holes in the wall or by throwing. It was found that although there were five CCTV cameras installed, fruit trees and other plants obstruct coverage, and the cameras also had some blind spots.” The report revealed that the “probable cause of continuous transmission of Covid-19 to other areas was due to probable leakage from red clusters and red buildings caused by inadequate monitoring” and also a breach of safety protocols by frontline workers including Police. The report further revealed that “all frontline workers wore the same cloth face masks for three to five days. Incoming travellers were not provided with face masks. NIT also found that there were no soaps at the handwashing stations or washbasins.”60

58

how complacency and lax protocols led to the nation’s second covid- 19 outbreak the bhutanese, https://thebhutanese.bt/how-complacency-and-lax-protocols-led-tothe-nations-second-covid-19-outbreak/ (last visited Aug 10, 2022). 59 Bhutan shares huge porous border with India. During the lapses, India was facing a severe wave of COVID-19 cases with thousands of deaths. 60 inspection reveals major loopholes in phuentsholing covid- 19 protocol kuensel online, https://kuenselonline.com/inspection-reveals-major-loopholes-in-phuentsho ling-covid-19-protocol/ (last visited Aug 10, 2022).

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6.3 Wangdu Outbreak—National Lockdown This leads to the final national lockdown in the country. Both print and broadcast and also social media reported that governments defied their protocols which led to the sudden wave of COVID-19 positive cases. The figures revealed that out of 106 foreign workers 91 tested positive for COVID-19 in the PHPA-II Quarantine and also 11 frontliners tested positive. From this incident, the country could no longer control the virus and had to shift its strategy. The allegations or lapses were that the COVID-19 protocol required everyone entering the country needs to be tested for COVID-19, but those workers were not tested. Instead of keeping them at the border area for quarantine, they were transported to place in the central of the country making it more vulnerable to spread.61 The various information revealed that there was a serious breach on the part of the government and its agencies in enforcing protocol. However, the government refused to concede to any flaws and instead justified its stand. After this outbreak, the government could no longer control the COVID-19. It was only fortunate that it did not affect much as by then Bhutan has successfully rolled out the third COVID-19 Vaccine. But no government official in any of these incidents face even administrative sanctions, forget about criminal sanctions.

7 Conclusion The most striking feature during the pandemic was the lack of checks and balances. There were no transparency and accountability in dealing with those cases. With the frequent national and cluster lockdowns and restrictions, transparency on how each case was prosecuted was not available. The public had no access to decisions of the courts and details about the cases. The media in general often supported the decisions of the cases and refused to criticize any of the government actions.

61

how covid positive foreign workers, a more infectious variant and laxity caused the wangdue outbreak the bhutanese, https://thebhutanese.bt/how-covid-pos itive-foreign-workers-a-more-infectious-variant-and-laxity-caused-the-wangdue-outbreak/ (last visited June 30, 2022).

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Article 1 Section 11 mandates that Supreme Court is the guardian and final authority to interpret the constitution.62 The Constitution empowers63 the Supreme Court and the High Court the authority to “issue declarations, orders, directions or writs as may be appropriate in the circumstances of each case.” However, the Supreme Court remained a spectator though the government violated the Constitution by importing and distributing tobacco products and amending the Pay Revision Act through executive orders. Contrarily, the notification from Supreme Court decreeing the courts to impose the maximum penalty for those breaching COVID-19 protocols is the unprecedented manner in which the judiciary not only failed to assert judicial independence, serve as a fountain of justice, ensure checks and balances in government actions but also function as guardian of the Constitution. The impact of the Executive Order this time may not have any impact per se mainly because the government could take refuge in the COVID-19 crisis. Unlike most other nations including Bhutan’s neighbours in Southeast Asia, the Bhutanese public has been not only obedient but also cooperative in fighting COVID-19. Despite numerous inconveniences, the public has strongly adhered to the government’s instructions. For example, some families who lost loved ones to COVID-19 or died due to other reasons were forbidden from attending funerals or conducting rites because of COVID-19 restrictions. Many had to wait for months to get quarantined to visit their ailing and ageing parents in remote parts of the country. Those who got admitted to the hospitals were barred from changing their attendees or anything from home to the hospital. The single attendant had to be in the hospital with the patient they were discharged from the hospital. All social gatherings and festivals had to be closed for years to the public which would have been impossible if it was not for COVID-19. Those social gatherings and festivals were not just socially important but spiritually necessary. The Central Monastic Body Officials had come on national television to convince the public from attending such spiritual events.

However, the possibility of taking the steps taken by the Government in violation of Constitutional restrictions cannot be ruled out in a democracy. The political party in power may use those steps as precedents to fulfil their political promises and agenda. Further, the Executive in future may issue similar notifications to deviate from parliamentary acts and justify that the Executive exercised the authorities within their power and the constitutional limitations. Such steps though for now seem minimal, may have serious consequences on the rule of law, the democratic values and more so on the parliamentary sovereignty in terms of law-making authority. Such steps would greatly undermine the fundamentals of the doctrine of separation of power. 62

Explaining this provision, the Fourth King said “The Supreme Court is the Guardian of the Constitution and must ensure its credibility and relevance in perpetuity. As the Guardian, the Supreme Court must truly understand the significance and purpose of the Constitution as a living document, interpret its content with incontestable clarity and without failing vigilance. As the final authority on interpretation, the Supreme Court must not allow the Constitution to be undermined through misinterpretation at any time, it must inspire the trust and confidence of the people in the world Constitution by safeguarding its integrity as the fountain of legislative wisdom, and it must maintain the independent authority of the Constitution from all other power centres and institutions in the land.” (Royal Audience by His Majesty Jigme Singye Wangchuck, 30 November 2009 to the Chairperson, Constitution Drafting Committee). 63 Article 21 Section 10, Constitution of Bhutan.

Cross Border Judicial Dialogue: A Look at Indian Supreme Court’s Engagement with Australian Jurisprudence in National Legal Services Authority V. Union of India Hakim Yasir Abbas

1 Jurocomparatology, Indian Constitutional Interpretation and NLSA 1.1 NLSA—An Overview Feeling the need to address the serious problems and challenges faced by the transgender community in India, a number of individuals and organisations approached the Indian Supreme Court seeking redressal of the same.1 These petitions, while bringing to the court’s attention the historical trauma, agony and pain faced by the members of the transgender community in India, asked the court to legally recognise transgenders as the ‘third gender’ and to lay down appropriate guidelines for alleviating the problems faced by the transgender community. The petitioners claimed that restricting the definition of ‘gender’ to the traditional binary ‘male and female’ spectrum and the failure of the state to recognise transgenders outside the same violated article 14, 15, 19 and 21 of the Indian Constitution. It was claimed that such non-recognition deprived the transgender community of their basic socio-economic, political and cultural rights and led to them being treated as outcasts and untouchables.2 The two judge bench, comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri, which heard these petitions agreed with the petitioners and declared that 1 National Legal Services Authority [Writ Petition No. 400 of 2012]; Poojaya Mata Nasib Kaur Ji Women Welfare Society (A Registered Association) [Writ Petition No. 604 of 2013]; Laxmi Narayan Tripathy (Intervener) [I.A. No. 2 of 2013]. 2 Supra note 13 at 1868 to 1871.

Y. A. Hakim (B) School of Law, University of Kashmir, Srinagar, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_7

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the “hijras, eunuchs, apart from binary gender, be treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of [the] Constitution and other laws”.3 Moreover, the court also passed certain directions to the Centre as well as the States to take appropriate actions for safeguarding these rights.4 The decision in NLSA has become the basis for a number of subsequent judicial decisions5 as well as policy reforms for protection of rights of transgender persons.6 While these decisions and policies have happened at random intervals, it is the Transgender Persons (Protection of Rights) Act, 2019 [hereinafter TP Act] and the Transgender Persons (Protection of Rights) Rules, 20207 [hereinafter TP Rules] framed under it which are argued to have brought some consistency and uniformity as far as protection of the rights of transgender persons are concerned.8

1.2 Jurocomparatology and Constitutional Interpretation A major portion of the court’s ratio in NLSA was based on comprehensive engagement with jurocomparatology. Indian constitutional courts have constantly engaged with foreign law and international law for constitutional interpretation. A plethora of

3

Supra note 13 at 1906. Id. 5 Kabeer C. v.State of Kerala, W.P. (C) No. 29247 of 2019 - Judgment dated 17th November, 2021 (High Court of Kerala); Anjali Guru Sanjana Jaan v. The State of Maharashtra, W.P. (Stamp) No. 104 of 2021 - Judgment dated 2nd January, 2021 [High Court of Judicature at Bombay (Aurangabad Bench)]; Grace Banu v. State of Tamil Nadu, W.P. No. 12035 of 2021 - Judgment Dated 2nd August, 2021 (High Court of Judicature at Madras) [Directions for payment of cash benefit to transgender persons and vaccination of transgenders]; Shivanya Pandey v. State of Uttar Pradesh, Misc. Single No. 26611 of 2017 - Judgment dated 26th November, 2021 [High Court of Allahabad (Lucknow Bench)] [Direction to State authorities to take immediate steps for change of name and gender of the petitioner (a Transgender) in her educational mark-sheets and certificates after the petitioner underwent SRS]. 6 See Government of Kerala, “State Policy for Transgenders in Kerala, 2015” (Social Justice Department, 2015) available at: https://translaw.clpr.org.in/wp-content/uploads/2019/01/State-Policy-forTransgenders-in-Kerala-2015.pdf (last visited on January 31st, 2022); Amendment of Income Tax Rules, 1962 to include Transgender as the third option in PAN Card [Income Tax (Fourth Amendment) Rules, 2018 (Notification No. 18/2018/F.No.370142/40/2016 - TPL), s.2]. 7 Transgender Persons (Protection of Rights) Rules, 2020. 8 Some provisions of the Act have been challenged before the Supreme Court of India. See Swati Bidhan Baruah v. Union of India, W.P. (Civil) No. 51 of 2020 - Order dated 27th January, 2020 (Supreme Court of India) available at: https://drive.google.com/viewerng/viewer?url=https://www. livelaw.in/pdf_upload/pdf_upload-369559.pdf (last visited on Janurary 31, 2022); Also see Kajal Mangal Mukhi v. Union of India, W.P. (Civil) No. 985/2021 - Order dated 21st January, 2022 (Supreme Court of India) available at: https://www.livelaw.in/pdf_upload/kajal-mangal-mukhi-vuoi--408046.pdf (last visited on January 31st, 2022]. 4

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judicial decisions in India ranging from freedom of press,9 right to privacy,10 freedom to travel abroad (right to possess a passport),11 custodial torture,12 constitutionality of death penalty,13 protection of women against sexual harassment at work place,14 prior restraints on publication15 and the criminalisation of certain forms of speech and expression on the internet16 show a comprehensive engagement with jurocomparatology. In this regard, the Supreme Court itself has time and again recognised the value of both ‘foreign law’ as well as ‘international law’ as tools of constitutional interpretation.17

1.3 Jurocomparatology and NLSA The Supreme Court, particularly Justice K.S. Radhakrishnan, engaged with jurocomparatology comprehensively. Out of the 58 decisions cited/discussed in NLSA, 17 were from foreign jurisdictions and 4 from international forums. The court also referred to 13 foreign statutes and 08 international legal instruments. A detailed analysis of the court’s engagement with jurocomparatology is provided as follows:

9

Romesh Thappar v. State of Madras, AIR 1950 SC 124; Brij Bhusan v. State of Delhi, AIR 1950 SC 129; Bennett Coleman v. Union of India, AIR 1973 SC 106 [hereinafter Coleman 1973] [Challenge against governmental limits on import of newsprint]. 10 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 [hereinafter Kharak 1963] [Unauthorised police surveillance as considered as violative of right to privacy’]; Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161 [Right to Privacy is an integral part of right to life and personal liberty as provided in article 21 of the Constitution]. 11 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 12 D. K. Basu v. State of West Bengal, AIR 1997 SC 610. 13 Bachan Singh v. Union of India, AIR 1980 SC 898. 14 Vishaka v. State of Rajasthan, AIR 1997 SC 3011 [hereinafter Vishaka]. 15 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264. 16 Shreya Singhal v. Union of India, (2013) 12 SCC 73 [hereinafter Singhal]. 17 See Vishaka, Supra note 27; Singhal, Id. ; See also P.K. Tripathi, “Foreign Precedents and Constitutional Law” 57(3) Columbia Law Review 319 (1957); Smith 2006, Supra note 4 at 259 [Referring to the initial reliance of the Supreme Court of India on international law and the subsequent intensification of the same since 1990s because of the fact that “the Indian Court [...] amassed more power and the country [underwent] significant changes through its immersion in globalisation.”]; Justice K.G. Balakrishnan, “The Role of Foreign Precedents in a Country’s Legal System” 22(1) National Law School of India Review 1 (2010); Jean - Louis Halperin, “Western Legal Transplants and India" 2(1) Jindal Global Law Review 14 (2010); Hakim Yasir Abbas, “Critical Analysis of the Role of Non-Indian Persuasive Authorities in Constitutional Interpretation” 1(II) Comparative Constitutional Law and Administrative Law Quarterly 46 (2013) available at: https://www. calq.in/_files/ugd/6cd5fc_936f75f904e6440890fc23c68ab4fcc5.pdf (last visited on January 30th, 2022); Valentina Rita Scotti, “India: A Critical Use of Foreign Precedents in Constitutional Adjudication”, in Tania Groppi and Marie Claire Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges 69 - 96 (Hart Publishing, 2013).

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Quantitative Analysis

See Figs. 1, 2, 3 and 4; Tables 1 and 2. 38

40

30

20

17

10 4 0 Indian Cases

Foreign Cases

International Forums

Fig. 1 Numerical representation of cited/discussed judicial decisions Fig. 2 Percentage wise share of cited/discussed judicial decisions

29%

64%

Foreign

7%

International

Indian

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10 8 8 6 4

3 2

2

1

1

1

1

0

USA

Malaysia

Nepal

Australia

New Zealand

UK

Pakistan

Fig. 3 Numerical representation of foreign judicial decisions Fig. 4 Percentage wise representation of foreign judicial decisions

6%

6% 6% 6%

47%

12% 18%

Australia USA Nepal New Zealand

1.3.2

United Kingdom Malaysia Pakistan

Qualitative Analysis

Extensive and fruitful engagement with jurocomparatology is clear from the above information. The nature of such engagement is reflected in the following observation of the court:

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Table 1 Details of foreign and international forum cases Jurisdiction Details

Australia

Name of the case

Forum

Date of judgment

Citation

Name of the judge who cited the case (and page number as reflected in AIR)

A.B. v. Western Australia

High Court of Australia

6th October, 2011

(2011) HCA 42

Justice K.S. Radhakrishnan (1879)

Attorney General for Family Court the Commonwealth v. of Australia Kevin and Jennifer (Full Court) and Human Rights and Equal Opportunity Commission

21st February, 2003

[2003] FamCA 94

Justice K.S. Radhakrishnan (1879)

Collector of Customs Federal Court v. Pozzolanic of Australia Enterprises Pty Ltd

9th July, 1993

[1993] FCA 456

Justice K.S. Radhakrishnan (1880, 1881)

Hope v. Bathurst City High Court of Council Australia

20th June, 1980

[1980] HCA 16

Justice K.S. Radhakrishnan (1881)

Norrie v. NSW Registrar of Births, Deaths and Marriages [This decision was upheld by the High Court of Australia in NSW Registrar of Births, Deaths and Marriages v. Norrie (2014) HCA 11—Decided on 2nd April, 2014]

Supreme Court 31st May, of New South 2013 Wales

[2013] NSWCA 145

Justice K.S. Radhakrishnan (1880)

Re Kevin (Validity of Marriage of Transsexual)

Family Court 12th of Australia October, (Single Judge) 2001

[2001] FamCA 1074

Justice K.S. Radhakrishnan (1879)

R. v. Harris & McGuiness

New South 32st Wales Court of October, Criminal 1988 Appeal

(1988) 17 NSWLR 158

Justice K.S. Radhakrishnan (1879)

1st (1993) 43 December, FCR 299 1993

Justice K.S. Radhakrishnan (1879)

Secretary, Federal Court Department of Social of Australia Security v. SRA

(continued)

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Table 1 (continued) Jurisdiction Details Name of the case

Forum

Date of judgment

Citation

Name of the judge who cited the case (and page number as reflected in AIR)

Malaysia

JG v. Pengarah Jabatan Pendaftaran Negara

High Court of 25th May, Kuala Lumpur, 2005 Malaysia

(2006) 1 MLJ 90

Justice K.S. Radhakrishnan (1880)

Nepal

Sunil Babu Pant v. Supreme Court 21st Nepal Government of Nepal December, (Writ Petition No.917 2007 of 2007)

New Zealand

Attorney General v. Otahuhu Family Court

High Court of New Zealand

30th [1995] 1 November, NZLR 603 1994

Justice K.S. Radhakrishnan (1879)

Pakistan

Dr. Mohammad Aslam Khaki v. Senior Superintendent of Police (Operation) Rawalpindi

Supreme Court 25th PLD 2013 of Pakistan September, SC 188 2012

Justice K.S. Radhakrishnan (1893)

United Kingdom

Bellinger v. Bellinger House of Lords

United States of America

2 NJA Law Justice K.S. Journal Radhakrishnan 2008, (1893) pp. 261 286

10th April, (2003) 2 Justice K.S. 2003 All ER 593 Radhakrishnan (1880)

Corbett v. Corbett

Probate, 2nd Divorced February, Admiralty 1970 Division of the High Court of Justice

(1970) 2 All ER 33

Justice K.S. Radhakrishnan And Justice A.K. Sikri (1878, 1879, 1880 and 1894)

R. v. Tan

Court of Appeal, Criminal Division

February, 1983

(1983) QB 1053

Justice K.S. Radhakrishnan (1879)

City of Chicago v. Wallace Wilson

Supreme Court 26th May, of Illinois 1978

75 III. 2d 525 (1978)

Justice K.S. Radhakrishnan (1892) (continued)

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Table 1 (continued) Jurisdiction Details

European Court of Human Rights

Name of the case

Forum

Date of judgment

Doe v. Yunits et. al

Superior Court 11th of October, Massachusetts, 2000 US

Citation

Name of the judge who cited the case (and page number as reflected in AIR)

2000 WL Justice K.S. 33,162,199 Radhakrishnan (Mass. (1892) Super.)

Christine Goodwin v. European 11th July, United Kingdom Court of 2002 Human Rights

Application No. 28957/ 95, 35 Eur. H. R. Rep. 18 (2002)

Mikulic v. Croatia

European 7th Court of February, Human Rights 2002

[2002] Justice K.S. Reports of Radhakrishnan Judgments (1881) and Decisions 2002-I, Application No. 53176/ 99

Pretty v. United Kingdom

European 29th April, (2346/02) Court of 2002 [2002] Human Rights ECHR 423

Van Kuck v. Germany European 12th June, Court of 2003 Human Rights

Justice K.S. Radhakrishnan (1881 and 1882)

Justice K.S. Radhakrishnan (1881)

Application Justice K.S. No. 35968/ Radhakrishnan 97, ECHR (1881) 2003

We have referred exhaustively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of ‘sex identity gender’ of persons, and ‘guarantee to equality and non-discrimination’ on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, be applied in India as well.18

While Part 2 of this article looks at NLSA’s engagement with Australian jurisprudence, it would be fruitful to discuss other jurisdictions and international law here.

18

Supra note 13 at 1885.

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Table 2 Details of foreign statutes and international legal instruments Jurisdiction

Details Name of the law

Date of enactment

Nature and Citation

Name of the Judge Who Referred to the International Legal Instrument (and Page Number as Reflected in AIR)

Argentina

Ley De Identidad De Genero, 2012 [Gender Identity Law, 2012]

24th May, 2012

Original Statute Number 26.743

Justice K.S. Radhakrishnan (1884)

Australia

Sex Discrimination Act, 1984 1984

Original Statute No. 4, 1984

Justice K.S. Radhakrishnan (1882)

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013

28th June, 2013

Amendment to Australia’s Sex Discrimination Act, 1984 No. 98, 2013

Justice K.S. Radhakrishnan (1882)

Germany

Civil Status Law Amending Act, Personenstandsrechts Anderungsgesetz PStRAndG

7th May, 2013

Amendment to Germany’s Civil Status Act (PStG), 2007 BGPI I p. 1122

Justice K.S. Radhakrishnan (1885)

Hungary

Act CXXV of 2003 on 22nd Equal Treatment and the December, Promotion of Equal 2003 Opportunities

Original Statute Act CXXV of 2003

Justice K.S. Radhakrishnan (1884)

South Africa

The Alteration of Sex Description and Sex Status Act, 2003

Original Statute No. 49 of 2003

Justice K.S. Radhakrishnan (1884)

United Kingdom

Sex Discrimination Act, 25th 1986 January, 1988

Original Statute Justice K.S. (Commencement No. Radhakrishnan 2) Order 1988 [S.I. (1882) No. 99 (C.4) of 1988]

Gender Recognition Act, 2004

1st July, 2004

2004 Chapter 7

Justice K.S. Radhakrishnan (1882)

Equality Act, 2010

8th April, 2010

2010 Chapter 15

Justice K.S. Radhakrishnan (1882)

9th March, 2004

(continued)

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Table 2 (continued) Jurisdiction

Details Name of the law

Date of enactment

Nature and Citation

Name of the Judge Who Referred to the International Legal Instrument (and Page Number as Reflected in AIR)

4th March, 1789

Original Statute

Justice K.S. Radhakrishnan (1888)

U.S. Bill of Rights

15th December, 1791

Amendment to U.S. Constitution

Justice K.S. Radhakrishnan (1896)

Civil Rights Act, 1968

11th April, 1968

Public Law Np. 90 284, 82 Stat. 73 (1968)

Justice K.S. Radhakrishnan (1884)

The Matthew Shepard and James Byrd, Jr., Hate Crime Prevention Act, 2009

22nd October, 2009

18 USC No. 249

Justice K.S. Radhakrishnan (1884)

United Nations Charter

24th October, 1945

1 UN - TS XVI

Justice K.S. Radhakrishnan and Justice A.K. Sikri (1896 and 1899)

Universal Declaration of 1948 Human Rights

GA Res 217A (III), UNGAOR, 3rd Sess, Supp. No. 13, UN Doc A/810 (1948) 71

Justice K.S. Radhakrishnan and Justice A.K. Sikri (1873, 1887, 1888, 1896 and 1902)

International Covenant on Civil and Political Rights

UN - TS, Vol. 999, p. 171

Justice K.S. Radhakrishnan (1887, 1888, and 1889)

United States Constitution of USA of America

International Conventions/ Treaties

1966 [Entry into Force - 23 March 1976]

(continued)

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Table 2 (continued) Jurisdiction

Details Name of the law

Date of enactment

Nature and Citation

Name of the Judge Who Referred to the International Legal Instrument (and Page Number as Reflected in AIR)

International Covenant on Economic, Social and Cultural Rights

1966 [Entry into Force - 3 January 1976]

UN - TS, Vol. 993, p. 3

Justice K.S. Radhakrishnan (1888)

Vienna Convention on Law of Treaties

1969 [Entry into Force - 27 January 1980]

UN - TS, Vol. 1155, p. 331

Justice K.S. Radhakrishnan (1889)

Convention Against 1984 Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

UN - TS, Vol. 1465, p. 85

Justice K.S. Radhakrishnan (1878 and 1888)

General Comment No. 2: Implementation of Article 2 by State Parties [Committee Against Torture]

24th January, 2008

CAT/C/GC/2

Justice K.S. Radhakrishnan (1878)

General Recommendation No. 20: Reservations to the Convention [Committee on the Elimination of Discrimination Against Women]

1992

A/47/38

Justice K.S. Radhakrishnan (1878)

(continued)

Recognition of Basic Human Rights of Transgenders Justice Radhakrishnan, firstly, referred to the decision of the Supreme Court of Nepal in Sunil Babu Pant v. Nepal Government 19 and, secondly, to the decision of the 19

(Writ Petition No.917 of 2007) - Judgment dated 21st December, 2007 (Supreme Court of Nepal); 2 NJA Law Journal 2008, pp. 261–286.

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Table 2 (continued) Jurisdiction

Details Name of the law

Date of enactment

Nature and Citation

Name of the Judge Who Referred to the International Legal Instrument (and Page Number as Reflected in AIR)

Directive 2006/54/EC of 5th July the European Parliament 2006 and of the Council

L 204/23, Official Journal of the European Union (26.7.2006)

Justice K.S. Radhakrishnan (1884)

Resolution on Discrimination Against Transsexuals of the European Parliament

12th September, 1989

C 256/33 - 37, Official Justice K.S. Journal of the Radhakrishnan European (1884) Communities (09.10.1989)

Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles)

March 2007 International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity

Justice K.S. Radhakrishnan (1869, 1873, 1878 and 1890)

Supreme Court of Pakistan in Dr. Mohammad Aslam Khaki v. Senior Superintendent of Police (Operation) Rawalpindi20 to highlight how persons who recognise themselves outside the ‘male/female’ binary also have basic human rights and should not be discriminated against on the basis of their sexual orientation.21 Freedom of Expression and Gender Identity Justice Radhakrishnan also referred to the U.S. cases of City of Chicago v. Wilson22 and Doe v. Yunits23 to show how freedom of expression guaranteed under article 19(1)(a) of the Indian Constitution should be interpreted to “include the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc.”24 After discussing the relevant portions of the two judgments, Justice Radhakrishnan made the following observation: 20

PLD 2013 SC 188 (Supreme Court of Pakistan). Supra note 13 at 1893, 1894. 22 75 III.2d 525(1978). 23 2000 WL33162199 (Mass. Super.). 24 Supra note 13 at 1892. 21

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Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities, either due to ignorance or otherwise, fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognise those rights.25

Evolution of International Human Rights Law on Sexual Orientation and Gender Identity The court also highlighted why the issue under consideration had to be addressed in light of relevant international law.26 Justice Radhakrishnan began by referring to the provisions of Indian Constitution and relevant case law which justify use of international law for purposes of constitutional interpretation. These include article 21, article 253, and article 51(c) of the Indian Constitution. He then referred to Gramophone Company of India Ltd. v. Birendra Bahadur Pandey,27 Tractor Export v. Tarapore and Co.,28 Mirza Ali Akbar Kashani v. United Arab Republic29 and Jolly George Varghese v. Bank of Cochin30 to highlight how the courts in India have used the principle of comity of nations to domesticate international law for interpretation of statutes.31 And to Githa Hariharan (Ms.) v. Reserve Bank of India,32 R.D. Upadhyay v. State of Andhra Pradesh,33 People’s Union for Civil Liberties v. Union of India34 and Apparel Export Promotion Council v. A. K. Chopra35 to highlight “the obligation on domestic courts to give due regard to international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law.”36 The court finally referred to Vishaka to make the following observation regarding the use of international law for domestic purposes: Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into […..] Articles 14, 15, 19 and 21 of the Constitution to enlarge 25

Id. Supra note 13 at 1887 to 1890. 27 (1984) 2 SCC 534. 28 (1969) 3 SCC 562. 29 (1966) 1 SCR 391. 30 (1980) 2 SCC 360. 31 Supra note 13 at 1889. 32 (1999) 2 SCC 228. 33 (2007) 15 SCC 337. 34 (2005) 2 SCC 436. 35 (1999) 1 SCC 759. 36 Supra note 13 at 1889 to 1890. 26

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the meaning and content thereof and to promote the object of constitutional guarantee. Principles discussed hereinbefore on Transgenders and the International Conventions, including Yogyakarta principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognised and followed, which has sufficient legal and historical justification in our country.37

The court then discussed the value of specific international human rights laws relevant to resolving the issues raised in NLSA. International Legal Instruments Acknowledging the role played by United Nations ‘in advocating the protection and promotion of rights of sexual minorities, including transgender persons’,38 Justice Radhakrishnan, engaged in a detailed discussion on international human rights law, particularly with the intention of highlighting how the same, as far as its perception and treatment of notions of gender identity is concerned, has evolved. Beginning briefly with article 6 of the UDHR, 194839 and articles 16 and 17 of International Covenant on Civil and Political Rights, 1966, Justice Radhakrishnan then discussed the Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles) in detail.40 Declaring these principles to be ‘useful’41 and acknowledging how they ‘addressed a broad range of human rights standards and their application to issues of sexual orientation gender identity,’42 he particularly referred to principles 1, 2, 3, 4, 6, 9, 18, and 19 in detail.43 Justice Radhakrishnan also referred to the following observation made in the 2009 Report of the United Nations Committee on Economic, Social and Cultural Rights whereby the Committee emphasised that the phrase ‘other status’ used in article 2, paragraph 2 of International Covenant on Economic, Social and Cultural Rights, 196644 includes ‘sexual orientation’: Sexual orientation and gender identity ‘Other status’ as recognised in article 2, paragraph 2, includes sexual orientation. States parties should ensure that a person’s sexual orientation is not a barrier to realising Covenant rights, for example, in accessing survivor’s pension rights. In addition, gender identity is recognised as among the prohibited grounds of discrimination, for example, persons who are transgender, transsexual or intersex, often face serious human rights violations, such as harassment in schools or in the workplace.45

37

Id. Id. at 1873. 39 GA Res 217A (III), UNGAOR, 3rd Sess, Supp. No. 13, UN Doc A/810 (1948) 71; Supra note 13 at 1873, 1887, 1888, 1896 and 1902. 40 Id. at 1873 to 1879. 41 Id. at 1873. 42 Id. 43 Supra note 13 at 1874 to 1878. 44 UN - TS, Vol. 999, p. 171. 45 Supra note 13 at 1878. 38

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The court also referred to a resolution on discrimination against transsexuals passed by European Parliament46 and Recital 3 of the Preamble to the Directive 2006/ 54/EC of European Parliament and the Council of 5 July 200647 to show how the scope of the principle of equal treatment for men and women prohibiting discrimination applies to discrimination arising from the gender reassignment of a person.48 Finally, the court referred, without discussion, to article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2008, General Comment No. 2 of the Committee on Torture and also General Comment No. 20 of the Committee on Elimination of Discrimination against Woman.49 Decisions of European Court of Human Rights Justice Radhakrishnan also referred to the decisions of the European Court of Human Rights [hereinafter ECrHR] in Christine Goodwin v. United Kingdom50 [hereinafter Christine] and Van Kuck v. Germany51 [hereinafter Kuch] to highlight how the said court has recognised the rights of transsexuals as part and parcel of European Convention on Human Rights, 1950 [hereinafter ECHR]. Reference to Christine was made to assert how the ECrHR itself had earlier suggested in Pretty v. the United Kingdom52 that “the right of transsexuals to personal development and to physical and moral security in the full sense cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved”53 and in Mikulic v. Croatia54 that the notions of personal autonomy governed by the mandate of article 8 of the ECHR guaranteed “protection [….] to the personal sphere of each individuals, including the right to establish details of their identity as individual human beings.”55 Reference to Kuch was made to particularly highlight how respect for human dignity and human freedom are at the core of notions of personal identity and how same, in relation to transgenders it involves their right to personal development and to physical and moral security.56 Reference to Legislations from Other Countries Highlighting the trend of a number of countries to bring their domestic laws in tune with international law, the Supreme Court, as shown above, discussed statutory 46

Official Journal of the European Communities No C 256/33-37 of 9.10.1989. European Parliament and Council, Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation, Directive 2006/ 54/EC (July, 5th, 2006) available at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ: L:2006:204:0023:0036:en:PDF (Last visited on February 4th, 2022). 48 Supra note 13 at 1884. 49 Id. at para 24. 50 Application No. 28957/95, 35 Eur. H. R. Rep. 18 (2002). 51 Application No. 35968/97, ECHR 2003. 52 (2346/02) [2002] ECHR 423. 53 Supra note 13 at 1881. 54 [2002] Reports of Judgments and Decisions 2002 - I, Application No. 53176/99. 55 Supra note 13 at 1881. 56 Id. at 1881, 1882. 47

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framework for protection of transgender rights from Argentina, Australia, Germany, Hungary, South Africa, United Kingdom and United States of America. Discussion on United Kingdom legislations focused on the U.K. Equality Act, 2010 which consolidated, repealed and replaced around nine different anti-discrimination legislations in UK. This law defines certain characteristics to be “protected characteristics” and includes ‘gender reassignment’ as well as ‘sexual orientation’ within them.57 It provides that no one shall be discriminated or treated less favourably on grounds that the person possesses one or more of the “protected characteristics”. It also imposes duties on public bodies to eliminate all kinds of discrimination, harassment and victimisation. The court also made a passing reference to US Federal legislation titled Matthew Shepard and James Byrd. Jr. Hate Crimes Prevention Act, 2009 which expanded the scope of the existing federal hate-crime law to include offences motivated by actual or perceived gender identity. This is followed by reference to South Africa’s Alteration of Sex Description and Sex Status Act, 2003 which permits transgender persons who have undergone gender reassignment or people whose sexual characteristics have evolved naturally or an inter-sexed person to apply to get their sex description altered in the birth register.

2 NLSA and Australian Jurisprudence 2.1 Sex Re-assignment Surgery (SRS), Gender Identity and the Rejection of Corbett Principle of Biological Test The court, in NLSA, was called upon to resolve the issue of whether a person’s identity should strictly be determined on the basis of the sex/gender of such person at the time of birth (biological test) or whether other considerations, including the person’s self-identification and social factors, should be taken into account while making such determination. The Supreme Court began by referring to three United Kingdom decisions in Corbett v. Corbett 58 [hereinafter Corbett], R v. Tan59 [hereinafter Tan] and Bellinger v. Bellinger 60 [hereinafter Bellinger]. The (in)famous Corbett is popular for what is referred to as the biological test for determination of the gender of a person who has undergone a Sex Re-assignment Surgery. Justice Ormrod, who decided Corbett, had declared that a person’s gender which was assigned to him/her at the time of birth would be the basis for determination of such person’s gender irrespective of the fact that such person has undergone a Sex Re-assignment Surgery to change the same. A different court then followed this test in Tan for the purpose of establishing criminal liability and in Bellinger (Thorpe, J. dissenting) for denying validity to a 57

The United Kingdom Equality Act, 2010, ss. 4 - 12. (1970) 2 All ER 33. 59 (1983) QB 1053. 60 (2003) 2 All ER 593. 58

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marriage between a man and a woman (who has had a SRS). The Supreme Court of India made reference to these cases to highlight how the ratio in all of them has lost support globally. It was primarily for this reason the court referred to cases from New Zealand, Australia, Malaysia and European Court of Human Rights to point out that “the test to be applied is not the ‘biological test’ as laid down in Corbett and followed in Tan and Bellinger, but the ‘psychological test’, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person.”61 The court stated that “seldom people realise the discomfort, distress and psychological trauma, they undergo and many of them undergo ‘Gender Dysphoria’ which may lead to mental disorder.”62 It is clear from the NLSA judgment that the Australian judgments played an important role in influencing the Indian Supreme Court to make the above observation. And, therefore, a detailed discussion on the same is required. The most important one perhaps are the observations made by Lockhart, J. in Secretary, Department of Social Security v. SRA [hereinafter SRA]. Lockhart, J. categorically rejected the ‘biological test’ and provided “that the development in surgical and medical techniques in the field of sexual reassignment, together with indications of changing social attitudes towards transsexuals, would indicate that generally they should not be regarded merely as a matter of chromosomes, which is purely a psychological question, one of self-perception, and partly a social question, how society perceives the individual.”63 Justice Radhakrishnan, then, referred to the New Zealand case of Attorney-General v. Otahuhu Family Court 64 to highlight the irrelevance of a law which does not recognise a marriage involving a person who has changed his/her gender via a SRS.65 This is followed by a reference to the decision of Chisholm, J. in Re Kevin (Validity of Marriage of Transsexual)66 as well as to its approval by the full court of the Family Court of Australia in Attorney General for the Commonwealth v. Kevin and Jennifer & Human Rights and Equal Opportunity Commission.67 Justice Radhakrishnan’s reliance on both these cases focused on the those parts of the judgments which explained how “there was no reason to exclude the psyche [of a person] as one of the relevant factors in determining sex and gender.”68 The court also relied on the decision of the High Court of Australia in A.B. v. Western Australia69 wherein the court was considering the statutory obligation70 on the competent authority [in 61

Supra note 13 at 1882. Id. 63 Supra note 13 at 1879. 64 (1995) 1 NZLR 603. 65 Supra note 13 at 1879. 66 (2001) Fam CA 1074. 67 (2003) Fam CA 94. 68 Supra note 13 at 1879. 69 (2011) HCA 42. 70 Western Australia Gender Reassignment Act, 2000. 62

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this case, the Gender Reassignment Board of Western Australia] to consider person’s self recognition and belief in their reassigned gender71 as well their adoption of the lifestyle and gender characteristics of the reassigned gender72 for the issuance of the recognition certificate. The majority in this case, while accepting the observations of Lockhart, J. in SRA agreed “that gender should not be regarded merely as a matter of chromosomes, but partly a psychological question, one of self-perception, and partly a social question, how society perceives the individual.”73

2.2 Interpretation of Word ‘Sex’ Beyond the Binary ‘Male and Female’ The Supreme Court relied upon the decision of Norrie v. NSW Registrar of Births, Deaths and Marriages74 to understand the changing jurisprudence on gender identity and sexual orientation. This case involved a consideration as to whether an authority entrusted with the task of recording births, deaths and marriages had the power, under a specific statute, to record the change of sex of a person to “non-specific” or “non-specified” and not as ‘male’ or ‘female’. Setting aside the decision of such authority not to record the same as “non-specific” or “non-specified” and that of an appellate authority to uphold the same, the Supreme Court of New South Wales held that both these authorities erred when they perceived or interpreted the word ‘sex’ to the existing ordinary meaning limited to the character of being either male or female. This case is particularly important in the context of the issues raised in NLSA because it de-compartmentalises the understanding of gender beyond the traditional ‘male’ and ‘female’.

2.3 Reference to Australian Legislations Reference to Australia’s Sex Discrimination Act, 1984 and it’s amendment via Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 is made to highlight how the changing perceptions of individual’s identity have informed the law governing discrimination on the basis of ‘sexual orientation’,’gender identity’, or ‘intersex status’. Acknowledging the relevance of these provisions to understand discrimination on the basis of the above mentioned categories, Justice Radhakrishnan reproduced the text of section 5A, 5B and 5C of Sex Discrimination Act, 1984 which were inserted in the same by section 17 of the 71

Id. At s. 15(1)(b)(i). Supra note 81 at s. 15(1)(b)(ii). 73 Supra note 13 at 1879, 1880. 74 (2013) NSWCA 145. 72

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Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013. There was some Post - NLSA engagement with Australian jurisprudence as well. For example, the Report of the Expert Committee on the Issues Relating to Transgender Person, 2014 [hereinafter EC Report]75 made reference to the same.76 ,77 ,78 Finally, there is one reference to Australian jurisprudence in Lok Sabha Debate on ‘The Transgender Persons (Protection of Rights) Bill, 2019’ (5th September, 2019). During the debate, Ms. Aparajita Sarangi, Member of Parliament from Bhubaneswar while speaking on the 2019 Bill made reference to Australian jurisprudence. She makes reference to Sex Discrimination Act, 1984 to highlight how different “countries […..] have tried to go for welfare measures of the transgenders and [how] they have gone for significant legislation.”79 Conclusion It is clear from the above discussion that discrimination faced by transgender community is not an Indian problem only, but a global one. And, therefore, a global conversation on the same, as is clear from NLSA, can help find universal solutions to the same. While the Indian Supreme Court did try to engage in such cross-border (global) conversation on the laws dealing with the raised issues, the conversation seemed to be half-hearted and ineffective (in some ways). While the court acknowledged the need for creating an effective and robust system for protection of rights of third gender, it could have used the foreign law and international law to lay down a much more effective set of guidelines for achieving the same. The failure of the court to go beyond 75

Government of India, “Report of the Expert Committee on the Issues Relating to Transgender Person” (Ministry of Social Justice & Empowerment, 2014) available at: https://socialjustice.nic. in/writereaddata/UploadFile/Binder2.pdf (last visited on January 14, 2022). 76 See the presentation made by Ms. Laya Vasudevan, Centre for Legal Aid and Rights wherein Ms. Vasudevan, while explaining the relevant relevant provisions in law related to transgender, refers to Australia’s 2013 amendment [Minutes of the Second Meeting of the Expert Committee on the Issues Relating to Transgender Community held on 29th November, 2013, EC Report, Id. Procedural Part, at 32]. 77 There is also a reference where the main report, while discussing countries having strong anti discrimination law, refers to the definitions of ‘gender identity’ and ‘intersex status’ in Australia’s 2013 amendment [See EC Report, Supra note 86, Main Report, at 15]. 78 To highlight the precedence of ‘psychological factors’ over ’biological ones’ in cases where a person gender identification differs from his or her biological sex, the report also refers to Australian decisions in Attorney General v. Kevin and Jennifer [Full Court of the Family Court of Australia at Sydney, 2003 (cited at EC report, Supra note 86, Main Report at 18)]. and AB & AH v. State of Western Australia [HCA 42-6 October, 2011 (cited at EC Report, Supra note 86, Main Report, at 19]. The report also refers to the Australian case of Re Alex [2004 Fam CA 297 (cited at EC Report, Supra note 86, Main Report, at 61] and a paper written on the same [Hazel Beh and Milton Diamond, “Ethical Concerns Related to Treating Gender Nonconformity in Childhood and Adolescence: Lessons from the Family Court of Australia” 15(2) Health Matrix: The Journal of Law - Medicine 239 (2005) [cited at EC Report, Supra note 86, Main Report, at 62 - 63] to o explain the role that the law can play in lessening the social and psychological problems of transgender adolescents and youth. 79 Lok Sabha Debates on August 5, 2019 available at: http://loksabhaph.nic.in/Debates/Result17. aspx?dbsl=816 (last visited on February 01, 2022).

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‘recognising transgender as the third gender’ shows this half-heartedness, particularly keeping in mind the fact that the same court while facing a similar problem in Vishaka did much more than simply acknowledging that a problem existed. Acknowledgment I would like to appreciate the research assistance provided by Ms. Mehras Mir, Wong Family Scholar, University of Hong Kong in the preparation of this paper.

References 1. James Allan, Grant Huscroft, and Nessa Lynch, “The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?” 11 Otago Law Review 433 (2007) 2. Nicholas Aroney, “Comparative Law in Australian Constitutional Jurisprudence” 26 University of Queensland Law Journal 317 (2007) 3. Justice K.G. Balakrishnan, “The Role of Foreign Precedents in a Country’s Legal System” 22(1) National Law School of India Review 1 (2010) 4. Saptarishi Bandopadhyay, “Because the Cart Situates the Horse: Unrecognised Movements Underlying the Indian Supreme Court’s Internationalisation of International Environmental Law” 50 Indian Journal of International Law 204 (2010) 5. John Bell, “Researching Globalisation: Lessons from Judicial Citations” 3(3) Cambridge Journal of International and Comparative Law 961 (2014) 6. Bruce Carolan, “The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional Jurisprudence: The Search for Coherence in the Use of Foreign Court Judgments by the Supreme Court of Ireland” 12 Tulsa Journal of Comparative and International Law 123 (2004) 7. Wen-Chen Chang, “The Convergence of Constitutions and International Human Rights: Taiwan and South Korea in Comparison” 36 North Carolina Journal of International Law and Commercial Regulation 594 (2010) 8. Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge University Press, 1st edn., 2007) 9. Surya Deva, “Human Rights Realisation in an Era of Globalisation: The Indian Experience” 12 Buffalo Human Rights Law Review 93 (2006) 10. A.E. Dick Howard, “A Traveler from an Antique Land: The Modern Renaissance of Comparative Constitutionalism” 50 Virginia Journal of International Law 3 (2009) 11. Duc. V. Trang, “Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary” 28 Vanderbilt Journal of Transational Law 1 (1995) 12. Rex D. Glensy, “Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority” 45 Virginia Journal of International Law 357 (2005) 13. Hakim Yasir Abbas, “The Muddled Science of Comparative Law: Mending Terminology and Mapping its’ Benefits within Indian Constitutional Discourse” 2(1) Catolica Law Review 39 (2018) 14. Sam F. Halabi, “Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basu v. State of West Bengal” 3 Notre Dame Journal International & Comparative Law 73 (2013) 15. Leonard M. Hammer, “Reconsidering the Israeli Courts’ Application of Customary International law in the Human Rights Context” 5 ILSA Journal of International and Comparative Law 23 (1998) 16. Ran Hirschl, “Comparative Law: The Continued Renaissance of Comparative Constitutional Law” 45 Tulane Law Review 771 (2010)

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17. Vicki C. Jackson, “Transnational Discourse, Relational Authority, and the US Court: Gender Equality” 37 Loyola of Los Angeles Law Review 271 (2003) 18. Madhav Khosla, “Inclusive Constitutional Comparison: Reflections on Sodomy Decision” 59 American Journal Comparative Law 909 (2011) 19. David S. Law & Wen-Chen Chang, “The Limits of Global Judicial Dialogue” 86 Washington Law Review 523 (2011) 20. Rebecca Lefler, “A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, The Supreme Court of Canada, and the High Court of Australia” 11 Southern California Interdisciplinary Law Journal 165 (2001) 21. Andrea Lollini, “The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law” 8 Utrecht Law Review 55 (2012) 22. M.C. Mehta v. Union of India, (1987) 1 SCC 395, 421 23. Elaine Mak, “Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands : Explaining the Development of Judicial Practices” 8 Utrecht Law Review 20 (2012) 24. Elaine Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Hart Publishing, 1st edn., 2014) 25. Victor V Ramraj, “Comparative Constitutional Law in Singapore” 6 Singapore Journal of International and Comparative Law 302 (2002) 26. Carlos F. Rosenkrantz, “Against Borrowings and Other Non-authoritative Uses of Foreign Law” 1(2) International Journal of Constitutional Law 269 (2003) 27. Cheryl Saunders, “The Use and Misuse of Comparative Constitutional Law” 13 Indiana Journal of Global Legal Studies 37, 39 (2006) 28. David Schneiderman, “Exchanging Constitutions: Constitutional Bricolage in Canada” 40 Osgoode Hall Law Journal 401 (2002) 29. Prakash Shah, “Globalisation and the Challenge of Asian Legal Transplants in Europe” Singapore Journal of Legal Studies 348 (2005) 30. Shylashri Shankar, “The Substance of the Constitution: Engaging with Foreign Judgments in India, Sri Lanka and South Africa” 2 Drexel Law Review 373 (2010) 31. Martin Gelter & Mathias Siems, “Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts” 8 Utrecht Law Review 88 (2012) 32. Adam M. Smith, “Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian Case” 24 Berkeley Journal of International Law 218 (2006) 33. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, 307 34. Jiunn-Rong Yeh and Wen-Chen Chang, “The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions” 27 Penn State International Law Review 89 (2008)

Climate Change and Human Mobility: Responsibilities Under International Environmental Law Hossain Mohammad Reza and Mostafa Mahmud Naser

1 Introduction Natural climate variations have existed for thousands of years, but since the industrial revolution and particularly after World War II, anthropogenic climate change has gradually emerged due to the availability of cheap fossil fuels (coal, oil, and natural gas) and the dramatic rise in their consumption, especially in industrialized countries.1 According to the Intergovernmental Panel on Climate Change (IPCC), developed countries are largely responsible for the effects of climate change.2 The United Nations Framework Convention on Climate Change (UNFCCC)3 defined those industrialized countries as Annex I countries that have historically contributed the most to greenhouse gas (GHG) emissions. Although historical and current global emissions of GHG have originated in developed countries, the negative effects of

1

Gaan [1]. Solomon et al. [2]. 3 United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102-38 (1992), 1771 UNTS 107 [hereinafter UNFCCC]. 2

H. M. Reza Bangladesh Judicial Service, Government of the People’s Republic of Bangladesh, Dhaka, Bangladesh M. M. Naser (B) School of Business and Law, Edith Cowan University Australia, Joondalup, Australia e-mail: [email protected] Centre for People, Place & Planet (CPPP), ECU, Joondalup, Australia © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_8

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climate change have been unevenly and disproportionally visited upon mostly developing countries. That is, those who have generally contributed the least to anthropogenic climate change are bearing the most harm and responsibility stemming from its effects (i.e. managing climate-related human mobility, with the least capacity).4 As climate change is a global process rather than a local crisis, it should have an international solution.5 There are moral and legal justifications for holding the industrialized states that contributed to climate change through their collective actions accountable for mitigation of its impacts.6 International human rights law, international environmental law, and climate change conventions recognize that those who contributed most to causing the harm bear both legal and moral obligations for mitigating it.7 Furthermore, the international community is committed to ‘intensify cooperation to reduce the number and effects of natural and man-made disasters’.8 The ‘No-harm Principle’ is a widely recognized principle in international environmental law that recognizes state responsibility for transboundary harms that cause environmental and other collateral damages and oblige a state to prevent damage and to minimize the risk of damage to other states. This principle was first employed in the Trail Smelter Arbitration and was subsequently confirmed by different decisions of international and regional courts and tribunals.9

4

Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61 (2009), 5, para. 10. 5 Docherty and Giannini [3]. 6 Id. at 383. 7 Id. at 383-84. 8 United Nations Millennium Declaration, UNGA res 55/2 8th plenary meeting (8 September 2000) https://www.un.org/en/development/desa/population/migration/generalassem bly/docs/globalcompact/A_RES_55_2.pdf 9 Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1911, 1963 (Arb. Trib. 1941). In the Trail Smelter case, an international arbitral tribunal condemned Canada for failing to prevent an enterprise on its territory from releasing fumes that damaged property in US territory. The tribunal stated in general terms that: under the principles of international law, […] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. The Advisory Opinion of the International Court of Justice (ICJ) in the Legality of the Threat or Use of Nuclear Weapons (1996) stated that, ‘the existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment’. The ‘no harm’ rule was re-stated and accepted by both parties (Hungary and Slovakia) in the Gabcikovo case, 1997, decided by ICJ. At the regional level, the European Court of Human Rights found the Russian government negligent in preventing mud slides in the northern Caucasus and ordered it to pay compensation to the surviving relatives. The Court based its decision on the failure of the government to live up to its duty to ‘safeguard’ lives and take preventive measures against the consequences of a disaster (Kälin and Haenni Dale 2008).

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For example, the International Court of Justice in its first case, Corfu Channel, addressed the requirement, stating that “it is every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”10 It was later reassessed in several soft-law instruments11 and is now part of international customary law.12 As atmospheric pollution that causes climate change clearly falls within the purview of the ‘No-harm Principle’, industrialized countries are obliged to reduce carbon emissions to stabilize the atmosphere and thus stop causing harm to affected countries. In responding to this responsibility, in terms of mitigation, rigorous emissions targets should be made by developed countries to avoid dangerous climate change. The initiatives for the elimination of carbon emissions are not enough. The worsening climate change because of carbon emissions has direct effects on human mobility around the world.13 The ‘polluter-pays’ principle14 obliges industrialized countries that undertook disproportionate accumulation and benefitted from emissions activities to assist the developing countries in managing the climate-related human mobility resulting from the effects of carbon pollution. Thus, the polluter must pay according to the principle of ‘common but differentiated responsibilities and respective capabilities’ (CBDR&RC) articulated in the UNFCCC.15 The principle of 10

Corfu Channel (UK v. Alb.), Judgment, 1949 I.C.J. 4, 22 (April 9); see also Memorandum, U.N. Secretary-General, Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory Work Within the Purview of Article 18, Paragraph 1, of the International Law Commission 57, U.N. Doc. A/CN.4/1/Rev.1 (Feb. 1, 1949). 11 See, e.g., UNFCCC supra note 3, recitals 8 and 9; U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, Principle 2, U.N. Doc. A/CONF.151/ 26/Rev.1 (Aug. 12, 1992) (“States have,…the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction..”); U.N. Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, Principle 21, U.N. Doc. A/CONF.48/ 14/Rev.1 (June 16, 1972) (“States have,… and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.) Convention on Biological Diversity, Art. 3, Jun. 1992, 1760 U.N.T.S. 79, and Vienna Convention for the Protection of the Ozone Layer, [Preamble 2nd paragraph], Mar. 22, 1985, 1513 U.N.T.S. 293. It has also been reiterated in the preamble to the UNFCCC [Preamble, 9th paragraph]. 12 Wolfrum [4], Sands [5], Smith and Shearman [6]. 13 Pörtner and Roberts et al. [7]. 14 This principle already serves as a basis for liability and compensation for trans-boundary pollution in international law. The alternative proposition is the ‘beneficiary pays’ principle. 15 Some international environmental treaty instruments, such as 1987 Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer and the 1991 protocol to the 1979 Convention on Long-Range Transboundary Air broadly applied the principle of CBDR. The UNFCCC’s preamble acknowledges the CBDR principle, which is reinforced in particular in articles 3.1, 3.2, 3.3, and 4.5.This principle recognizes historical differences in the contributions of developed and developing states to global environmental problems, as well as differences in their respective economic

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CBDR is widespread within international environmental law and is found throughout the international climate change regime.16 Both the UNFCCC and Kyoto Protocol recognized this principle, and the efforts to protect the climate system should be done so on the basis of equity and in accordance with states’ CBDR&RC.17 The latest Paris Agreement18 adopted in 2015 recognized the CBDR&RC with ‘subtle differentiation’ establishing a ‘mechanism to facilitate implementation of and promote compliance’ which shall ‘function in a manner that is transparent, non-adversarial and non-punitive’ and ‘pay particular attention to the respective national capabilities and circumstances or Parties’.19 Thus, CBDR confers a positive obligation on wealthier nations to ‘assist’ poorer countries with certain qualifications.20 While extra-territorial responsibility is an established principle under international environmental law for transboundary harm and is embodied in art. 3 of the UNFCCC in the form of CBDR&RC, it is untenable not to exert the same principle for migration and displacement resulting from the direct effects of climate change. The international negotiations and policy responses should embody this principle in designing any framework for protecting or managing displacement stemming from climate change.21 Technological and financial resources should be provided by industrialized nations as compensation to developing nations and LDCs for the damage already done to the climate based on proportional contribution to climate change and the respective capacity of the states. Significant effort should be extended to strengthen adaptation programmes in affected countries to mitigate the risk of displacement. Against this backdrop, the aim of this chapter is to analyze the responsibilities of the developed countries under international environmental law to provide compensation and assistance to the people displaced because of climate change and examine if the loss and damage mechanism within the Paris Agreement is an appropriate forum to ensure adequate compensation and assistance.

and technical capacities to tackle these problems (See e.g. Yuli Chen, Reconciling common but differentiated responsibilities principle and no more favourable treatment principle in regulating greenhouse gas emissions from international shipping 123 MARINE POLICY 3–4. 16 Under the UNFCC framework, all states, especially developed countries, incur obligations to respect and protect human rights and channel resources towards the economic and social development of the poor countries to tackle climate change. This moral obligation arises because the developed world bears the greatest share of responsibility for climate change. 17 Voigt and Ferreira [8]. 18 Paris Agreement (Dec. 13, 2015), in UNFCCC, Report of the Conference of the Parties on its Twenty-First Session [hereinafter COP Report and session number], Addendum, at 21, UN Doc. FCCC/CP/2015/10/Add.1. (Jan. 29, 2016) [hereinafter Paris Agreement]. 19 Paris Agreement, supra note 18, Art. 15. 20 Rajamani [9]. 21 Warner et al. [10].

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2 Climate-Related Human Mobility Requires Support, Compensation, Assistance, and Funding Although academics and policy-makers often highlight the migration of large numbers of ‘climate migration’ to developed countries, in reality, migration resulting from environmental degradation is likely to be internal and managed within the country.22 However, the climate-affected countries mostly the developing and least developed countries have the fewest resources to mitigate the effects of climate change and take protective measures such as seawalls and embankments.23 The most vulnerable people who lead subsistence livelihoods in highly risk-prone areas are left unprotected, without any government support.24 Given that the opportunity for both cross-border and long-distance permanent displacement is limited, it seems more practicable to build the capacity of people-strengthening adaptation programmes so that people can stay in their original places to cope with adverse environmental situations. There may be some extreme situations when it is impossible for them to continue their livelihoods there. In such situations, people either need to be relocated to new areas or the adaptation programme itself should support migration as part of the coping strategy. Affected communities in the climate-affected areas such as the small island countries have already shown that they are capable of adapting to current climate change effects if they have some assistance. Two examples are relevant in this regard. Considering relocations as a last resort measure, the Government of Fiji has identified that 830 communities would require relocation and among them, 48 communities require urgent relocation.25 In 2014 and 2015, Fiji relocated the people to villages Vunidogoloa, Vunisavisavi and Narikoso mainly due to flooding and coastal erosion.26 Relocation is costly. For example, the relocation of Vunidogoloa is estimated to have cost FJD978,2287.27 Relocation and retreat initiatives in these three villages have been financed by the Fijian Government, international organizations, and donors. Importantly, the relocation was completed taking into account the housing, economic and cultural factors such as history and traditions.28 Similarly, in Bangladesh, 139 multi-story buildings are being constructed which will provide housing for at least 4,409 families who lost their homes in the catastrophic cyclone of 1991.29 Previously, the Government built a shelter center that had been constructed as barracks and provided shelter to 319,140 landless and homeless 22

Naser [11]. Id. 24 Id. 25 McMichael et al. [12]. 26 Id. at 325. 27 Id. at 332. 28 Tronquet [13]. 29 FE Team, Climate refugees to get new homes in Cox’s Bazar, THE FINANCIAL EXPRESS, Aug 2, 2022 https://thefinancialexpress.com.bd/home/climate-refugees-to-get-newhomes-in-coxs-bazar-1595422524?amp=true. 23

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people. Upon completion in 2023, the project will cost more than BDT 18 billion.30 This initiative is trivial in the sense that natural disasters trigger the displacement of 700,000 Bangladeshis each year.31 According to a 2018 World Bank Report, the number of displaced could reach 13.3 million by 2050 by the impacts of climate change.32 Apart from such rehabilitation projects, from 2015 to 2018, the country has failed to reach its crude salt production target as tidal surges and inundation washed away the salt fields. Consequently, Bangladesh had to import salt worth USD 120 million during that period.33 Thousands of salt farmers suffered repeated losses and were bound to leave their traditional profession of salt farming. The loss of land and employment lead many families to migrate to the mainland.34 All these consequences need to be counted as climate-induced loss and damage and, therefore, have a strong claim of compensation and support from the loss and damage financing mechanism.35 However, vulnerable developing countries alone cannot tackle current and future climate-induced loss and damage. Without sufficient international support, it is not possible to implement adaptation strategies effectively in those countries due to constraints of resources. Given the size and range of effects and the large number of people affected, it is widely recognized that climate vulnerable countries require a substantial amount of climate change financing, especially adaptation financing, for the measures, including relocation and adaptation facilitating migration. This ranges from the allocation of land and housing for resettlement to compensation and skills training for those relocated in the face of climate change.36 Due to a lack of both financial and logistic resources, climate vulnerable countries need international cooperation to manage and protect people who are already displaced or who are likely to be displaced.37 Therefore, these countries need human, technological and financial resources from developed countries for migration-related adaptation.38 However, there is still no concrete protection mechanism supporting climate migrants in developing and LDC countries vulnerable to the human mobility in the context of climate change.39 It is challenging to transform global responsibility into effective and sustainable international cooperation through concrete adaptation measures and programmes that provide durable solutions for climate-related human 30

Id. McDonnell [14]. 32 Id. 33 Rahman and Bijoy [15]. 34 Id. 35 Hirsch et al. [16]. 36 Campaign for Sustainable Rural Livelihoods (CSRL), Climate Change Adaptation Financing: Managing a Transparent and Pro-poor Fund in Bangladesh, Briefing Note, 3 CSRL, 2008); Displacement Solutions, Meeting Report on Climate Change, Human Rights and Forced Human Displacement (Displacement Solutions, 2008), 7. 37 Warner [17]. 38 CLIMATE CHANGE AND MIGRATION IN ASIA AND THE PACIFIC 62-64 (Draft Edition) (ADB, 2011). 39 Mayer [18]. 31

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mobility. To date, protection and assistance schemes for climate-related migration, displacement, and planned relocation remain inadequate, poorly coordinated, and scattered.

3 Responsibilities Under International Environmental Law (IEL) The debate on shifting burdens for climate change pivots predominantly around three established principles of customary international law—the Polluter Pays Principle, the Principle of No-harm and the principle of ‘common but differentiated responsibilities and respective capabilities’ (CDBR&RC).

3.1 The Polluter Pays Principle The polluter-pays principle establishes that the costs of environmental harm should be borne by the parties responsible for the pollution.40 In other words, the principle indicates firstly, the polluters must halt their pollution, and secondly, they must make up for the damages done to others. Consequently, the polluter pays principle states that individuals who release large amounts of GHG must compensate those who are negatively impacted.41 This principle has also been affirmed in several international legal agreements including the Organization for Economic Co-operation and Development (OECD), the European Union (EU), and the Commission on Global Governance.42 The IPCC also cited the ‘polluter pays’ principle as one of the potential principles of justice.43 A number of academic commentators including Henry Shue and Eric Neumayer have argued that industrialized countries have caused global climate change and should bear the burdens of climate change.44 It is argued that since developed countries have contributed most of the GHG emissions, they must shoulder responsibility for their bulk of emissions and should pay the full costs, for example, costs for migration, displacement, and planned relocation occurring because of anthropogenic climate change. Historically, developing countries like Bangladesh, Kiribati, the Maldives, and Tuvalu have little responsibility for GHG emissions but will endure the effects of hazardous climatic events.45 Conversely, developed countries such as the United States, Australia, Canada etc. are responsible for the majority of GHGs emissions but bear relatively less burden arising from the 40

Sands and Peel [19]. Baatz [20]. 42 For details see Caney [21]. 43 Id. 753. 44 Id. 45 Ohdedar [22]. 41

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impacts of climate change.46 The polluter pays principle requires that developed countries should bear an ex-post obligation to redress ‘the loss and damage suffered, measured in terms of total cumulative emissions rather than current aggregate or per capita emissions’.47 In this context, Tilton argues that this principle especially shifting the burden of past pollution to the developed countries is against the interest of equity.48 According to Tilton, the developed and industrialized countries over the past centuries contributed to the happening of many “bads” including the greenhouse gas emissions currently responsible for climate change.49 These emissions were necessary for creating wealth that supported the research and development of thousands of products such as antibiotics, computers, pest-resistant crops, airplanes, and air conditioning. Most of these products ease the lives of the people of developing countries and developed countries alike. Placing this argument, Tilton wanted to say that the historic polluter pays principle is imperfect on the ground of equity as it ‘ignores the fact that these countries (developed countries) have also created many goods that people around the world enjoy’.50 While arguing this, Tilton probably did not take into account that the roots of existing environmental injustice to developing countries lie in colonialism. History shows that the Europeans, in order to fuel economic expansion and to maintain levels of overconsumption, colonized Asia and Africa and thereby appropriated natural resources and devastated indigenous communities of the colonized territories.51 Gonzalez argues that the overconsumption of the planet’s limited resources by global elites, who are predominantly found in the global North, is the main cause of environmental degradation on a global scale. However, a disproportionate amount of the pollution and resource depletion brought on by this unsustainable economic activity affects the South and the planet’s most vulnerable communities.52 Many existing industrialised countries have reaped the economic benefits by exploiting natural resources without considering environmental consequences.53 The unbridled exploitation of nature and people have produced contemporary global environmental problems including climate change which forces thousands of people to be displaced and many countries to be submerged. Is it equitable to shift the burden of redressing environmental harms to those who have historically been exploited and who have contributed very little to those harms? It is argued that while displacement and migration of the people of the developing countries or even the loss of their territories are the necessary outcomes of the prodigious contribution to the global greenhouse concentration of the developed 46

Id. Eckersley [23]. 48 Tilton [24]. 49 Id. 50 Id. 51 Gonzalez [25]. 52 Id. at 420. 53 Gonzelez [25]. 47

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countries, the developed countries should compensate for the loss and damage caused by their activities. The climate change negotiations under the UNFCCC offer a good opportunity to repay their debt by compensating for their past pollution. If vulnerable developing countries fail to obtain compensation for the loss and damage owing to the unwillingness of developed countries to accept these crises, the situation will reflect climate injustice. The foregoing discussion reveals that it is possible to set defensible arguments in favor of shifting the burden based on states’ historical emissions. However, the history of climate change negotiations shows that transferring responsibility based on cumulative emissions is generating mistrust and is a mounting gap between developed and developing countries. We thus need to search for other strategies which can be a fruitful basis for allocating responsibilities and contributing to climate finance. Acknowledging this reality ‘many developing countries (including highly vulnerable small island states) have themselves eschewed the rhetoric of climate debt in favor of other strategies for boosting collective responsibilities to address climate change’.54

3.2 No-Harm Principle It is a general principle of international law that a breach of an international obligation triggers the state responsibility of the state concerned.55 The no-harm principle is an uncontested principle of customary international law and is applicable in the climate change context.56 Under the no-harm rule, states have a duty to prevent and control environmental harm and transboundary pollution from actions or omissions under their jurisdiction.57 The content of this rule also indicates that states are duty-bound to consult and negotiate in mitigating transboundary risks and emergencies. The rule can be traced back to the Trail Smelter Arbitration58 which asserts. No State has the right to use or permit the use of its territory in such a manner as to cause injury by the emission of fumes in or transported to the territory of another or the properties or persons therein, when the case is of serious consequence and injury is established by clear and convincing evidence.59

Though the case dealt with the pollution of US territory which affected neighboring Canada, the no-harm principle is now applicable to all states.60

54

Pickering and Barry [26]. Brownlie [27]. 56 Voigt [28]. 57 Id. 58 Trail Smelter Arbitration, supra note 9. 59 Id. 60 Voigt, supra note 56 at 8. 55

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Subsequently, Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration incorporated this rule and provide the legal basis of the international standard. Recital 8 of the preamble of the UNFCCC enshrined this rule affirming that states have ‘the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. To attract this rule under international law, it is necessary to establish a causal link between the activity and the occurring damage. Although determining a causal link between the activity and the occurring damage is necessary to give rise to state responsibility, in the context of climate change which involves long range air pollution, causation cannot be proven with certainty as multiple sources can be found responsible and the single emitters cannot be ascertained for causing the damage.61 In such cases, academics suggest that causation could be established on the sole basis of contribution to the problem of climate change by a specific actor. The question how much damage might have been caused by this contribution is irrelevant in this respect; it will, however, play a role at the stage of apportioning costs.62 As to causation, the IPCC Fifth Assessment Report is fairly clear— emissions of CO2 from fossil fuel combustion and industrial processes, along with other factors, have led to atmospheric concentrations of carbon dioxide, methane and nitrous oxide at a level that is unprecedented in at least the last 800,000 years.63 The consequences of such concentrations include sea-level rise, shifting seasons, more precipitation, and more extreme weather events such as heat waves, drought, storms, wildfire, and others.64 Research substantiates these events as potential factors that affect human displacement and migration worldwide.65 Migrants decide to relocate or force to move, internally or internationally, because natural resources and the land become uninhabitable and less productive. The most vulnerable regions include areas such as coastal zones, low-lying small island states, mega deltas, and regions subject to excessive rainfall and drought. According to a global report on internal displacement, in 2021 alone around 23.7 million people were displaced by disasters in 141 countries of which 22.3 million were displaced by weather-related disasters.66 The IPCC in its Fifth Assessment Report warned that climate change over the twenty-first century will increase the displacement of people.67

61

Id. at 15. Id. at 16. 63 Pachauri et al. [29]. 64 Id. at 51. 65 Warner [30]. 66 Global Report on Internal Displacement, Internal Displacement Monitoring Centre, (2021) https:/ /www.internaldisplacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf. 67 Field et al. [31]. 62

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The IPCC Reports established that climate change is causing significant losses and damages to the environment, human health, and property. Academic ventures estimate the cost of loss and damage. The Climate Vulnerable Forum and a Spanish NGO, DARA, estimate that the loss and damage in developing countries could be US$4 trillion per year by 2030.68 In 2017, Richards and Schalatek recommend a goal of providing at least $200–300 billion per year by 2030 for loss and damage.69 From the aforesaid discussion, it is argued that ‘climate change injuries and damages are meeting, at least, a de minimis threshold required for a breach of the no-harm rule’.70 Under international law, if a state is found to violate international legal principles such as the no-harm rule, then it is obliged to compensate affected states for the damage caused, either directly or indirectly. Article 30 and 31 of the International Law Commission’s (ILC) Draft Articles on State Responsibility71 (DASR) enunciated the legal consequences of a state found responsible for causing transboundary harm. The State responsible for the internationally wrongful act is under an obligation to cease the wrongful act72 and to make full reparation for the injury caused.73

3.3 The Principle of ‘Common but Differentiated Responsibilities and Respective Capabilities’ (CBDR&RC) The principle of CBDR&RC recognizes that climate change is a global phenomenon that warrants a global resolution.74 A number of ideas are brought together by the concept of common but differentiated responsibility. First, it clearly shows that States have a shared obligation to safeguard the environment on a global scale. The next step builds on industrialized nations’ acknowledgment that ‘they bear the primary 68

Gewirtzman et al. [32]. Id. 70 Ohdedar, Supra note 33, 23. 71 Int’l Law Commn, Rep. on the Work of Its Fifty-Third Session, UN GAOR, 56th sess, Supp No 10, UN Doc A/56/10 (2001) ch IV(E). 72 See ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Art. 30, in ILC Report 53rd Sess., at 31, UN Doc. A/56/10 (2001); 73 See ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Art. 31, in ILC Report 53rd Sess., at 31, UN Doc. A/56/10 (2001). 74 This principle originates from general principles of equity and is considered as a basis for ensuring cooperation, effectiveness, solidarity and fair treatment between states. In international environmental law, this principle places stronger obligations on developed countries while provides fewer obligations on developing countries. For example, Principle 7 of the 1992 Rio Declaration creates an obligation on all states to contribute towards environmental integrity emphasizing that ‘developed countries have a greater responsibility as a result of the pressures their societies place on the global environment and of the technologies and financial resources they command.’. 69

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responsibility for creating climate change by taking into account the historical (rather than future) contributions of States to climate change’.75 This principle places stronger obligations on developed countries while providing fewer obligations on developing countries.76 According to Article 3.2 of the UNFCCC, the objective and implementation of the Convention shall consider. (t)he specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention…

Additionally, under the UNFCCC, the developed country Parties and other developed Parties included in Annex II have further shouldered the obligation to ‘assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.’77 Furthermore, the parties assumed the obligation to provide ‘funding, insurance and the transfer of technology, to meet the specific needs and concerns of developing country Parties arising from the adverse effects of climate change’ to nine types of developing countries including small island countries, countries with low lying coastal areas and countries with areas prone to natural disasters.78 Article 11 of the UNFCCC states “The developed country Parties may also provide and developing country Parties avail themselves of, financial resources related to the implementation of the Convention through bilateral, regional and other multilateral channels.”79 The Kyoto Protocol to the UNFCCC, recognizing the historical and current responsibility of the Annex-I states, exempted developing countries from any reduction target even voluntary ones.80 Importantly, the Adaptation Fund was created in 2001 to finance different projects that help vulnerable communities in developing countries. The AF has committed US$ 850 million in nearly 100 countries since 2010 to climate adaptation and resilience activities.81 The most acceptable justification for the use of differential treatment, under the UNFCCC and in the Kyoto Protocol is that the differentiation is compensatory and redistributive. Miriam argues. The underlying interpretation of CBDR was that developing countries today suffered from the past overexploitation of the global environment by developed countries in multiple ways, resulting, for instance, in unequal economic capacity today. Historical responsibilities trumped present responsibility and, since industrialized countries have done most of the damage, it should be only fair that developing countries be given flexibility in the environmental control measures overall, and in the climate change regime in specific.82 75

Rajamani [33]. Voigt and Ferreira (2016). 77 UNFCCC, supra note 3, Art. 4.4. 78 UNFCCC, supra note 3, Art. 4.8. 79 UNFCCC, supra note 3, Art. 11.5. 80 Prys-Hansen [34]. 81 ‘Adaptation Fund’, < https://www.adaptation-fund.org/about/ > . 82 Prys-Hansen, supra note 81, at 361. 76

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The Paris Agreement took the principle of CBDR&RC even further. This principle fosters the historic Paris Agreement by overcoming negotiating deadlock between developed and developing countries.83 As a result, this principle has taken place on several occasions in the Paris Agreement. For example, Article 2.2 contains a statement reflecting that the Agreement ‘will be implemented to reflect equity and the common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’.84 Apart from other Articles, differentiation is found in the Article on adaptation (Article 7) which establishes that the implementation of the Agreement should take into account ‘the urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change’.85 Article 9, the provision of finance, explicitly recognizes that ‘(d)eveloped country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention’.86 The Paris Agreement and related COPs decisions affirmed that the Green Climate Fund (GCF) and the Global Environment Facility (GEF) shall serve the Paris Agreement.87 The GEF enables a transfer of financial resources from developed to developing countries by establishing operational programs, providing programming documents, and allocating resources. Based on guidance from the UNFCCC, the GEF operates three funds: the GEF Trust Fund’s Strategic Priority on Adaptation (SPA), the Least Developed Countries Fund (LDCF), and the Special Climate Change Fund (SCCF). Further funding opportunities currently available for developing countries to fund adaptation projects include the Adaptation Fund under the Kyoto Protocol, funds from other multilateral environmental agreements (MEAs), and bilateral and multilateral funding from governments, national and international organizations, and agencies. Though the Paris Agreement does not give the GCF any special standing, it has become synonymous with climate finance, especially to the Small Island Developing States.88 The reason is very clear—the purpose of GCF is not only to limit global emissions but also to enhance the resilience and adaptive capacity of developing countries89 since a significant portion of the fund is supposed to flow through GCF which aims to achieve a 50:50 balance between adaptation and mitigation financing over time.90 Siegele argues that flexible interpretation of funding mechanisms may also include loss and damage.91

83

Peel [35]. Paris Agreement, supra note 18, Art. 2.2. 85 Paris Agreement, supra note 18, Art. 7. 86 Paris Agreement, supra note 18, Art. 9.1. 87 Paris Agreement, supra note 18, Art. 9.8. 88 Samuwai and Hills [36]. 89 Id. at 158. 90 Brechin and Espinoza [37]. 91 LINDA SIEGELE, Loss and damage (Article 8) in THE PARIS AGREEMENT ON CLIMATE CHANGE: ANALYSIS AND COMMENTARY 224, 229. 84

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4 Conclusion Developed countries through industrialization in the nineteenth and twentieth centuries have contributed to the anthropogenic climate change. Therefore, these countries cannot deny their liability for the loss and damage caused due to climate change and therefore they should compensate for causing such loss and damage. International law endorses three forms of reparation—restitution, compensation, and satisfaction.92 Restitution usually means restoring the previous status that existed before the commission of a wrongful act.93 This is somewhat impossible in the climate change context.94 Satisfaction as a reparatory measure comes into play when the injuries take the form of insults, improper treatment, or in case of an unwanted attack against a diplomatic and consular representative of a state.95 Satisfaction can be manifested by truth-telling, expressing regret, and giving assurance of not committing again.96 In the climate change context, satisfaction as a form of reparation may not prove effective as satisfaction is mostly practised in cases of moral and immaterial prejudices. Compensation can be a suitable form of reparation in case of climate-induced displacement. The aim of compensation is to provide full reparation for the loss and damage caused. It is argued that under the principles of customary international law such as the CBDR&RC and ‘no-harm principle’, the victim states are worthy of reparations. It needs to be worked out what kind of compensation is best suited for climate-related migration, displacement, and planned relocation. Some authors suggest financial assistance from developed countries for managing displacement and planned relocation.97 To make compensation useful and effective, it is suggested to establish a Displacement-Compensation Commission under the oversight of the UNFCCC which will hear and negotiate the claim and demand from the victim and liable states. This mechanism is supposed to meet the interest of vulnerable developing countries as well as the responsible developed countries.

92

Burkett [38]. Id. 94 Id. 95 Maxim [39]. 96 Id. 29–30. 97 Kent and Behrman (2018). 93

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References 1. Narottam Gaan, Climate Change And International Politics 301 (Kalpaz Publications, 2008) 2. Susan Solomon et al., IPCC, Climate Change 2007: THE PHYSICAL SCIENCE BASIS, at 2–5 (2014) 3. Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33(2) HELR HARVARD ENVIRON LAW REV 349, 382 (2009) 4. Rudiger Wolfrum, International Environemental Law: Purposes, Principles and Means of Ensuring Compliance in INTERNATIONAL, REGIONAL AND NATIONAL ENVIRONMENTAL LAW 7 (Fred Morrison And Rudiger Wolfrum (eds), Kluwer, 2000) 5. Philippe Sands, International Law in the Field of Sustainable Development: Emerging Legal Principles in SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW, 53, 62 (W Lang ed., 1995) 6. Joseph Smith and David JC Shearman, CLIMATE CHANGE LITIGATION: ANALYZING THE LAW, SCIENTIFIC EVIDENCE & IMPACTS ON THE ENVIRONMENT, HEALTH & PROPERTY 49–50 (Presidian, 2006) 7. Hans-O. Pörtner & Debra C. Roberts et al, IPCC, Climate Change 2022 Impacts, Adaptation and Vulnerability: SUMMARY FOR POLICYMAKERS, at 11, 25 (2022) https://www.ipcc. ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_SummaryForPolicymakers.pdf 8. Christina Voigt & Felipe Ferreira, Dynamic Differentiation’: The Principles of CBDRRC, Progression and Highest Possible Ambition in the Paris Agreement, 5 (2) TRANSNATL. ENVIRON. LAW 285, 288-90 (2016) 9. Lavanya Rajamani, Differential Treatment In International Environmental Law 108–109 (2006) 10. Koko Warner et al., In Search of Shelter: Mapping the Effects of Climate Change on Human Migration and Displacement, Report, CARE IINTERNATIONAL, p. iv (2009). https://gsdrc.org/document-library/in-search-of-shelter-mapping-the-effects-of-cli mate-change-on-human-migration-and-displacement/ 11. Mostafa Mahmud Naser, Climate-induced Displacement in Bangladesh: Recognition and Protection under International Law, 82 NORD. J. INT. LAW 504 (2013) 12. Celia McMichael, Manasa Katonivualiku & Teresia Powell, Planned Relocation and Everyday Agency in Low-lying Coastal Villages in Fiji 185(3) GEOGR J 325, 326 (2019) 13. Clothilde Tronquet, From Vunidogoloa to Kenani: An Insight into Successful Relocation, SEM, 121, 122 (2015) 14. Tim McDonnell, Climate change creates a new migration crisis for Bangladesh, NATIONAL GEOGRAPHIC, January 24, 2019, https://www.nationalgeographic.com/environment/article/ climate-change-drives-migration-crisis-in-bangladesh-from-dhaka-sundabans 15. Mohammad Mahbubur Rahman & Mizanur Rahman Bijoy, Assessing Loss and Damage of Low Exposed Sudden Onset Disasters: Evidence from the Marginal Salt Cultivators of Kutubdia Island, Bangladesh, PREPRINTS, 11 (2021) https://www.preprints.org/manuscript/202105.0 16. Thomas Hirsch et al., Climate Finance for Addressing Loss and Damage How to Mobilize Support for Developing Countries to Tackle Loss and Damage, Analysis 91, 13 (Brot für die Welt, 2019). https://reliefweb.int/sites/reliefweb.int/files/resources/ClimateFinance_ LossDamage.pdf 17. Koko Warner, Assessing Institutional and Governance Need Related to Environmental Change and Human Migration Background Paper, The German Marshall Fund of the US, 8 (June 2010) 18. Benoît Mayer, Migration as a Sustainable Adaptation Strategy 13 (2011) (Unedited draft) http:/ /www.icarus.info/wp-content/uploads/2011/06/Mayer.pdf. 19. PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (Cambridge University Press, 2012) 187, 228 20. Christian Baatz, Responsibility for the Past? Some Thoughts on Compensating Those Vulnerable to Climate Change in Developing Countries 16(1) ETHICS POLICY ENVIRON. 94, 95 (2013) 21. Simon Caney, Cosmopolitan Justice, Responsibility, and Global Climate Change, 18(4) LEIDEN J. INT. LAW 747, 752–753 (2005)

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22. Birsha Ohdedar, Loss and Damage from the Impacts of Climate Change: A Framework for Implementation, 85 (1), NORD. J. INT. LAW, 9 (2016) 23. Robyn Eckersley, The Common but Differentiated Responsibilities of States to Assist and Receive ‘Climate Refugees’, 14(4) EUR. J. POLITICAL THEORY 481, 485 (2015) 24. John E Tilton, Global Climate Policy and the Polluter Pays Principle: A Different Perspective, 50 RESOUR. POLICY 117, 118 (2016) 25. Carmen G Gonzalez, Bridging the North-South Divide: International Environmental Law in the Anthropocene, 2 PACE ENVIRON. LAW REV. 407, 411 (2015) 26. Jonathan Pickering & Christian Barry, On the Concept of Climate Debt: Its Moral and Political Value, (2012) 15(5) CRIT. REV. INT. SOC. POLITICAL PHILOS. 667, 679 27. James R Crawford, Brownlie’s Principles Of Public International Law 540 (8th Ed, 2012) 540 28. Christina Voigt, State Responsibility for Climate Change Damages, 1&2 NORD. J. INT. LAW 1, 7 (2008) 29. Rajendra K. Pachauri, Leo Meyer & The Core Writing Team, IPCC, CLIMATE CHANGE 2014: SYNTHESIS REPORT, at 15, 16 (2014) 30. Koko Warner, Human Migration and Displacement in the Context of Adaptation to Climate Change: The Cancun Adaptation Framework and Potential for Future Action, 30(6) ENVIRON. PLAN C POLITICS SPACE 1061, 1061 (2012) 31. Christopher B Field et al, IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2014) 20 32. Avidan Kent & Simon Behrman, Facilitating The Resettlement And Rights Of Climate Refugees: An Argument For Developing Existing Principles And Practices 78, 105 (New York: Routledge, 2018) 33. Lavanya Rajamani, The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime, 9 (2) RECIEL (2000) 34. Miriam Prys-Hansen, Differentiation as Affirmative Action: Transforming or Reinforcing Structural Inequality at the UNFCCC? 34(3) GLOB SOC 353, 356–7 (2020) 35. Jacqueline Peel, Re-Evaluating the Principle of Common But Differentiated Responsibilities in Transnational Climate Change Law, 2 TRANSNATL. ENVIRON. LAW 245, 249 (2016) 36. Jale Samuwai & Jeremy Maxwell Hills, Gazing over the Horizon: Will an Equitable Green Climate Fund Allocation Policy Be Significant for the Pacific Post-2020?, 25 (1/2), PAC. JOURNAL. REV 158, 158-59 (2019) 37. Steven R Brechin & Maria I Espinoza, A Case for Further Refinement of the Green Climate Fund’s 50:50 Ratio Climate Change Mitigation and Adaptation Allocation Framework: Toward a More Targeted Approach, (3–4) CLIM. CHANGE 311 (2017) 38. Maxine Burkett, Climate Reparations Symposium - Climate Justice and International Environmental Law: Rethinking the North-South Divide, (2) MELB. J. INT. LAW 509, 531(2009) 39. Felicia Maxim, Forms of Reparation of Prejudice in International Law – Reflections on Common Aspects in the Draft Regarding the Responsibility of the States for Internationally Wrongful Acts, 2 JURIDICAL TRIBUNE 19, 29 (2011) 40. Jonathan Gewirtzman et al., Financing Loss and Damage: Reviewing Options under the Warsaw International Mechanism 18(8) CLIM POLICY, 1076, 1079 (2018) 41. Carmen G Gonzelez, Environmental Justice, Human Rights, and the Global South, 13 SANTA CLARA J. INT’L L. 151, 157 (2015) 42. W Kälin and C Haenni Dale, Disaster Risk Mitigation—Why Human Rights Matter 31 FORCED MIGR. REV. 38–39 (2008) 43. Christina Voigt and Felipe Ferreira, Dynamic Differentiation: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement, 2 TRANSNATL. ENVIRON. LAW 285, 286 (2016)

Do Australian and Indian Courts Have ‘Get-Out-of-Text Free Cards’ Like the US Supreme Court in Order to Limit Environmental Executive Power? Haydn Rigby

1 Introduction The US Supreme Court had a very busy year in 2022 with a number of landmark decisions. Chief among them was the Dobbs decision1 overturning Roe-v-Wade2 abortion rights.But while that case hogged most of the limelight, other decisions from 2022 also had momentous consequences, arguably none more so than West Virginia v EPA.3 While not so much a case involving constitutional interpretation as Dobbs was, it is a case involving the court’s approach to statutory interpretation (SI) generally. While one may validly claim that SI is what courts do all the time, so ‘so what?’, the approach to SI in this particular case has enormous ramifications for the workings of government, in particular the executive arm and its ability to govern by delegated legislation and although not a case involving constitutional interpretation per se, West Virginia v EPA has serious consequences for important constitutional principles such as the separation of powers doctrine if the US Supreme Court majority’s approach to SI becomes a judicial norm in the US, particularly its ‘major questions’ test. The feature of separation of powers is shared with the US by many western governments, including in Australia and India, where government is separated into the legislative arm, the executive arm and a judicial arm.4 Something that resembles 1

Dobbs v Jackson Women’s Health Organisation No. 19-1392, 597 US ___ (2022). Roe v. Wade, 410 U.S. 113 (1973). 3 West Virginia v EPA No. 20-1530, 597 US ___ (2022). 4 Commonwealth of Australia Constitution Act 1900 (Imp) (‘the Australian Constitution’) Chapter 1 (Parliament), Chapter 2 (the Executive), and Chapter 3 (the Judiciary). The Constitution of India Part V ‘The Union’ (Chapter I—Union Executive, Chapter II—Union Parliament and Chapter IV—Union Judiciary). 2

H. Rigby (B) School of Business and Law, Edith Cowan University, Joondalup, WA, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_9

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an ‘exception’ to the separation of powers rule nonetheless arises in these jurisdictions where the executive arm is charged with a task, which on the face of it, is normally within the province of the legislative arm of government, namely making subsidiary legislation or rules and regulations. However, this rule making power is intended to be subsidiary to the main piece of legislation (the enabling Act) which gives the executive power to make these rules. Such rules are meant to complement, not supplement, the main Act and fill in the gaps, so to speak. It is not intended that the executive can go beyond the scope of the Act and make rules not necessary nor expedient for putting into effect the objects of the Act. If it were to do so, it would be cutting across the powers of the legislative arm of government and offending the separation of powers doctrine. Furthermore, delegated legislation made by the executive is subject to less scrutiny than legislation made by the legislature and is not debated nor passed in order to come into effect. It does, however, need to be tabled in the legislature with mechanisms in place for the legislature to disallow it, but suffice it to say delegated legislation has nowhere near the pedigree that ‘normal’ legislation has, which cannot come into force until passed by both houses of government in a bicameral system of government (which Australia, India and the US are). Executive departments can of course abuse this and pursue their own agenda and make legislation through the back door. On the other hand, the executive, and perhaps only the executive, is properly equipped for making most of these rules as they involve vast amounts of technical minutiae and are voluminous (too much to be dealt with in the normal business of the legislature) and beyond the expertise of most law makers. Arguably, a government could not run if everything had to be debated in the legislature, often on matters on which members of the legislature have no technical knowledge nor real understanding. Ultimately, it all boils down to whether the executive is empowered by the enabling Act to carry out the functions it purports to have authority to carry out—a simple matter of applying established principles of statutory interpretation to the enabling Act. There are times when a piece of legislation is clearly ambitious in its scope and entrusts the executive with broad powers to regulate a particular area. Such was the case with the US Clean Air Act, enacted to address the concern for environmental damage and emissions reduction as will be discussed below. Indeed, in the terminology of the majority in West Virginia v EPA this was a ‘major question’ that it is submitted that Congress did in fact entrust the EPA to address. However, as will also be seen, the US Supreme Court majority appears to place its own value judgments on what is a ‘major question’. Rather than appeal to the text of the statute and the context in which it appears to determine if, in fact, the statute empowers the executive to address the major question, the majority appears to approach the issue as an argument from incredulity—that is, what it finds credible that Congress would entrust the EPA to have authority over, not what it actually has entrusted the EPA to do. The US Supreme Court majority appear to be incredulous that Congress would entrust such a power to the EPA, the executive, so finds that it clearly couldn’t have meant to do that, especially a matter of such economic import

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(which the majority arguably preference over the damage caused by anthropogenic climate change, given its climate scepticism). Is a device such as ‘the major questions’ doctrine a trick that might be pulled by an activist judiciary in India or Australia attempting to impose its own agenda on proposed executive action designed to address a political hot topic such as reducing climate change? There might be some comfort drawn from the fact that in these other jurisdictions (especially India) there is a stronger constitutional tie-in with environmental protection than in the US Constitution in which the silence regarding environmental rights and protection is truly deafening. And, as will be discussed, this just might be crucial to prevent the executive becoming entirely defunct at the hands of an activist judiciary who don’t agree with their goals.

2 West Virginia v. EPA Although West Virginia v EPA is really a case about statutory interpretation, namely the Clean Air Act and whether its provisions empower the EPA to make subsidiary legislation to require emitters to take steps to reduce emissions including ‘generation shifting’ to move from one type of electricity generation to another (The Clean Power Plan), it appears the US Supreme Court majority show little interest, engagement with or understanding of such legislative scheme. By contrast, the dissenting minority, went through this legislative scheme with a fine toothcomb, analysing its history, text and context in significant detail.5 As Kagan J of the minority explains, outlining the history and purpose of such scheme to address environmental harms: Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil- fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. §7411(b)(1)(A). Carbon dioxide and other greenhouse gases fit that description. See American Elec. Power, 564 U. S., at 416–417; Massachusetts, 549 U. S., at 528–532. EPA thus serves as the Nation’s “primary regulator of greenhouse gas emissions.” American Elec. Power, 564 U. S., at 428. And among the most significant of the entities it regulates are fossil-fuel-fired (mainly coal- and natural-gas-fired) power plants. Today, those electricity-producing plants are responsible for about one quarter of the Nation’s greenhouse gas emissions. See EPA, Sources of Greenhouse Gas Emissions (Apr. 14, 2022), https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions. Curbing that output is a necessary part of any effective approach for addressing climate change. To carry out its Section 111 responsibility, EPA issued the Clean Power Plan in 2015. The premise of the Plan—which no one really disputes—was that operational improvements at the individualplant level would either “lead to only small emission reductions” or would cost far more than a readily available regulatory alternative. 80 Fed. Reg. 64727–64728 (2015). That alternative—which fossil-fuel-fired plants were “already using to reduce their [carbon dioxide] emissions” in “a cost effective manner”—is called generation shifting. Id., at 64728, 64769. As the Court explains, the term refers to ways of shifting electricity generation from higher

5

Supra note 3, at 3–11 (Dissenting Judgment).

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emitting sources to lower emitting ones—more specifically, from coal-fired to natural-gasfired sources, and from both to renewable sources like solar and wind. See ante, at 8. A power company (like the many supporting EPA here) might divert its own resources to a cleaner source, or might participate in a cap-and-trade system with other companies to achieve the same emissions-reduction goals.6

As far as the majority’s treatment of the text and structure of the relevant enabling statutory provisions go, Justice Kagan observes: It is not until page 28 of a 31-page opinion that the majority begins to seriously discuss the meaning of Section 111. And even then, it does not address straight-up what should be the question: Does the text of that provision, when read in context and with a common-sense awareness of how Congress delegates authorize the agency action here?7

Instead, the majority devised a ‘major questions test,’ which Kagan J notes is not orthodox statutory interpretation. As she explains: It (the majority) announces the arrival of the “major questions doctrine,” which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules. Ante, at 16–31. Apparently, there is now a two-step inquiry. First, a court must decide, by looking at some panoply of factors, whether agency action presents an “extraordinary case [ ].” Ante, at 17; see ante, at 20–28. If it does, the agency “must point to clear congressional authorization for the power it claims,” someplace over and above the normal statutory basis we require. Ante, at 19 (internal quotation marks omitted); see ante, at 28–31. The result is statutory interpretation of an unusual kind.8

And as for the precedents the majority purport to rely in propounding its ‘major questions’ test, Her Honour notes: The majority claims it is just following precedent, but that is not so. The Court has never even used the term “major questions doctrine” before. And in the relevant cases, the Court has done statutory construction of a familiar sort. It has looked to the text of a delegation. It has addressed how an agency’s view of that text works—or fails to do so—in the context of a broader statutory scheme. And it has asked, in a common-sensical (or call it purposive) vein, about what Congress would have made of the agency’s view—otherwise said, whether Congress would naturally have delegated authority over some important question to the agency, given its expertise and experience. In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design.9

The majority’s failure to pay close attention to the Act ignoring SI principles and instead inventing a test of its own actually frustrates the will of the legislature. As Kagan observes: The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote. The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants’ emissions through generation shifting. Ante, at 31. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of 6

Supra note 3, at 2–3 (Dissenting judgment). Ibid, at 15. 8 Ibid. 9 Ibid. 7

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emission reduction” for power plants. §7411(a)(1). The “best system” full stop—no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the “best system”—the most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute. The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.10

Finally, lamenting what appears to be a lack of good faith on the part of her colleagues in the majority, Kagan J opines: Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.11

Not only is the majority’s ‘major questions’ test arguably a form of judicial activism to support some sort of ideological stance informed by climate skepticism, it also offends common logical sense and Occam’s Razor12 —given the established principles of statutory interpretation, it is an unnecessary additional step and arguably a foray into the very thing the majority purport to be avoiding—a breach of separation of powers—since including this step involves some policy decision making which a court should assiduously avoid so it is not trying to do the job of the executive arm of government. In fact, one could use the very same argument the US Supreme Court majority and those of a conservative bent often wheel out when it serves their purposes: if a law is a bad law, the legislature must change it. What the majority do not seem to admit is that the EPA’s empowering legislation is broad in its scope and does authorise quite drastic action by EPA. That is what the government of the day wanted and voted on. If one wants to constrain the EPA from taking the sorts of steps it has proposed then one must go back to the legislature and reduce the scope of the power by amending the enabling Act. If you don’t like a law, change it. Do not perform 10

Ibid, at 5. Ibid, at 28. 12 Merriam Webster’s online dictionary define the principle of Occam’s Razor or Ockham’s Razor (attributed to Franciscan Friar William of Ockham 1287- 1347) as ‘A scientific and philosophical rule that entities should not be multiplied unnecessarily which is interpreted as requiring that the simplest of competing theories be preferred to the more complex or that explanations of unknown phenomena be sought first in terms of known quantities’ https://www.merriam-webster.com/dictio nary/Occam%27s%20razor. 11

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mental gymnastics to make it say something it doesn’t. This is precisely what the majority accuse more progressive justices from doing yet they are doing exactly that here with its disingenuous ‘major questions’ test. It is ironic that while the majority, known for their originalism in constitutional and statutory interpretation,13 appear here to frustrate the original intention of the legislators by cheerfully imposing this additional test. But disquieting as the idea that a form of originalism is now being resorted to by conservative US Supreme Court justices to further their own ideological beliefs given their recent rulings setting aside abortion rights, striking down gun control legislation, and in this case, thwarting climate change reduction,14 the dangers of neutering the executive from simply doing its job are palpable. As Kagan J observes, continuing on from her comment above about the majority’s major questions test being ‘a-get-out-of-text-free-card” to ignore textualism when it gets in the way of the majority’s broader goals: Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence. See ante, at 19, 25–26; e.g., ante, at 3–6 (GORSUCH, J., concurring). The kind of agency delegations at issue here go all the way back to this Nation’s founding. “[T]he founding era,” scholars have shown, “wasn’t concerned about delegation.” E. Posner and A. Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1734 (2002) (Posner and Vermeule). The records of the Constitutional Convention, the ratification debates, the Federalist—none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice. … It is not surprising that Congress has always delegated, and continues to do so—including on important policy issues. As this Court has recognized, it is often “unreasonable and impracticable” for Congress to do anything else. American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). In all times, but ever more in “our increasingly complex society,” the Legislature “simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U. S. 361, 372 (1989).15

As mentioned above, it appears the majority’s starting point is an argument from incredulity—that the majority finds it incredulous that Congress would give so much power to the executive on certain matters which the court feel uncomfortable with. Gorsuch J, concurring with the majority, perhaps best typifies this approach when he raises not only economic arguments irrelevant to the clear construction of the enabling statute but also an equally irrelevant ‘states rights’ argument against what he perceives to be excessive power of the EPA under the Clean Power Plan when he opines: [T]he electric power sector is among the largest in the U. S. economy, with links to every other sector.” N. Richardson, Keeping Big Cases From Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 Conn. L. Rev. 355, 388 (2016). The Executive Branch 13

Michael Waldman, ‘Originalism Run Amok at the Supreme Court’ Brennan Center for Justice 28 June 2022 accessed at https://www.brennancenter.org/our-work/analysis-opinion/originalism-runamok-supreme-court. 14 Ibid. 15 Supra note 3, at 28–30 (Dissenting judgment).

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has acknowledged that its proposed rule would force an “aggressive transformation” of the electricity sector through “transition to zero-carbon renewable energy sources.” White House Fact Sheet, App. in American Lung Assn. v. EPA, No. 19–1140 (CADC), pp. 2076–2077. The Executive Branch has also predicted its rule would force dozens of power plants to close and eliminate thousands of jobs by 2025. See EPA, Regulatory Impact Analysis for the Clean Power Plan Final Rule 3–27, 3–30, 3–33, 6–25 (Oct. 23, 2015). And industry analysts have estimated the CPP would cause consumers’ electricity costs to rise by over $200 billion. See National Mining Assn., EPA’s Clean Power Plan: An Economic Impact Analysis 2, 4 (2015). Finally, the CPP unquestionably has an impact on federalism, as “the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States.” Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Serv. Comm’n, 461 U. S. 375, 377 (1983)….16

Kagan J points out that it should be Congress, not the Courts, that decide what power the executive have. As she explains: In short, when it comes to delegations, there are good reasons for Congress (within extremely broad limits) to get to call the shots. Congress knows about how government works in ways courts don’t. More specifically, Congress knows what mix of legislative and administrative action conduces to good policy. Courts should be modest. Today, the Court is not. Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan—in other words, to decide that generation shifting is the “best system of emission reduction” for power plants churning out carbon dioxide. Evaluating systems of emission reduction is what EPA does. And nothing in the rest of the Clean Air Act, or any other statute, suggests that Congress did not mean for the delegation it wrote to go as far as the text says. In rewriting that text, the Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much. The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.17

While Kagan J paints, in her words, a ‘frightening’ picture of a court now arming itself with the ability to effectively neuter executive power at all levels of government, the areas of governance most likely to be subject to attack are those where the court is most likely to have the strongest personal views, which is amply demonstrated here with the EPA being effectively neutered in addressing climate change. With its failure to mention climate change statistics and grim consequences of the same (in contrast to the minority which documented these matters at length at the beginning of their judgment),18 the majority is obviously unmoved by and cares not a wit for these issues, except perhaps for how commercial interests might be affected by the EPA’s actions as mentioned by Gorsuch J above.

16

Ibid, at 12 (Gorsuch concurring judgment). Ibid, at 32–33 (Dissenting judgment). 18 Ibid at 1–3 (Dissenting judgment). 17

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The environment is fair game in the US given that environmental rights are completely absent from the US Constitution, with the exception of one tepid reference in the ‘Commerce clause’ on which every federal environmental act has been based—Article 1 Section 8 that Congress has the power to ‘regulate Commerce with foreign nations, and among the several States, and with the Indian tribes.’19 And that’s it. It is only one of a number of enumerated powers conferred on Congress to make laws. And then it is only really a permission based on a generous interpretation of the commerce power, as opposed to conferring any environmental rights in the way the various Amendments to the US Constitution do regarding personal human rights. What is the situation in India and Australia and what do their constitutions say about environmental powers and rights?

3 Could West Virginia v. EPA Happen in India and Australia? 3.1 Constitutional Law and the Environment: The Indian Experience Like many constitutions, India’s initially did not have any mention of the environment in it, apart from references to public health.20 However, while most constitutions were to stay that way (i.e. no explicit references to the environment, notably the US Constitution and also Australia’s), India’s Constitution became quite heavily populated with environmentally focussed language from the 70s onwards. Nividita Chaudery notes that although there is a tradition in ancient Indian jurisprudence that is arguably the seed of modern environmental jurisprudence in India, given the importance of the dharma of each individual to protect Nature, the real impetus for these developments as well as the ‘greening’ of the Indian Constitution was from the mid 1970s after the Stockholm Conference on Environment in 1972 impacted countries globally. In India, this included the enactment of the 42nd Amendment Act of 1976 which incorporated two Articles into the Indian Constitution: Article 48 in Part IV (Directive Principles of the State Policy) and Article 51A(g) in Part IV-A (Fundamental Duties) so that the Constitution now had specific provisions relating to environmental protection, placing an obligation on the ‘state’ as well as ‘citizens’ to protect and improve’ the environment.21 19

US Constitution Article 1 Section 8. Constitution of India Article 47 ‘The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about the prohibition of consumption except for medicinal purposes of intoxicating drinks and drugs which are injurious to health’. 21 Chaudhary HYPERLINK "SPS:refid::bib1" [1]. 20

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Chaudhary notes that despite inclusion of these provisions, they are not enforceable as Part IV is specifically made unenforceable by Article 37 and there is no provision in Part IV-A to enforce those provisions so that explicit reference to environment in the Indian Constitution is, in Chaudhary’s words, ‘rendered ineffective due to its non-justiciability.’22 But the story does not end there. It would seem that the very presence of the abovementioned Articles in the Constitution has had an impact on judicial attitudes. Rather than dismiss these Articles as mere aspirations, the Indian judiciary have taken them very seriously indeed. Chaudhary refers to the leading case of Shri Sachidanand Pandey v State of WB where the division bench of the Supreme Court said courts are duty bound to take these Articles into account whenever a problem relating to ecology is brought before the court and that: When the Court is called upon to give effect to the Directive Principle and the fundamental duty, (Articles 48-A and 51-A (g) in the case), the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter of policy making authority. The least the Court may do is examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the Court may go further but how much further must depend on the circumstances of the case. The Court may always give necessary directions.23

Chaudhary, noting that the Indian Courts have been more notably judicial activist than other courts, then goes on to catalogue a number of innovations by Indian Courts including: the linking of the right to a wholesome environment to an enforceable right to life under Article 21;24 acceptance of the ‘polluter pays principle’ to properly compensate for harm caused by environmental damage;25 adoption of the concepts

Article 48 Part IV provides: A ‘protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country’. Article 51A(g) Part IV-A provides: ‘It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures’. 22 Ibid, at 592. Article 37 Part IV provides: ‘The provisions contained in [Part IV] shall not be enforceable by any court, but the principles therein laid down are nonetheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. 23 AIR 1987 SC 1109 cited at Ibid. 24 Subhash Kumar v State of Uttar Pradesh 1991 (1) SCC 598 (pollution of Bakaro River water by sludge discharged from washeries of Tata Iron and Steel Co Ltd), which was an approach endorsed by numerous decisions thereafter cited at Ibid, at 595. 25 Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212 adopting the OECD’s 1972 recommendation of pollution allocation and later laid down as Rio Declaration principle 16. Ibid, at 596.

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of ‘sustainable development’ and ‘the precautionary principle;’26 and adoption of the ‘public trust doctrine.’27 And perhaps the most striking acts of environmental judicial activism of the Courts of India is a recent spate of cases conferring legal personhood on various ecological entities most notably the Ganges River in a 2017 decision days after a similar decision in New Zealand granting the Whanganui River legal personhood. This is a whole new level of environmental jurisprudence epistemologically based on deep ecology and is beyond the scope of this Chapter to tease out in all of its fascinating detail. However, the point is that arguably constitutional provisions, albeit unenforceable ones, appear to have strongly influenced judicial attitudes in India. The US Constitution is sorely lacking any such guidance. Congress is empowered, only just, through its aforementioned Commerce power to make laws for the environment which it has done, but seemingly always through gritted teeth and then, when issues come up, interpreted by the courts, (from the present majority’s perspective at least) also through gritted teeth. There are no guidelines, other than the generic principles of statutory interpretation. It is basically left to the whims of judges, with a pretense of impartiality, and there is certainly no joy nor creativity in their judicial deliberations as we find in India. Would the majority of the US Supreme Court be so confident in propounding their ‘major questions’ test if there were provisions in the US constitution like those found in the Indian Constitution? It would probably be too much to suggest that the existing US Bill of Rights incorporates individual rights to a wholesome environment (unless they can be linked to some sort of right to life as the Indian Courts have done), but seeing as the focus of rights in the US Constitution has always been on first generation civil rights rather than second generation subsistence rights, this might be a bit of a stretch. Also, given the recent reversal of Roe v Wade in the Dobbs decision on reading reproductive rights into the US Constitution, it would appear the Supreme Court (certainly the conservative majority) is currently not in the mood to engage in judicial activism to augment people’s existing rights, except perhaps to take them away.28

26

Vellore Citizens Welfare Forum v The Union of India (1996) 5 SCC 647. The principle of sustainable development was first acknowledged in the Stockholm Declaration of 1972 and the precautionary principle was laid down as principle 15 in the Rio Declaration as ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Ibid. 27 M. P. Mehta v Kamal Nath (1997) 1 SCC 388, (1999) 1 SCC 702 which Chaudray explains is a doctrine that ‘postulates that the public has a right to expect that certain lands and natural areas will retain their natural characteristics.’ Ibid, at 597. 28 Conservative US Supreme Court Judge Clarence Thomas has recently opined that all substantive rights, not just reproductive rights, that have been read into the 14th Amendment of the US Constitution in US Supreme Court case law such as the right to contraception, right to engage in private sexual acts, the right to same sex marriage should be reconsidered by the court as, in his view, the 14th Amendment is based on process respecting substantive rights found elsewhere in the

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Even before the Indian Courts developed their jurisprudence to link environmental rights to a right to life, the Directives still arguably carried weight as relevant considerations that a court is bound to take into account in its deliberations as the court noted in the Shri case mentioned above. There are no such constraints on the US Supreme Court. The only ‘relevant considerations’ are to be found express or implied within the executive’s enabling legislation itself and with a device such as ‘the major questions’ doctrine, it is not too hard to find that the legislature did not intend to imply anything that one would rather not take into account, even if it expressly appears in the legislation, on the basis that ‘surely’ the legislature could not have meant that (i.e. the argument from incredulity). Also, every student of Statutory Interpretation 101 learns that even the word ‘shall’ is not always a mandatory term and can be twisted into something merely directory and ‘may’ can even be read as mandatory rather than directory, if the context permits it. And ‘context’ can be a very fluid thing. Ambiguities (and even apparent certainties deemed to be ‘ambiguous’) can always be resolved contra the environment if that is the court’s preferred ideological setting. ‘Shall’ magically becomes ‘may’ (or vice versa). It is depressing to think that while much of the world engages in judicial interpretation to comport with the twenty-first century view of the environment (India is not alone), the US lags sadly behind. Just like one sees modern cities flourish in Asian and middle east countries with the most beautifully avant garde style architecture in its new buildings, US jurisprudence, just like the stale so-last-century style of its architecture and cities, appears to belong to a bygone age. But what of Australia’s environmental jurisprudence?

3.2 Constitutional Law and the Environment: The Australian Experience Could a rogue conservative Australian High Court suddenly come up with its own ‘get-out-of-text-free’ card as the US Supreme Court majority has done, in environmental matters, to constrain executive power? Like the US Constitution, the Australian Constitution is silent on the environment. The Australian Constitution has very few human rights constitutional guarantees (right to vote,29 right to against compulsory acquisition of property by the Commonwealth on unjust terms,30 a right to trial by jury,31 freedom of religion,32

Constitution and not in the 14th Amendment itself. See Supra note 1, at 3 (Thomas J, concurring judgment). 29 Australian Constitution s41. 30 Ibid, s51(xxxi). 31 Ibid, s80. 32 Ibid, s116.

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prohibition of discrimination on the basis of state or residency,33 an implied right of freedom of political communication34 —and that’s about it.). It is laughable to suggest in Australia, that citizens have any rights relating to the environment or the environment itself has any rights under the Constitution. Although from time to time the High Court of Australia has been considered to be progressive (e.g. the Mason High Court in the late 80s and early 90s) or conservative (the Gleeson High Court at the turn of this century), and certainly more dry and no way as entertaining as their US counterparts, there doesn’t appear to be the venal politics in the Australian High Court that infuses the US Supreme Court. This may in part be due to the fact that Australia does not have a federal bill of rights as such so there is less constitutional interpretation that goes on in the High Court than in the US Supreme Court and certainly less that involves the interpretation of human rights which is always going to be politically charged. The Australian High Court, for example, will never be called upon to adjudicate on a matter involving abortion rights as this is a matter that falls entirely within State plenary powers (as indeed it now does in the US but only after an interlude of almost 50 years before Roe v Wade was overturned by Dobbs) and no amount of judicial creativity could ever hope to read reproductive rights into the text of the Australian constitution. Not all of the High Court have always been thrilled about the ‘creative’ decision making to find an implied right of political communication in the Constitution but text and structure approaches to interpreting the Constitution which that right rested on, are hardly the stuff of controversy. (People have a right to vote. They need to make an informed choice. Silencing political discussion robs people of making an informed choice. End of story). When it comes to the environment, Australia has had its controversial moments in the High Court even though, as was once the case in India, there is no mention of the word ‘environment’ in the Constitution. The leading case that decided the Commonwealth could even have a dog in the fight when it comes to doing environmental law was the Tasmanian Dam case.35 The Commonwealth sought to prevent the destruction of wilderness in Tasmania by the Tasmanian government to put in a nice big dam. The Commonwealth’s authority to do that was challenged and defended, successfully, on the basis that the Commonwealth were relying on the external affairs power in s51 of the Australian Constitution to enact into domestic law an international treaty regarding environmental protection.36 Again, not very controversial despite the very best efforts of a number of people to make it so, even if it is a bit annoying that the Commonwealth may enact a law after it has attended some international conference and rubbed shoulders with other nations’ leaders to override a State’s plans to do 33

Ibid, s117. Confirmed by a line of High Court authorities commencing with Nationwide News v Wills (1992) 177 CLR 1 and Australian Capital Television v Commonwealth (1992) 177 CLR 106. 35 Commonwealth v Tasmania (1983) 158 CLR 1. 36 Australian Constitution s51(xxix) ‘The Parliament shall, subject to this Constitution, have the power to make laws for the peace, order, and good government of the Commonwealth with respect to: External affairs’. 34

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things like, say, build a huge dam and all the economic consequences that flow from that. But the provision is there is black and white and there is nothing in there to limit its scope, so game over. However, a High Court faced with interpreting domestic legislation that gives effect to an international treaty on the environment has no guidance from the rest of the Constitution as, say, an Indian Court would have. Australia has absolutely nothing in the Constitution that says anything about the environment. In that sense, Australia is in a similar position to the US. From what does a court draw its guidance when interpreting a statute that has been subject to challenge, say on the basis that it empowers Australia’s own EPA to act to do all necessary to curb emissions? It would all boil down to the construction of the enabling Act as was the case in West Virginia v EPA as indeed is also the case in India, but in India you also have provisions in the Constitution to be mindful of, mostly directive, but possibly mandatory, if linked to a right to life. The point is the ‘relevant considerations’ a court in the US or Australia must take into account in assessing whether the executive has the power to do what the enabling legislation purports it has the power to do are entirely express or implied within the legislation itself—unlike in India, there is nothing in the Constitution that can be taken into consideration, which leaves it solely up to the enabling legislation that grants the executive its powers. However, in the Australian context, there is one thing the High Court may have regard to in interpreting the domestic law that has adopted the treaty’s terms apart from the law itself and that, of course, is the very treaty which underpins it. US sources its power to make federal environmental laws from the Commerce clause as mentioned above, so although international treaties may have partly inspired the law under consideration, they certainly didn’t birth it as is the case with Australian Commonwealth law enacting domestic law to give effect to a treaty under the external affairs power. Also, if there was an international treaty that inspired a US environmental law, it will be considered extrinsic material and given not as much weight as intrinsic material such as the actual text of the Act in interpreting that legislation.37

4 Conclusion While the US Supreme Court has virtually no constraints on how it interprets legislation to determine whether the executive is empowered by its objects and can invent ‘get-out-of-free-text-cards’ to effectively bend the words of a statute to their will or 37

In Australia, for instance, extrinsic material is generally only resorted to determine the meaning of a statutory provision to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act, or to determine the meaning of the provision when it is ambiguous or obscure or the application of the ordinary meaning of the provision would otherwise lead to a meaning that is manifestly absurd or unreasonable—see Interpretation Act 1903 (Cth) s15AB.

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deny them their obvious meaning, it is submitted there is less scope for this in India and Australia. India’s Constitution has evolved in a way that has provided meaningful direction to the courts and has fostered an atmosphere of judicial creativity to give effect to the avowed environmental aims in India’s Constitution. At the very least, the Court is required to take into account these matters as relevant considerations and on occasions treat them as a fundamental right where they intersect with the right to life. On the other hand, courts in the US and Australia are not so encouraged by their Constitutions which appear to be products of a bygone age insofar as environmental aspirations (or more correctly, a lack of them) are concerned. Statutory interpretation of environmental legislation occurs in these jurisdictions as if the Constitution didn’t exist and the focus is entirely on the Act itself, confined to its objects. While the courts in the US can effectively roam free in this space as mentioned and pretend the rest of the world doesn’t exist, any SI device such as the US Supreme Court majority ‘major questions’ doctrine that the High Court in Australia might seek to introduce would have to take into account the international treaty on which the domestic enabling legislation is based. Thus, unlike in the US, the rest of the world does exist for Australian courts, even if only in the form of a lone treaty. If an Australian High Court’s approach to SI flies in the face of the terms of this treaty on which the enabling legislation is based, such approach will look more like a judicial trantrum than a properly thought-out principle of statutory interpretation. But tantrum or not, the treaty must yield to the clear language of the statute which might water down or even do an about-face on the treaty. Statutes can dishonour the treaties they purport to be based on, in which case such treaties can be safely ignored by the courts, who must follow the statute, such are the plenary powers of parliament. However, constitutional provisions addressing the environment cannot be ignored and statutes disrespecting them can be subject to constitutional challenge and struck down by the courts. It is therefore high time that Australia, like India, introduced environmental protection into its Constitution.

Reference 1. Nividita Chaudhary ‘Constitutional Jurisprudence and Environmental Justice: A Study of India and Australia’ Chapter 30 of Professor Aditya Tomer, Dr Vaishali Arora, Dr Joshua (Eds) Comparative Law Facets, Nuances and Intricacies (Thomson Reuters, 2022), p. 587–591.

Affirmative Action and Social Discrimination: A Functional Comparative Study of India, USA and South Africa Sakshi Parashar

1 Introduction Affirmative action (AA) policies aim to implement substantive equality, which requires introducing inequalities or preferences in distributing benefits or services to promote equality. It seeks to compensate for existing or past inequalities by “creating discrimination that paradoxically redistributes equality.”1 The need for such policies stems from the inadequate system of formal equality opportunities, which though necessary, leads to unfair results.2 AA policies may be one of the most striking features of the Indian Constitution. India’s affirmative action policies have existed primarily in the form of strict quotas or reservations since the pre-Independence era. Such policies have received severe criticism for legitimizing caste, making it a ‘visible feature’ in the eyes of the law, and linking it directly with a set of state-conferred benefits.3 Similar or other forms of AA policies are also prevalent in other countries. Different countries have implemented policies to counter the effects of historical discrimination faced by the members of their society based on race, ethnicity, caste, etc. The paper attempts to compare the form and extent of affirmative action policies prevalent in two comparable jurisdictions i.e., the United States of America (USA) and South Africa. Since, like India, both the United States and South Africa have a long history of discrimination and a strong commitment towards equality, a 1

Levade [1]. Faundez [2]. 3 See Berg [3]. 2

S. Parashar (B) Symbiosis Law School, Noida, India e-mail: [email protected] Symbiosis International (Deemed University), Pune, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_10

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comparison between the AA policies will help analyse the fallbacks of the policies in India. The paper adopts a ‘functional comparative’4 approach in identifying the different Constitutional provisions vis-à-vis the goal of substantive equality aimed to be achieved in the three nations. Ultimately, the paper aims to identify pointers and measures which can be instrumental in enhancing or improving the approach adopted by India.

2 Historical Context All three countries i.e., India, the United States, and South Africa, have a comparable history of social discrimination and exclusion. Whereas in India, the social discrimination was based on the caste hierarchy and the practice of ‘untouchability’, South Africa and the USA faced a long history of racial discrimination. The practice of untouchability was based on the caste hierarchy prevalent in Hindu society. Traditionally, untouchables were said to perform services or ‘impure’ works, including caring for cremation grounds, scavenging, removing carcasses, leather work, etc.5 Contact, shadow, or even sight of untouchables was considered polluting.6 This led to social exclusion and discrimination and was responsible for their low education and economic status. Racial discrimination in the US, even post the Civil War era, was deep and pervasive against African American people, especially in the Southern States, where they were considered inferior and below the white population.7 It has been rightly remarked that discrimination against African American people “was tradition, and in some States it was law.”8 Laws restricted them to menial occupations and labour.9 Even educated blacks were considered inferior to illiterate white, which was reflected in the Jim Crow laws10 passed by the Southern States, which established segregated facilities for blacks and whites. Scholars have asserted that there are similarities in the forms of discrimination against blacks in the USA, and the untouchables in India, which restricted their social mobility in the society.11 Cass Sunstein’s principle of anti-caste is also based on the assumption that there are striking similarities between the true caste system in India and American inequalities.12 4

Tushnet [4], Michaels [5]. Wolpert [6]. 6 Boparai [7]. 7 Fremon [8]. 8 Anderson [9]. 9 See Stone et al. [10]. 10 Supra note 7. 11 Chandola [11]. Also see, Deshpande [12]. 12 Sunstein [13]. 5

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Similarly, racial discrimination was furthered in South Africa rather legally through ‘Apartheid’ policy since 1948 which was aimed at racial segregation while continuing the white supremacy.13 Apartheid is an Afrikaans word meaning ‘separateness’.14 It has been asserted that for most South African Black population, ‘Apartheid’ stood as a symbol of discrimination and inequality. Apartheid came to an end in 1992 as a result of a concerted internal and external struggle.15

3 Constitutional Obligations Owing to historical reasons, one of the key aims of the Indian Constitution makers was the establishment of an egalitarian society that upheld the notion of social, economic, and political justice, and ‘equality of status and of opportunity’ was to be made available to all.16 Considering the socioeconomic circumstances at the time of Independence, this vision was hard to be achieved without pursuing compensatory measures. Constitution makers provided preferential measures to ‘remove the contradictions’ existing among classes in disadvantaged social and educational positions and implemented a functional approach to equality.17 Indian Constitution’s strong conviction towards the principles of equality and positive discrimination pervades various provisions of the Constitution and has been categorically provided under Articles 14–18.18 Article 46 of the directive principle of state policy entrusts a duty on the state to take preferential action for the ‘weaker section of the society’.19 The Constitution further reserves seats in Parliament and Legislative Assemblies for SCs and the Scheduled Tribes (STs).20 The foundation of reservation policy in appointment and education is found in Articles 15 and 16 of Part III of the Constitution. However, Constitutional provisions have seen various Amendments in the course of evolution.

13

Racism and Apartheid in Southern Africa: South Africa and Namibia (The UNESCO Press, Paris, 1974), (last May 7, 2021, http://unesdoc.unesco.org/images/0001/000122/012289eo.pdf. 14 Id. at 44. Although the government preferred the meaning to be ‘separate development’, this has been refuted by various scholars. 15 Some even consider constraints on the domestic labour market and international financial boycotts as a major factor in the collapse of apartheid. See Schwartzman and Taylor [14]. 16 Agrawala [15]. 17 Prasad [16]. 18 Art. 14 of the Constitution provides the formal principle of ‘equality before the law and equal protection of the laws’ and Art. 15 and 16 are specific implementation of the principle of equality. Art. 17 and 18 abolish untouchability and titles, respectively. 19 Constitution of India, Art. 46 reads as: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, or the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”. 20 Constitution of India, Art. 330 and 332.

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Article 16 primarily prohibits any discrimination in government services and guarantees’ equality of opportunity to all citizens’.21 This provision is in fact specific application of the non-discrimination provision provided under Article 14.22 The provision is qualified by Article 16(4) of the Constitution which States as follows: (4) Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.

This provision, unlike other provisions,23 was a part of the Constitution when it came into force in 1950. However, the meaning and definition of the term ‘backward classes’ was left unanswered in the Constitution. At the time of the commencement of the Constitution, the reservation was permitted only for backward classes within Article 16(4), but no such provision existed under Article 15.24 Article 15 of the Constitution only prohibited discrimination based on ‘religion, race, caste, sex, place of birth’. Similarly, Article 29(2) prohibited discrimination based on ‘religion, race, caste, language’ in admission to State educational institutions. Soon after the enforcement of the Constitution, there arose conflicts between Article 46 and Article 15(1) and 29(2) of the Constitution, which led to the Supreme Court invalidating government orders reserving seats based on caste and religion in educational institutions.25 These judgments lead to the insertion of Article 15(4) by virtue of the First Constitutional Amendment Act, 1951, which provides that: (4) Nothing in this Article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Initially, Article 16 did not explicitly provide whether the job reservation was meant only for initial appointment or promotions. This question was addressed by

21

Constitution of India, Art. 16(1) and (2) read as: “(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”. 22 Jain [17]. 23 Other Constitutional provisions were subsequently added through numerous constitutional amendments, namely Arts. 15(4), 15(5), 15(6) and 16(4-A), (4-B). 24 Please note that when Article 15 (Article 9 during the Constituent Assembly Debates) was taken up for discussion before the Constituent Assembly, Prof K. T. Shah, proposed an amendment extending advantages and safeguard to SCs and STs, however the same was rejected by Ambedkar by stating that such an amendment could lead to their separation from the general public. See, Constituent Assembly Debates, November 29, 1948, available at: http://164.100.47.194/loksabha/ writereaddata/cadebatefiles/C29111948.html (last visited on Jan 29, 2018). 25 State of Madras v. Srimathi Champakam Dorairajan AIR 1951 SC 226, B. Venkataramana v. State of Madras, AIR 1951 SC 229.

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the Supreme Court multiple times26 and the position kept on changing until the 77th Constitutional Amendment Act, 1995 which introduced clause (4A) to Article 16.27 Article 16(4A) provides for reservation in promotion for members of SC/ST who are not adequately represented in the services of the state. The Constitutional Amendment was challenged before the Supreme Court in M. Nagraj v. Union of India,28 wherein the Court upheld its constitutional validity while laying down some conditions in providing reservation in promotions to the SC/ST.29 Clause 16(4A) was further amended via 85th Constitutional Amendment Act, 200130 which provided for ‘consequential seniority’ in promotions to the members of the SC/ST, which was to counter the judicial development of ‘catch up rule’ which enabled unreserved category employees to resume their seniority once promoted, over the previously promoted SC/ST candidates.31 Clause (4B) was added to Article 16 vide the 81st Constitutional Amendment Act, 2000, to allow reservations to exceed 50% to fill the backlog vacancies.32 This Amendment was also a result a lengthy judicial deliberation with respect to setting the higher limit for the quantum of reservation and ‘carry forward rule’, which provided for carrying forward of unfilled quota vacancies of a year to the subsequent years, 26

Initially the Supreme Court in General Manager, S. Rly. v. Rangachari, AIR 1962 SC 36 was of the view that the power vested in the state under Art. 16(4) to reserve seats could be exercised not only in the initial appointment but also in promotions as well. However, this position was changed by Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, where the Court held that reservation will be applicable only for initial appointment and not for promotions. 27 77th Constitutional Amendment Act, 1995, Article 16(4A) reads as: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”. 28 M. Nagraj v. Union of India, (2006) 8 SCC 212. 29 The pre-requisite conditions laid down by the Court for providing reservation in promotion were, assessing the inadequacy in the quantum of representation, their backwardness and its impact on the efficiency. Unless the State undertakes this scrutiny, reservation in promotion for members of SC/ST will not be acceptable. Recently, some aspects of Nagraj judgment were called for scrutiny before a five-Judge Bench of the Supreme Court, however the Court refused to review the judgment barring some deviations Jarnail Singh v. Lacchmi Narain Gupta, (2018) 10 SCC 396. 30 Constitution of India, Article 16(4A) reads as: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion [with consequential seniority] to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (emphasis added)”. 31 Union of India v. Virpal Singh, AIR 1996 SC 448., Jagdish Lal v. State of Haryana AIR 1997 SC 2366, Ajit Singh II v. Union of India AIR 1999 SC 3471. 32 Constitution of India, Article 16(4B) reads as follows: “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year”.

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thereby increasing the total quantum of reservation.33 The said Amendment settled the legal position and provided that the “unfilled vacancies of a year reserved for SC/ STs shall be considered separately for filling vacancies in the succeeding year and the previous list will not be considered for filling the 50% quota”. This provision was challenged in the M. Nagraj judgment and its constitutionality was upheld unanimously by the Court. However, to maintain the administration efficiency required by Article 335, the Court observed that the appropriate government must introduce a time limit depending upon the circumstances to fill the backlog vacancies.34 Unlike Article 16(4), which provides reservation only for government services, clause (5)35 inserted to Article 15 via 93rd Constitutional Amendment Act, 2006 enables the state to make reservation for backward classes in unaided educational institutions except for minority institutions. Recently, 103rd Constitutional Amendment, 2019 added Articles 15(6) and 16(6), which provided for reservation for the Economically Weaker Section from the unreserved category in both educational institutions and state appointments. Evidently, the Indian Constitutional provisions with respect to the reservation are elaborate and have been amended from to time mostly to overcome restraints imposed by the judiciary. These amendments reveal that the legislative intent is to favour the backward classes through the mechanism of reservation. Reservation which was initially provided only for the appointment, has been extended to promotions, educational institutions etc. India and the USA share many commonalities specifically with respect to constitutional recognition of individual rights.36 Infact, the concept of ‘equal protection of laws’ which was added into the US Constitution after the end of the Civil War through 14th Amendment was adopted within Article 14 of the Indian Constitution.37 However, application of equality jurisprudence in the US varied with the Indian understanding and was very restrictive till the mid-twentieth century. 33

The Constitution does not provide any minimum or maximum percentage of reservation for different beneficiaries and hence the maximum limit was carefully set as 50% by the Supreme Court in M. R. Balaji v. State of Mysore, (1963) Supp 1 SCR 439 and was consequently reiterated in T. Devadasan v. Union of India, (1964) 4 SCR 680, wherein Court struck down carry forward rule which provided for carrying forward of unfilled quota to the subsequent two years, in case suitable candidates were not, which eventually increased the quantum of reservation more than 50%. Consequently, Indra Sawhney, supra note 26 affirmed that 50% ceiling should be applied each year for initial appointments. Finally, R. K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 (issue was with respect to promotions) clarified that entire cadre strength should be taken into consideration to assess whether reservation is within the permissible limit. 34 Supra note 28 at para 100. 35 Constitution of India, Article 15(5) reads as: “(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30”. 36 Weisskopf [18]. 37 Lillibridge [19].

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In Plessy v. Ferguson38 the US Supreme Court upheld the doctrine of ‘separatebut-equal’ while legitimizing the segregation of white and black people within the meaning of the 14th Amendment. The Court favoured the formal equality found in the Jim Crow’s laws. The doctrine which continued to be valid for more than half a century was finally invalidated by the US Supreme Court in the landmark judgment of Brown v. Board of Education39 Court laid down that segregation of blacks and white was unconstitutional and violative of the 14th Amendment. The affirmative action policies in The US were a result of the Civil Rights Movement of the 1950s and early 1960s.40 Unlike the Indian Constitution, affirmative action policies do not originate from the American Constitution, however, it has become an important part of equality jurisprudence by virtue of the 14th Amendment. Like India, the USA also resorts to equality of opportunity in employment.41 The affirmative action policies in America derive their legality from Title VII of the Civil Rights Act, 1964.42 An executive order issued under the Act directs the government contractors to pro-actively recruit black candidates for jobs, and integration of more black students and faculty members by the colleges and universities and while doing so they ought not be treated differently.43 It is quite clear that AA policies in India have a wider scope and are far more historically deep-rooted and constitutionally assertive than the United States. According to Thomas E. Weisskopf, the reason behind such difference is the diverse social and political culture between the two countries. The ideology of the USA is strongly inclined towards protecting individual rights and responsibilities and the citizens.44 On the other hand, India has an old history of attachment to community identity more than individual identity, leading to strong AA policies in forms of reservation or quota.45 Another reason which may explain the different constitutional stand on AA policies may be the historical gap of the two Constitutions and the influence of the chief drafters of the Constitution.46 The strong influence of leaders like Ambedkar, and Jawaharlal Nehru who aimed to constitute an egalitarian society and to eliminate socioeconomic discrepancies in the society along with the precedent of reservation

38

163 U.S. 537 (1896). 347 U.S. 483 (1954). 40 Supra note 36. 41 Executive Order 10,925 provides that “it is obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, colour, or national origin, employed or seeking employment with the Federal Government and on government contracts”. Further, Title VII of the Civil Rights Act of 1964 also established a Commission on Equal Employment Opportunity, however there is no such Commission in India as of yet. 42 The titles ban discrimination (whether negative or positive), on grounds of race, color, religion, sex, or national origin, in federally assisted activities and in employment, respectively. 43 Executive Order No. 11246 issued by President Johnson. 44 Supra note 36 at 17. 45 Id. at 36. 46 Jenkins [20]. 39

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during the British era led to the Constitution recognition of reservations in favour of backward classes.47 Adequate safeguards were put in place by the new South African Constitution of 1996 to redress past inequalities and bring about equality and well-being. The country has a relatively recent Constitution and, thereby, like Indian Constitution, provides for constitutionally mandated AA under Section 9, which deals with equality.48 However, unlike the Indian Constitution, the South African Constitution does not provide equality of opportunity for individuals.49 Similar to the Indian Constitution, AA under Section 9 has been considered integral to achieving substantial equality. In that sense, it is not viewed as a limitation to the right to equality.50 However, what is noteworthy is that the South African Constitution does not provide for specific measures or techniques to be adopted (like reservation in case of India) and only provides an enabling provision to enact legislation and other policies for countering the effect of the discrimination. In South Africa, two legislations have been enacted to give effect to the constitutional goal of substantive equality, the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, and the Employment Equity Act, 1998. AA measures are provided under the Employment Equity Act, 1998, which aims to redress past policies’ disadvantages and “achieve a diverse workforce broadly representative.”51 The South African judiciary has time and again held that positive discrimination in South Africa is not individual upliftment or advancement but is focused on advancing a group of people.52 The Court stated that “the only people to whom affirmative action measures should ‘legitimately and fairly’ be directed were people previously and directly disadvantaged by unfair discrimination in the South African context”.53 As opposed to American jurisprudence, which is based on an individualistic view, South

47

Supra note 36 at 17. The Constitution of the Republic of South Africa, 1996, sec. 9 reads as: “Equality: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair”. 49 Wang [21]. 50 NkonzoLanga [22]. 51 Employment Equity Act, 1998, Preamble. 52 Jagwanth [2]. 53 Attf der Heyde v. University of Cape Town, (2000) 8 BLLR 877 (LC). 48

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African jurisprudence is more group-centric because of the history of Apartheid and discrimination.54 All three jurisdictions lend Constitutional support to substantive equality and equality of opportunity. Considerable differences in their historical and social experience, the time of enactment of the Constitution, and the underlying philosophy of the Constitution have led to different ways of achieving the said goal of substantive equality.

4 Form and Quantum Different state implements affirmative action policies in various formats and methods.55 Thomas Nagel classifies affirmative action into two versions i.e., ‘weak affirmative action’ and ‘strong affirmative action’.56 In his view, weak affirmative action consists of steps like special training programs to enable the disadvantaged group members to meet the required standards for admission or appointment etc. Strong affirmative action consisted of those actions of the state which provide clear preference for members of the discriminated group for access to education, jobs, etc.57 Despite a common constitutional goal of substantive equality, three jurisdictions have opted for different policy measures to achieve the said goals. India has an extensive network of AA policies. Various provisions of the Constitution either enable the state to make AA in favour of certain classes of citizens or encumber the state to promote their educational and economic condition. Galanter categorises these AA policies into three types, first are ‘reservation’ or ‘quota’ “which allot or facilitate access to valued positions or resources” like reserved seats in legislatures, government service, and educational institutions. Second, policies and programs involve utilising state resources inequitably to improve socioeconomic positions through provisions like scholarships, grants, loans, land allotments, health care, training and preparatory courses etc. Lastly, special protections to protect the backward classes from being exploited and victimized.58 In addition to weaker affirmative action policies like scholarships, and concessions in admission and appointment, India strongly relies on strong affirmative action policies, namely quotas or reservation. This may be because of the colonial presence 54

HarmseV. City of Cape Town, 2003 (24) L.LJ. at 1133–34. In Stoman v. Minister of Safety and Security 2002 (3) SA 468. The Constitutional Court upheld the order of the South African Police Service not to promote a white male. The Court observed that the main intention of the Legislature is not to compensate individuals belonging to a disadvantaged group, but to advance the group to whom an individual belongs and to bring about substantive equality. Similarly, the idea is not to violate the right of an individual of a previously advantaged applicant, but to weaken the over-representation which the entire group has been enjoying. 55 Oppenheimer [23]. 56 Nagel [4]. 57 Ibid. 58 Galanter [5].

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of such policies, which were subsequently incorporated into the Constitution. It has been pointed out that “India’s preferential policies have been in place longer than any other nation, considering that they began in British colonial times, and then found a place in the Constitution when it became an independent country.”59 Currently, there exists 50% reservation or quota in all state appointments and educational institutions. Constitution also permits the extension of this quota in private educational institutions as well (except minority institutions).60 The state can also extend this limit of 50% under exceptional circumstances. Unlike India, where AA policies draw their validity from the Constitution, the main issue is the constitutional validity of the AA policies in the USA. The US judiciary has interpreted the 14th Amendment to allow affirmative action under its purview. However, the constitutional validity of quotas remains largely unapproved. The US Supreme Court settled this in the landmark judgment of Regents of University of California v. Bakke.61 In further judgments the US Supreme Court decisively held that diversity among students is a compelling interest for public universities and colleges.62 Hence, a properly constructed preferential affirmative action plan incorporated into higher education admissions processes is constitutionally acceptable.63 Preferential affirmative action to promote student body diversity in public universities now falls clearly within the purview of the Constitution.64 Recently, in Fisherv. University of Texas65 the US Supreme Court has strengthened the roots of affirmative action by once again validating racial preference in admission to University of Texas and has upheld the admission process where race in conjunction with other parameters can be one of the factors influencing the admission of an applicant. Unlike India, the affirmative action in the USA is prevalent not just in public but private employment, university admission and federal contracts, whereas public education institutions and public offices enforce such policies in India.66 Further, affirmative action programmes in the USA focus on “preferential boosts, which improve the competitive position of eligible candidates rather than quotas, which reserve seats or opportunities for candidates”.67 There exists mixed response to race conscious affirmative action plan even after its acceptance by Supreme Court as 59

Sowell [6]. Indra Sawhney, supra note 26. 61 438 U.S. 265 (1978). The challenge was against the affirmative action plan of the University, which provided a quota and reserved 16 out of 100 seats for the members of the minority group. The Supreme Court of California ruled against the affirmative action policy. The matter went to United States Supreme Court, wherein the Court ruled in favour of race-conscious affirmative action, however, rejected the use of strict quotas. 62 Grutter v. Bollinger 539 U.S. 306 (2003), Gratz v. Bollinger 539 U.S. 244 (2003). 63 Cohen and Sterba [7]. 64 Kellough [8]. 65 136 S. Ct. 2198 (2016). 66 Supra note 46. 67 Supra note 40 at 17. 60

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there are certain States which have banned race-based affirmative action in public universities.68 It is worth noting that two countries which endorse equality of opportunity have taken different paths to enforce it. The US rejects quota whereas it remains constitutionally permissible in India in education, employment and legislative seats. AA policy has been justified by the Indian Courts as a means of past reparation, whereas US Supreme Court has accepted racial preferences and racial diversity as a compelling State interest to allow racial preference. In South Africa, affirmative action policies are implemented through Employment Equity Plans (EEP) under the Employment Equity Act, 1998. The Act requires companies or organisations employing more than 50 workers to formulate EEP to improve representation reflecting the demographics of South Africa. The EEP is required to state the objectives to be realized by the employer each year, specifying the AA strategies to be implemented within a set time frame and procedure to evaluate the plan. The Act provides for numerical goals and targets as measures of AA but excludes quota.69 Many educational institutions of South Africa have adopted racial quotas. One major difference between the strategy of affirmative action is that in the South African context, affirmative action does not approve of quotas, whereas reservations in jobs and admissions is the very core of the Indian AA policy.70 Some have asserted that the provisions of EEA require that an employer’s workforce reflects the exact demographics of the country and thus subtly introduces quotas,71 however, this has been rejected by stating that “this was clearly never the intention behind the Act”.72 Clearly, AA policies of South Africa are broader in scope, encompassing both public and private sectors. For this reason, South African AA policies has been described as the ‘world’s most extreme affirmative action program.’73

5 Beneficiaries Positive discriminating policies under the Indian Constitution target different groups including backward classes, women, children, minorities, physically disabled etc. However, Article 15 (4), (5) and 16(4) target only backward classes. In practice, backward classes include three groups i.e., Scheduled Castes, Scheduled Tribes and Socially Educationally Backward Classes (often referred to as Other Backward Classes). 68

Eight States in the USA have prohibited race based affirmative action programmes namely, California, Texas, Florida, Michigan, Washington, Nebraska, Arizona, and Oklahoma. 69 Employment Equity Act, 1998, s. 15(3). 70 Deane [9]. 71 Louw [10]. 72 Ibid. 73 Guest [11]. Also see, Sachs [12].

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SCs and Scheduled Tribes have been the beneficiaries of reservation in political representation and services since the British era. The term ‘SC’ doesn’t really have a specific meaning and is only a collection of certain castes and races.74 During the British era, the general understanding was that SCs were nothing but groups of persons who were untouchables.75 Similarly, STs lead a separate excluded existence and are not fully assimilated in the main body of the people”.76 They share traits like being primitive, geographically secluded, shy and social, educational and economic backwardness.77 It has been observed that the purpose of AA policy for STs is different in its scope and intent, it aims at safeguarding their separate integrity, rather than complete assimilation. The third category i.e. SEBCs/OBCs are classes which have been given preferential treatment not for past discrimination but for education and social backwardness. This has been the most controversial category since the Constitution does not provide the criteria to determine the social and educational backwardness. Over time and after much judicial deliberation caste has been evolved as the primary indicator of social and educational backwardness followed by an income-based test.78 Further, this category is alleged to constitute a large chunk of the society.79 In United States the beneficiaries of affirmative action policies are racial minorities. This is one striking difference between the beneficiaries of the AA policies in the two countries. The AA policies in the USA target the racially discriminated minority population, whereas Indian policy in addition to SC/ST also provides reservation to a neutral class i.e., socially and educationally backward classes, which have been identified on the criteria of caste and also form a large section of the society (exact population is not known). Many scholars have criticised reservation for OBCs since they have not suffered the kind of societal discrimination like SC which justifies special measure or reservation for them, including their reservation in jobs.80 However, despite disagreements it can be concluded that like race is central to affirmative action in the USA, caste is central to AA in India. In South Africa, The EEA designates ‘black people’, ‘women’ and ‘people with disabilities’, as the beneficiaries, which is to say, persons who were discriminated against under Apartheid and patriarchal system.81 the intended beneficiaries of AA 74

Jaswal [13]. Different Committees and Commissions adopted the criteria of untouchability to define depressed classes. The Southborough Franchise Committee in 1919, The Statutory Commission, 1930 and The Indian Central Committee all defined depressed classes as untouchables. See, Government of India, I “Report of the Indian Franchise Committee” 109 (1932). 76 Government of India [14]. 77 National Commission for Scheduled Tribes, First Report (2004–2005 and 2005–2006), (Feb 26, 2022), https://www.ncst.nic.in/sites/default/files/documents/ncst_reports/first_annual_report_ of_ncst/PART%20I%20-%20Ist%20Report%20NCST%202004-20059484175791.pdf. 78 Indra Sawhney, supra note 26. 79 The Second Backward Classes Commission in its report computed the percentage population of OBCs (including both Hindu and non-Hindu) to be around 52% of the entire population. 80 Béteille [15]. 81 McGregor [16]. 75

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policies are majority population rather than the minority,82 as opposed to places like the USA, where the members of the race form a minority group.

6 Functional Assessment Three significant points of consideration emerge from comparing the affirmative action policies of the three jurisdictions. 1. Flexibility of Policy An assessment of AA policies of other jurisdictions shows that countries generally avoid quotas and reservation. Instead, other positive action, goals and targets are adopted to provide substantive equality to the discriminated groups like the USA and South Africa case. Quota only appears to have achieved equal representation and not an assurance of equality of opportunity. Thomas Sowell rightly, observes that affirmative action policies, especially quotas, tend to be permanent and once implemented, continue to be in force, though they are often depicted as temporary “even when in fact these preferences turn out not only to persist but to grow.”83 The rigidity of quota almost always leaves no scope for further reforms which can better achieved through other measures. As Ashwini Deshpande comments “mandating the requisite number of seats is often the beginning and end of the implementation of the Indian affirmative action program.” Whereas, the voluntary nature of affirmative action programmes in the USA “lead to innovative measures to further strengthen affirmative action”, however, need effective enforcement mechanism.84 In India, quotas are common for both educational institutions and appointments. It has been argued that Higher educational institutions have diverse goals including academic excellence, research etc., and the imposition of social justice and equality remain one of these goals. Pratap Bhanu Mehta remarked that reservation may possibly be helpful occasionally but they “produce a false sense of political relation, a false sense of strength and ultimately, therefore, they are not so nearly important as real education, culture and economic advancement”.85 Hence, it is not prudent to rely on reservation to bring any substantial advancement of the backward classes in educational institutions. There is a need to look at positive discrimination differently in different sectors, representation may be Constitutionally required in State employment but not in education. In this context, it is relevant to discuss the American scenario, where the state does not prescribe numerical quotas in admissions, on the contrary, the universities devised their own programmes and operated them according to their own requirements. It is emphasized that elite universities such as Harvard and Princeton, both private 82

Wang [17]. THOMAS SOWELL, supra note 59 at 7. 84 Ashwini Deshpande, supra note 11. 85 Mehta [18]. 83

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universities, have affirmative action programmes that they consider to be in their long-term interest.86 2. Beneficiaries An important point of consideration is the targeted group which is aimed to be given preferential treatment. Unlike the USA or South Africa, India provides a quota to undo past discrimination as a measure of compensatory justice and to advance the interest of social and educationally backward sections as a measure of social justice. This means that a large chunk of society is the targeted beneficiary of the quota policy. This raises concerns regarding compromise of merit and efficacy of the policy in general.87 It has been observed that when beneficiaries are in minority, the system has the scope to absorb inadequacy less-qualified minority as compared to the system which is permeated by less qualified people and the negative impact on the system is multiplied.88 This is also a problem in the South African policy, where majority of the population was subject to past discriminatory laws. Another issue is the extent of privilege to the discriminated groups and whether some group has priority over the other or the upliftment of overlapping groups like black women and white women.89 In such circumstances, where the targeted population is large, only a very small elite populations is able to draw benefits from such policy. This means that impetus and attention towards quality of primary and secondary education may be the determining factor in levelling the playing field.90 3. Incentivising Diversity in Private Sector In India, AA policies are primarily focused on the public sector. Quotas are restricted to state appointment and state educational institutions (although state can impose quota on private educational institutions after the 93rd Constitutional Amendment, but it has not been imposed by states uniformly). This means that quota benefits are restricted to only small segment of the state conferred benefits, leaving the private sector outside its purview. Whereas in South Africa, even private entities are required to have representative diversity in the manner of numerical goals and targets. This decentralization of social justice attempt may also be useful within the Indian context. However, obligation on private entities to impose quotes will encroach upon their rights and autonomy.91 86

Béteille [19]. See generally MILTON FRIEDMAN AND ROSE FRIEDMAN, FREE TO CHOOSE: A PERSONAL STATEMENT 132 (Harcourt, 1990), Cohen [20]. 88 Benatar [21]. 89 Naidoo and Kongolo [22]. 90 Weisskopf [24]. 91 This idea has been discussed frequently in the political paradigm. See G Thimmaiah, Implications of Reservations in Private Sector, 40(8) ECONOMIC and POLITICAL WEEKLY 745– 750, Prakash Louis’, Affirmative Action in Private Sector, 39(33) ECONOMIC AND POLITICAL WEEKLY 3691–3692., Hiroshi Sato, Social Dimension of Employment Policy in India: Indian Debate on Employment Reservation in the Private Sector, Globalization, Employment and Mobility 87

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Instead, voluntary measures may be incentivized for private entities in the form of tax relaxation, (like Corporate Social Responsibility), financial aid, lower interest rate for loans etc. This will reduce the burden off the state and allow the unexplored potential of private sector to aid in social justice measures.

7 Conclusion Historical inequalities in the social life have been a bitter reality of many countries. Formal equality is generally considered inadequate to eliminate the socio-economiceducational drawbacks resulting from historical discrimination. India, USA and South Africa are such countries which have had to deal with the past baggage and to take steps to mitigate the effects of discrimination. The paper scrutinises the Constitutional measures taken by the three countries to reach the goal of substantive equality. India has one of the most extensive scheme of AA policies relying largely on quotas in admission and appointment in state services. USA on the other hand does not Constitutionally approve quotas but race conscious AA programs in public and private sector are acceptable to meet the compelling interest of diversity. South African Constitution, like Indian Constitution, imposes an obligation on the state to take positive steps to achieve substantive equality. In pursuance to the same, statutory law in South Africa imposes obligation on all employers having 50 or more employees to form a plan to improve representation reflecting the demographics, however restricts the use of quota. An assessment of AA policies of other jurisdictions shows that countries generally avoid quotas and reservations. Instead, other positive actions, goals, and targets are adopted to provide substantive equality to the discriminated groups like the USA and South Africa case. Even where it is present, it has failed to achieve substantial equality and only appears to have achieved equal representation and not an assurance of equality of opportunity. As a State, it is vital that India introspects its obsession with reservation and equal representation. It is not always prudent to impose artificial constructs such as equal representation in all walks of life, since people and groups differ and have always differed owing to their cultural, geographical, historical backgrounds.92 The state must ensure that individuals do not face a dearth of resources when they have the talent to leverage the opportunity. It is time to shift the focus back to ‘individuals’ from the ‘group’ which will ultimately aid in attaining the sanctified objective of equality of opportunity.

2008, (Springer), Sukhadeo Thorat et al. (eds) Reservation and Private Sector: Quest for Equal Opportunity and Growth, 89–100 Institute of Dalit Studies and Rawat Publications, New Delhi. 92 Thomas Sowell, supra note 59 at 7.

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References 1. Anne Levade, Positive Discrimination and the Principle of Equality in French Law. POUVOIRS 111 (4), 55 (2004). 2. J. Faundez, Promoting Affirmative Action 15 INDUS. L.J. JUTA 1187 (1994). 3. Dag-Erik Berg, Dynamics of caste and law: dalits, oppression and constitutional democracy in India (Cambridge University Press, 2019). 4. Thomas Nagel, Equal treatment and compensatory discrimination in MARSHAL COHEN, THOMAS NAGEL ET.AL. (EDS.), EQUALITY AND PREFERENTIAL TREATMENT (Princeton University Press, 1977). 5. Marc Galanter, Competing Equalities: Law And Backward Classes In India 42 (University of California Press, Berkeley, 1984). 6. Thomas Sowell, AFFIRMATIVE ACTION AROUND THE WORLD: AN EMPIRICAL STUDY 23 (Yale University Press, 2004). 7. Carl Cohen and James P. Sterba, AFFIRMATIVE ACTION AND RACIAL PREFERENCE: A DEBATE 125 (Oxford University Pres, 2013). 8. Edward Kellough, UNDERSTANDING AFFIRMATIVE ACTION: POLITICS, DISCRIMINATION AND THE SEARCH FOR JUSTICE 126 (Georgetown University Press, 2006). 9. Tameshnie Deane, A Commentary on the Positive Discrimination Policy of India 12 (1) POTCHEFSTROOM ELECTRONIC LAW JOURNAL 28 (2009). 10. A. M. Louw, The Employment Equity Act, 1998 (And Other Myths About the Pursuit of “Equality”, “Equity” and “Dignity” In Post-Apartheid South Africa) 18(3) PELJ 633–637 (2015). 11. Robert Guest, The World’s Most Extreme Affirmative Action Program, THE WALL STREET JOURNAL, Dec. 23, 2004 12. A. Sachs, Affirmative Action and Good Government: A fresh look at Constitutional Mechanisms for re-distribution in South Africa, Alistair Berkeley Memorial Lecture, Capetown, Nov. 14–15, 1991. 13. S.S. Jaswal, RESERVATION POLICY AND THE LAW: MYTH AND REALITY OF CONSTITUTIONAL SAFEGUARDS TO SCHEDULED CASTES (Deep and Deep Publications, New Delhi, 2000). 14. Government of India, The Report of the Backward Classes Commission 224 (1955). 15. André Béteille, THE BACKWARD CLASSES AND THE NEW SOCIAL ORDER (Oxford University Press, 1981). 16. Marie McGregor, Affirmative Action for South African Citizens 13 JUTA’S BUS. L. 99 (2005). 17. Bee-Lan Chan Wang, Positive Discrimination in Education: A Comparative Investigation of Its Bases, Forms, and Outcomes 27(2) COMPARATIVE EDUCATION REVIEW 191 (June, 1983). 18. Pratap Bhanu Mehta, Seats of Power, THE INDIAN EXPRESS, April 7, 2006. 19. G.A. Cohen, On the Currency of Egalitarian Justice 99 (4) ETHICS 906 (1989). 20. D. Benatar, Justice, Diversity and Racial Preference: A Critique of Affirmative Action, SALJ 303–304 (2008). 21. V. Naidoo and M. Kongolo, Has Affirmative Action Reached South African Women? 6(1) JOURNAL OF INTERNATIONAL WOMEN’S STUDIES 124–136 (2004). 22. Thomas E. Weisskopf, Impact of Reservation on Admissions to Higher Education in India 39(39) ECONOMIC and POLITICAL WEEKLY 4347 (September 25-October 1, 2004b). 23. David B. Oppenheimer, Distinguishing Five Models of Affirmative Action 4 BERKELEY WOMEN’S LAW JOURNAL 42 (1989). 24. André Béteille, Matters of Right and of Policy, (Feb 16,2022), https://www.indiaseminar.com/ 2005/549/549%20andre%20beteille.htm 25. Mark Tushnet, The Possibilities of Comparative Constitutional Law. Yale Law Journal 108, 1225 (1999)

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26. Ralf Michaels, ‘The Functional Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds.) Oxford Handbook of Comparative Law 339–82 (Oxford University Press, 2006). 27. Stanley A. Wolpert, INDIA 130 (University of California Press, 2005). 28. Harinder Boparai, India’s Ex-Untouchables, 20 I.C.J. REV. 37 (1978). 29. David K. Fremon, The Jim Crow Laws And Racism In United States History 9–10 (Enslow Publishers, 2015). 30. Terry H. Anderson, the pursuit of fairness: a history of affirmative action 2 (Oxford University Press, 2004). 31. Geoffrey Stone, Cass R. Sunstein, et al., CONSTITUTIONAL LAW 435–37 (Wolters Kluwer Law and Business 1986). 32. M. Varn Chandola., Affirmative Action in India and the United States: The Untouchable and Black Experience 3 INDIANA INTERNATIONAL AND COMPARATIVE LAW REVIEW 104 (1992) 33. Ashwini Deshpande, Affirmative Action in India and the United States, Equity and Development World Development Report 2006 Background Papers (Revised: January 2005). 34. Cass R. Sunstein, The Anticaste Principle 92 MICHIGAN LAW REVIEW 2429 (1993–1994). 35. Kathleen C. Schwartzman and Kristie A. Taylor, What Caused the Collapse of Apartheid? 27(1) JOURNAL OF POLITICAL AND MILITARY SOCIOLOGY 109–139 (Summer, 1999). 36. S. K. Agrawala, Protective Discrimination and Backward Class in India in MOHAMMED IMAM (ED.), MINORITIES AND THE LAW 199 (N.M. Tripathi Pvt. Ltd., Bombay, 1972). 37. Anirudh Prasad, Social Engineering and Constitutional Protection Of Weaker Section In India 27 (Deep & Deep Publications, New Delhi, 1980). 38. M. P. Jain, Indian Constitutional Law 965 (Lexis Nexis, 2014). 39. Thomas E. Weisskopf, Affirmative Action in the United States and India: A Comparative Perspective 1 (Routledge, 2004a). 40. Nicole Lillibridge, The Promise of Equality: A Comparative Analysis of The Constitutional Guarantees of Equality in India and The United States 13 WM. & MARY BILL RTS. J. 1301 (2004–2005). 41. Laura Dudley Jenkins, ‘Race, Caste and Justice: Social Science Categories and Antidiscrimination Policies in India and the United States’ 36 CONN. L. REV. 747 (2003–2004). 42. Pius NkonzoLanga, Equality Provisions of the South African Constitution 54(4) SMU L. REV. 2101 (2001). 43. Saras Jagwanth, Affirmative Action in a Transformative Context: The South African Experience 36 CONN. L. REV. 725 (2003–2004).

Maran Shipping: A Ray of Hope in a Darkening Landscape for Inter-state Civil Actions—Forum Non-conveniens Versus Duty of Care Mohammad Zulfikar Ali and Prafula Pearce

1 Introduction This chapter explores why international law is yet to address the accountability of multinational companies for their involvement in inter-State human harms.1 This legal gap has led to an increasing number of lawsuits globally,2 but with no real outcome for the workers in the shipbreaking industry where foreign unseaworthy ships are purchased and broken. When a foreign worker in one country or jurisdiction is injured due to the fault, whether direct or indirect, of a corporation in another jurisdiction, the issue is whether the injured worker has the right to be heard and obtain remedies in the foreign jurisdiction, i.e. where is the appropriate and convenient forum for the injured party.

1

Chambers and Berger-Walliser [1], pp. 579, 582. Weissbrodt [2]; As international law has no binding authority on multinational companies, imposing liability on them is not possible by judicial action: see Kiobel v Royal Dutch Petroleum Co., 569 U.S. 108, 108 (2013) (hereinafter Kiobel); Jesner v Arab Bank, PLC 138 S. Ct. 1386, 1388–89 (2018) (hereinafter Jesner).

2

M. Z. Ali Associate Lecturer, Curtin Law School, Curtin University, Perth, WA, Australia P. Pearce (B) School of Business and Law, Edith Cowan University, Joondalup, WA, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_11

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Forum non-conveniens is a principle of common law that empowers the court to reject a case if the forum is ‘inappropriate’ or ‘inconvenient’ for the defendant. In Re Union Carbide Corporation Gas Plant Disaster at Bhopal India (Bhopal), the New York District Court rejected forum to thousands of victims of a gas explosion that occurred in India by applying this forum non-coveniens principle.3 The 1984 Bhopal disaster in India was the worst industrial accident of modern times and led to the Bhopal litigation. Although it is recognised as one of the biggest personal injury cases of global significance and involved thousands of victims, the case was rejected at its primary stage. In rejecting the forum in Bhopal, the Court respected the judicial system of the victims’ home State as home State of the victims being the ‘most appropriate forum’, however, the Court failed to address the inadequateness in the judicial system. In contrast to the Bhopal litigation, in 2021 in the case of Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Limited (Maran Shipping),4 the High Court of Justice (Queens’ Bench Division) and the England and Wales Court of Appeal, accepted the forum for the wife of the victim Md Kholil Mollah, who fell to his death in a Bangladeshi shipbreaking yard (Zuma Yard) while breaking a ship owned by a UK shipping company (Maran). Unlike Bhopal, in Maran Shipping, the Courts recognised the difficulties faced by victims to claim an adequate standard of compensation from the host companies using the judicial system and explored the liability under the tort-based duty of care. Although compensation claim of the victim in Maran Shipping has not been finalised as at August 2022, it is argued that unlike Bhopal, the interim order in Maran Shipping would have far-reaching implications in imposing liability on interState companies. Importantly, the litigation brings out the legal controversies of the decisions—both narrowly doctrinal legal controversies on the one hand and deeply contested liability questions on the other, raising the legal legitimacy of the UK courts to reach extraterritorially under the authority of tort laws. This chapter also examines Kiobel and Jesner—two 2018 US decisions where the Supreme Court applied the presumption against extraterritoriality and compares them with Maran Shipping.5 It questions whether these decisions have provided sufficient authority to a US court to overturn Bhopal. This chapter concludes by observing that judicial remedy under tort offers some positive speculation on what else can be done. This chapter consists of seven parts. Part 2 examines the traditional approach to forum non-conveniens, i.e., abuse of process, which means that a plaintiff’s use of a court process to harass a defendant. It also examines the recent approach to forum non-conveniens applied by US courts and discusses how the recent approach, i.e., the most convenient forum is the court of a victim’s home State led to a rejection 3

In re Union carbide Corporation Gas Plant Disaster at Bhopal India [3]. Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Ltd, [2021] EWCA Civ 326 (U.K.) (hereinafter Maran Shipping). 5 Kiobel, [2013] S. Ct. 569; Jesner, [2018] S. Ct. 138. 4

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of forum in Bhopal. Part III differentiates Maran Shipping from Bhopal and Part IV argues that the example set by Maran Shipping is crucial for victims seeking adequate remedy in an extraterritorial tort action in the home State of a multinational company. Part 5 sets shipbreaking in the legal and policy context of transnational tort based legal disputes. It argues that behind the legal questions of jurisdiction there are more abstract questions of adequate remedy—what issues of business profits and moral principle are at focus in the dispute? The decisions of Kiobel and Jesner suggests that even after around four decades of Bhopal, it is not possible to have a similar decision to Maran Shipping in the US to address the right of adequate remedy of victims. Part 6 argues that in the case of a business similar to shipbreaking, the US Courts’ approach is to apply international human rights approach instead of tort based duty of care. This indeed shifts the liability on international community for not mandating the human harms caused by multinational companies. Part 6 also proposes that following Maran Shipping, it is important to include the indirect contractual relationship of multinational companies in any future international mechanism. Part 7 concludes that so long as multinational companies are mandated, tort remedy should be applied as a mechanism to enforce human rights.

2 Bhopal—A Prey of Forum Non-conveniens It remains an unresolved issue what constitutes ‘inconvenience’ under the principle of forum non-conveniens. The central issue is, whether ‘abuse of process’ should guide a decision in relation to inconvenience where, the guiding principle is to examine the plaintiff’s intention to ‘vex, harass or oppress’ the defendant.6 According to Professor Pryles, it is difficult to establish ‘abuse of process’ to dismiss a case, when the plaintiff’s case shows that it is a bona fide action having no intention to harass.7 Perhaps, unsurprisingly, the difficulty of establishing ‘abuse of process’ led to introducing the doctrine of ‘most appropriate forum’ in the US in the early 1980s.8 According to this viewpoint, the victim’s host State is the best place to file a legal action against the host company (foreign subsidiaries in most cases)9 and to determine a question of inconvenience.10 An aim of this principle is to prove that instead of multinational companies, responsibility lies to the local companies for their failure to provide safe working condition in their local operation. What it means is that host State courts are the best place to file an international legal action.11 6

Brennan J in Oceanic Sun Line v Fay (1988) 79 ALR 9 (Austl.) cited in Cook [4]. Pryles [5]. 8 Robertson [6]. 9 Id. at 405. 10 For a discussion of why there is a governance gap, see Simons and Macklin [7]. 11 Chambers and Berger-Walliser [1], pp. 579, 581. 7

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In the landmark Piper Aircraft case, the US Supreme Court approved this approach where the plaintiffs were foreign citizens and defendants were US citizens.12 The shift of paradigm from ‘abuse of process’ to ‘most appropriate forum’ approach is beneficial to multinational companies. It allows them to escape liability in their home States (where the compensation amount is larger in general), but from the perspective of a victim in a developing country, the paradigm shift is problematic. Especially, if a victims’ country does not have a legal mechanism to provide adequate remedy and only a low rate of compensation amount can be obtained by the victim. Another factor of the paradigm shift was to address the international human rights obligations of multinationals broadly under international human rights law considering their social impact rather than their liability under tort-based duty of care applicable to individual civil actions.

3 How Maran Shipping Differs from Forum Non Conveniens Approach of Bhopal In Maran Shipping, an English company Maran (UK) Limited acted as a managing agent to the operators of a tanker and arranged the tanker to be sold to a buyer in Bangladesh, Hsejar Maritime Inc, for the purpose of its demolition. The demolition was to take place in a Bangladesh shipyard, called Zuma Yard that was known for its poor regard to the safety of its workers. The English agent Maran (UK) Limited would have obtained a lower selling price, if the tanker was sold to a reputable shipyard. In the process of demolishing the tanker, a worker fell from a height and died. The widow brought an action under English law on the grounds that Maran (UK) Limited owed a duty of care to the worker who died by allowing the tanker to be sold at a higher price. Given the fact that Maran Shipping is an extraterritorial tort action, it is exceptional in the sense that it neither followed the ‘abuse of process’ nor the ‘most appropriate forum’ approach. It has rather highlighted the importance of addressing the issue of human harms under tort. International Commission of Jurists supports such inter-State tort action. According to International Commission of Jurists, interState tort action is an effective way of enforcing human rights obligation in home State of a multinational company.13 Addressing extraterritorial human harms under common law tort also differentiates Maran Shipping from the twin decisions of the United States Supreme Court in Kiobel14 and Jesner,15 ‘which brought down the curtain on suing multinational companies for violations of core human rights in 12

Piper Aircraft Co. v Reyno, 454 U.S. 235 (1981). Int’l Commission of Jurists [8]. 14 Kiobel, 569 U.S. 108 (2013). 15 Jesner, 138 S. Ct. 1386 (2018). 13

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doing business’.16 Although in Kiobel and Jesner, the principle issue was whether US companies can be held responsible before the US courts for violating human rights in foreign soil, the ‘most appropriate forum’ developed in Piper Aircraft remained the yardstick. Bhopal also followed the same principle even before Kiobel and Jesner. The US court dismissed the legal action of victims of the Bhopal disaster mainly on the ground that the Indian Legal System is the ‘most appropriate forum’ for the defendants, although the facts of Bhopal suggest why the US was a proper forum. The facts of Bhopal are that on 3 December 1984, more than 40 tons of methyl iso cyanate gas leaked from a pesticide plant in Bhopal, Madhya Pradesh state, India, killing approximately between 15,000 and 20,000 people.17 The defendant, Union Carbide, was a multinational company headquartered in Connecticut. Although, the Bhopal Pesticide plant was operated by a subsidiary Union Carbide India Limited, the US-based parent company owned a majority of its Indian subsidiary’s equity and had ‘veto power over many of its policies and practices. In addition, the US company supplied the Indian subsidiary with the overall design for the plant’, and one of its engineers had responsibility for approving the design when the plant began operations.18 The defendant had a case to answer because of their involvement in the operation. But the dismissal was a big blow to the victims who signed up American lawyers with a hope of getting more compensation amount than their home country. Following the dismissal, however, the US company accepted moral responsibility and paid USD 470 million in compensation and settled the matter. The USD 470 million (equivalent to 860 million USD in 2019) was a very low amount compared to deaths and long term health consequences of exposure and the number of people exposed.19 However, Bhopal shows the reluctance from the US court to interfere in such a substantial human rights issue concerning foreign legal systems. Judge Keenan of the New York District Court stated: In the Court’s view, to retain the litigation in this forum, as the plaintiffs’ request, would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation. The Court declines to play such a role. The Union of India is a world power in 1986, and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian Judiciary of this opportunity to stand tall before the world and to pass judgement on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged. This litigation offers a developing nation the opportunity to vindicate the suffering of its own people within the framework of a legitimate legal system. This interest is of a paramount importance.20

16

Stephens [9]. Broughton [10]. 18 Cummins [11]. 19 The original claim was 1023.5 million USD (equivalent to around 2000 USD in 2019); Broughton, supra note 17. 20 Bhopal [12], Prince [13]. 17

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Under the traditional ‘abuse of process’ doctrine (see in Part II), it would be difficult for the defendant to make a credible claim of ‘vexation’ or ‘harassment’.21 But the dismissal came after applying the recent ‘most appropriate forum’ approach established in Piper Aircraft. The approach is narrow in scope as it does not consider the broad question of providing adequate remedy to victims against inadequate remedies in their host States. The Chief Justice of the Supreme Court of India also concluded that ‘in my opinion that these cases must be pursued in the United States and it is the only hope these unfortunate people have’.22 The Indian government appearing as a party in New York also argued that the case should be heard in the United States.23 These comments show that Bhopal was a misuse of the ‘most appropriate forum’ approach. In Bhopal hearings in the US, Union Carbide ‘unstintingly praised the Indian judicial system’, but when the case was removed to the Supreme Court of India, it ‘wantonly assailed the dignity and authority of the Indian Supreme Court’.24 For using the most appropriate forum, the US court showed respect to the Indian Legal System. However, it should be noted that showing respect is one thing, which may be an issue of diplomatic relationship between India and the US, but when it is a question of obtaining adequate remedy for the damages from a US multinational company for their negligence design of industry operation in India contributing to deaths of thousands of people and suffering of many more, it may be appropriate to set aside the respect issue. The respect issue should not be used to undermine a valid tort claim and allow US companies to escape the liability standards.25 If there was a ground of harassing the defendant under the ‘abuse of process’ approach, it would be a justification to dismiss the case. According to Dean J, the choice of forum brings hardship for the defendant, if the plaintiff was behaving in an ‘oppressive or vexatious’ way. A defendant is required to prove that the host State court is so inappropriate a forum for determining the issue and it is nothing but oppressive or vexatious to him.26 Instead of harassment, if a plaintiff prefers to file an action before the forum for adequate damages, the dismissal is clearly inappropriate.27 Arguably, when the judicial system of developing nations is incapable of remedying this business related human rights abuse, there is no reason to dismiss the case.

21

See Prince, 47 int’l & compar. l.q. 573 at 586. See Robertson [14]. 23 Id. at 373. 24 See Baxi and Dhanda [15]. 25 See Prince, 47 int’l & compar. l.q. 573 at 580. 26 Deane J in Oceanic Sun Line Special Shipping Co. Inc v Fay, 165 CLR 197, 248 (Austl.). 27 Peter Prince, Bhopal, Bougainville and Ok Tedi: Why Australian Forum Non Conveniens Approaches Is Better, 47 int’l & compar. l.q. 573, 584. 22

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4 Maran Shipping—An Inter-state Tort Action for Adequate Remedy Unlike the US, the recent legal development in the UK permits extraterritorial legal actions if the factual connections between the harm and defendant (i.e., a multinational company) can be established. In Maran Shipping, the Court of Appeal of England and Wales in affirming an interim order passed by the High Court of Justice (Queen’s Bench Division) offered the much needed guidance on the admissibility of foreign civil wrongs. The Court of Appeal of England and Wales also made a surprising pivot in Maran Shipping. The plaintiff pursued the claim in order to decide whether the UK shipowner could be liable for environmental damage leading to the death of a shipbreaking worker, Kholil Mollah, but instead the Court decided to determine more fundamental questions of whether a UK court has jurisdiction over a UK shipowner for a wrong done by an entity, not directly linked to its UK counterpart and whether a UK shipowner owed a duty to pay an adequate amount of compensation to remedy the death. In that civil litigation, the original court, the High Court of Justice and the appellate court, the Court of Appeal of England and Wales found in favour of the plaintiff’s claim. The plaintiff’s claim was that the UK shipping company knew that there was a foreseeable risk of physical harm to workers when they allowed their vessel to be sold to a shipbreaking yard in Chattagram. The plaintiff also argued that the UK shipping company had a duty not to sell the vessel to Bangladesh as they knew that it would be dismantled in an unsafe condition that prevailed in Zuma shipbreaking yard in Bangladesh. According to the courts, as Maran Shipping, a UK shipowner preferred selling ships to Bangladesh for high profit despite knowing the unsafe shipbreaking practice of Zuma, a Bangladeshi shipbreaking yard, the doctrine of forum non-conveniens, being a procedural doctrine should not hinder this genuine case. The defendant Maran raised several typical procedural and legal grounds as defences to dismiss the case: from the doctrine of third party intervention to choice of law. The High Court of Justice (Queen’s Bench Division), being the court of first instance (trial court) dismissed Maran’s motion to strike out the case, and the Court of Appeal of England and Wales upheld the lower court’s ruling on this. Normally, in a tort case, the first instance trial court decides two basic questions. First it examines the existence of the standard duty of care (question of law). The question of law stage may also include a preliminary hearing, which is in fact a mini-trial conducted without the juries to decide some important fact and law issues—the example includes what obstructed a claimant filing a case on time in deciding a choice of law question. Second, it decides whether the defendant has met the standard duty of care (question of facts). In relation to first question (question of law), the Court found that the duty exists in law. It based the decision on the grounds of proximity and creation of danger. Proximity was found to be present since the defendant had knowledge about the poor shipbreaking practice in South Asia and the creation of danger principle was

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used since by sending ships to Bangladesh, the defendant created more danger for the shipbreaking workers. In relation to causation and its connection with proximity and third party intervention, the Court found that the worker would not die but for the ship sent to Bangladesh by Maran. The Court of Appeal of England and Wales sent the case back to the trial court to decide the second question—the question of fact. The Court rejected the defendant’s counsel, Mr. Bright’s, “no control” argument. According to Mr. Bright, Maran had “no control” over the working conditions in Chattagram (formerly known as Chittagong) and ‘if the Claimant’s husband (victim) had not been killed while working on the defendant’s ship, he might just as easily have been killed or injured when working on some other ship’.28 Facts of the claim suggest that there were grounds to apply the third party intervention doctrine as in selling and finally breaking the concerned UK ship MARAN CENTAURUS, a number of third parties were involved and the death was caused by the failure to follow safe working conditions in the Zuma Yard in which the defendant had no direct control. The substance in this “no control” argument lies on two facts. First, the defendant, Maran (UK) Limited (Maran), incorporated in the Cayman Islands in the UK, acted as a demolition broker for the owner of the concerned ship MARAN CENTAURUS. Maran sold the ship to the Zuma Yard using a cash buyer, Hsejar Maritime Inc., a company incorporated in Nevis.29 The cash buyer Hsejar Maritime Inc. acted as an intermediary buyer of the ship and remained the last owner until the ship finally reached the Zuma Yard. According to Mr. Bright, although the UK company Maran was the first owner, it was not necessarily the ultimate seller of the ship to the Zuma Yard. The involvement of Hsejar Maritime Inc. was the first point of intervention and the Zuma Yard was the second point of intervention in the death of the Claimant’s husband. Second, facts of the case show that Maran was a demolition broker, i.e., an agent that was involved in management of the ship as an independent contractor, and that the ship was registered to Centaurus Special Maritime Enterprise, incorporated in Liberia.30 On behalf of the owner, Maran made enquiries, obtained quotations for the vessel’s sale and conducted the negotiations for the sale using a cash buyer, Hsejar Maritime Inc. The cash buyer also took the credit risk of selling the ship worth 16 million USD.31 On 5 September 2017, cash buyer, Hsejar Maritime Inc. reflagged the ship from Greece to Palau and changed the name from the MARAN CENTAURUS to the EKTA. The ship left Singapore on 22 September 2017 with a very low amount of fuel and reached Bangladesh on 30 September 2017 for breaking.32

28

Maran Shipping, [2021] EWCA Civ 326 (U.K.), at [131]. Id. Maran Shipping, at [8]; See also Jamie Curle et al., Shipping Agent Potentially Responsible for Alleged Negligent Disposal of Ship in Bangladesh. lexology (Aug. 3, 2020), https://www.lex ology.com/library/detail.aspx?g=84ba8284-3468-4d9b-82ec-6103bf4051cc. 30 Maran Shipping, [2021] EWCA Civ 326 (U.K.), at [6]. 31 Id. at [8]. 32 Id. at [13]. 29

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Despite the involvement of a number of third parties, the UK courts found against the defendant and placed importance on the fact that Maran preferred selling ships to Bangladesh for high profit despite knowing the unsafe shipbreaking practice of the Zuma Yard. Also, the UK courts found that third party intervention should not hinder this genuine case on the grounds of foreseeability and proximity (see Part 3).33 Although Maran Shipping does not as a matter of law hold that the third party intervention theory is outlawed by the consideration of high profit, however, its reasoning does provide a model opportunity for a funeral move for the third party intervention theory in shipbreaking business. Put another way, Maran Shipping offers a critical move which is not universal in scope, but offers the potential for a universal application in a near future subject to a proof of close proximity of the harms. As the ship was not directly sold to the Zuma Yard, there was a question of foreseeability and proximity to apply the exception to the third party intervention theory.

5 Would Maran Shipping Affect Future Litigations Similar to Bhopal? As the US courts require an international law imposing specific duty on multinational companies, there appears to be limited scope of adopting the Maran Shipping decision in the US. Using Maran Shipping’s principles in the US is difficult. Although the Alien Tort Statute 1789 (ATS) provides a legal scope to file an extraterritorial tort action in the US federal court and it provides a mechanism to make a US citizen liable for the violation of internationally recognised rights under principles of torts,34 however, as discussed below, the success of ATS has been significantly disrupted after the decisions in Kiobel and Jesner.35 ATS is not applicable in all cases especially if the conduct in relation to liability does not touch and concern the US. Broadly the principle reason why the US Federal Court is limiting ATS is the perceived implication of separation of powers and foreign policy concerns as raised in Bhopal. Also in Daimler AG,36 the Court further clarified that the international comity should not be disrupted by hearing a case having an issue of transnational dispute.37

33

Id. at [132]. The Alien Tort Statute was passed as a part of the Judiciary Act of 1789, empowers US Federal Court an original jurisdiction of any civil action for a tort only, committed in violation of the law of the nation or a treaty of the US. 35 Kiobel, 569 U.S. 108 (2013); Jesner, 138 S. Ct. 1386 (2018). 36 Daimler AG v Bauman, 571 U.S. 117 (2014). 37 Silva [16]. 34

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In Kiobel,38 the federal court used ATS in hearing a case of international human rights violation against corporate actors. In Kiobel, the Nigerian nationals sued foreign corporations alleging that the corporation aided and abetted the Nigerian government’s commission if crimes were committed against the law of the nation of Nigeria. In this case, the court ruled that any claims under the ATS must touch and concern the territory of the US to displace the presumption of extraterritorial application. The presumption of extraterritorial application denotes that when a Statute gives no clear indication of an extraterritorial application, there is no liability. The court also found that mere corporate presence in the US is insufficient to rebut the presumption against extraterritoriality. As a principle, Kiobel established that there must be some relevant conduct within the US to hold a US corporation liable in a US Federal Court. The Jesner case in 2018, inserted more restrictions. In Jesner, the petitioners brought claims against the Arab Bank, a foreign corporation, which through its officials allowed the bank to transfer funds to terrorists through its New York City Office.39 The plaintiffs in Jesner were 6000 foreign nationals, who alleged that terrorist attacks in the Middle East injured them and killed their family and friends.40 According to the plaintiffs, the defendant, being a major Jordanian financial institution with branches throughout the world allowed accounts to be used to pay the families of suicide bombers.41 They alleged that without the defendant Arab Bank’s financial assistance, this would not be possible. Jesner reached the US Supreme Court on appeal from the Second Circuit Court’s decision of dismissal. In re Arab Bank (Jesner on appeal), the Second Circuit Court followed Kiobel in reaching its conclusion. In deciding Jesner, the Supreme Court raised the issue that in the absence of a ‘specific, universal, and obligatory’ international regime, corporations cannot be held liable.42 In addition, following Bhopal, the Court recognised the obstacle of forum non conveniens as it may go against the international comity of disrespecting the legal system of the place of injury. One of the important and relevant issues raised by the Court was that the US court should not create a new principle to find foreign corporations liable in the US and foreign courts to find US corporations liable in foreign jurisdiction. In that sense, the defendant in Jesner was the foreign corporations with office in New York and in Kiobel, the defendant was from the US, but in common, the courts found that an extra norm creating liability of corporation required applying ATS on US corporations. The Courts also found that there must be related US contact to it. Overall, in relation to corporate liability, the US approach is to shift the focus on international liability for creating the norm for corporate liability. As a country 38

Kiobel, 569 U.S. 108 (2013). Jesner, 138 S. Ct. 1386 (2018) at 1393. 40 Id. at 1394. 41 Id. 42 Id. at 1402 (citing Sosa v Alvarez-Machain, 542 U.S. 692, 725 (2004)). 39

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of incorporation of the highest multinational corporations, the US appears to be unwilling to disrupt the separation of power established under State sovereignty and the local remedy principles established in Bhopal.

6 Evaluation of Maran Shipping for Future Victims in a Global Business Similar to Shipbreaking The settled principle in the US is that a US court will address a question of corporate liability without disrupting the legal system of a victim’s State.43 In addition, there must be a proof that an alleged US corporation has done something violating a recognised right in international law44 and an international law has shifted the liability on the multinational corporation.45 What this means is that there is no scope of imposing liability before the US courts in regards to international businesses and their foreign conduct that does not affect US’ interests. In the context of shipbreaking, all acts affecting such a claim take place on international waters— as ships are sold on high seas and broken in South Asia. Thus Maran Shipping is unlikely to be applicable to the US courts (see Part IV). Maran Shipping could establish liability by using the domestic duty of care principle, however, the question of international law or violation of international human rights law was not raised. On the contrary, as US courts examine the issue under ATS which is linked to violation of international law already established, and in the absence of an international law mandating US companies, it is not possible to impose liability on US companies in a case similar to Maran Shipping. Although the principle of corporate liability is settled in the US when it comes to business wrongdoings-such as the Bhopal disaster, a different approach is being investigated in other parts of the world. On 29 April 2020, the European Union Justice Commissioner, Didier Renders, declared that ‘the commission is committed to introducing rules for mandatory corporate liability law.46 At the international level, in August 2021, the Chair of the Open-Ended International Working Group (OEIGWG) released a revised draft of the proposed Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporation and Other Business Enterprises (Draft Treaty). The Draft Treaty has provisions for imposing liability on companies for human rights violation in their business relationship.47 However further clarification is required with respect to the extent of 43

Bhopal, 634. F. Supp. 842, 865–867 (1986). Kiobel, 569 U.S. 108 (2013). 45 Jesner, 138 S. Ct. 1386 (2018). 46 Nicholson et al. [18]. 47 Under art. 1.5 ‘business relationship’ refers to any relationship to conduct business activities, including those activities conducted through affiliates, subsidiaries, agents, suppliers, partnerships, joint venture, beneficial proprietorship, or any structure or relationship as provided under the domestic law of the State, including activities undertaken by electronic means, U.N. OEIGWG, 44

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the business relationship of a multinational company. It is not clear what constitutes business relationship when there is no contract between a multinational and a local company in a victim’s State- such as in the shipbreaking industry. It is also not clear how the question of control will be used under the concept of business relationship. If the Draft Treaty considers a narrow understanding of business relationship, it is not clear whether the Draft Treaty will cover the activities of companies that are not part of the supply chain of a multinational company because they do not contribute to the production of the goods and supply of services of the company.48 In this context, Maran Shipping provides a good example in establishing the causal link between a defendant company and the harm caused in its value chain. It provides a chiseled interpretation to establish the required causal link based on the indirect control of an inter-State business of shipbreaking. The principles of control and creation of danger used in Maran Shipping about creating the standard of care are worth introducing in the Draft Treaty to include the value chains of international businesses. Also, it can be argued that in the statutory development, the courts should be given discretionary powers to determine the corporate human rights duty of care on a case by case basis. Such an option would be useful to offer more protection to victims.49 Subject to the adoption of the Draft Treaty in the global sphere, victims of a disaster like Bhopal would be able to use the US as a forum to seek adequate remedy, if the incident touches and concerns the US soil.

7 Conclusion This chapter has answered the question of whether Maran Shipping’s duty of care approach removes the doctrinal fossil established in Bhopal in the negative for the US where inter-State harms are not easily compensable. This indeed shifts the liability on international community for not mandating the human harms caused by multinational companies. It has been argued in this chapter that the US approach should consider that the forum should be that where the victims are better protected. The US courts should emphasise on the substantive question of adequate remedy rather than procedural question of forum non-conveniens. According to this proposition, a better approach would be to consider the difficulties faced by a worker in receiving adequate remedy in his or her State. The low amount of compensation prescribed in the national laws, for example the labour law of Bangladesh, require a global community approach to address the importance of ensuring adequate remedy to the victims in all global industries.

Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporation and Other Business Enterprises (Draft Treaty, August 17, 2021), https:/ /www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/LBI3rdDRAFT.pdf. 48 Krajewski et al. [18]. 49 Chambers and Berger-Walliser [1], pp. 579, 609.

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The Draft Treaty may be the way forward, subject to clarifying the concept of business relationship and adherence to international standards. In this respect, Maran Shipping has provided a valuable guidance in defining the casual link between a US company and its business associates, when there is no formal business relationship. Provided further legal development in the area of human rights and liability of multinational companies, tort action as applied in Maran Shipping is an important legal mechanism to enforce human rights against multinational companies.

References Rachel Chambers & Gelinde Berger-Walliser, The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison, 53 am. bus. l.j. 579, 582 (2021). David Weissbrodt, Business and Human Rights, 74 u. cin. l. rev. 55, 59 (2005). Union carbide Corporation Gas Plant Disaster at Bhopal India in December, 1984, 634. F. Supp. 842, 865–867 (1986) (hereinafter Bhopal). Catriona Cook, Internationalism in Transnational Litigation Defeated, austl. current l. 36085, 36086 (1988). Michael Pryles, The Struggle for Internationalism in Transnational Litigation, 61 austl. l.j. 434, 435 (1987). David W. Robertson, Forum non conveniens in America and England: A Rather Fantastic Fiction, 103 l.q. rev. 398, 412 (1987). penelope simons & audrey macklin, the governance gap: extractive industries, human rights, and home state advantage 225 (Routledge, 2014). Int’l Commission of Jurists, Needs and Options for A New International Instrument In the Field of Business and Human Rights 15 (2014). Beth Stephens, The Rise and Fall of the Alien Tort Statute, in research handbook on human rights and business 46 (Surya Deva & David Birchall eds., Edward Elgar, 2020). Edward Broughton, The Bhopal Disaster and Its Aftermath: A Review, 4 env’t health art. 6 (2005). Stephen L. Cummins, International Mass Tort Litigation: Forum Non Conveniens and the Adequate Alternative Forum in Light of the Bhopal Disaster, 16 ga. j. int’l & compar. l. 109, 122 (1986). Bhopal, 634. F. Supp. 842, 865–867 (1986). Peter Prince, Bhopal, Bougainville and Ok Tedi: Why Australian Forum Non Conveniens Approaches Is Better, 47 int’l & compar. l.q. 573, 577 (July 1998). David W Robertson, The Federal Doctrine of Forum Non Conveniens, 29 tex. int’l l.j. 353, 372–373 (1994). Upendra Baxi & Amit Dhanda, Valiant Victims and Lethal Litigations: The Bhopal Case (1990), xxiii-xxiv, cited in id. Jacquiline Silva, Transnational Corporation and International Human Rights: Alternative to Litigation, 61 santa clara l. rev. 867, 870 (2021). Rachel Nicholson et al., New EU Mandatory Human Rights and Environmental Due Diligence Regime. allens linklaters (June 1, 2020), https://www.allens.com.au/insights-news/ins ights/2020/06/new-eu-mandatory-human-rights-and-environmental-due-diligence-regime/# anchor2. Markus Krajewski et al., Mandatory Human Rights Due Diligence in Germany and Norway: Stepping, or Striding, in the Same Direction, 6 b.h.r.j. 550, 556 (2021).

Impacts of the Use of a Family Violence Report to Determine Interests in Residential Tenancy Agreements: A Comparative Study Between Western Australian and Albertan (Canada) Legislation Laura Tripp and Tanzim Afroz

1 Introduction Contractual relationships for RT in WA are regulated by the Residential Tenancies Act 1987 (WA) (‘RTA’),1 Residential Parks (Long-Stay Tenants) Act 2006 (WA) (‘RPLTA’),2 and the common law. In 2019, the RTA and RPLTA were amended to 1 Residential Tenancies Act 1987 (WA) s 5 (‘RTA’). The RTA covers Western Australian express and implied agreements in which a person is granted a right to occupy all or part of a residential premise for the purpose of residence in exchange for consideration: at ss 3 (definition of ‘residential premises’), (definition of ‘residential tenancy agreement’), 5(1). Residential tenancy (‘RT’) agreements that are strata leases as defined in the Strata Titles Act 1985 (WA), are less than one month in duration where the tenant is in an agreement for the sale and purchase of the premises, arise under schemes in which a person who has controlling interest in a company owning a group of adjacent premises resides in one of those premises, are bona fide agreements conferring a right of occupancy for the purpose of a holiday, involve a lessor that is acting on behalf of the Crown, or involve a boarder or lodger are not covered by the provisions: at ss 5(1A)-(2). Hotels and motels, certain accommodations for students, hospitals and nursing homes, premises used for the purposes of a club, residential care homes as defined in the Aged Care Act 1997 (Cth), and prescribed premises, are not covered by the provisions: at s 5(3). 2 Residential Parks (Long-stay Tenants) Act 2006 (WA) ss 6-7 (‘RPLTA’). The RPLTA covers RT agreements that are three months or longer in caravan parks and sites where relocatable homes may be situated: at ss 5(1) (definition of ‘long-stay agreement’), 5B, 6-7.

L. Tripp (B) Statutory Insurance, Sparke Helmore Lawyers, Level 11, Eastpoint Plaza, 233 Adelaide Terrace, Perth, WA 6000, Australia e-mail: [email protected] T. Afroz School of Business and Law, Edith Cowan University, Joondalup, WA, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_12

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inter alia empower the victims of family violence (FV) to leave circumstances of violence by an early determination of the RT agreement using a report of family violence (‘RFV’).3 The aims of this amendment are to provide the victims with better housing outcomes and hold perpetrators accountable for their actions, while maintaining procedural fairness for lessors and/or co-tenants.4 The WA provisions for determination of interest in an RT agreement using an RFV were based upon similar provisions enacted in Alberta, Canada.5 RT agreements in Alberta are made subject to the Residential Tenancies Act, SA 2004, c R17.1 (‘RTAA’) and common law.6 The intersection and overlapping of the Albertan legislative response to FV, and the web of confusion this creates for parties involved in Alberta,7 is similarly an issue in WA.8 Aside from the WA legislature basing the RFV on Albertan law,9 similarities between Canadian and Australian law and society make for good comparative study of the two jurisdictions. At the legal level, both are constitutional monarchies with intertwining federal, state, and common laws to consider.10 Both adopt the Torrens system of law for property rights related to land,11 and both start with common law principles of contractual certainty.12 Also of particular relevance to this discussion, both WA and Albertan jurisdictions default to joint and several liability, and vicarious liability of tenant parties to RT agreements.13 The provisions for early determination of interests of RT agreements on grounds of FV are relatively new law in both jurisdictions,14 and similarly to WA, Albertan RT case law is sparse. Alberta and WA are also similar socially, at least in the context of FV. Both have shown increasing concern surrounding FV and the effect it has on society 3

See below nn 47–60 and accompanying text. Explanatory Memorandum, Residential Tenancies Legislation Amendment (Family Violence) Bill 2018 (‘Explanatory Memorandum’). 5 Webb et al. [1]. 6 Residential Tenancies Act, SA 2004, c R-17.1, s 2(1) (‘RTAA’). 7 Koshan [2]. 8 Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws (Discussion Paper, December 2013), 141. 9 Webb et al. (n 5) 14. 10 Constitution of the Commonwealth of Australia; Constitution Act 1982 (UK) c 11, sch B (‘Constitution Act 1982’); Constitution Act 1867 (Imp), 30 & 31 Vict, c 3 (‘Constitution Act 1867’). 11 Transfer of Land Act 1893 (WA); Land Titles Act, RSA 2000, c L-4. 12 In the context of this discussion, principles of contractual certainty require that the end date of an RT agreement be known or ascertainable at the time the tenancy is entered into; Lace v Chantler [1944] KB 368 (‘Lace v Chantler’). 13 Jonette Watson Hamilton, ‘Reforming Residential Tenancy Law for Victims of Domestic Violence’ (2019) 8 Annual Review of Interdisciplinary Justice Research 245, 264 citing Decision 6687, Dispute Resolution Services, Residential Tenancy Branch, Ministry of Housing and Social Development (March 2017). 14 The Albertan provisions were assented to on 11 December 2015; Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Act, 2015, SA 2015, c 20; In WA, the provisions commenced operation on 15 April 2019; Western Australia, Western Australian Government Gazette, No 44, 9 April 2019, 1042. 4

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as a whole.15 There has been increasing political focus on the issue, particularly in respect of the effects of FV on women and children.16 In this context, this paper aims to compare provisions allowing for determination of interests in RT agreements on grounds of FV between WA and Alberta, Canada. The paper explores the implication on different parties of the RT agreements, including the victims, lessors and/or co-tenants.

2 Comparison Between Statutory Framework of WA and Alberta 2.1 Defining Relevant Terms and Parties of RT Agreements In the civil jurisdiction of WA, definitions of the types of relationships, and what constitutes an act of FV, are relatively consistent across the board.17 In Alberta, this is not the case, with relationship and violence types covered by particular legislation differing.18 For the purposes of the RTA and RPLTA in WA, FV and who can be an FV victim is defined by cross-reference to the Restraining Orders Act 1997 (WA) (‘ROA’).19 The definitions are almost identical to those found in the Family Law Act 1975 (Cth)20 and Family Court Act 1997 (WA).21 FV is violence or a threat of violence by a person towards a family member or any other behaviour by the person that coerces or controls the family member or causes them to be fearful.22 This definition is accompanied by a non-exhaustive list of conduct that may constitute FV in WA.23 In the Albertan context, the provisions protecting victims refer to domestic 15

In WA, see Western Australian Government Department for Child Protection and Family Support Freedom from Fear—Working Towards the Elimination of Family and Domestic Violence in Western Australia (Action Plan, 2015); Government of Western Australia Department of Communities Path to Safety—Western Australia’s Strategy to Reduce Family and Domestic Violence 2020–2030 (Strategic Plan, 2020). 16 See, eg, Western Australia, Parliamentary Debates, Legislative Assembly, 28 June 2018, 4133. 17 Family Law Act 1975 (Cth) s 4AB; Family Court Act 1997 (WA) s 9A; Restraining Orders Act 1997 (WA) (‘ROA’) s 5A. 18 Koshan (n 7). 19 RPLTA (n 2) s 3, Glossary s (1) (definition of ‘family violence’); RTA (n 1) s 3 (definition of ‘family violence’). 20 Family Law Act 1975 (Cth) s 4AB. 21 Family Court Act 1997 (WA) s 9A. 22 ROA (n 17) s 5A(1). 23 The included conduct listed consists of: assault, sexual assault or sexually abusive behaviour, stalking or cyber-stalking, repeated derogatory remarks, damaging or destroying property belonging to the victim (including causing death or injury to a pet), unreasonably denying financial autonomy or withholding financial support needed to meet reasonable living expenses, coercing, threatening or causing physical, emotional, psychological or financial abuse in connection with demanding or receiving dowry, preventing the victim from making or keeping family or friend connections,

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violence (‘DV’),24 as opposed to FV in WA.25 The RTAA in Alberta refers to DV,26 which is defined more narrowly than the WA coercion, control, or causing of fear;27 acts and omissions that: cause injury or property damage and intimidates or harms a person, either intentionally or recklessly,28 constitute acts or threats that intimidate a person by creating reasonable fear of property damage or injury,29 constitute conduct that in all circumstances reasonably causes psychological or emotional abuse,30 force confinement of a person,31 coerce sexual contact of any kind by force or threat of force,32 and stalking.33 The relationship type is also defined less broadly than in the WA context. In the RTAA, DV can be perpetrated against a person, their dependent child or a protected adult residing with a person who is or has been: (i) married, an adult interdependent partner, or residing with them as an intimate partner,34 (ii) in a dating relationship,35 (iii) a biological or adoptive parent,36 (iv) related by blood, marriage, or adoption by virtue of an adult interdependent relationship,37 or, (v) residing with and having care and custody of them by order of the court.38 However, in WA the FV victim will not necessarily reside with the perpetrator. An FV victim is a family member of the person committing the FV.39

kidnapping or deprivation of liberty, distributing, or threatening to distribute intimate images without consent, and causing children to be exposed to any of this conduct; Ibid s 5A(2). 24 RTAA (n 6) s 47.2. 25 Ibid s 47.2(1). 26 RTAA (n 6) s 47.2. 27 ROA (n 17) s 5A(1). 28 RTAA (n 6) s 47.2(2)(a). 29 Ibid s 47.2(2)(b). 30 Ibid s 47.2(2)(c). 31 Ibid s 47.2(2)(d). 32 Ibid s 47.2(2)(e). 33 Ibid s 47.2(2)(f). 34 Ibid s 47.2(1)(a). 35 There is no requirement that those in the dating relationship reside (or have resided) with each other; Ibid s 47.2(1)(b). 36 Regardless of their marital status or whether they have ever resided together; Ibid s 47.2(1)(c). 37 Regardless of whether they have resided together at any time; Ibid, s 47.2(1)(d). 38 Ibid s 47.2(1)(e). 39 ROA (n 17) s 4.

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Under the RTA in WA, a lessor is a person who grants a right of occupancy to a residential premise under an RT agreement.40 A tenant is a person who has been granted a right of occupancy under an RT agreement.41 The RTAA in Alberta defines the parties to RT agreements by use of the terms ‘landlord’ and ‘tenant’.42 For consistency, this paper refers to ‘landlords’ as ‘lessors’ both in WA and Albertan context. A co-tenant, in WA context, is simply a tenant who did not provide a notice to determine their interests in an RT agreement.43 An FV perpetrator does not need to reside in the relevant tenanted premises. Therefore, although a co-tenant may be an FV perpetrator, they may not necessarily be. There was no statutory recognition of co-tenants in Alberta prior to the amendments providing for termination of tenancy on grounds of DV,44 and ‘co-tenant’ is not defined.45 They are referred to simply as ‘other tenants’ where the tenancy is held by more than one tenant.46 To avoid confusion, these other tenants will be referred to as ‘co-tenants’ in this paper.

2.2 Termination of RT Agreements on Grounds of FV/DV An RFV must be in prescribed form and completed by a person who has worked with the victim tenant and is either a: i. ii. iii. iv. v. 40

medical professional,47 psychologist,48 social worker,49 police officer,50 family support worker engaged by the Minister for Child Protection,51

The definition includes a personal representative, successor, or assignee, of the person granting the right of occupancy, and includes prospective or former lessors where context requires; RTA (n 1) s 3 (definition of ‘lessor’). 41 This includes prospective or former tenants where context requires; RTA (n 1) s 3 (definition of ‘tenant’). 42 RTAA (n 6) ss 1(1) (definition of ‘landlord’); 1(1)(t)(definition of ‘tenant’). 43 RTA (n 1) s 71AD(1) (definition of ‘co-tenant’). 44 Hamilton (n 13) 247. 45 RPLTA (n 2) s 45B(1); RTA s 71AD(1). 46 RTAA (n 6) s 47.3(6). 47 RTA (n 1)s 71AB(2)(d)(i); RPLTA (n 2) s 45A(2)(d)(i). 48 RTA (n 1) s 71AB(2)(d)(ii); RPLTA (n 2) s 45A(2)(d)(ii). 49 RTA (n 1) s 71AB(2)(d)(iii); RPLTA (n 2) s 45A(2)(d)(iii). 50 RTA (n 1) s 71AB(2)(d)(iv); RPLTA (n 2) s 45A(2)(d)(iv); Interpretation Act 1984 (WA) s 5 (definition of ‘police officer’). 51 RTA (n 1) s 71AB(2)(d)(vi); Residential Tenancy Regulations reg 12CA(c) (‘RT Regulations’); Residential Parks (Long-stay Tenants) Regulations 2007 (WA) reg 13A(b) (‘RPLT Regulations’); Children and Community Services Act 2004 (WA) s 15.

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vi. person employed or contracted to the Department of Communities,52 or, vii. a person in charge of a women’s refuge or Aboriginal legal, health or welfare organisation.53 Shown at Fig. 1i,54 the RFV in WA permits a tenant to determine their interest in an RT agreement by providing it to the lessor along with written notice of their intention to vacate the premises subject to the agreement.55 When interest in an RT agreement is determined using an RFV, a lessor may challenge the validity of the notice (Fig. 1ii),56 but decision-makers are not permitted to make a determination regarding the occurrence of FV asserted (Fig. 1iii).57 The tenant’s interest in the RT agreement is determined seven days from provision of the notice to the lessor,58 and with it their liability for rent payable under the agreement. The interest of any co-tenants, however, is not determined at this point. Shown at Fig. 1iv, upon receipt of a notice under these provisions, the lessor must provide any co-tenants with notice of determination of the interest in the RT agreement.59 Co-tenants may, within seven days, provide the lessor with notice that they also wish to determine their interest in the RT agreement (Fig. 1v), or otherwise become liable for the remainder of the existing agreement (Fig. 1vi).60

52

RTA (n 1) s 71AB(2)(d)(vi); RT Regulations (n 51) reg 12CA(b); RPLTA (n 2) s 45A(2)(d)(vi); RPLT Regulations (n 51) reg 13A(b); Children and Community Services Act 2004 (WA) s 3 (definition of ‘officer’). 53 Person in charge of women’s refuge: RTA (n 1) s 71AB(2)(d)(v); RPLTA (n 2) s 45A(2)(d)(v). Person in charge of Aboriginal legal, health or welfare organisation: RTA (n 1) s 71AB(2)(d)(vi); RT Regulations (n 51) reg 12CA(a); RPLTA (n 2) s 45A(2)(d)(vi); RPLT Regulations (n 51) reg 13A(a). 54 Figure 1 was created by the researchers. 55 RPLTA (n 2) s 45B(2); RTA (n 1) s 71AD(2). 56 The lessor must make application for review within 7 days from receipt of the notice of termination; RPLTA (n 2) s 74A(2); RTA (n 1) s 71AC(2). 57 RPLTA (n 2) s 74A(3)(b); RTA (n 1) s 71AC(3)(b). 58 Or when the tenant vacates the premises, if later than the seven-day notice period; RPLTA (n 2) s 45A(5); RTA (n 1) s 71AB(5). 59 The lessor must provide notice to each co-tenant within 7 days of receipt of the notice advising of the terminating tenant’s interest; RPLTA (n 2) s 45B(2); RTA (n 1) s 71AD(2). Under the RTA (n 1), service can be given personally, by mail, or electronically (with the consent of the person receiving notice); RTA (n 1) s 85(1). Under the RPLTA, service can be given personally or by mail; RPLTA (n 2) s 91(1). 60 RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4). The co-tenant must provide the lessor with a minimum of 21 days’ notice should they wish to terminate their interest in the tenancy agreement; RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4).

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Fig. 1 Implication of a report of family violence on stakeholders in WA

Albertan tenants may terminate an RT agreement on grounds of DV if they believe that their safety, or the safety of their child or a protected adult who lives with them is at risk if the tenancy continues.61 They must provide the lessor with notice in writing and a certificate from a designated authority (currently Safer Spaces)62 in prescribed form.63 Shown at Fig. 2i,64 the notice must then be served on the lessor within 90 days of issue of the certificate,65 and provide at least 28 days’ notice of the termination of the RT agreement.66 The rent payable abates at the end of the 28-day notice period,67 and, as in Fig. 2iii, the tenant may request that the lessor apply any bond held under the RT agreement to the payment of the rent during the notice period.68 It is also made clear that the tenant is not liable for early termination penalties (Fig. 2ii).69

61

Ibid 47.3(1). Government of Alberta, ‘Safer Spaces Certificate to End Tenancy’, Alberta (Web Page, 25 October 2021) < https://www.alberta.ca/safer-spaces-certificate.aspx > . 63 RTAA (n 6) s 47.3(2). 64 Figure 2 was created by the researchers. 65 RTAA (n 6) s 47.3(3). 66 Ibid s 47.3(2)(a). 67 Ibid s 47.3(4)(a). 68 Ibid s 47.3(4)(c). 69 Ibid s 47.3(4)(b). 62

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Fig. 2 Implication of a report of domestic violence on stakeholders in Alberta

To obtain the requisite certificate, tenants must apply to Safer Spaces and provide either (i) a copy of an Emergency Protection Order or Queen’s Bench Protection Order granted under the Protection Against Family Violence Act, RSA 2000, c P-27,70 (ii) a restraining order, peace bond, or other court order that prevents a defined person from contacting or communicating with them,71 or (iii) a statement from a person acting in their professional capacity that, in their opinion, the tenant has been subjected to DV.72 This statement is similar to the WA RFV and the professionals permitted to complete the statement are also similar to those found in the WA legislation.73 70

Ibid s 47.4(2)(a)(i). Queen’s Bench Protection Orders (‘QBPO’) and Emergency Protection Orders (‘EPO’) can be obtained in Alberta under the Protection Against Family Violence Act, RSA 2000, c P-27, ss 2, 4 (‘PAFVA’). 71 RTAA (n 6) s 47.4(2)(a)(i). 72 Ibid s 47.4(2)(a)(ii). 73 RPLTA (n 2) s 45A(2)(d); RTA (n 1) s 71AB(2)(d). Professionals permitted to complete the statement under the RTAA (n 6) are: (i) regulated members of the College of Physicians and Surgeons of Alberta; RTAA (n 6) s 47.4(4)(a)(i), (ii) regulated members of the College and Association of Registered Nurses of Alberta: at s 47.4(4)(a)(ii), (iii) regulated members of the Alberta College of Social Workers: at s 47.4(4)(a)(iii), (iv) regulated members of the College of Alberta Psychologists: at 47.4(4)(a)(iv), (v) regulated members of the College of Registered Psychiatric Nurses of Alberta: at s 47.4(4)(a)(v), (vi) police officers or members of the Royal Canadian Mounted Police: at s 47.4(4)(b), (vii) individuals employed by agencies or organizations that assist individuals to whom

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The RTAA prohibits action against such professionals where the statement is made in good faith.74 Upon receipt of the application and accompanying document, Safer Spaces must carry out an assessment and be satisfied that there is a risk to the safety of the tenant, dependent child or protected adult before issuing a certificate that permits the tenant to determine interests in the RT agreement.75 In carrying out the assessment, Safer Spaces must affirm the statement provided by the professional.76 Safer Spaces must confirm that it is appropriately signed and contains the opinion that the tenant has been the subject of DV.77 It must also be confirmed that the assertion of DV by the tenant is based upon: (i) a previous history of DV,78 (ii) a presently occurring crisis, investigation, charge, legal proceeding, separation, intention to separate or other relevant circumstance causing them to fear for their own safety or the safety of their child or protected adult living with them,79 or (iii) past conduct or threats directed at the tenant or other person that causes them to fear for their safety or the safety of their child or protected adult living with them.80 Similarly to WA, the validity of the notice may be challenged, but not the fact of the violence that has been asserted.81 Shown at Fig. 2iv, Safer Spaces may require the tenant to advise them when notice has been served on a lessor so that notification of co-tenants can be coordinated with the lessor.82 The provisions for determination of interests in an RT agreement on grounds of DV in the RTAA do not set out specific provisions for notification time frames where there are co-tenants,83 however where there are co-tenants who have interest in the relevant RT agreement, their interest is also determined on the same

the agency or organization provides accommodation in an emergency or transitional shelter because of homelessness or abuse: at s 47.4(4)(c)(i), (viii)individuals employed by agencies or organizations that assist individuals to whom the agency or organization provides support initiatives for victims of crime, if that individual is authorized by his or her employer to provide statements under this section: at s 47.4(4)(c)(ii), and (ix) any other person or member of a class of persons prescribed by regulation. At the time of writing, there were no such currently prescribed persons; Termination of Tenancy (Domestic Violence) Regulation, Alta Reg 130/2 (‘TTDVR’). 74 RTAA (n 6) s 47.4(5). 75 Ibid s 47.4(2). The designated authority must either issue the certificate or advise the applicant that the certificate will not be issued within 7 days of receipt of the application: at s 47.4(2)(3). 76 Where the attached document is an order, Safer Spaces must confirm that either the protection order is of the correct type and unexpired; TTDVR (n 73) reg 3. 77 Ibid reg 3(b). 78 Ibid reg 3(b)(iii)(A). 79 Ibid reg 3(b)(iii)(B). 80 Ibid reg 3(b)(iii)(C). 81 RTAA (n 6) s 47.3(7). The application must be supported by affidavit and filed prior to the expiry period in the relevant termination notice: at s 47.3(8). 82 Ibid s 47.3(6). 83 Ibid s 47.3(5)-(6).

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day that the terminating tenant’s does (Fig. 2v).84 That is, the entire RT agreement comes to an end. The RTAA clarifies that co-tenants and lessors may renegotiate a new RT agreement (Fig. 26).85 Safer Spaces cannot be compelled to give evidence or produce documents or things obtained under the provisions allowing for termination of an RT agreement on grounds of DV.86 As in WA, lessors are barred from disclosing related information.87 However, there are exceptions explicitly provided for by regulation.88 Lessors are not prohibited from disclosing the fact that a notice was served nor the date of termination in the notice.89 They may also disclose to law enforcement agencies conducting investigations,90 or a lawyer providing services to the lessor,91 for example. The latter serves to clarify disclosure for the purposes of obtaining advice regarding whether they may be required to disclose ‘as otherwise required by law.’92 There is also permitted disclosure ‘in connection with an emergency that threatens the life, health or security of an individual or the public.’93

3 Comparison of the Implications on Parties of RT Agreements 3.1 Implications for FV/DV Victims Prima facie, the provisions providing for termination of an RT agreement in Alberta appear less protective, and more cumbersome, for DV victims than those found in WA. This is because: i. the types of relationship covered by the RTAA are not as broad as in WA,94 ii. tenants are required to take the additional step of obtaining a certificate from Safer Spaces prior to being able to terminate an RT agreement,95 84

Ibid s 47.3(5). Ibid. 86 Ibid s 47.3(6). 87 Ibid s 47.3(7). 88 TTDVR (n 73) reg 4. 89 Ibid reg 4(2). 90 Ibid reg 4(1)(c). 91 Ibid reg 4(1)(3). 92 Ibid reg 4(1)(i). 93 Ibid reg 4(1)(d). 94 Ibid s 47.2(1); ROA (n 17) s 4. 95 Ibid s 47.4(1). 85

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iii. the notice period prior to the RT agreement being terminated is significantly longer in Alberta,96 and, iv. there are no special provisions under the RTAA for determination of dispute. However, there are some positive aspects relating to the engagement of Safer Spaces and dispute determination, and mitigating aspects of the extended notice period provisions in the RTAA to consider. The use of the term DV in the RTAA,97 and its definition makes for a far less broad relationship type being covered under the Albertan provisions than is covered by the WA term of FV.98 Although the RTAA does cover violence committed against a person who is a family member by way of marriage or an interdependent adult relationship (colloquially, in-laws),99 there is no provision for violence committed by a person who is an ex-partner (by way of marriage or de facto relationship) of a person with whom the victim is in a current relationship as is found in WA.100 The WA definitions then go one step further by also capturing relatives of a person’s spouse (or former spouse) or de facto (or former de facto) partner.101 Similarly, although the person committing the violence can be related to the victim by blood under the RTAA,102 the RPLTA and RTA definitions again go further by encompassing relationships where the parties are considered related when cultural, social or religious backgrounds are taken into consideration.103 The WA use of FV, and the way it is defined therefore intends to be protective of a far broader victim typology. Although the additional requirement that a tenant obtain a certificate from Safer Spaces prior to being able to terminate an RT agreement appears cumbersome,104 it provides an ideal opportunity to share vital and potentially life-saving information with DV victims prior to their departure from the relevant relationship. It is known that violence can escalate post relationship breakdown and is therefore often the most dangerous time for DV victims.105 This information can be provided to DV victims by Safer Spaces when the application for the certificate to permit the termination of the RT agreement is made. Being aware of this danger, DV victims can then ensure they take adequate protective steps. Safer Spaces can also advise on what steps can be taken in order to ensure safety for DV victims after the relationship ends, and what assisting services are available to them. It is, however, not clear whether Safer Spaces routinely does this when application is made to end an RT agreement as there is no requirement for them to do so under the RTAA. 96

Ibid s 47.3(2)(a). Ibid s 47.2(1). 98 ROA (n 17) s 5A. 99 RTAA (n 6) s 47.2(1)(d). 100 ROA (n 17) s 4(1)(g). 101 Ibid s 4(2)(b). 102 RTAA (n 6) s 47.2(1)(d). 103 ROA (n 17) s 4(1)(2)(a). 104 RTAA (n 6) 47.3(2)(b). 105 See, eg, Alberta, Parliamentary Debates, 16 November 2015, 480 (Member for LeducBeaumont). 97

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The lengthier period of notice required to be given to the lessor by the terminating tenant after obtaining the requisite certificate does appear to be less beneficial to DV victims because their obligation to pay rent under an RT agreement subsists for a longer period of time.106 This however, is balanced by the ability of the terminating tenant to require the lessor apply any bond held to unpaid rent.107 Whilst it is true that the terminating tenant is liable for rent for three additional weeks in Alberta (as opposed to WA), being able to apply the bond already held by the lessor towards unpaid rent frees up the tenant’s current income to be utilised to pay bond and rent at a new premise. Additionally, the bond money held may not have initially been paid for by the terminating tenant (or may have only been partially paid by them), creating the potential for a windfall for DV victims. Finally, there are no special provisions relating to dispute determination in the RTAA when an RT agreement is terminated on grounds of DV. This is a downfall of the Albertan provisions because, as in WA, victims are reluctant to engage with the courts.108 Under WA provisions relating to dispute determination after an RT agreement has been terminated on grounds of FV, decision-makers must have regard to a number of principles that may offer some consolation to FV victims that decisionmakers need to be sensitive to the many challenges they face.109 For example, the principles include that FV is a violation of fundamental human rights,110 that the decision-maker must reduce the financial burdens suffered by FV victims to maximise their safety,111 and prevent or reduce the consequences of FV to the greatest extent possible.112 These principles may, where FV victims are aware of them, encourage them to participate in the court system if they feel that decision-makers are sensitive to their circumstances.

3.2 Implications for Lessors Although the use of the professional’s statement to terminate an RT agreement under the RTAA alters the contractual rights and obligations of lessors, they do so to a lesser extent than by the use of an RFV to determine a tenant’s interest in an RT agreement

106

RTAA (n 6) s 47.3(2)(a). Ibid s 47.3(4)(c). 108 See, eg, Alberta, Parliamentary Debates, 7 December 2015, 889 (Member for Calgary-Varsity). 109 RPLTA (n 2) s 74C(5); RTA (n 1) s 17B(5). 110 RPLTA (n 2) s 74C(5)(a); RTA (n 1) s 17B(5)(a). 111 RPLTA (n 2) s 74C(5)(c); RTA (n 1) s 17B(5)(c). 112 RPLTA (n 2) s 74C(5)(d); RTA (n 1) s 17B(5)(d). 107

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under the RPLTA and RTA. Additionally, there is further protection provided against misuse of the provisions. This arises from: i. the oversight of the professional’s statement by Safer Spaces,113 ii. the involvement of Safer Spaces in coordinating notice of co-tenants,114 iii. the required period of notice prior to any determination of interest in an RT agreement being greater than is found under the RPLTA and RTA,115 iv. the determination of all interests in an RT agreement when the terminating tenant’s notice is served,116 and, v. determination of disputes arising out of an RT agreement being heard subject to the usual statutory and common law principles. The requirement that a tenant first obtain a certificate from Safer Spaces prior to determination of any interest in an RT agreement on grounds of DV may provide protection against misuse of the provisions. This additional step permits oversight of the statement provided by the professional person to ensure it is correctly signed and affirmed and that the terminating tenant is at risk if the tenancy continues.117 Such oversight may act as a deterrent to those seeking to misuse the provisions because it is implied that a governmental body will be conducting some form of investigation into the allegation of DV that has been made. The RTAA permits Safer Spaces to require the terminating tenant to advise them when they have served their notice upon the lessor to allow Safer Spaces to coordinate with the lessor in order to notify any co-tenants of the determination of the RT agreement.118 This provides some protection of the personal safety of lessors where the co-tenant is also the perpetrator of the DV that has given rise to the right to determine the RT agreement, by allowing for information sharing between Safer Spaces and the lessor regarding the dangers of increased violence after a relationship involving DV breaks down. Such information will also allow lessors to arrange for a non-personal method of service of the notice of termination of the RT agreement or to make arrangements with authorities (such as police) to be in attendance if they choose to serve notice on co-tenants personally. This also reduces the likelihood that a perpetrator of DV will cause harm to the lessor when the notice is served upon them.

113

RTAA (n 6) s 47.4. Ibid s 47.3(6). 115 Ibid s 47.3(2)(a). 116 Ibid s 47.3(5). 117 TTDVR (n 73) reg 3(b). 118 RTAA (n 6) s 47.3(6). 114

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Under the RTAA, the minimum period of notice required to be given to the lessor by the terminating tenant is 28 days,119 whereas under the RPLTA and RTA the period of notice is only 7 days.120 Additionally, when the terminating tenant’s interest in the relevant RT agreement ends, the interests of all parties end under the RTAA.121 Conversely, under the RPLTA and RTA, only the terminating tenant’s interest ends.122 This combination of an extended period of notice and all interests in an RT agreement ending provides more certainty for lessors. At the time of the terminating tenant providing notice of the determination of their interest in an RT agreement under the RTAA, the lessor can be certain that the premises subject to the agreement can be re-let at the end of the notice period regardless of the interest any co-tenant may have in the premises subject to the RT agreement. Although it is noted that a rental premises is not likely to remain vacant for long at times when the rental market is tight, a notice period of seven days does not provide a lessor with much time in which to advertise and select a new tenant. It is therefore likely that, as opposed to the 28-day notice period provided for under the RTAA,123 after interests in an RT agreement have been determined using an RFV in WA, a rental premises will be vacant for longer. This means that lessors will suffer detriment through the loss of rental income until such time as the premises can be re-let. Under the RPLTA and RTA, where there are co-tenants, the lessor will not be certain that an RT agreement will terminate upon determination of the terminating tenant’s interest.124 This means that the lessor faces a longer period of uncertainty after the terminating tenant has provided them with notice of determination of their interest because they first need to provide any co-tenants with notice,125 then wait up to a further seven days before they can be certain of whether the RT agreement will be terminated in entirety.126 For ‘mum and dad’ investors, this period of uncertainty of income is likely to be stressful, particularly if they are reliant upon the income from the tenanted property in order make mortgage payments and other costs associated with the premises. Finally, as far as lessors are concerned, dispute resolution mechanisms are not altered by the provisions allowing for determination of interest in an RT agreement on grounds of DV under the RTAA and so is protective of their rights as compared to the RPLTA and RTA. Although disallowing the fact of violence giving rise to the right to determine interests in an RT agreement to be adjudicated has similarly infringed upon lessors’ right to be heard on the matter prior to their interests being altered under the RTAA, they are at least not denied the right to make application 119

Ibid s 47.3(2)(a). RPLTA (n 2) s 45A(7); RTA (n 1) s 71AB(5). 121 RTAA (n 6) s 47.4(5). 122 RPLTA (n 2) s 45A(1); RTA (n 1) s 71AB(1). 123 Ibid s 47.3(2)(a). 124 RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4). 125 RPLTA (n 2) s 45B(2); RTA (n 1) s 71AD(2). 126 RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4). 120

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for determination of a dispute as has been denied by the RPLTA and RTA. Should a dispute arise under an RT agreement that has been determined on grounds of DV under the RTAA, lessors can not only make application for determination, but also rely on the contractual principles of joint and several, and vicarious liability of tenants in order to recover any loss or damage because there are no special DV provisions in the RTAA for dispute determination.

4 Impacts on Co-tenants Similarly to victims, there are positive and negative outcomes for co-tenants when an RT agreement is terminated on grounds of DV under the RTAA, as compared to the RPLTA and RTA in which the entire RT agreement does not terminate. Where under the RTAA, the interests of any co-tenants are also determined at the end of the notice period after the terminating tenant has provided their notice,127 co-tenants are free to decide whether to determine their own interests or assume the obligations of the existing RT agreement under the RPLTA and RTA.128 Under the WA provisions there will likely be detriment suffered by a co-tenant by way of being obliged to assume responsibility for the terminating tenant’s share of the rent payable on the relevant premises or the cost and stress of relocating. However this option is available for them and they can decide for themselves which will be the best selection for their own individual circumstances. If a lessor does not wish to renegotiate a new RT agreement with a co-tenant under the RTAA, the choice is taken out of the co-tenant’s hands, and they will have no option but to relocate. The timeframe required for notifying a co-tenant of termination of an RT agreement on grounds of DV is not made clear by the provisions in the RTAA,129 which creates uncertainty for co-tenants. The cost and stress of relocating may be increased if a co-tenant is given a brief period of notice by the relevant lessor. However, under the RTAA, co-tenants will not be liable for obligations falling under the relevant RT agreement (such as the payment of rent) for any period of time after the terminating tenant’s interest has ended. Contrarily, under the RPLTA and RTA co-tenants will be liable for such obligations at least for the period between the terminating tenant’s interest ending and their own interest being determined. Unlike WA co-tenants, those in Alberta are able to rely on the principles of joint and several, and vicarious liability of all tenant parties to RT agreements where a tenancy has been terminated on grounds of DV.130 However, Albertan co-tenants are in the same position as those in WA when it comes to procedural fairness due to the statutory barring of determination being made on the fact of violence that is alleged to

127

RTAA (n 6) s 47.3(5). RPLTA (n 2) s 45B(4); RTA (n 1) s 71AD(4). 129 RTAA (n 6) s 47.3(6). 130 RPLTA (n 2) s 74A(3)(b); RTA (n 1) s 71AC(3)(a). 128

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have given rise to the right to terminate an RT agreement.131 This disallowance of the right of co-tenants to be heard regarding the fact of violence is particularly an issue for co-tenants because they are in close enough proximity to the terminating tenant to provide evidence regarding the occurrence of the violence. Similarly to WA, where a co-tenant is themselves the victim of violence committed by a terminating tenant or is an innocent bystander, the inability to put relevant evidence regarding the fact of the violence asserted at the very least creates the impression of unfairness. At worst, it allows a perpetrator of violence to cause further victimisation by making use of the provisions to terminate an RT agreement themselves. Though, as discussed, the involvement of Safer Spaces in overseeing the RT agreement termination in Alberta may act as discouragement to those seeking to misuse the provisions.

5 Conclusion Similarly to the RPLTA and RTA, the RTAA empowers tenants to determine interests in an RT agreement on grounds of DV by utilising a report obtained from one of a specified list of individuals, without first requiring court intervention.132 Both jurisdictions also disallow decision-makers from examining the fact of violence that gives rise to the right to determine the relevant interest(s).133 However, there are marked differences between the two jurisdictions. Namely, when a tenant makes use of the provisions to determine their interests in an RT agreement using the report of violence, the RTAA differs to the RPLTA and RTA because: i. the defined relationship type (that is, the victim’s relationship to the perpetrator) is not as broad,134 ii. the terminating tenant is required to obtain a certificate from Safer Spaces,135 iii. all interests in the relevant agreement are terminated,136 iv. the notice period prior to determination of any interests is longer,137 and, v. when a dispute arises under the relevant agreement, the principles of joint and several, and vicarious liability will apply. For victims, the RTAA allows for potentially life-saving information to be imparted by Safer Spaces prior to determination of interests in an RT agreement. Although the 28-day notice period required under the RTAA prima facie does not allow for expedient escape from violent situations,138 the ability to request the lessor allocate 131

RTAA (n 6) s 47.3(7). Ibid s 47.3. 133 RPLTA (n 2) s 74A(2)(b); RTA (n 1) s 71AC(3)(b); RTAA (n 6) s 47.3(7). 134 ROA (n 17) s 5A(1); RTAA (n 6) s 47.2. 135 RTAA (n 6) s 47.3(2)(b). 136 Ibid s 47.3(5). 137 Ibid s 47.3(2)(a); RPLTA (n 2) s 45A(5); RTA (n 1) s 71AB(5). 138 RTAA (n 6) s 47.3(2)(a). 132

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bond held under the RT agreement to unpaid rent negates the need for the terminating tenant to become immediately liable for the payment of rent under two agreements at once (during the notice period).139 Similarly to the RPLTA and RTA,140 the RTAA prohibition on determination of the fact of violence giving rise to the right to determine an RT agreement means victims who are reluctant to engage with authorities are not required to do so.141 For lessors, the RTAA provides greater certainty due to the lengthier notice period required before any interests in an RT agreement are determined. The termination of the entire RT agreement (including the interests of any co-tenants) when the terminating tenant’s interest ends allows lessors to begin preparation for re-letting their premises immediately, thereby decreasing the span of time that they are uncertain of the future income of their investment. Perhaps most importantly, contrarily to the RPLTA and RTA, the RTAA permits a lessor to apply for an order when a dispute arises out of an RT agreement, and principles of joint and several, and vicarious liability apply to those determinations. There will be disruption caused where there are co-tenants to an RT agreement that has been terminated on grounds of DV under the RTAA because they will be required to relocate or renegotiate a new RT agreement with the lessor. However, under the RTAA, they will not be liable for additional rent during the notice period as under the RPLTA and RTA, and like lessors, co-tenants in Alberta are not subject to altered dispute determination principles. Where a co-tenant is also a perpetrator of violence, these unaltered dispute determination principles, and the requirement that a certificate be obtained from Safer Spaces prior to determination of any interest in an RT agreement on grounds of DV,142 may deter them from misusing the provisions to further their violence against the victim.

References Webb et al, Impact of Tenancy Laws on Women and Children Escaping Violence (Report for Department of Social Services, University of South Australia, March 2021), 24[1.3]. Koshan, Jennifer, ‘Mapping Domestic Violence Law and Policy in Alberta: Intersections and Access to Justice’ (2021) 58(3) Alberta Law Review 521, 521.

139

Ibid s 47.3(4)(d). RPLTA (n 2) s 74A(2)(b); RTA (n 1) s 71AB(2)(b). 141 RTAA (n 6) s 47.3(7). 142 Ibid s 47.4. 140

Live-in-Relationship Vis-À-Vis Marriage: A Congruence Among Indian and Australian Laws Rupam Jagota and Rishma Bal

1 Introduction The very foundation of society envisages a social order emphasizing on the legal ethical, moral codes of conduct to ensure a positive healthy development, devoid of negativity and deviant behavior. Marriage as it is, a universal institution. However, the ritual of marriage varies with the religious traditions as every religion in India has its own personal laws which govern the marriage ceremonies. This relationship confers duties on those whose association is based on the distinction of sexes. Marriage gave societal approval to the conjugal relationship of two persons of opposite sex and permitted them to live together as husband and wife and have a family of their own. Whereas, live-in relationships also has strong roots in the Indian society. It is a communion, an arrangement of convenience between two consenting individuals who hail from diversified cultures but have an intention to live together and cohabit, either due to compatibility or a strong belief that they are meant for one another. There are several instances in history, of men cohabiting with several women apart from a matrimonial bond. Men maintained additional household for live-in partner away from their families, without confiding in the wife. Now-a-days live-in-relationship has gained widespread recognition in India in the urban areas. In India, Hindu marriage is through performance of religious rites. However the arrangement of live-in relationship is that where a couple has formed a domestic relation before their marriage which is similar to marriage. Due to modernization, and the spread of urban culture, the live-in- relationship is on the increase in many parts of the country. Live-in-Couples cohabit rather than marry, for various reasons, such as economic independence, high rent rates R. Jagota (B) Department of Laws, GNDU (RC) Jalandhar, Jalandhar, India e-mail: [email protected] R. Bal University Institute of Legal Studies, Chandigarh University, Chandigarh, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_13

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in big cities, the increasing number of failed marriages, marriages ending in divorce, domestic violence, and the influence of media and western life style etc. An important factor is that the live-in couples want to avoid responsibility and liabilities. Relationships have become more cross cultural and contractual resulting in explicit expectations from one another. It includes persons where either of the party is married or even both the parties are married but are living together. Homosexuals, gays, lesbians, married men whom law earlier did not give a right to marry usually maintained living relationship. The factors are lack of commitment, disregard of social bonds and lack of tolerance in relationships, and a hectic lifestyle.1 Australia also identifies the concept of live-in-relationship but prefers to call it a de-facto relationship. A de facto relationship describes a relationship between two people who aren’t married but live together as a couple. In Queensland, de facto couples can register their relationship. A de facto relationship is defined in the Family Law Act 1975. It requires that you and your partner (who can be of the same or opposite sex) have a relationship where you live as a couple together on a genuine domestic basis. It is a relationship where participants are not legally married but are living together on a genuine domestic basis. To consider the existence of a defacto relationship, the court considers a number of factors which are identified under the Family Law Act, 1975 Section 4AA(2). It includes: 1. 2. 3. 4. 5. 6. 7. 8. 9.

Duration of the relationship Nature and extent of their Common Residence Whether a Sexual Relationship Exists The Degree of Financial Dependence or Interdependence and any Arrangements for Financial Support between them The Ownership, Use and Acquisition of their Property Degree of Mutual Commitment to a Shared Life Whether the Relationship is or was Registered under a Prescribed Law of a State or Territory as a prescribed kind of Relationship Care and Support of Children Reputation and Public Aspects of Relationship

The relationship more or less varies and no two can be of the same type. The courts need to consider the facts of each individual case while making decisions related to breakdown and subsequent property settlements was held in Fairbairn v Radecki HCA 18 May 2022.

1

Sharma [1].

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2 Development of the Concept of Live-in-Relationships in India The concept of live-in relationship is not new to India. Premarital relationships existed in Vedic period and post-Vedic periods. Manu, classifies eight forms of Hindu marriage i.e., Brahma, Daiva, Arsa, Prajapatya, Asura, Gandharva. Rakksash and Paisacha. From these forms of marriage “Gandharva” was similar to that of live-in relationships. Gandharva form of marriages where the union of a man and a woman by mutual consent was socially recognized. However, Gandharva form of marriage has not been recognized in the modern Hindu law.2 MaitriKarar i.e., friendship agreements was a similar concept to the live-in relationships. This friendship agreements were practiced in Gujarat. In this agreement a man and a woman would live together without marriage.3 In “Minaxi Zaver Bhai Jethva v. State of Gujarat”4 the court held that the system of Maitri Krar as void ab initio. Although the government of Gujarat had already prohibited this practice in the year 1982 by passing a Law. Live-in relationships are also found among the tribes of Oraon, Ho and Bishor. The girl enters the house of her lover and does not come out of the house in spite of all cruelties and insult inflicted on her. If the girl does not leave the house for a sufficient period of time, the girl is considered to be married to the young man. Centuries ago, civilized societies recognized and acknowledged the most basic instinct of all – i.e., the need for companionship – and founded an honourable institution known as marriage. Hindu ancestors set out some guidelines to make sure that the institution is a permanent one, with the potential of not only bringing happiness to two young people but also providing a delicate balance, so that the family enjoys the fullness of life within the framework of what they called Dharma, the Hindu code of right conduct. The basis for marriage is friendship and such friendship is the understanding, the promise and the commitment that unites a man and a woman.5

Caste is a crucial issue in India, and generally inter-caste marriages are forbidden. So, individuals who want to marry, but cannot, find solace in live-in relationships. Concubinage and de-facto marriages are also considered as a form of live-in –relationship. In Australia also this concept is not a new, as their marriage is not sacrament but pure contract, where two person of opposite sex used to live together even before marriage and now a days two persons of same sex are also living together. But in 2007 it got the legal recognition by Amendment under Family Court Act, 1975.

2

Retrieved from Retrieved from http://www.yourarticlelibrary.com/marriage/8-traditional-formsof-hindu-marriage-in-india/47455, visited on Mar. 14, 2018. 3 Retrieved from https://www.quora.com/What-is-%E2%80%98maitri-karaar-How-different-is-itf rom-polygamy-polyamory-What-is-the-legal-validity-of-the-same, visited on Jan. 7, 2019 and also available at The Final (1).docx. 4 Retrieved from https://indiankanoon.org/doc/1089323/. 5 Retrieved from https://www.quora.com/What-was-the-complete-dialogue-between-Yudhisthi rand-Yaksha-from- Mahabharata visited on Feb. 3, 2018.

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3 Gradual Change in the Mindset of Society in the Present Day Scenario “The concept of marriage has been changed from arranged marriage to love marriage and now live-in relationship. However, previously people were not declaring socially about their live-in status as they are feared that society would not accept their relationship because this type of relationship is still considered as a taboo in Indian society. However, society changes frequently and now the people are no longer hesitant to accept their live-in relationship status. With the changing times, the new generation is gradually accepting the idea of live-in relationship. The main concern until today has been that couples have been hiding their status of live-in relationships owing to societal pressure and condemnation. Now, when we reflect on the thoughts, we can infer that many countries have permitted this and urban India is definitely ready to imbibe this in the societal fabric along with marriage. However, legally speaking two parties in a live-in-relationship are called “the other woman” and “the other man and the term” “common law wife” signified legal rights as that of a wife enjoyed by a woman living with a man without marriage. The Courts have analyzed the concept of live-in relationship as an arrangement of living under which the couples who are unmarried live together to conduct a long-going relationship similarly as in marriage. There are several important factors which are responsible for an increase in the instances of live-in-relationship in India. Enormous development of Indian call centers over the most recent years is viewed as bringing about significant financial and social advancements in Indian culture which has led to the growth of the in live-in relationship type of arrangements. There are no legal problems, budgetary intricacies or complex arrangements for isolating resources and obligations between the partners.6 Increasing job opportunities for the financial liberation of women by means of worthwhile occupations in rising administrations and information and technology industry through globalization is also a leading cause for women in particular to enter into live-in relationships. Now-a-days it is seen that the present generation attempts to evade responsibilities that are expected. The reason why many couples opt for a live relationship is because it does not bind one in mandatory duties as a matrimonial bond demands. The absence of duty seeks to point out that in an arrangement where couples live together there are no duties as such. It only requires cohabitation primarily. Present day scenarios and newspaper reports make it evident that the is a declining respect for social bonds. Matrimonial bonds come with a set of social bonds which are not seen in live-in relationships. Moreover, because it is not yet fully accepted in the Indian subcontinent, it is not viewed as part of the society and partners in such an arrangement are usually kept away from societal obligations. In India there is no legal definition of live in relationship but in Australia Family Court clearly defines it and further says that married couples, those in a civil partnership and people living together in what’s known as a ‘de facto’ relationship have certain legal rights. People in de facto relationships (including same sex couples) 6

Retrieved from https://www.ukessays.com/essays/sociology/different-views-on-live-in-relation% 20shipssociology-%20essay.php, visited on Mar. 6, 2018.

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share many of the same legal rights as married couples. According to Australian law, there is a time limit of two years for you to make a property claim against your de facto partner. This is from the date your relationship has ceased. To make a claim it is necessary to prove that the separation took place after 1 March 2009. Or the relation Law provides the same rights for spousal maintenance and superannuation splits. Further for disputes regarding children, the same family law applies to married couples as well as people in defacto relationships. However, there are some instances where a claimant may not be required to prove that the relationship lasted for two years, including: • Where the couple have a child together; • Where one party has made a substantial contribution to the relationship, either financial or personal; • Where the couple have registered their relationship with the relevant state. This is deemed conclusive proof of the existence of the relationship.

4 Live-in-Relationship: Threat to Marriage Institution The concept of live-in relationships is considered as a western concept but Indian society is still not ready to accept the relationships like live-ins. An orthodox society like ours are not accepting that any couple lives together without being married.7 We are bound by numerous traditional norms; however, our social assumptions are somehow changing now. In “D Patchaiammal v. D Velusamy”,8 Supreme Court ruled that, if a couple living together for an extensive period then such couple can be considered as a married couple and the child born out of this relationship would be considered as legitimate child. As compare to India in Australia it is not a threat to marriage as their marriage is already a civil law and neither a sacrament nor semblance of both contract and sacrament. No specific law has been enacted by the legislature but Law of Evidence and the customary Law incline in favour of live in relationship. Long time living together as man & women would give a reasonable presumption in favour of their marriage unless it is rebutted by convincing evidence. Presumption no doubt is rebuttable but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place.” The Domestic Violence Act, 2005 is the only legislation that bestows all benefits on women living in such kind of arrangement. The Act defines Domestic Relationship as a relationship between two persons who live or have at any point of time lived together in a shared household through a relationship in the nature of marriage. Female partner can file a complaint. Law has extended equal benefits to both married women as well as her live in partner. Thus law has given official recognition to live in relationships thereby treating the wife at 7 8

Ibid. (2010) 10 SCC 469.

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par with the other women. Justice Malimath Committee also recommended that if a women has been in a live in relationship for a reasonable time period, she should enjoy the legal rights of a wife.

5 Legislative and Judicial Framework Regarding Live-in-Relationship in India The prima facie distinction between a marital bond and a live-in relationship can be understood in terms of the acceptance of the idea by the society. On one hand, marriage is acceptable and is embraced with open arms but when it comes to live-in relationships, a glance of rejection is seen. The manifold augmentations in the number of live-in relationships in India exhibits the metropolitan tenor and bondage to free living but it also has posed some violent threats. The very notion of husband and wife and the cognition of marriage that enjoy high level of sanctity is very common in India. There are several misconceptions which branch out of the idea of live-in relationships. Some might say that it leads to adultery and some might say that livein.relationships also endorses bigamy. For instance, Payal Katara v. Superintendent NariNiketanKandrivih9 and others, where Rajendra Prasad, the person with whom plaintiff was living was already married came up, the court upheld the right of the plaintiff. While the court recognized the right of cohabitation of the plaintiff there arose questions regarding the wife’s right. The question that seeks an answer with the elevation of live-in relationship is the status of wife accorded to a person who is in live-in relationship and is already married as law seeks to protect the right of live-in partner under statutes protection of women from Domestic Violence Act, 2005. The recommendation of the Malimath Committee was to recognize live-in partner as wife. The apex court also recognized the relations of live-ins. It recommended that living female partner who lives with her partner in the extensive period of time considered as a wife and needs to be covered under section 125 Cr.P.C. However, this type of ideology will promote the offence of bigamy. Marriage has social recognition and therefore protection as depicted above but there is no proof of live-in relationship, and a person can easily deny such an arrangement. When Indian courts first began examining this aspect of live-in relationship they had little legal support except the California Supreme Court ruling of Marvin v. Marvin10 Although legally the judiciary has time and again stated that live-in relationships are not illegal, the society does not seem to accept it. The most hard-core moralist and traditional people criticized “Delhi High Court in Naaz Foundation case” which dealt with legalizing gay marriages which would in a wider sense mean acceptance of the arrangement of cohabitation of gay/lesbian couples and where it was opined that time has come to decriminalize Section 377 of IPC. Social evils in India are gradually transforming the face of the Indian society. Many opined that there are many successful living examples of live-in 9

MANU/UP/0288/2001. 18 Cal. 3d 660.

10

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relationship; this concept is prevalent in higher urban classes and hence the need of the law to ensure rights formally is the need of the hour. While the Australia Law, there some cases dealing with de- facto relationship. Which intended to provide examples of the decision-making process when determining whether a de facto relationship has been established for the purposes of the Family Law Act. • Gissing v Sheffield [2012] FMCAfam 1111: De facto relationship established The couple in this case had been in a relationship for 17 years during which time they had lived in several properties, both together and separately. They had shared common residences for “significant periods of time”. The couple’s business continued throughout the period of the relationship and they had an ongoing financial relationship until separation that involved “a very high degree of financial dependence by the respondent [female partner] on the applicant [male partner] and more importantly interdependence between the parties” The couple held joint bank accounts and intermingled their finances. Throughout the relationship the couple bought and sold a number of properties together, and although only one person’s name was registered on title, joint funds were applied to the purchases. The relationship was not clandestine in nature and the couple “acted and were treated by others as [owning] property together and carrying out work or renovations on those assets together”. The couple’s relationship was indicative of a degree of commitment to a mutual shared life, with the couple “carrying on a mutual enterprise of sharing income … and shared payment of expenses for their mutual support …” The “exact nature of the sexual relationship of the parties” was unclear on the evidence but the court accepted that there was a sexual relationship. The male partner in this case made inconsistent representations to Centre link but these representations did not mean that the relationship was not a de facto relationship for the purposes of the FLA. A de facto relationship was established on these facts. • Jonah v White [2012] FamCAFC 200: De facto relationship not established The male and female in this case had also been in a relationship for 17 years, which began shortly after the female commenced working for a business conducted by the male. The male paid $24,000 to assist the female purchase a house and he also paid her a monthly financial sum for a period of 11 years. The male and female saw each other for around two or so days every second or third weekend, travelled overseas together for a period of two and a half weeks and spent similar time periods together on occasion in Australia. The male and female had a longstanding relationship in which they had a consistent sexual relationship. The female regarded it as an exclusive relationship and the male conceded that the relationship was “exclusive (save for ‘a few one night stands’) and his relationship with his wife”. However, the male and female maintained separate households and did not own any joint property or pool resources. Their relationship was clandestine and there was no evidence of any relationship or intended relationship between the female and the male’s children who were young when the relationship commenced. The male and female did not have a

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reputation as a couple, rarely mixed with each other’s friends and there were “very few public aspects to their relationship” A de facto relationship was not established on these facts. Marriages are more acceptable in our society on the other hand live-in relationship could not be acceptable in Indian society. The major section of the society looks at live-in relationship as a weakening of ethical and traditional practices. Further is considered to be an immoral relationship. In India this concept isn’t completely acknowledged due to solid religious establishment of marriage but at the same time continuously it has carved a specialty in a few section of society. It becomes therefore fundamental to form a legal System for such a connection and to consider its suggestion on Indian society as the societal texture is changing everyday. The Indian Judiciary has been playing an important role in order to interpret morality and law. Indian judiciary adopts a revolutionary approach in the live-ins” however Indian socirty is not ready to accept this relationship. Various judicial decisions on the live-ins, legal provisions and the report of various committees recommended to safeguard the rights of female partner who live in a live-ins. “The Protection of Women from Domestic Violence Act, 2005 provides protection to live-ins partner. One of the major cases brought before the Supreme Court where the issue of merely speaking about live-in relationship was thrashed, was the landmark case of S. Khushboo v. Kanniammal&Anr.11 This is the leading judgment were the apex court was faced with an issue where a woman was condemned merely because she stated publicly that premarital sex would fall under the blanket of right to life and the society should not deem this as an offence. In Tulsa v. Durghatiya12 the Supreme Court held that, a couple who lived together from the long time it may be presumed that such couple is a married couple.13 Taking out from foreign decisions the Indian Supreme Court on 21st October 2010 in the special leave petition D Velusamy v. D Patchaiammal14 laid down some rules and regulations for live-in relationships. In this case court ruled that any women who lives in a live-ins is entitled to claim maintenance from their former live-in- partner under certain conditions. The Court further declares that spending short time together cannot be considered as a domestic relationship. Five Judges Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code on July 27, 2018 as being in violation of Articles 14, 15 & 21 of the Constitution in the case of Joseph Shine vs. Union of India.15 A crucial argument of the Petitioner was centered around how the impugned provisions infringed the fundamental right to privacy under Article 21 by interfering with the right to voluntary, consensual sexual intercourse between consenting adults. There was a three-fold approach to this issue. Firstly, the Constitution guarantees a right 11

SLP (Crl.) No. 4010 of 2008. (2008) 4 SCC 520. 13 Retrieved from http://www.journalijar.com/uploads/973_IJAR-18347.pdf. 14 Ibid. 15 Retrieved form https://indiankanoon.org/doc/1364215/, visited on Dec24,2018. 12

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to privacy.16 Secondly, the right to privacy necessarily contains within it the right to sexual autonomy. The right to privacy is understood as the freedom of personal choice in matters of marriage and family life ”and the acceptance of the fact that different individuals will make different choices.17 The third argument, the turning point was that there is no rationale to discriminate between sexual intercourse outside or inside marriage and between sex based on the marital status of both or either of the individuals. Irrespective of how obnoxious society thinks extra-marital sexual conduct is, that is no reason to criminalize such conduct”. The right to extramarital sexual conduct stands protected by the rights to privacy and intimate association.18 It was unambiguously argued that the right to sexual freedom includes the right to choose one’s sexual partner, even when one person is legally married to another. Punishing the adulterous relationship violates the right to choose the sexual partner or the right to make one’s sexual preferences. Section 497 IPC hence infringes the fundamental right to sexual privacy.19

6 Conclusion By analyzing the above stated information, one faces a major conundrum due to the diametrically opposite stance of the society and judiciary on live-in relationships. The primary concern one encounters is the fact that there is no law against two consenting adults cohabiting together yet the society condemns such an arrangement. Secondly, another dilemma that is seen is that of the non-acceptance of live-in relationship by society. To dissect the first issue, it is evident by various instances of the history that livein relationships are not new to the Indian Society or to the world at large. Several instances are found in almost all the parts of history where a man and woman have cohabited without engaging in matrimonial bonds. Hence, at this juncture the question that arises is that what is the reason that society has now begun to discourage such relationships? Prima facie one answer that comes up is that the society is concerned about the security of women. The second issue of non-acceptance is founded on mere rigidity of orthodox ideas which are built on wrong notions. At no point in ancient history was this considered an unacceptable idea however, once in the modern times we see people shielding their orthodox perceptions behind the curtain of customs and traditions whereas, this condemnation has neither legal backing nor historical. Hence, it is safe to say that history has been a testament to live-in relationship and it is neither a new concept nor draws its roots from western culture. The unanswered question here remains that, what was the situation that brought the image of the idea of live-in relationship to be tarnished. 16

K. S Puttaswamy v. Union of India, (2017) 10 SCC 1, retrieved from http://www.nlsir.com/? p = 698, visited on Feb 2, 2019. 17 Bowers v. Hardwick, 478 U.S. 186 (1986) (per the dissenting judgment of J. Blackmun). 18 Janelle Perez v. City of Roseville US Court of Appeals, No. 15–16,430, 2018. 19 Ibid.

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Concept of living relationship in the Indian society is hundred times more complex than the western society which is being aped. There is a need to focus on the necessity of viewing prospectively as an alternative to marriage or for socially endorsed Live in arrangements or would live in arrangements with legal sanctity will encourage adultery and bigamy or it would threaten the status of a legally wedded wife or whether such a practice without sincerity and commitment would open the road to prostitution or psychological exploitation. In the present-day context, despite the judiciary time and again spelling it out that there is no law against cohabitation between two consenting adults who are not bound by matrimony, there have been constant condemnation of this idea. One of the main reasons for couples to adopt such an arrangement is the prevailing caste system in India. Apart from the reasons stated in the chapter, young adults prefer to check compatibility and seldom are such adults with progressive ideas to be of the same caste or creed. Therefore, prior to entering into the holy bond of matrimony, such individuals prefer to stay together without any limitations. This paves way for disapproval by the society and despite there being a vacuum in legal sanctions for live-in relationships; these are frowned upon by society. Law has to equip itself to the changing social demands so as to strike a balance by giving equal rights to both genders. The emphasis is on making relationships valid, acceptable and consecutively respectable.

Reference Dr. Jyotasna Sharma, “Legal Status of Live-In Relationship In India”, Criminal Law Journal, Vol.2, (April-June 2012) 181.

Tainted Chocolate? A Systemic Review of the Cocoa Industry in Ghana and Brazil Cecilia Anthony Das and Joshua Aston

1 Introduction The silky lustrous chocolate may not only be sinful to the waistline but against humanity, given the agony surrounding the production of its principal ingredient— cocoa. Ghana and Côte d’Ivoire are the world’s largest cocoa producers, accounting for seventy per cent of the world’s supply. Away from the African continent, Brazil is the largest producer in South America and the sixth largest globally.1 This chapter aims to compare two large world cocoa producers from different continents to determine whether a common narrative can be established concerning the use of child labour on their plantations. Studies on the two largest producers of world cocoa, i.e., Ghana and Côte d’Ivoire, are abundant but cross-continent studies are scarce. Inspired by this finding, this chapter intends to extend the analysis by comparing two non-homogenous countries and how they approached child labour. This qualitative study is critical to understanding universal issues plaguing child labour use in cocoa plantations regardless of location. The finding may provide insight into some common approaches that policymakers can take both at the international and domestic platforms to eliminate the use of child labour in cocoa plantations.

1

NORC, NORC Final Report: Assessing Progress in Reducing Child Labour in Cocoa Production in Cocoa Growing Areas of Côte d’Ivoire and Ghana (Oct., 2020), https://www.norc.org/PDFs/Cocoa%20Report/NORC%202020%20Cocoa%20Report_Eng lish.pdf. C. A. Das (B) · J. Aston School of Business and Law, Edith Cowan University, Joondalup, WA, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_14

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16.5 million

8.2 million

10.8 million

48.7 million 6.6 million 33.4 million

Other regions Latin America and the Caribbean 6.8 million Asia and the Pacific

Sub-Saharan Africa

88.9 million

86.6 million

2020

2025

2030

Fig. 1 Child labour projections2

2 Why Child Labour? The estimated number of children involved in child labour will be close to 140 million in 2025 and drop to 125 million in 2030. Figure 1 provides the projected number of children aged 5–7 who will be involved in child labour based on the statistics gathered between 2008 and 2016 if such use persists. These numbers are alarming and require immediate action. Figure 2 indicates the worldwide figure for the use of child labour in 2020 with a sectoral breakdown. The sector that has the highest child labour participation is agriculture. Evidently, the cocoa plantation is a sub-sector of agriculture and contributes to the alarming numbers of child labour within the sector. This fact and an estimated involvement of 1.56 million children between 10 and 17 who were forced to work in cocoa-producing areas in Ghana and Côte d’Ivoire countries, the suppliers of seventy per cent of the world’s cocoa supply,3 backs the need for this research. Of these, 1.48 million were exposed to hazardous components.4 Further, reports suggest that children as young as six years are exploited on cocoa farms in highly hazardous conditions, including but not limited to exposure to extreme weather, carrying heavy loads, and inhaling pesticides and other chemicals that they work with. These children work long days for about 80–100 h a week for little to no pay whilst battling abject poverty, malnutrition, and arduous work.5 Similarly, ILO

2 International Labour Organization, Child Labour: Global estimates 2020, trends and the road forward (Jun. 10, 2021), https://www.ilo.org/wcmsp5/groups/pub lic/---ed_norm/---ipec/documents/publication/wcms_797515.pdf. 3 Igawa et al. [1]. 4 NORC, supra note 1. 5 Sertich and Heemskerk [2].

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3.0%

4.5%

4.6%

15.2%

12.8%

13.7%

6.0%

7.5%

5.7%

233 2.9%

6.9%

Domestic work Other services

13.8% 22.8%

10.3%

17.3%

Industry Agriculture

13.4%

5.5%

24.0%

76.6% 70.0%

70.3%

75.8%

69.9%

47.6%

5–17years

Total

5–11 years

12–14years

15–17years

Girls

Age

Boys

Sex

Fig. 2 Distribution of children according to economic activity6

and statistics from Brazil’s Labour Prosecution Office reported that at least 8000 children are exploited in the chocolate production chain in Brazil.7

3 Child Labour and Modern Slavery Defined At the offset, it is imperative to note that not all work undertaken by a child is classified as child labour. When a child or adolescent above the minimum age engages in tasks that do not impact their health and personal development, this is not child labour.8 According to the International Labour Organisation (ILO), child labour is “work that deprives children of their childhood, their potential and their dignity and is harmful to physical and mental development.” It refers to work that is mentally, physically, socially or morally endangers and harms children; and/or interferes with their education. The worst forms of child labour involving child enslavement, separation from family, and exposure to hazards and illnesses, are the most frowned upon and serious. It falls within the greater umbrella of modern slavery. Modern Slavery is a misnomer; while there is nothing modern about slavery, to date, it still grabs global attention on the call for a coordinated international response.9 Despite being a universally accepted notion, a definition remains elusive.10 This lack of consensus on what constitutes modern slavery has, in turn, impeded the ability to determine the problem accurately. 6

Id. Luciana Console [3]. 8 International Labour Organization [4]. 9 Caballero-Anthony [5]. 10 Kraler and Reichel [6]. 7

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The League of the Nations tried its hands at defining slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”, only to be criticised for neglecting the many forms of slavery which did not include an element of ownership. Thus, the applicability of this definition in the modern slavery context is limited. Additionally, Article 2 (1) of the ILO Forced Labour Convention, forced labour, as a form of slavery, was “all work or service which is exacted from any person under the threat of any penalty and for which the said person has not offered himself voluntarily”.11 Yet again, critics were quick to condemn that the definition was self-limiting and insufficient.12 Interestingly, since 1815, more than 300 international slavery treaties have been signed, but without any common consensus on the definition achieved. Thus, the development of a functional definition for modern slavery has been fundamentally frustrated due to various factors, including the diversity of its manifestations. Modern slavery, therefore, has more commonly been categorised into a series of distinct expressions without a concrete definition. This categorisation has served as a pseudodefinition, including serfdom, forced labour, debt bondage, sexual servitude and human trafficking. This chapter concerns the modern slavery aspect of children trafficked and enslaved to serve in the cocoa plantation and the intricate web of chocolate manufacturers’ supply chains.

4 Consumption and Consumerism Chocolate as a commodity is a favourite amongst people from all walks of life; it is imminent that the discussion in this Chapter starts by highlighting the significant consumption and consumerism that fuels this industry. The Global Chocolate Confectionery Market pegged the industry’s value at USD89.2 billion in 2021 with a forecasted compound annual growth rate of 3.1% to represent USD91.1 and 106.34 billion in 2022 and 2027, respectively (See Fig. 3). Further, the world’s average chocolate consumption is estimated at 0.9 kg per capita per year and is significantly higher in European countries.13 The chocolate confectionary market worldwide in 2021 generated a revenue of approximately 0.98 trillion US dollars. This growth is predicted to reach the value of 1.12 trillion dollars in 2027.14 These staggering numbers undoubtedly speak volumes about the importance of this industry to its manufacturers.

11

International Labour Organization [7]. Weissbrodt and Dottridge [8]. 13 Groothuis and de Koning [9]. 14 Size of the chocolate confectionery market worldwide from 2016 to 2026, Statista, https:// www.statista.com/forecasts/983554/global-chocolate-confectionery-market-size (last visited Aug. 16, 2022). 12

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Fig. 3 Global chocolate confectionery market15

Such exponential revenue growth fuels the producers to embark on mass production to fulfil the demand, which triggers the need for an increased cocoa supply. Hence, a general assumption is that the producers may not concern themselves with how the supplies were obtained so long the supply is received. The researchers acknowledge that such assumptions are unfair without being backed by any legitimate data about the role played by these producers in eradicating such heinous practices from their cocoa suppliers. A quick search to obtain data on the involvement of chocolate producers in activism to eliminate child labour in cocoa farms did not result in a significant finding. The limited narrative that the researchers found concerning chocolate producers’ commitment to change the situation in cocoa farms surfaced in 2021. Particularly on promoting effective learning and early childhood development, aiming to provide quality education whilst changing the parent’s mindset by 2030. One measure worth further investigating is by Olam Cocoa Pte Ltd., one of the world’s leading cocoa suppliers that have introduced a digital monitoring system known as Child Labour monitoring and remediation system (CLMRS) in Cameroon to ensure that a child completes their education throughout the supply chain. However, this may not address the issue of how they are treated on those farms. On the contrary, there is evidence to suggest the lack of vigilance on the part of these producers, as seen in Olam’s prosecution by the Brazilian prosecutors in 2021 for engaging in child and slave labour practices in their supply chain, which Olam made a statement claiming that it could not trace its supplies contradicting previous public statements, suggesting that exploitation may be going unchecked.16 15

Research and Markets, Global Chocolate Confectionery Market (Apr., 2022), https://www.res earchandmarkets.com/reports/5582406/global-chocolate-confectionery-market-analysis. 16 Teixeira [10].

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In 2022, Cadbury faced similar allegations of child labour on cocoa farms within its supply chain.17 Consumerism activism has been seen to deliver astounding results, as in coffee production, which resulted in various certification schemes promoting informed consumerism.18 Such certifications are beginning to creep into cocoa production. A study by Luckstead et al. [12] on the willingness of consumers to pay more for chocolate produced with the more stringent standard was not encouraging. Still, consumers were willing to pay to eliminate hazardous forms of child labour without lowering the child’s welfare.19 Accordingly, the researchers were confident that policymakers could use this information to carve legislations that may curtail severe forms of abuse. Active consumerism may induce the chocolate industry to make serious in-roads in attempting to clean its supply chains.

5 The Role of the Chocolate Confectioners The chocolate companies have a significant stake in the cocoa industry. Thus, they would be expected to know the horrors that young children go through to get the primary ingredient of chocolate, i.e., ‘cocoa’ into the system. Have these chocolate companies done enough to fight this issue, or have they mainly remained idle? The most eminent attempt to tackle child labour issues in agriculture was the voluntary industry agreement—the Harkin-Engel Protocol (‘Protocol’) passed by the US Congress in 2001.20 The Protocol itself was a sector-wide voluntary, nonbinding mechanism which encouraged chocolate producers to develop standards which discouraged the worst forms of child labour.21 The Protocol focused on Ghana and Cote d’Ivoire, which supplied almost half of the globe’s cocoa supply. According to Luckstead et al. [14] post, the Protocol, when a study was conducted on the state of affairs in those two countries, returned a finding that the number of children aged 5–17 working in deplorable conditions grew by 24%, 21% and 18% respectively for the periods of 2008/09 and 2013/14 in Cote d’Ivoire. Though so in Ghana, a declining pattern, albeit marginal, was witnessed.22 These figures are suggestive that not much has been achieved since the Protocol’s release. This finding confirms that chocolate producers lack the commitment to eradicate child labour from cocoa farms. Other attempts at curtailing these formidable practices were seen in the United Nations (UN) Guiding Principles on Business and Human Rights and the UN’s Protect, Respect and Remedy Framework. Again, these guiding principles and framework are non-binding prescriptions of the UN which may be undertaken as deemed 17

Ungoed-Thomas [11]. Luckstead et al. [12]. 19 Id. 20 Bertrand and de Buhr [13]. 21 Id. 22 Luckstead et al. [14]. 18

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appropriate. At this stage, no laws or treaties require a State to regulate extraterritorial activities. Most of these multinational organisations though domiciled in one State, tend to have operations extraterritorial, particularly in countries lacking human rights protection.23 However, the UN Guiding Principles germinated the German Initiative on Sustainable Cocoa (GISCO), a joint initiative of the German Government under the auspices of the German Ministry for Economic Cooperation and Development and the German Ministry of Food and Agriculture. It joined forces with the German sweets and confectionary industry, the German retail grocery trade, and civil society to improve cocoa farmers’ livelihood and initiate certification according to sustainability standards. This organisation, formed in 2014, liaises with cocoa-producing governments to battle the issues of slavery and other human rights violations.24 GISCO has as its central goal—eliminating child labour. The members of GISCO have agreed that by the end of 2025, those households reached by the projects/ programmes of GISCO will be covered by a strategy or system for the prevention, surveillance, monitoring and elimination of the worst forms of child labour, a hundred per cent.25 Besides the GISCO initiative, none could be found to have taken the UN Guiding Principles and Framework seriously on board. In the next section, an overview of the cocoa industry in Ghana and Brazil will be undertaken to determine how children are used in cocoa production. The aim is to highlight the similarities and disparities between the approaches taken by governments in these two countries and the success and failures in curtailing forced child labour in this industry.

5.1 Brazil Cocoa and Child Labour History Now, the chapter considers the cocoa industry’s development and child labour to provide context for the next part of this chapter. Cocoa production started in the 16th Century in Brazil when the Jesuits exported wild cocoa found in the Amazons.26 These were medium-scale productions, and the crop was mainly cultivated in Bahia, a place situated in the northeastern part of the country. The importance of this crop grew with time. In 1890, the average annual exports were 2900 tons,27 and in 2020,

23

UN Human Rights Office of the High Commissioner, Guiding Principles on Business and Human Rights (2011), https://www.ohchr.org/sites/default/files/documents/publicati ons/guidingprinciplesbusinesshr_en.pdf. 24 German Initiative on Sustainable Cocoa, About Us, https://www.kakaoforum.de/en/about-us/ger man-initiative-on-sustainable-cocoa (last visited Aug. 19, 2022). 25 German Initiative on Sustainable Cocoa, Child labour in the cocoa sector in West Afrika: Background and Solutions (Apr., 2022), https://www.kakaoforum.de/fil eadmin/Redaktion/Downloads/Oeffentliche_Downloads/Infomaterial/Kinderarbeitspapier_Kaka oforum_EN.pdf. 26 Leiter and Harding [15]. 27 Id. at 3.

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Brazil produced 663 tons, with an estimated export value of USD2.74 million,28 signifying the economic importance of this crop cultivation for the country. This chapter will not examine the intricacies of the plantings and their contributions toward environmentally unsustainable conduct. Suffice it to state that there were equally suspect practices like clearing forests and unsustainable planting practices.29 Currently, the conditions of Para and Bahia are the leading producers of cocoa, accounting for the entire Brazilian production.30 Both the identified states in Brazil have high illiteracy rates and social vulnerability. The majority of the population in these states is under the Bolsa Familia Program (BFP). The BFP is a government programme introduced in 2003 where cash transfers are made to low-income families who otherwise suffer from extreme poverty.31 These demographics are a recipe for exploitation, particularly child labour. Additionally, children who complete education between the age of 15–17 is only 37.57%.32 The presence of child and slave labour in the Brazilian cocoa industry was not prevalently reported as there were fewer studies on it until the Ministry of Labour operations were conducted in recent times.33 The COVID-19 pandemic has seen an increase in child labour numbers, according to the Special Secretariat for Social Security and Labour report in June 2020.34

5.2 Ghana Cocoa and Child Labour History From the seventeenth century onwards, the Dutch started colonising many parts of Africa, including the Ivory Coast, Ghana, South Africa, Angola, Namibia and Senegal. Historically there are reports that the Dutch cultivated cocoa as far back as 1815.35 However, the focused cultivation of Cocoa began in Ghana in 1879 with the advent of Tetteh Quarshie, a native of Accra who returned to his farms in Eastern Ghana with cocoa beans in his pocket. Thus began the cultivation of this crop, making Ghana the leading producer of cocoa in the world in the nineteenth century contributing to nearly 30–40% of the total world output. It was in 1930 that the Ghanian government took control of the cocoa industry, monopolising the production 28

Tridge, Cocoa Bean, https://www.tridge.com/intelligences/cocoa-bean/BR/export (last visited Jul. 22, 2022). 29 Id. at 3. 30 Picolotto et al. [16]. 31 Center for Public Impact, Bosla Famalia in Brazil (Sept. 2, 2019), https://www.centreforpublic impact.org/case-study/bolsa-familia-in-brazil. 32 Id. 33 Id. 34 Bureau of International Labor Affairs, Child Labor and Forced Labor Reports (2020), https:// www.dol.gov/agencies/ilab/resources/reports/child-labor/brazil. 35 Cocoa Production in Ghana (1879 – 1976). file:///C:/Users/jaston/Downloads/ COCOAPRODUCTIONINGHANA.pdf. (last visited Jul. 22, 2022).

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and sale of cocoa in Ghana. In 1947 the then government established the Ghana Cocoa Board, the principal governing body responsible for developing this industry. Ghana, the colony of the Gold Coast, got independence in 1957, and the newly elected Numkruh government took control of the industry. Since then, the crop has contributed to the country’s foreign exchange and GDP growth. This development, in turn, fuelled the need to increase the supply of cocoa for exports to the world. This golden crop of West Africa has phenomenally affected Ghanaians’ socio-cultural, religious and political life. The prominence of the crop and its role in the lives of the Asante people of modern-day Ghana can be gleaned from the lyrics of the highlife song of the 1950s: If you want to send your children to school, it is cocoa; If you want to build your house, it is cocoa; if you want to marry, it is cocoa; if you want to buy cloth, it is cocoa; if you want to buy a lorry, it is cocoa, Whatever you want to do in this world, It is with cocoa money that you do it.36

As alluded to by the song’s lyrics, cocoa became the vein of society and was associated with wealth and social well-being. Naturally, it does not come as a surprise when each household is keen to get their children as farm hands the minute they are capable of handling labour. Child labour in Ghana has gained international attention since 2000, following media releases highlighting the deplorable states.37 Accordingly, one in three children aged five to fourteen actively contributed to the Ghanaian economy. This condition is prevalent due to the widespread poverty, relegating education to the priority list for these households. Evidently, in both the narratives of Brazil and Ghana on child labour, the common underlying factor that seems to be coming to the fore is poverty. The conditions of poverty are opening to the migration of children into the workforce to these plantations and being subjected to abuse consequentially.

6 International Conventions on Child Labour The use of child labour has always been a paramount concern for international communities. Children are a vulnerable group of people who need to be protected. In line to protect children from least developed nations from being exploited, many international conventions were signed by States, and among the significant ones that will be discussed in this Chapter will be the two prominent International Labour Organisation (ILO) Conventions, i.e. No 138 on Minimum Age and No 182 on the Worst Forms of Child Labour and the United Nations (UN) Convention against Transnational Organized Crime, 2000. The ILO Convention No. 138 on minimum age (C138) aimed at abolishing child labour in that children were prohibited from work hazardous to their health, safety 36 37

Id. Luckstead et al. [13].

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or morals and one that would interfere with their mandatory early education. C138 prescribed that member states set a minimum age for entry into work and implement national policies to eradicate child labour.38 This convention was adopted in 1973 and specified 15 as the minimum age for entry into employment. The requirement correlated with the age of mandatory education, which equipped a child for the workplace. Whereas, for hazardous work, the minimum age was set at 18, given the risks involved. Ghana ratified this convention on 6 June 2011 and stipulated 15 as the minimum age, and Brazil ratified it on 28 June 2001 and stipulated 16 as the minimum age.39 Article 3 of No 182 on the Worst Forms of Child Labour Convention defines the worst forms of child labour as “(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour (emphasis intended), including forced or compulsory recruitment of children for use in armed conflict;(b) the use, procuring or offering of a child for prostitution, for the production of pornography or pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children (emphasis intended)”.40 What will amount to work stipulated under Art 3(d) was left at the discretion of the member states. In determining the ambit of the work under this Article, States were expected to consult with relevant authorities and consider international standards—Art 4(1). Yet again, this convention was ratified by Brazil on 2 Feb 2000 and Ghana on 13 Jun 2000.41 The UN Convention against Transnational Organized Crime, 2000, supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, came into force on 29 September 2003 with 147 signatories and was ratified by Brazil on 29 Jan 2004 and Ghana though not an initial signatory ratified it on 21 August 2012.42 The Convention was a leap forward to combat transnational organised crime, making an evil presence in supply chains given its lucrative returns. It aimed at prosecuting these offenders and creating a collaborative system with the member states in providing conducive rules for extradition, 38

International Labour Organization, ILO Convention No. 138 At a Glance (2018), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---ipec/documents/public ation/wcms_ipec_pub_30215.pdf. 39 International Labour Organization, Ratifications of C138 - Minimum Age Convention, 1973 (No. 138) (June 10, 1976), https://www.ilo.org/dyn/normlex/en/f?p=NOR MLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312283. 40 International Labour Organization, C182 - Worst Forms of Child Labour Convention, 1999 (No. 182) (Nov. 19, 2000), https://www.ilo.org/dyn/normlex/en/f?p=NOR MLEXPUB:12100:0::NO::P12100_ILO_CODE:C182. 41 Id. 42 U.N. Convention on Transnational Organized Crime, U.N. Doc. A/55/383 (Sept. 29, 2003), https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12& chapter=18&clang=_en.

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legal assistance and enforcement.43 The supplementary protocol was focused on eliminating the trafficking of persons, particularly women and children. Further, Article 32(1) of the Convention on the Rights of the Child, 1989, requires every State to recognise the right of every child to be protected from economic exploitation and from performing any work that may be hazardous or interfere with the education of the child or be harmful to the child’s health or physical, mental, moral or social development. Further, Article 36 of the said convention requires state parties to protect the child from all other forms of exploitation that are prejudicial to any aspects of the child’s welfare.44 While Brazil and Ghana signed and ratified the Convention on the Rights of the Child in 1990, children continue to be exploited in the cocoa industry. This Chapter will focus on children and how the cocoa industry may have flaunted these conventions in both countries. It will also discuss the domestic measures and policies implemented to curtail the influx of child labour in their respective jurisdictions and whether these measures assisted in curtailing the disturbing trend within the industry.

7 Domestic Laws and Policies 7.1 Ghana Article 28(2) of the Ghana Constitution 1992 states, “Every Child has the right to be protected from engaging in work that constitutes a threat to his health, education or development”.45 Hence, child labour breaches a fundamental right afforded by the constitution. Further, s12 of the Children’s Act 1998 (Act 560) (CA) provides protection against exploitative labour. It states that no child shall be subjected to exploitative labour, as defined in s87. Labour would be deemed exploitative if it deprived a child of health, education or development. The CA also prescribed the minimum age for employment at fifteen years. Further, the minimum age for hazardous employment was eighteen years. Clearly, there are minimum prescriptions, but the data obtained contradict these prescriptions. If these provisions are breached, s94 (1) provides that it will be a summary conviction where the fine will not exceed more than 10 million Ghanaian cedis or imprisonment of a term not exceeding two years or both. Given the seriousness of the issue, it 43

U.N. Office on Drugs and Crime, U. N. Convention Against Transnational Organized Crime and the Protocols Thereto, (Sept. 29, 2003), https://www.unodc.org/unodc/en/organized-crime/intro/ UNTOC.html. 44 U.N. Office of the High Commissioner, Convention on the Rights of the Child (Nov. 20, 1989), https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rig hts-child. 45 Ghana’s Constitution of 1992 with Amendments through 1996, https://www.consti tuteproject.org/constitution/Ghana_1996.pdf (last visited Aug. 17, 2022).

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can be seen that the CA treats it as a summary offence. The Department of Social Welfare and Department for Children were tasked to administer this law and enforce the breach of its provisions. According to a report submitted by the Government of Ghana in response to the US Department of Labour’s Report on Child Forced Labour in Foreign Countries in May 2011, various policies and programmes have been implemented to eliminate the worst forms of child labour and forced labour.46 The European Commission report on ending child labour in July 2021 indicated that the child labour initiatives were implemented within low technical and logistical environments and not adequately integrated into its policies and programmes.47 To tackle child trafficking issues, the Ghanian government enacted the Human Trafficking Act (2005), aimed at preventing trafficking, protecting the victims and prosecuting the traffickers. Despite the policies and legislations enacted, the survey of enforcement activities on infringements of these laws of prosecutions is lacking. It was quite a glaring finding as the researchers could not locate any statistics on the number of cocoa farm operators or chocolate manufacturers that have been brought to task for the flagrant disregard of the laws in place. The only evidence of any action that could be seen was the letter before the action sent by a group of children impacted by the Olam Group’s conduct in 2022.48 The letter outlined that action would be initiated in the English courts under Ghanian laws since the English courts would be forum conveniens given that the manufacturers are all domiciled in England. In a report issued by the US Department of State in June 2018 on the trafficking in persons report (the Report), it was highlighted that Ghana did not fully meet the minimum standards for eliminating trafficking. However, it acknowledged making a significant impact. The recommendation was for the Ghana prosecutors to review human trafficking dockets, lead prosecutions of cases, and secure convictions. There was also a solid suggestion to strengthen the punishments under the Ghana AntiTrafficking Act.49

46

Ministry of Employment and Social Welfare (MESW), Government of Ghana’s response to United States Department of Labour’s Report in Child/Forced Labour in Foreign Countries (May 2011), https://www.dol.gov/sites/dolgov/files/ILAB/sub missions/20110520a.PDF. 47 International Cocoa Initiative, ICI Summary of European Commission Report “Ending Child Labour and Promoting Sustainable Cocoa Production in Côte d’Ivoire and Ghana” (July 2021), https://www.cocoainitiative.org/sites/default/files/resources/ EC-Report_2019_Summary-ICI-members_FINAL_July-2021_Public.pdf. 48 Leigh Day, Ghanaian children accuse cocoa supplier Olam of breaching child labour laws (Aug. 14, 2022). https://www.leighday.co.uk/latest-updates/news/2022-news/ghanaian-children-accusecocoa-supplier-olam-of-breaching-child-labour-laws/. 49 U.S. Dept. of State, Trafficking in Persons Report (June 2018), https://www.ispcan. org/wp-content/uploads/2019/03/Trafficking-in-Persons-Report-2018.pdf.

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7.2 Brazil The Brazilian government has introduced laws and regulations related to child labour. Though a legal framework has been established, it has gaps which do not sufficiently protect children from the worst forms of child labour, including child trafficking.50 Amongst the legislation that has been introduced are Article 403 of the Labour Code (52), which prescribes the minimum age of work to 16; Article 2 of the Hazardous Work List (53), which sets the minimum age for hazardous work to 18; and Articles 149 and 149-A of the Penal Code (54,55) which prohibits forced labour. Further, the Ministry of Economy has also published the national “Dirty List”, which provides information on employers who have been found to use slave labour, including children.51 Further, Article 149 of law 13.344 prohibited trabalho escravo, or reducing a person to a condition equivalent to slavery, defined forced labour to include “degrading work conditions and exhausting work hours, going beyond situations in which people are held in service through force, fraud, or coercion”.52 According to the Report, the Ministry of Labour’s (MTE) inspectors handled administrative cases of trabalho escravo. In contrast, cases with evidence of serious violations were referred to the labour court and public ministry for criminal prosecution. However, these inspectors could only apply for civil remedies. The MTE conducted 7,491 inspections in 2017, which was a promising effort.53

7.3 Discussion The narratives of both countries reveal some commonality, i.e., poverty being the key reason for the migration of children in the worst form of labour in the cocoa industry. However, the stark difference can be seen in the willpower of both the country to combat the issue. Whilst, there have been positive steps in implementing laws and policies in Ghana, the narrative in enforcement and prosecution is severely lacking; the data available on these factors are also scarce. On the contrary, the Brazilian counterpart has made good in-road in legislating for such conduct and in the enforcement and prosecution factors. Although there is effort, this is insufficient to combat the issue. The researchers acknowledge that there is inadequate data to draw a conclusive finding. However, it will be safe to say that effort is not lacking, but the willpower to carry through with actions is severely in need of improvement.

50

Id. at 34. Id. 52 Id. at 50. 53 Id. 51

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8 Conclusion Slavery exists in all stages of the supply chain, from picking raw materials such as cocoa, palm oil or cotton to manufacturing goods such as computers, mobile phones or shoes to further transportation and storage of these goods. The harsh reality is that behind much of the world’s chocolate is a thriving illicit industry where thousands of children from West Africa, South America and Asia are forced into child trafficking for labour. All these to quench the thirst for chocolate of the world population. There needs to be a concerted effort to battle this predicament. It will only be possible if the community, the manufacturers and everyone involved in the supply chain take a positive role in stopping child labour in the cocoa industry. The narratives are suggestive that poverty is the key to such migration, and this phenomenon needs to be tackled first at the global level to ensure that child labour issues can be prevented. Whilst legislation and policy implementation is the first step, the lack of enforcement is akin to a toothless dog.

References Tassio Koiti Igawa et al., Climate Change Could Reduce and Spatially Reconfigure Cocoa Cultivation in the Brazilian Amazon by 2050, 17 PLoS ONE, e0262729 (2022), https://doi.org/10. 1371/journal.pone.0262729. M. Sertich & M. Heemskerk, Ghana’s Human Trafficking Act: Successes and Shortcomings in Six Years of Implementation, 19 Human Rights Brief 1 (2011). Luciana Console, All the Chocolate Sold in Brazil Today is Tainted by Child Labor, Brasil de Fato (Dec. 5, 2018, 5:23 PM), https://www.brasildefato.com.br/2018/12/05/all-the-chocolatesold-today-in-brazil-is-tainted-by-child-labor. International Labour Organization, What is Child Labour (n.d.), https://www.ilo.org/ipec/facts/ lang--en/index.htm. M. Caballero-Anthony, A Hidden Scourge. Finance and Development, 18 (2018). A. Kraler & D. Reichel, Measuring Irregular Migration and Population Flows – What Available Data Can Tell. 49 International Migration, 97 (2011). International Labour Organization, What is Forced Labour, Modern Slavery and Human Trafficking (n.d.), https://www.ilo.org/global/topics/forced-labour/definition/lang--en/index. htm (last visited Aug. 20, 2022). D. Weissbrodt & M. Dottridge, Abolishing Slavery and its Contemporary Forms (UN High Commissioner for Human Rights 2002). Lisanne Groothuis & Maurits de Koning, What is the Demand for Cocoa on the European Market? CBL Ministry of Foreign Affairs (Nov. 25, 2021), https://www.cbi.eu/market-inform ation/cocoa/trade-statistics. Fabio Teixeira, EXCLUSIVE: Cocoa Giant in Brazil Slave Labour Probe Says It Can’t Trace Supplies, Thomson Reuters Foundation News (Aug. 12, 2021), https://news.trust.org/ item/20210812130016-jf5im. Jon Ungoed-Thomas, Cadbury Faces Fresh Accusations of Child Labour on Cocoa Farms in Ghana. The Guardian (Apr. 3, 2022), https://www.theguardian.com/law/2022/apr/03/cadbury-facesfresh-accusations-of-child-labour-on-cocoa-farms-in-ghana.

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Jeff Luckstead et al, A Multi-Country Study on Consumers’ Valuation for Child-Labor-Free Chocolate: Implications for Child Labor in Cocoa Production, 44 Applied Economic Perspectives and Policy 1021 (2022). William Bertrand & Elke de Buhr, Trade, Development and Child Labor: Regulation and Law in the Case of Child Labor in the Cocoa Industry, 8 Law & Development Rev. 503 (2015). Jeff Luckstead et al., Estimating the Economic Incentives Necessary for Eliminating Child Labor in Ghanaian Cocoa Production, 14 PLoS ONE, e0217230 (2019), https://doi.org/10.1371/jou rnal.pone.0217230. J. Leiter & S. Harding, Trinidad, Brazil, and Ghana: Three Melting Moments in the History of Cocoa. 20 Journal of Rural Studies, 113 (2004). André Picolotto et al., Supply Chain: Advances and Challenges Towards the Promotion of Decent Work: A Situational Analysis (International Labour Organization 2018), https://www.cocoainitiative.org/sites/default/files/resources/Cocoa_EN.pdf.

Metaverse and Non-fungible Tokens—A Comparative Study Vikrant Rana

1 Metaverse and NFT’s—A Conceptual Introduction The term Metaverse refers to a unified network of virtual worlds enabling multiple users to connect, interact, play games and buy stuffs. In general, the Metaverse is an extensive concept wherein Non-Fungible Tokens may serve an essential concept in the broad ecosystem of Metaverse. In order to comprehensively understand the concepts of Metaverse and NFT’s, it is important to be versed with a few other concepts as well. Before proceeding further with the chapter, few conceptual and contextual introductions are provided below for better understanding of the Metaverse ecosystem.

1.1 Web 3.0 Web 3.0, simply put, is the third iteration of the World Wide Web. It may be considered as an architecture where data will be fundamentally decentralized and machines will be able to directly interact with data. It is intended to be decentralized, egalitarian, transparent and much more secure than the current version of the Web. It is also intended to be a more immersive presence in our lives, utilizing blockchain technology, virtual reality, artificial intelligence and machine learning to create a more secure, private yet interactive user experience. It is pertinent to note that the Metaverse may be integrated within Web 3.0, which is the larger foundational structure. Both the technologies, the metaverse and the Web 3.0, complement each other and cannot be used interchangeably.

V. Rana (B) S. S. Rana & Co., New Delhi, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_15

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1.2 Blockchain Blockchain is a digitally distributed, shared, immutable ledger that records transactions of tangible as well as intangible assets. Any asset can be tracked and/or traded on a blockchain network. The blockchain runs on distributed ledger technology, where all participants have transparent access to the distributed ledger. Each record on the blockchain is immutable and can only be rectified by a further transactional record, and thus ensures accountability and traceability. Blockchains incorporate smart contracts, which are automatic decision-making protocols and can effectively streamline transactions, however big or small, thereby eliminating failures on either side.

1.3 Decentralization Decentralization shift refers to shift of ownership of the web space from corporations into the control of end users. Rather than internet usage be modulated and accessed through corporate gateways, as currently provided by large monopolistic entities like Google, Meta, Apple, etc., the people (end users) themselves own, control and govern fragments of the overall Web. Decentralization has certain advantages and disadvantages. While it is a more democratic structure, giving control of content, space and privacy to the users themselves, which is also expected to make the internet more secure, such that the targeted attacks may not be able to corrupt distributed peerto-peer nodes. While there might be some of the disadvantages of the decentralization that may make co-ordination across various nodal points difficult, thus resulting in making it more expensive in the long run.

1.4 Cryptocurrency Cryptocurrency is decentralized digital currency, which does not depend on centralized authorities (such as banks or governments) to verify transactions or uphold its value. As opposed to physical cash currency, the cryptocurrency transactions are recorded over peer-to-peer networks and exist solely as a recorded entry on an online database. It is encrypted currency, cryptographically generated (or “mined”), and not issued by any government or central authority, which means that anyone can mine and acquire cryptocurrency and the process can remain entirely anonymous. The tenet of having a currency beyond governmental control is one which appeals to the masses. Anyone, anywhere can transact using cryptocurrency in purely digital form and such transactions are recorded in immutable public ledgers, thereby guaranteeing transparency. Cryptocurrency does not exist as tangible units anywhere, but the holder

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merely has a key enabling cryptographically secured transactions from one entity to another, without the mediation of an intervening controlling party. Some of the most popular cryptocurrencies are BitCoin, Ethereum, DogeCoin, Shiba Inu and Stablecoin. Even though cryptocurrency has been rising in popularity over the last 5 years or so, it has still not attained the ubiquity of physical fiat currency. However, it will be pertinent to keep in mind that transactions over Web 3.0 (including Metaverse) is likely to be conducted entirely using cryptocurrency. Although, significant doubts and concerns remain about such Cryptocurrency, and the same is beset with rather large issues such as that of the existence of “Whales” (wherein the term denotes persons or entities who control or own huge amount of certain crypto assets, and thus are in a position to influence the value thereof, and supply and demand).

1.5 Metaverse and NFT’s—What Do They Mean? The term “Metaverse” is used to describe a combination of virtual reality or augmented reality spaces that needs to be accessed using specialised hardware such as AR/VR headsets, Google Glasses, etc. Metaverse allow users to interact in real time irrespective of actual physical distance. It is a 3D and immersive technology, created to be based on the foundation of Web 3.0. Within the Metaverse, a user creates a persona (or avatar) which then becomes their digital identity through which they can interact and even transact with the surrounding virtual world. Non-Fungible Tokens, or NFT’s, are unique digital items that cannot be interchanged. They are “tokens”, essentially representing the factum of ownership of a digital product. It is very important to keep in mind that they represent the factum of ownership only, and not the actual digital product themselves. NFT’s tokenise things like art, collectibles, even real estate. They can only have one official owner at a time and they are secured by the blockchain (typically Ethereum)—no one can modify the record of ownership or copy/paste a new NFT into existence. Some examples of NFT’s are: a unique digital artwork, a digital collectible item, a domain name, an in-game collectible, a ticket to a digital event, a unique apparel or accessory in a limited edition run (ex. a pair of sneakers, or a bag).

2 The Metaversal Marketplace—Impact of the Metaverse on Business While the Metaverse is still in its foundational stages, its prospective impact on business is already being felt. One striking example of this, which made the world sit up and take notice, was when Facebook, Inc. changed its identity to Meta, in 2021.

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Mark Zuckerberg, founder of Facebook, stated, in an open letter explaining their transition1 : The metaverse will not be created by one company. It will be built by creators and developers making new experiences and digital items that are interoperable and unlock a massively larger creative economy than the one constrained by today’s platforms and their policies… Privacy and safety need to be built into the metaverse from day one. So do open standards and interoperability. This will require not just novel technical work — like supporting crypto and NFT projects in the community — but also new forms of governance. Most of all, we need to help build ecosystems so that more people have a stake in the future and can benefit not just as consumers but as creators.

Web 3.0 is being created to be a fundamentally democratic space, as it is more apparent than ever before that State-actors and large corporations exert undue and inequitable influence in censoring content on the internet, or taking real world action against activity taking place on the internet. While there is of course concerns of cybercrime, counterfeiting, misinformation, etc., Web 3.0, upon which the Metaverse will be based, is looking to build security against these threats into its fundamental architecture so that users can be free to express themselves and interact without fear. With the online space having redefined how businesses interact with their consumers and even function, and a multitude of internet-only businesses having grown in the past couple of decades, it is inevitable that the introduction of a new variant of the World Wide Web is going to lead to yet another upheaval of business structures. Our hope is that within the next decade, the metaverse will reach a billion people, host hundreds of billions of dollars of digital commerce, and support jobs for millions of creators and developers.2

The commercial potential of the Metaverse has already started being exploited, with multiple brands and platforms jumping on the bandwagon and creating products, merchandise, collectibles, holding events, and even acquiring virtual real estate in the Metaverse. Apparel brands like Nike, Gucci, Adidas, Balenciaga, Vans, Louis Vuitton, etc.; automobile brands like Hyundai and Ferrari; consumer brands like Coca-Cola, and even fast food chains like Wendy’s have already infiltrated the Metaverse to call dibs on and make their brand presence felt in the future of the internet. NIKELAND, an interactive gaming environment cum store, created by Nike on the Roblox platform; Wendy’s character on Fortnite; The Coca Cola Friendship Loot Box; Singapore’s Sentosa resort’s virtual island for tourists; The Walking Dead game; Gucci’s Superplastic NFT collaboration or The Vault; Atari planning to host a cryptocurrency virtual casino, are only some of the concepts already launched in the Metaverse. In August 2021, global popstar, Ariana Grande, performed a concert for millions of fans in the Fortnite gameworld. In March 2022, the Metaverse Fashion Week was 1

Meta, Founder’s Letter, available at https://about.fb.com/news/2021/10/founders-letter/ accessed on 22nd December 2022. 2 Ibid.

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hosted on the platform Decentraland, inviting participation from top couture brands such as Burberry, Tommy Hilfiger, Dolce and Gabbana, Forever 21, and many more. Social media revolutionized the world and human interactions on Web 2.0 (the current iteration of the Web that we know and see today). With the introduction of the Metaverse, social media is going to become even more immersive and interactive, thereby opening various new opportunities for content creators and consumers alike. It is in the best interest of brands to explore this newly emerging marketplace early, to get a feel of how to maximize their visibility and impact within it. They will need to develop a feel for no longer marketing to the consumer, but rather marketing with the consumer. The Metaverse is experiential, therefore brands will need to engage in a much more hands-on fashion with their customers and generate revenue through mixed streams derived through hybrid exchanges of experience in a social destination demonstrating inherent network-building effects, and in-world creations of virtual goods, perhaps leading onto real world commerce. The Metaverse will have multi-faceted impacts: • Customer-facing: In a 3D, immersive, interactive, yet virtual environment, brands will have to rethink marketing and customer engagement and provide tools and opportunities for customers to get creative and use the brand how they may choose to. Naturally, this level of flexibility will entail a re-design of the framework of intellectual property rights applicable in such open-concept, collaborative situations. • Employee-facing: The workplace is likely to be principally affected with the introduction of the Metaverse, as remote working will have added impetus with augmented interactions in virtual settings. Everyone, be they employees, managers or clients, will be able to come together, or irrespective of physical location, for meetings, conferences, events taking place in hybrid or even entirely virtual spaces. • Simulations: Workshops and laboratories can be brought entirely online, into a virtual setting, where hazardous experiments and trials can be simulated without physically affecting anyone. Simulations that may be too expensive to carry out in reality may also be simulated, thereby expanding the horizons of research and innovation, and saving resources and costs. As such, businesses are scrambling to put their proverbial foot on the Metaverse Pie. In fact, companies are looking to hire CMOs, or Chief Metaverse Officers!

3 Consumers Behaviour in the Metaverse While a significant apprehension regarding the onset of the Metaverse is assessed, it is intended to have a completely intuitive interface right from its inception. It is important to keep in mind that the concept of the Metaverse is not new as such, especially amongst those who are accustomed to social interactions in a gaming environment. Established players of MMORPGs (Massively Multiplayer Online Role

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Playing Games), such as Fortnite, Worlds of Warcraft, PUBG, Skyrim, etc., will be our guides in an immersive and interactive 3D social space, which is expected to “gamify” our entire internet experience. However, unlike a video game, the experience does not pause or end with the course of play of a game. The Metaverse will encourage exploration of a new kind of space, and reward those who are able to find innovative uses of their interactions. Similar to every previous incarnation of the internet, it will be exciting to see what new innovations come out from what will initially be a playground for content creators, sellers and consumers, as their relationships with each other get thoroughly revamped. Consumer behaviour is expected to undergo a complete overhaul with the impact of the Metaverse. While its exact nature is not yet predictable, behavioural economics and studying the impact of recent technological advancements can help us reach a preliminary understanding. The design of any human-facing technology can profoundly shape human behaviour. Case in point, the design of social networks and smartphones that have made them incredibly addictive in modern times. Therefore, much will depend on the choices made by executives, engineers and designers. It will be important to learn from the lessons of previous experiences with the internet in order to anticipate behavioural trends, and also problems that may arise therefrom. We have seen tech addictions develop and rise, especially amongst young people, introduced to addictive new technologies. While the Metaverse is geared to promote social engagement, it will only be in the virtual space and under constructed personas and identities. This is feared to lead to disaffection and disconnectedness, possibly leading to depression and anxiety, with respect to the actual physical world in which we shall continue to have to live and navigate no matter the impact of the Metaverse. Leading from this, interacting increasingly in the simulated environment of the Metaverse can also lead to increasing polarization, both political and social, and may drastically diminish social trust and may also inhibit the ability to trust and interact with other people. Building a bubble and escaping into it from time to time might be a relief, until it becomes a dependence or crutch, to retract from uncomfortable or unpleasant truths. This will devastatingly hamper tolerance, open-mindedness and empathy among social groups, if we confine ourselves only to our own aligned worldviews and are able to block out all opposing voices. Such filtered existence may become a breeding ground for dissemination of propaganda, misinformation and fake news. Vested interest groups may take advantage of the situation to sow seeds of discontent and intolerance. If we thought social media generated an overwhelming amount of information, the Metaverse is likely to magnify the problem with its immersive qualities. Content moderation on a decentralized blockchain based network will be challenging and difficult to track. Thus, it is crucial to keep channels of dissent and critical thinking mandatorily open and available, right from the very outset. Proponents of the Metaverse argue, however, that interacting with self-constructed avatars, which can easily disguise identifying characteristics of the actual user (such as race, gender, sexual orientation, cultural affiliations) may help to reduce unconscious biases that are based on these criteria. Similarly, controversial public opinion

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can be affected, resulting in long term behavioural changes, on topics such as climate change, benefits of vaccination, and even socio-political issues (such as education of the girl child), if their long lasting actual impact can be exhibited in a simulated environment. One of the main line of arguments against tech such as NFTs, Cryptos and Metaverse, is the huge amount of computing power required to power the same. Lastly, online addictions have had its impact on physical and mental health, with an increasing lack of physical activity resulting from additional time spent on screens. Mimicking real life activity in the Metaverse hasn’t yet been developed, and virtual activity will not be productive to physical health, rather the contrary. One may imagine a dystopic scenario as depicted in the famous Matrix movies where physical bodies were left suspended in sustaining fluids while only the mind was allowed to be active in a virtual reality. Cracking the problem of how to make users break away from the illusion of physical activity to actually engage in the same for the sake of their health poses a very legitimate concern at this time. Having said that, the Metaverse is also expected to be helpful in treating and alleviating the symptoms of mental health patients and recovering addicts, owing to its ability to simulate immersive yet peaceful, stress-free environments which can ease a patient back into the real world from traumatic experiences, anxiety or phobias. The onset of the Metaverse (as has been briefly mentioned above) will be transformative for consumer behaviour and marketing. Already, targeted advertising online subconsciously influences consumer behaviour, be it for shopping, investments, or even political opinion. In the Metaverse, bombarded from 360° with content and information, it will become even easier to overwhelm and sway ordinary users to follow trends determined by corporations or vested interest groups as opposed to by the individual’s own choices. As commented by a prominent marketing research executive, “Consumers increasingly expect experiences that are frictionless, anticipatory and relevant. This will be even truer in the metaverse, which is all about the experience.3 ” Most advertising today, even on physical products, involve some sort of online engagement-whether it involves scanning a QR code for benefits, or taking an online survey, or even submitting online feedback using a social media hashtag for traction. Brands and sellers have accepted that solely physical marketing does not really work anymore and have adopted hybrid marketing practices. A fundamental change, which is present to some degree in today’s physical world, but which is going to impact all marketing in the Metaverse, is what is commonly known as the “IKEA Effect”. This effect leads individuals to disproportionately value objects they make or assemble themselves, i.e. to say, consumers value goods in which they have been allowed to participate in the production process, or collaborate upon. Having vested any amount of time and/or effort into the creation of a product, a consumer is more likely to be vested in it and take pride in ownership of it, thereby automatically propagating its virtues, at no (additional) cost to the company. For example, Nike allowed its consumers to design and fashion their own sneakers

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Bianzino [1].

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under the campaign #NikeByYou.4 Starbucks, inspired by noticing their customers doodling on white paper coffee cups (before throwing them away), introduced a re-usable plastic cup (at only a dollar extra) and launched a campaign: Starbucks #WhiteCupContest5 to reward customers exhibiting the most creative doodle art around the iconic Starbucks Siren logo. The Metaverse will be built on collaboration and brands’ engagement with their customers not only as content consumers, but as content creators. The brands’ role will change to providing a structured platform for their customers to play around with and give them opportunities to get creative, and then step back and let the marketing happen on its own. Social media has allowed anyone to create content, become famous, and build a brand for themselves. This phenomenon is likely only to be magnified in the Metaverse. Everyone, through their digital avatars, and metaphysical interactions, will be inevitably generating content, and literally anyone can become a brand. In this scenario, long-time established brands will have to re-invent their image with the influx of a very personal conception of branding, while retaining their core identity, messaging and brand values. It promises to be an upheaval and interesting at the same time.

3.1 Metaverse and the Internet of Things The Metaverse will be heavily reliant on an established Internet of Things (IoT) infrastructure, which is already starting to be set in place. However, much remains to be done in terms of universal acceptance of “smart” devices which can be connected to form the IoT. Additionally, we are still operating on 4G internet bandwidth and connectivity which will have to be revamped (5G) in order to support an augmented reality, 3D immersive internet experience. Artificial Intelligence (AI) is already being programmed into most of our everyday appliances, from cars, to televisions, to refrigerators, to air conditioners, to lights, fans, geysers, microwaves, to home security and amenities (like laundry, cleaning and parking). In fact, we are now being exposed to advertisements for “smart living” in “smart apartments6 ” which are equipped with fully connected digital devices and appliances, allowing a resident to regulate almost every facet of living there at the touch of a button, from a smartphone app or a universal remote. AI integrated within our existing digital devices-smartphones, computers, and even cars, has evolved at a frenetic pace within a very short space of time, allowing us to contemplate automation in aspects of our lives where we may not have seen it before. Deep Machine Learning (ML) protocols embedded in devices like smartphones and digital assistants (Siri, Alexa, Google Assistant) never cease to amaze 4

Nike by You, available at https://www.nike.com/in/nike-by-you accessed on June 20, 2022. Starbucks Invites You to Decorate its Iconic White Cup, Starbucks Corporation, (June 20, 2022), https://stories.starbucks.com/stories/2014/starbucks-invites-you-to-decorate-its-iconic-white-cup/. 6 Miller [2]. 5

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at their versatility and it takes us a few moments to realize how advanced they have become in only a few short years. This is possible only when AI progresses using Machine Learning, without requiring human intervention at every step, and customizes itself with a specific user’s preferences over time. IoT Platforms can be defined as a convergence of software and hardware solutions to interconnect “things” (people, things, objects, spaces, processes, data, etc.). These platforms may act as a bridge between the real world and the virtual world, enabling various “things” to communicate and interact with each other. One of the key purposes for this data exchange within the Metaverse is to support physical-to-cyber communications and interactions between the real world and virtual worlds. Artificial Intelligence of Things (AIoT) is transformational for both technologies as AI adds value to IoT through machine learning and decision making and IoT adds value to AI through connectivity and data exchange. The AIoT market constitutes solutions, applications, and services involving AI in IoT systems and IoT support of AI solutions. The Metaverse will, however, demand a certain amount of investment of its users, in that they will need AR/VR gear to access the Metaverse; always-on, high speed internet, at preferably 5G levels of connectivity; and an environment of smart, connected devices. While parts of the Metaverse will be accessible from 2D screens (smartphones, laptops), the immersive experience will only catch on once augmented and virtual reality access becomes ubiquitous. While this is still a strident criticism of the Metaverse, we must once again keep in mind the lessons of hindsight: expansive smartphone access, or the utilization of electronic vehicles had also at one time seemed fantastical. However, mass production and making the technology affordable has now made their availability so mainstream that people can quite easily now take it for granted.

3.2 Key Statistics Regarding the Metaverse in 2022

S. Fact No. 1

Global spending on VR/AR, the Metaverse’s foundation technologies, is expected to rise from $12 billion in 2020 to $72.8 billion in 20247

2

As of mid-2021, people have already spent $200 million on Metaverse items8

3

The Metaverse may be worth $800 billion by 2024 due to a surge in interest during the pandemic. That’s up from $47 billion in 20209 (continued)

7

Kelly [3]. https://grayscale.com/wp-content/uploads/2021/11/Grayscale_Metaverse_Report_Nov2021.pdf. 9 Metaverse may be $800 billion market, next tech platform, Bloomberg Professional Services, (June 21, 2022) https://www.bloomberg.com/professional/blog/metaverse-may-be-800-billion-mar ket-next-tech-platform/. 8

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(continued) S. Fact No. 4

In October 2021, the Web 2.0 metaverse was valued at $14.8 trillion10

5

The global AR and VR market is expected to grow to $209.2 billion by 202211

6

VR adoption stats for 2022 show that 27% of VR industry experts claim that user experience (e.g. bulky hardware and technical glitches) is an obstacle to the mass adoption of VR. Reports go further to reveal that 20% cite customer and business hesitation as an obstacle to embracing VR. Also, a poor content offering by the VR industry was cited as an obstacle by 19% of respondents12

7

Roblox garnered over 10 billion hours in playing time in the first quarter of 2021. Every day, about 42 million people visit the gaming platform13

8

So far, about 10.7 million people have attended Fortnite concerts14

9

Nike has already filed four patent and trademark applications for downloadable virtual goods operational in the Metaverse15

10

Disney is developing a Metaverse theme park. In December, the company filed for a patent for a “virtual-world simulator”16

4 Non-fungible Tokens (NFTs) While with the IoT, we are describing a network of “(real world) things” combining to give us an immersive digital experience, an NFT will always remain a virtual “thing” only. Virtual goods are, however, lucrative in themselves. If people choose to spend increasing hours online, immersed in the Metaverse’s virtual reality, it stands to reason that goods having value even if only in that environment, will become increasingly coveted. Creating any copy of a virtual good is essentially costless, and the margins therefore are extraordinary. In addition, the more time and money a user invests in virtual environments, those investments become a sunk cost that leads that the user to look at maximizing its potential. In fact, NFT’s are being viewed as a scheme to drive up the value of assets that could conceivably be limitless in a digital space (e.g., digital land or digital art) by attempting to constrain their supply by generating “artificial scarcity” and tokenizing the result into a construct of digital asset ownership. Further, if users can sell their goods to other users via a marketplace, this peer-to-peer commerce can drive revenue as well. The present frenzy around 10

https://www.statista.com/statistics/1280565/global-market-cap-metaverse-facebook-gaming/. Petrov [4]. 12 https://www.statista.com/statistics/1098566/obstacles-to-mass-adoption-of-vr-technologies/. 13 Sigalos [5]. 14 Webster [6]. 15 Golden [7]. 16 Bhattacharjee [8]. 11

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NFTs, or non-fungible tokens, may be over-hyped, but even after deflating some of the hype, it is clear that we humans are willing to purchase digital goods with both real and digital money.

4.1 Mining an NFT Mining an NFT involves the following steps: • It needs to be confirmed as an asset on the blockchain. • The owner’s account balance must be updated to include that asset, making it possible for the NFT to be traded or verifiably “own” the token. • The transactions that confirm the above need to be added to a block and “immortalised” on the chain. • The block needs to be confirmed by everyone in the network as “correct”. This consensus removes the need for intermediaries because the network agrees that your NFT exists and belongs to you, and the record is available transparently on the blockchain for anyone to check. These tasks comprise the activity of “mining” (either cryptocurrency or NFTs), and it establishes as permanent record on the network, the nature, and ownership of the asset. As a result, mining needs to be made sufficiently difficult, otherwise it could open up the asset to fraudulent claims.

4.2 How Do NFT’s Work? Every individual NFT is completely unique and indivisible. So far, only the Ethereum blockchain recognizes NFTs. NFTs give the ability to assign or claim ownership of any unique piece of digital data, trackable by using Ethereum’s blockchain as a public ledger. An NFT is minted from digital objects as a representation of digital or non-digital assets, which can include: digital art, in the form of GIFs, memes, digital collectibles, audio and/or video files; real world items, such as (digitized) documents, deeds, contracts, agreements, tickets, tokenized invoices, signatures, etc. Such NFT’s may also serve the additional purpose of verifying the authenticity of a real-world entity against its digital twin. An NFT can only have one owner at a time. Ownership is managed through the unique ID and metadata that no other token can replicate. NFTs are minted through smart contracts that assign ownership and manage the transferability of the NFT’s. When someone creates or mints an NFT, they execute code stored in smart contracts that conform to different (Ethereum) standards. They live on Ethereum and can be bought and sold on any Ethereum-based NFT marketplace. As a result, it is easy to prove that you own an NFT—The token proves that your copy of the digital file is the original. Your private key is proof-of-ownership of the

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original. The content creators public key serves as a certificate of authenticity for that particular digital artefact. The creator’s public key is essentially a permanent part of the token’s history. The creator’s public key can demonstrate that the token you hold was created by a particular individual, thus contributing to its market value (as opposed to a counterfeit) and avoiding. No one can manipulate it in any way. You can sell it, and in some cases this will earn the original creator resale royalties. Or, you can hold on to it forever, with the asset secured by the Ethereum blockchain. For a creator of an NFT, it is similarly easy to prove that you are the creator. An NFT creator will get to determine its scarcity (“artificial scarcity”, as explained above). The intended scarcity of the NFT matters, and is up to the creator. A creator may intend to make each NFT completely unique to create scarcity, or have reasons to produce several thousand replicas. The information remains transparent and public. The creation may be sold on any NFT marketplace, or even directly peer-to-peer, and royalties are earned every time it is sold. There is no obligation to patronize any single particular platform, nor is there the need for any intermediary.

4.3 Using NFT’s The biggest use of NFTs today is in the digital content realm. This is primarily because artists in the real world are seeing their profits and earnings swallowed up by conglomerates and aggregator platforms. In creating and selling NFTs of their created works, they are not obligated to hand ownership of their content over to the platforms they use to publicise it. Ownership is baked into the content itself. When they sell their content, funds go directly to them. If the new owner then sells the NFT, the original creator can even automatically receive royalties. This is guaranteed every time it’s sold because the creator’s address is part of the token’s metadata—metadata which can’t be modified. Thus, the issuance of royalty is entirely automated without need for renegotiations or back and forth. Another potential of NFTs is in gaming, where they are being used to add actual value to the gaming experience. For game developers, issuing NFTs, they can automatically earn royalties upon it every time its traded, in the context of the game or without. For the player, an NFt earned within a game can even outlive the game and the value remains secure. In fact, the value in trading may even increase, should its rarity become desirable. Decentral and sells plots of virtual land as NFTs which can be leveraged (within the particular virtual world) exactly like physical plots of land in the real world. Domain names were once under-appreciated, before the value of a recognizable location on the internet was known. There was then a scramble to acquire domain names representing all notable brands, which resulted in early cybersquatters actually making money off domains they had acquired for the express purpose of resale to the brands themselves. Similarly, creating an NFT out of a specified virtual space, while the Metaverse is still in its nascent stages, may reap rich rewards later on, either in asserting rightful ownership, or reselling for profit.

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Another great example of an effective use of NFT is to use it for software licensing. According to experts, creating NFT based licenses can reduce piracy, and allows people to sell their license in an open market for even profit. This way, users can also avoid yearly subscriptions, use a software against the purchased license, and after the use, sell it to someone else. The license, in this case, acts as an asset for users. Meanwhile, software developers can also benefit as they can create smart contracts that will allow automatic royalties or profit sharing upon resale, or anything else that can also generate revenue for the original developer. NFT’s, being verifiable tokens of ownership, can serve the function of legal deeds and with valuable assets like cars and property representable thereby, they can even be used as collateral for decentralized loans. By tokenizing tangible assets, investors can have more liquidity. This is relevant in the area of decentralized finance (DeFi). There are DeFi applications that let you borrow money by using collateral. If the loan isn’t paid back, the NFT will be forfeit to the lender. On the Ethereum blockchain, such transactions can be fairly routine as both (NFT and DeFi) share the same infrastructure. NFT creators can also create “shares” for their NFT. This gives investors and fans the opportunity to own a part of an NFT without having to buy the whole thing. This adds even more opportunities for NFT minters and collectors alike, as NFT shares can be traded on decentralized exchanges (like NIFTEX and NFTX) and not confined only to NFT marketplaces. An NFT’s overall price can be defined by the price of its fractions, and it will be harder for a shareholder to be priced out of owning an NFT.

4.4 Key Statistics Regarding NFTs

S. No.

Fact

1

The first Non-Fungible Token was created by Witek Radomski, the co-founder of Enjin Coin when he wrote the code for the first coin back in June 201717

2

The most valuable NFT is worth more than $91.8 million. Pak’s “The Merge” rose to the top of the NFT ranks when it sold for more than $91.8 million in December 2021. 30,000 collectors pitched in, making “The Merge” the biggest NFT sale ever18

3

Over 50% of all NFT sales are below $20019

4

An estimated 250,000 people trade NFTs each month on OpenSea, a dedicated NFT marketplace

5

NFTs saw a $2.5 billion increase during the peak of the pandemic20 (continued)

17

https://101blockchains.com/non-fungible-tokens-nft/. https://www.linkedin.com/pulse/demystifying-nfts-non-technical-approach-uthman-kamald een-ibrahim. 19 https://fortunly.com/statistics/nft-statistics/#gref, as accessed on June 23, 2022. 20 Golomb [9]. 18

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(continued) S. No.

Fact

6

Decentraland’s property and other NFTs have generated over 75,000 sales totaling over $25 million21

7

Roblox players spent $652 million on the site’s virtual currency, Robux22

8

A digital Gucci bag was sold for more than $4100, outbidding the item’s actual price in real life23 Gucci has also opened “Vault”, a metaverse concept store selling “Supergucci” NFTs24

9

Coca-Cola recently auctioned its first NFT, a prize package on OpenSea that reaped $575,00025

10

Men are three times more likely than women to be collectors of NFTs26

5 Laws Applicable to the Metaverse and NFTs Exciting as the promises of the Metaverse might be, it nevertheless presents a conundrum for legal experts as well as governments around the world. The seamless and ubiquitous connectivity of people and things through the Metaverse, interoperability in real time, irrespective of geographical and political boundaries, and deep involvement of artificial machine intelligences has thrown fundamental legal notions such as jurisdiction, locus for regulating authorities, and accountability of legal persons into conceptual jeopardy! Doubtless, the onset of the Metaverse will entail an extreme overhaul as well as reimagining of existing legal structures dealing with regulating the online environment. It is already being classified as a “disruption” to the normal order of things. Several questions need to be addressed as the Metaverse is still in its early phase. How will governments deal with buying and selling of spaces using non-fungible tokens (NFTs) in the Metaverse? How will governments deal with intellectual property rights, taxes on transactions, misinformation, and regulatory and governance structure? How will tech companies or even governments allow the identification of avatars and how will data localisation take place? There are multiple questions that governments, leaders, and tech companies have to think about before stepping into the Metaverse. Even though many of the anticipated issues and disputes that are likely to arise with respect to the Metaverse may very well have their basis in 21

https://3commastutorials.medium.com/the-virtual-worlds-war-A-look-at-the-metaverse-eco nomy-fc071ae0668e. 22 https://www.nytimes.com/2021/07/10/style/metaverse-virtual-worlds.html. 23 https://hypebeast.com/2021/5/virtual-gucci-bag-roblox-resale. 24 Lenihan [10]. 25 https://www.coca-colacompany.com/news/coca-cola-nft-auction-fetches-more-than-575000. 26 https://www.pushground.com/blog/nft-in-affiliate-marketing.

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issues and disputes that arise commonly in the real day to day world, the unexplored and unregulated terrain of an emerging technology will nevertheless render them challenging. With the advent of as yet undetermined mishaps in the Metaverse environment (over and above those we are already familiar with, such as identity theft, online fraud, violation of user privacy, leakage of user data), it is expected that the ambit of cybercrime will also expand. The first unfortunate instance of sexual harassment in the Metaverse has already occurred on Facebook’s Horizon platform, as alleged by a woman in the UK in December 2021.27 The most hotly debated issues relating to the Metaverse will be with regard to intellectual property rights, regulation of digital currencies, liabilities of persons under their digital avatars in the Metaverse and relevant jurisdiction for prosecution. Some governments, like that of the capital of South Korea, Seoul, is wholeheartedly embracing the possibilities the Metaverse has to offer by building “Metaverse Seoul”, its digital public services platform wherein residents can easily access digital public services, meet virtual civic officials and consultants without visiting municipal office by 2023, and even access virtual public gathering spaces. Along with it, major tourist destinations will be introduced in virtual special tourist zones. This all is happening under Seoul Vision 2030 policy. Seoul introduced the platform at the New Year’s Eve celebrations in 2021, holding the Bosingak bell-ringing ceremony simultaneously in the physical and the virtual worlds. In November 2021, Barbados announced that it plans to open the world’s first metaverse embassy in Decentraland. The small island nation has been championing digital advancements, adopted a digital currency in April 2022, and has plans to expand its embassies to other virtual platforms as well. Similarly, Singapore’s famous Sentosa Island Resort has also been offering virtual tours of its island properties since the onset of the coronavirus pandemic in 2020, ensuring that tourists need not miss out on their unique experience. Cities in the US have also been experimenting with transitioning local civic and municipal responsibilities and engagements onto a virtual platform, to reduce backlog and ease access for citizens. However, the technology still being at developmental stage and Metaverse know-how not having trickled down to the most ordinary classes of citizens, state officials are struggling to justify that such a transition will generate enough return on investment and resident interest and participation compared to the government costs involved in adopting such a technology-heavy approach. In fact, before adopting the Metaverse in toto, local and State governments are experimenting with the underlying technologies: blockchain, IoT, digital twins, VR/AR immersion etc. to ease and facilitate their functioning and offer new and innovative experiences. Intellectual property rights and ownership issues is anticipated to also be hotly debated and eventually litigated with respect to the Metaverse and particularly, NFTs. Patenting of Metaverse technology may lead to unwieldy monopolies that will need to be strictly regulated to allow the technology to develop freely in larger national and international interest. Copyright laws will have to evolve frantically across the world to gear up for varying copyright and infringement claims as to software codes 27

Shen [11].

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and content hosted on the Metaverse’s platforms as there is bound to be overlap. Moreover, can you copyright virtual representations of public structures? The principle of “fair use” of copyright protected material will be up for interpretation again in terms of the collide between the real and virtual worlds. Contract law will have to take into account automated smart contracts and disputes arising therefrom when their universal applicability fails. Trademark law will have to cope with multifarious infringement claims, from physical trademarks being copied in a virtual setting to migration of trademarks between virtual platforms to licensing conflicts. Apart from these, strident criticism of the Metaverse also includes questions of identifying real people in the Metaverse, where one will have to verify users through an avatar’s voice, facial expressions, and features. Will law enforcement be able to sub-poena the real identity of a user behind the avatar, the way they are currently empowered to do so from online intermediaries, especially in the absence of mechanisms to ensure user KYC (Know Your Customers)? Scammers or bots trying to damage someone’s reputation may be able to pretend to be an avatar to accomplish the end objective. Another vital challenge is privacy concerns. The Metaverse’s dependency on VR and AR devices can leak personal data because they are equipped with camera capabilities and unique identifiers. All of these encompass questions of liability, of the user, the platform, the Metaverse in general, or all of the above, and also of jurisdiction-in a virtual landscape overriding geo-political jurisdictional boundaries, who is in charge of regulation and enforcement and where will prosecution take place?

5.1 Prospective Solutions for a Way Forward It is anticipated that the onset of Metaverse technologies will entail the tech industry facing specific regulations over and above the general rules governing them already in place. It is further anticipated that a diversification of insurance coverage will also be needed to protect individuals as well as companies from tortious or criminal liabilities for actions conducted in the Metaverse. Given the already reported instances of abuse and sexual harassment in the Metaverse, users may need to mandatorily agree to ethical conduct regulations and a reporting mechanism will need to be set in place to ensure that all users, irrespective of demographic identifiers, feel safe in the Metaverse space. As mentioned before, we need to be mindful of historic experiences, in the real world and previous iterations of the internet to draw lessons which will apply in the Metaverse, which is set to be a virtual representation of the physical world, complete with its foibles and problems. Moderation of content, not amounting to censorship will be a sensitive topic and will be difficult to implement in a blockchain environment.

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The prime objectives to keep in mind while preparing to deal with and regulate the oncoming Metaverse are: • Think expansively—It will be crucial to keep an open mind and prepare to find creative, out-of-the box solutions to problems cropping up in the Metaverse, as well as how to leverage the multitude of unique opportunities that it will have to offer; • Experimentation and Exploration—Being essentially a new and developing technology, the most crucial thing for companies and regulators to do at this time is simply to get out there, explore and create, and deal with the problems as they come. It is unexplored territory, after all, and only with exploration will we be better able to understand and eventually anticipate the potentials and the pitfalls it has to offer. Fearing problems will only hold us back and limit the scope of what promises to be a revolutionary and exciting human achievement. Design influences human reactions and behaviour, and seemingly small design decisions can have huge consequences. Applying uniform standards across hardware and software design can make entry and participation in the Metaverse a more egalitarian affair and speed up adoption of Metaverse technology. These decisions are far too crucial to be left to engineers alone and behavioural scientists need to be brought into the picture early to assess the impact that technology design can have on the human psyche. Behavioral insights will need to be used to empower, not exploit, stakeholders in the Metaverse.

5.2 Legislation Regarding the Metaverse Being a developing technology, while most developed as well as developing nations are aware of the potential impact of the Metaverse, they are still unsure of the specifics of the technology to draft relevant targeted legislation. Governments may have to consider the following actions to prepare for the disruption that the Metaverse may bring in its wake: • Strategic Futures Group—Governments may consider setting up a strategic futures group to systematically track the risks and opportunities that emerging immersive technologies represent in the near, medium, and long term. E.g. Singapore’s Center for Strategic Futures under the office of the Prime Minister; • Virtual Department of Tech Horizons—A virtual, department of technology horizons with representatives from the government, academia, and the private sector could be considered. E.g. The virtual Ministry of Possibilities established by the UAE; • National Digital Twins Strategy—A National Digital Twins Strategy that engages millions of individual content creators to map the real world would develop skills and make it easier to prepare for emerging immersive technologies;

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• Anticipatory Regulation—Given the complex regulatory issues that the Metaverse is bound to present, governments could consider establishing a crossrepresentational group to commission research on necessary regulations, and even collaborate with the private sector to explore regulatory approaches to the Metaverse. E.g. the XR Consortium. India, for example, still does not have a data protection regulation to protect right to privacy. It is though relevant to mention here that the Centre in August, 2023, has tabled the Personal Data Protection Bill of 2023 before the Parliament. While the draft Personal Data Protection Bill, 2023 would bring the Metaverse under its purview, the bill will need to analyse technical nitty-gritties and provide targeted regulation which will avoid the Metaverse falling through the cracks. While data generated in the Metaverse will necessarily correspond to a person’s digital avatar, it can come under the definition of personal data if it is traced back to the natural person. There can also be scenarios where data generated in the Metaverse is only of the avatar, unrelated to the natural person, and this may fall through a loophole, as we do not have a concrete understanding of digital-only data privacy concerns, where the demarcation between real identity and digital identity becomes blurred, unless the legislation is able to predict and provide for such a scenario. Additionally, while the Bill in its current form may recognise tangible harms of a spillover effect of the Metaverse into real life, it is crucial to recognise intangible virtual harms which might not necessarily have physical repressions and vest individuals with a set of digital rights to secure their privacy. Besides, the division of responsibilities in terms of data collection, processing and sharing within the Metaverse must also be sketched out clearly.

5.3 Legislation of NFTs Meanwhile, States across the world have been quick to act on the challenges posed by cryptocurrencies and NFTs, and there are already certain broad-based legislations at play. China began to issue its own blockchain-powered digital currency to its citizens in April 2022, while imposing an absolute ban on use or acquisition of cryptocurrency altogether. However, the “sand dollar” issued by the Bahamas Central National Bank is the world’s first official blockchain-based digital currency. Other authoritarian regimes in the Middle East, Africa and Asia, have also explicitly or implicitly banned cryptocurrency within their borders by the collective functions of their laws. On the other hand, a country like El Salvador (which does not have its own currency and trades on the US dollar) declared Bitcoin as official legal tender in September 2021, also resulting in taxation and regulation of the same. Ukraine also officially allowed cryptocurrency transactions in March 2022 to allow receipt of donations in cryptocurrencies following the Russian invasion.

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Other countries which are applying laws to regulate digital currencies—which are most typically developed countries—have been investing in projects to launch their own central bank digital currencies. This is arguably a very different approach to using the blockchain technology of existing cryptocurrencies, which are explicitly independent of any State control, but can be very volatile as a result. Among those exploring the concept are the U.S., EU, Russia and Australia. India and Thailand, both of which are also broadly regulating cryptocurrency, already have more concrete plans to issue their own digital currencies. NFTs may in the future be managed differently by EU and UK regulatory regimes. In the EU, the draft Markets in Cryptoassets Regulation (the “MiCA Proposal”), proposed in September 2020, could be construed to regulate certain NFT-related market activities. In the UK, it is likely that NFTs will fall outside the current regulatory perimeter; however, a case-by-case analysis of the manner in which an NFT is sold or marketed and how it is used as a form of value will need to be undertaken to determine whether or not it would fall in-scope. The MiCA Proposal includes regulations that would apply to NFTs in certain cases and defines for the first time in the EU a cryptoasset as a “digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology.28 ” The MiCA Proposal is intended to provide comprehensive regulation of cryptoassets not yet covered by EU financial law. Although there is no specific public timeline for its implementation, the European Commission expects the MiCA Proposal to be implemented within the next four years. As an EU Regulation, it will apply directly in all EU member states and will not require implementation in national laws. The UK Government’s approach to cryptoasset regulation has been to attempt to balance the need to foster innovation against a desire to ensure consumer protection. In order to define cryptoassets and describe how they relate to the current UK regulatory perimeter, the UK Financial Conduct Authority (FCA) published guidance in 201929 encompassing 3 categories of tokens: E-money tokens; Security tokens; and unregulated tokens (including utility tokens which include cryptocurrencies like Bitcoin and Ether). Cryptoassets categorised as either e-money tokens or security tokens already fall under the scope of the UK regulatory perimeter. Based on the current FCA guidance, it is likely that most NFTs would be classified as unregulated tokens. However, if an NFT exhibited characteristics akin to e-money or a security token, then it is possible that a specific NFT may fall within the UK’s regulatory perimeter. In order to determine the classification of a particular NFT, an analysis must be undertaken on a case-by-case basis, with reference to the structure and nature of the subject NFT. A brief tabulated comparison of NFT regulations in various jurisdictions around the world is provided below:

28

https://eur-lex.europa.eu/resource.html?uri=cellar:f69f89bb-fe54-11ea-b44f01aa75ed71a1. 0001.02/DOC_1&format=PDF. 29 https://www.fca.org.uk/publication/policy/ps19-22.pdf.

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S. Country No.

NFT regulations

1

USA

NFTs are not currently specifically regulated in the US. Thus, the legal status and regulatory classification of NFTs under US law remains unclear. However, as with other cryptoassets, the features of an NFT and how it is marketed and purchased or sold could cause an NFT to fall under existing US federal regulatory frameworks

2

EU

NFTs are not currently specifically regulated in the EU. However, the features of any proposed NFT issuance would need to be considered alongside various existing regimes. On 24 September 2020, the European commission published the Markets in Crypto-assets Regulation (MiCA), which proposes to regulate currently out-of-scope cryptoassets and their service providers under a single licensing regime. MiCA is anticipated to take effect by 2024 and will apply to any person issuing or providing cryptoasset services across all Member States, as well as any non-EU firm seeking to trade in EU Member States Further, it has recently been reported that members of the European Parliament are actively pushing for amendments to the Unions’ anti-money laundering legislations, to bring NFTs under its ambit

3

UK

NFTs are not currently specifically regulated in the UK. However, certain activities in respect of certain cryptoassets (which may include an NFT depending on its features) could fall within one or more of the existing regulatory frameworks

4

Germany

The German implementation of the 5th AML Directive (AMLD5) defined “crypto assets” as financial instruments within the meaning of the German Banking Act (KWG). As NFTs can, in principle, be used for investment purposes given their unique (valuecreating) character, there are good arguments that NFTs may qualify as crypto assets and therefore as financial instruments under the KWG

5

Italy

Under the Italian implementation of AMLD5, the definition of “virtual currency” also encompasses digital representations of value which are not used as means of exchange but are held for investment purposes, as long as they are transferred, stored and traded electronically. In principle, NFTs could fall within the scope of such definition and trigger AML obligations. Some NFTs may also qualify as investment products under the Italian Consolidated Financial Act triggering additional licensing and other obligations. An NFT’s features would need to be carefully considered to see if it would meet these conditions

6

Russia

Russia has recently finalised its legal framework regulating cryptoassets. It does not currently specifically refer to NFTs, but distinguishes between: • Digital utility rights • Digital financial assets • Digital currencies Depending on the characteristics of a particular NFT, it may fall within one of these categories, or be considered as an asset sui generis. In either case the specifics of issuance of or trading in the NFT and the related regulatory, legal and tax implications would need to be analysed on a case-by-case basis, depending on the characteristics of the NFT and the underlying asset to which it is linked (continued)

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(continued) S. Country No.

NFT regulations

7

China

Activities relating to cryptocurrencies and cryptoassets are strictly regulated and scrutinised in China. Despite the absence of a unified regulatory framework, rules in respect of cryptoassets are scattered in ad hoc notices and circulars issued by Chinese financial regulators, as well as self-discipline organisations. The milestone regulation in this area is the Circular on Preventing Risks related to Initial Coin Offerings (ICO) (2017) issued by seven Chinese governmental agencies (including the People’s Bank of China) in September 2017 (the ICO Circular). The ICO Circular marked an unprecedented regulatory clampdown on cryptoassets which has been sustained in practice In May 2021, the National Internet Finance Association of China, the China Banking Association and the Payment and Clearing Association of China issued a joint statement reiterating the position in the ICO Circular that their member institutions (including banks and payment firms) should not offer any crypto-related services in China. The statement also set out further specific restrictions and risk alerts, including around cryptocurrency exchange, investment and trading. However, as there is no clear-cut definition of cryptocurrency or cryptoasset under Chinese law, whether an NFT qualifies as such requires analysis. Notwithstanding the above, neither the ICO Circular nor other regulations explicitly prohibits a Chinese citizen from trading or investing in NFTs, but only reminds people of the relevant risks associated with cryptoassets

8

Japan

In Japan, while fungible tokens are regulated as security tokens or cryptoassets under the financial regulations, and dealing with them triggers certain licensing requirements, the non-fungible nature of NFTs means that they usually do not have a settlement function and therefore will not qualify as regulated cryptoassets

9

Singapore NFTs are not currently specifically regulated in Singapore. The regulatory approach has been to look beyond a token’s label and examine its characteristics. If such characteristics fall within an existing regulatory framework, the NFT will be subject to regulation under that existing framework

10

UAE

• The recently introduced Crypto Asset Regulations in the UAE, issued by the Securities and Commodities Authority are designed to capture cryptoassets which are securities or are otherwise traded on an exchange. “Crypto assets” expressly include a DLT record serving as a representation of ownership. Therefore, these regulations will only apply to the extent NFTs become tradeable through a digital assets exchange, and such NFTs are promoted or offered (or associated with other financial activities conducted) within the UAE. It is unlikely in the near term that NFTs listing on digital assets exchanges will be practical given their unique and non-fungible nature

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6 Indian Perspective In 2018, the Reserve Bank of India (RBI), had issued a circular30 asking banks not to deal with or provide any services to entities dealing with virtual currencies, which circular was subsequently struck down by the Supreme Court in 2020.31 In May 2021, the RBI issued another circular that directed all banks to carry out due diligence for transactions in virtual currencies, in line with the existing regulations pertaining to anti-money laundering, foreign exchange and combating of financing of terrorism, in the face of the Central Government having already stated that it was not closing its options and would give room to stakeholders for experimenting with blockchains, bitcoins and cryptocurrencies. At this time, India does not have any specific law or regulation to govern NFTs, and cases must be tackled in light of existing laws on a case-to case basis. NFT related transactions, taking place through smart contracts will come under the purview of the Indian Contract Act, 1872, and the Information Technology Act, 2000. The content of NFT’s will be governed by copyright law. If an NFT represents an asset that is considered a security, then it will be regulated under the Securities Contract (Regulation) Act, 1956, and a cross-border NFT transaction will attract the Foreign Exchange Management Act, 1999 (FEMA) and perhaps even the Finance Act, 2020. The treatment of NFTs under India’s taxation regime would depend on the nature or classification of the underlying asset, as to whether or not it will be subject to Goods and Services Tax (GST). In December 2021, the Central Government has proposed a new bill for regulating cryptocurrencies, titled “The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021”,32 which looks to ban private cryptocurrencies and put in place an official digital currency under the purview of the RBI.

7 Conclusion The Metaverse should be looked forward to as the exciting revolution it promises to be in the not too distant future, not just for the internet, but for all our lives. However, it is unlikely to be perfect and it is natural to expect hiccups and roadblocks at the time of roll-out. However, progress ought not to be stopped for that. Creating an enabling environment for innovations in the field; reaching out and genuinely addressing the concerns of stakeholders; laying down overarching and forward-thinking basic principles to govern it are only a few steps that cautious governments may take to 30

Reserve Bank of India’s Notice on Prohibition on dealing in Virtual Currencies, (June 26, 2022), https://rbidocs.rbi.org.in/rdocs/notification/PDFs/NOTI15465B741A10B0E45E896C62A9 C83AB938F.PDF. 31 Internet and Mobile Association of India v. RBI; WP(C) 528/2018 with WP(C) 373/2018(India). 32 Lok Sabha, Bulletin Part II, June 26, 2022, http://loksabhadocs.nic.in/bull2mk/2021/23.11.21. pdf.

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leverage first-mover advantage with what is likely to prove a momentous upheaval in lifestyle, governance and trade all over the world. Similarly, with NFT’s already in play, and presenting exciting possibilities, it will be interesting to see how private players as well as proposed governmental regulations impact their economic effect, both locally as well as in the international market.

References 1. Nikola Morini Bianzino, How will the metaverse change our behavior as it reshapes experiences? Ernst & Young Global Limited, (June 20, 2022), https://www.ey.com/en_ly/digital/ how-will-the-metaverse-change-our-behavior-as-it-reshapes-experiences. 2. Blake Miller, What are Smart Apartments and Why They’re the Future of Living, Homebase (June 20, 2022), https://homebase.ai/smart-apartments/what-are-smart-apartments/. 3. Jack Kelly, King Arthur And His Knights Of The Round Table: Now The Metaverse Can Connect Workers Around The World In Virtual Reality, Forbes, (June 21, 2022) https://www. forbes.com/sites/jackkelly/2022/01/25/king-arthur-and-his-knights-of-the-round-table-nowthe-metaverse-can-connect-workers-around-the-world-in-virtual-reality/?sh=6ccaaab99f1c. 4. Christo Petrov, 45 Virtual Reality Statistics That Will Rock the Market in 2022, techjury, (June 23, 2022), https://techjury.net/blog/virtual-reality-statistics/#gref. 5. MacKenzie Sigalos, Roblox revenue grows 140% in first earnings report since company went public, CNBC, (June 23, 2022), https://www.cnbc.com/2021/05/10/roblox-rblx-earnings-q12021.html. 6. Andrew Webster, Fortnite’s Marshmello concert was the game’s biggest event ever, THE VERGE, (June 23, 2022), https://www.theverge.com/2019/2/21/18234980/fortnite-marshm ello-concert-viewer-numbers. 7. Jessica Golden, Nike is quietly preparing for the Metaverse, CNBC, (June 23, 2022), https:// www.cnbc.com/2021/11/02/nike-is-quietly-preparing-for-the-metaverse-.html. 8. Shomik Sen Bhattacharjee, Disney’s Newly Patented Technology Aims to Bring Metaverse to Theme Park Visitors, Gadgets 360, (June 23, 2022), https://gadgets360.com/cryptocurrency/ news/disney-virtual-world-simulator-patent-theme-park-metaverse-2700074. 9. Michael Golomb, Rise Of A New Disruptor: How NFTs Are Revolutionizing The Art And Entertainment Worlds, Forbes Business Council, https://www.forbes.com/sites/forbesbusine sscouncil/2021/09/07/rise-of-a-new-disruptor-how-nfts-are-revolutionizing-the-art-and-entert ainment-worlds/?sh=6082ad7a1a90, as accessed on June 23, 2022. 10. Rob Lenihan, House of Gucci Vaults into The Metaverse, TheStreet,( June 23, 2022), https:// www.thestreet.com/investing/cryptocurrency/house-of-gucci-vaults-into-the-metaverse. 11. Michelle Shen, Sexual Harassment in the Metaverse? USA TODAY, (June 25, 2022), https://www.usatoday.com/story/tech/2022/01/31/woman-allegedly-groped-metaverse/ 9278578002/.

A Comparative Study of Blockchain and Cryptocurrency Regulations Between Western Australian and Albertan (Canada) Legislation Harsh Kumar and Pooja

1 Introduction Cryptocurrency is a form of digital or virtual money that is encrypted to ensure secure financial transactions since it makes it very difficult to double spend or counterfeit money. The number of people investing in cryptocurrencies has increased significantly, and this trend has existed for some time. A worldwide phenomenon has emerged around cryptocurrencies and the blockchain technology that powers them. Since cryptocurrencies are an integral component of most of the states now and because they are intruding on the territory, regulating cryptocurrency commerce so they would require oversight from a number of authorities as well as strict legislation, such as: The responsibility for governing cryptocurrencies as legal tender falls on the Reserve Bank of India (RBI). The use of cryptocurrencies in cases of economic crime has been outlawed according to a statement from the Directorate of Enforcement. The control of cryptocurrency’s integration into state economic policy rests with the Department of Economic Affairs. The usage of cryptocurrencies in security contracts has been authorised by Securities and Exchange Board of India and according to India’s tax authorities, bitcoin trading has tax repercussions. Meanwhile the rules and regulations for cryptocurrencies have not yet been defined, investors are not protected from many types of dangers. The dangers are listed as follows: First, there is the possibility of losses for individual investors, and second, volatility can be harmful to the economies of emerging nations. Thirdly, improper use of technology may result in the support of unsavory or risky organisations that engage in terrorism, human trafficking, etc.1 Unlike financial institutions

1

Thakar [1].

H. Kumar (B) · Pooja School of Law, IMS Unison University, Dehradun, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_16

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and marketplaces that have third-party audits, financial reporting and disclosure, and other regulations, the cryptocurrency market is uncontrolled. Each block in a chain of informational blocks known as a blockchain includes different transactions, records all of the most recent transactions, and is added to the chain as a permanent database once the transaction is complete. A new block is created each time a previous block is finished. Decentralization is one of the most important concepts in blockchain systems. A record of each new transaction that occurs on the blockchain is added to the record of every participant. Distributed Ledger Technology is the name for the decentralised database that is governed by several participants (DLT). A few characteristics of the blockchain technology include: First is the decentralisation and detrust which states that an open and transparent set of encryption mathematical techniques is employed in the blockchain system to allow the nodes in the entire system to execute transactions automatically and securely without trust. The entire network is not arbitrated by a third party. Each individual node has equal rights, and the functioning of any one of them will not negatively impact the operation of the entire network. The non-tampering is the second is another feature of blockchain technology which states that each participant on a blockchain can copy the entire data set from the interface because the data is open source. The data can be altered, but only if more than 51% of the control system’s nodes have reached consensus. The third is the collective maintenance that is open and transparent.2 The remainder of the data is public and accessible to everyone, while the privacy of accounts handled in blockchain is encrypted and through a public interface, anyone may view it, and everyone can take part in maintaining. The most active Blockchain technologies at the moment include Ethereum-based Tendermint, Hydrachain, and Hyperledger, as well as the pioneers Bitcoin, Ethereum, and Ripple (a clearing and settlement platform). These technologies are all based on the Ethereum blockchain. A wide range of more scalable solutions are also available, including the Lightning Network, Raiden, BigchainDB, RChain, etc.3 Superchains are another thing that link different Blockchains together. Others, like Cord, have their own distinct “fact” databases where the data is kept consistent but not all users have access to it. One of the most prominent subjects on the financial markets right now is cryptocurrencies. A decentralised system, which is the foundation of digital currencies like Bitcoin, guarantees that all users are equal and that there is no power monopoly. The name “cryptocurrencies” refers to the concept of encryption, and it was developed to offer a substitute for the established monetary system. A public key and a

2

Liu et al. [2]. Blockchain, a functional introduction, PwC Belgium, https://www.pwc.be/en/news-publications/ insights/2017/blockchain-functional-introduction.html#:~:text=The%20purpose%20of%20the% 20blockchain,restricted%20(‘permissioned’). (last visited on Dec 06, 2022). 3

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private key are generated by the blockchain network.4 An account number is represented by a public key, and a transaction’s signature is represented by a private key, which is a private number. Cryptocurrencies are gaining importance both as a means of payment and as an investment whereas globally, cryptocurrency has the potential to motivate individuals and advance consumer payment methods.

2 Origin of Blockchain and Cryptocurrency Before understanding the function, ethical dilemmas, and status of blockchain and cryptocurrencies, it is important to understand their origins in terms of their respective histories. Origin of Blockchain: Stuart Haber and Scott Stornetta begin developing the first Blockchain in the year 1991. These researchers sought a computationally comprehensive framework for digitally time-stamped documents so that they could not be altered or misdated. As a result, using cryptography, the two scientists created a system. The time-stamped documents are kept in this system in a chain of blocks. The next year, in 1992, Merkle Trees established a legal corporation using a technology enhanced with new features by Stuart Haber and W. Scott Stornetta. As a result, the efficiency of the blockchain technology made it possible to store multiple documents in a single block.5 In order to store numerous data entries sequentially, Merkle created a Secured Chain of Blocks. When the Patent was granted in 2004, this technology was no longer used. Reusable Proof of Work (RPoW), a method developed by computer scientist and cryptography activist Hal Finney, served as a prototype for digital payments in 2004. In terms of the development of cryptocurrencies, it was a major early step. The Reusable Proof of Work system functioned by creating an RSA-signed token in exchange for a non-fungible, non-exchangeable Hashcash proof of work token, which could then be transferred from one user to another.6 In his white paper, “A Peer-to-Peer Electronic Cash System,” published in 2008, Satoshi Nakamoto first proposed the idea of “Distributed Blockchain”. Satoshi Nakamoto altered the Merkle Tree concept to produce a more secure system that also records the secure history of data exchange, and his system uses a peer-to-peer time stamping network. His technique proved to be of such value that Blockchain eventually replaced encryption as its foundation. The blockchain technology “turning point” is recognised as having occurred in 2014. Blockchain technology is decoupled from currency, resulting in

4

History of Cryptocurrencies, HarvardGeo, https://www.harvardgeo.org/history-of-cryptocur rency/ (last visited on Dec 06, 2022). 5 Jagroopofficial, History of Blockchain, GeeksforGeeks, https://www.geeksforgeeks.org/historyof-blockchain/ (last visited on Dec 06, 2022). 6 History of Blockchain, javaTpoint, https://www.javatpoint.com/history-of-blockchain (last visited on Dec 06, 2022).

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the birth of Blockchain 2.0.7 The development of blockchain technologies has begun to take precedence over digital currency for financial institutions and other sectors. Origin of Cryptocurrency: The development of cryptocurrencies has changed the world’s monetary system. A nation did not formally introduce bitcoin as a form of money. After the global financial crisis ended in late 2008, the cryptocurrency was developed, and it now enables investors to make money. Bitcoin was the first virtual currency, and it was created by Satoshi Nakamoto, whose true identity is still a mystery to this day. A white paper explaining Satoshi Nakamoto’s plans for the cryptocurrency known as Bitcoin was published in October 2008. The first transaction involving digital currency was carried out in 2009 by Satoshi Nakamoto and Hal Finney, a developer and cryptographic activist. The first Bitcoin exchange launches its buying and selling platform in 2009. The cost of electricity used by the user’s computer to mine Bitcoin (BTC) dictated the exchange rate that would apply from BTC to USD (US dollar).8 The initial Bitcoin transactions were handled informally through online forums in 2010. Numerous additional cryptocurrencies have also been created as a result of the rising popularity of Bitcoin since 2009. Over 1600 cryptocurrencies were being traded globally as of August 2018. Common examples are Litecoin, Dash, Ripple, ZCash, and Monero. These Bitcoin alternatives, commonly known as “altcoins,” aim to enhance the original Bitcoin design by providing faster speed, anonymity, and other similar benefits. Bitcoin prices peaked in 2013 at $1000 USD per bitcoin before sharply declining. A few cryptocurrencies started to gain momentum once more in early 2019. The public’s curiosity resurfaced as well, and this time the technology was supported by significant institutional funding.9 The cryptocurrency market has become more stable and dependable, making it a better environment for businesses and emerging innovations to grow thanks to regulation and support from reputable institutions.

3 Purpose of Cryptocurrency and Blockchain Purpose of Cryptocurrency: Cryptography is used to control the generation and transfer of a cryptocurrency which is a type of digital currency. While cryptocurrencies have their own unit, like traditional currencies, they are often not governed by a central authority. A cryptocurrency is not owned or governed by anyone as because cryptocurrencies are decentralised, their value is not affected by the political inclinations of nations or the monetary policies of central banks. They work by using a “distributed ledger” or shared transaction list. 7

Jagroopofficial, supra note 7, at 9. History of Cryptocurrencies, supra note 6, at 10. 9 Datta [3]. 8

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The goal of cryptocurrencies is to solve every issue with conventional banking. The amount of money someone can send or receive using bitcoin is unrestricted. Cryptocurrencies are gaining popularity as a way of investment and payment. The fact that cryptocurrencies are secure, anonymous, and decentralised is the main reason of this phenomenon.10 There are a lot of more explanations and because they use encryption to secure transactions and limit the creation of new units, cryptocurrencies are secure. One may say that the goal of cryptocurrencies is to offer a straightforward network for transactions, amazing security with quick processing, wallets with robust encryption, etc. The ability to use cryptocurrency as a worldwide payment system has been made simpler by the open structure of cryptocurrencies. Cryptocurrency is a better option for organisations to increase their consumer base and tap into new markets. Purpose of Blockchain: As a peer-to-peer ledger, the blockchain can provide data security and transparency, making it easier to spot fake or inaccurate data. Due to its potential to drastically change a variety of economic sectors, this removes intermediaries like banks, attorneys, and other institutions that act as authenticating agents for transactions. The primary purpose of blockchain is to increase efficiency in the remittance sector and protect financial transactions by making them secure by design. The blockchain makes it nearly difficult to alter data that has been recorded there. Any effort to alter an entry on a block would necessitate either recalculating the hash or altering all succeeding blocks, both of which are impractical with current technology. By enabling users to access transaction histories and data, the blockchain promotes transparency.11 A blockchain is made up of a collection of secure data blocks that are linked one after the other in a particular order. They combine to create an immutable ledger that is disseminated throughout the involved nodes. The computing platforms that make up these nodes communicate with the users and information sharing between all parties who access the blockchain through an application is the goal of the technology. This ledger’s read-only and write-only access can be either uncontrolled referred to as “permissionless” or constrained referred to as “permitted”. The shared information is secured against alteration, thus any alteration would be quickly and easily noticed because it is so well safeguarded, information that has been recorded on the blockchain is therefore thought to be unchangeable.12 A decentralised system eliminates the possibility of a single point of failure. This implies that the blockchain cannot be manipulated or controlled by a single entity. Additionally, it implies that the network continues to be autonomous and unaffected by outside influence or manipulation. Users can potentially receive their own digital identities thanks to the technology. As a result, they will be able to conduct business 10

Piter [4]. Kumar [5]. 12 Blockchain, a functional introduction, PwC Belgium, https://www.pwc.be/en/news-publications/ insights/2017/blockchain-functional-introduction.html#:~:text=The%20purpose%20of%20the% 20blockchain,restricted%20(‘permissioned’). (last visited on Dec 07, 2022). 11

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legally all over the world without having to worry about things like cross-border rules or the possibility of running into trouble with dishonest officials.

4 Benefits and Drawbacks of Blockchain 4.1 Benefits of Drawbacks • Without Censorship: The concept of trustworthy nodes for validation and consensus procedures that authorise transactions by using smart contracts make blockchain technology free from censorship since it is not under the authority of any one party. • Open: One of the main benefits of blockchain technology is that anyone can use it and contribute to it. Anyone can join the distributed network without obtaining anyone’s permission.13 • Decentralization and no third-party interference: The key characteristic of blockchain technology is decentralisation and the absence of third-party involvement. Its strength is that no additional instance is needed to validate transactions or activities, speeding up transaction validation times.14 The cryptocurrencies that use blockchain technology are not under the jurisdiction of any government or financial institution. This implies that no government can interfere with the currency’s value. • Transparency and permanence: Since blockchains are decentralised, everyone on the network may check the accuracy of any data entered into them. As a result, the public can have faith in the network. Because it is a decentralised network with a large number of reliable networks, records or information recorded using blockchain technology are permanent, meaning one should not worry about losing the data.15 This is because duplicate copies are maintained at each local node. • Immutability: Blockchain enables immutability, which prevents the eradication or replacement of stored data and as a result, the blockchain stops data manipulation on the network. • Security: Because each participant in the Blockchain network is given a distinct identity that is connected to their account, blockchain technology is extremely safe. Additionally, the chain’s block encryption makes it more difficult for hackers to alter the chain’s established configuration. • Authentication: By providing users with a digital identity, technology makes it harder for those involved in illicit activity to carry out their business. Additionally, because every transaction is recorded on the blockchain in a tamper-proof manner, 13

Lastbitcoder, Advantages and Disadvantages of Blockchain, GeeksforGeeks, https://www.gee ksforgeeks.org/advantages-and-disadvantages-of-blockchain/ (last visited on Dec 07, 2022). 14 Tenorio [6]. 15 Lastbitcoder, supra note 15, at 17.

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it aids in the capture of criminals and lessens the risk of identity theft-related fraud, theft, and losses. • Data Integrity: The very high level of security offered by blockchain technologies is made possible by the fact that no block or even transaction added to the chain may be changed. • In some of the most corrupt nations in the world, elections might be conducted using blockchain technology.

4.2 Drawbacks of Blockchain • High cost of implementation. In comparison to a conventional database, blockchain is more expensive. Businesses must also properly design and carry out the integration of blockchain into their workflow. • Immaturity: Though since blockchain is only a few years old, people do not have much faith in it and are not yet willing to invest in it. Even though several applications of blockchain are succeeding well across various industries, it still needs to gain the trust of more people in order to be acknowledged for its full potential.16 • Time-Consuming: Since miners must compute nonce values numerous times in order to add the next block to the chain, this time-consuming procedure needs to be sped up in order to be employed for commercial purposes. • Inefficient and Storage: Blockchains are very inefficient, especially those that employ Proof of Work. The work of every other miner is useless because mining is extremely competitive and there is only one winner every ten minutes.17 The fact that blockchain databases are kept on every node in the network poses a storage problem. As the volume of transactions rises, more storage space will be needed. • Regulations and Legal Formality: Some financial institutions have issues with blockchain. To implement blockchain more widely, other technological facets will be necessary. Some financial institutions have issues with blockchain. To implement blockchain more widely, other technological facets will be necessary. • Data modification: Data alteration is difficult with blockchain technology since it necessitates rewriting the codes in each block, which is time-consuming and expensive. Data modification is also not possible once it has been recorded. This feature’s drawback is that it is challenging to fix errors or make necessary adjustments.

16

Lastbitcoder, supra note 15, at 18. Advantages and Disadvantages of Blockchain Technology, DataFlair, https://data-flair.training/ blogs/advantages-and-disadvantages-of-blockchain/ (last visited on Dec 07, 2022). 17

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5 Blockchain and DLT (Distributed Ledger Technology) Although both blockchains and distributed ledger technology (DLT) are open-source, decentralised technologies, they differ from one another in numerous ways. One sort of distributed ledger is the blockchain. In order to record, share, and synchronise transactions in each electronic ledger, distributed ledgers use independent computers, also known as nodes. Data is divided into blocks and connected together in an appendonly fashion using blockchain technology. By enhancing its efficiency, resiliency, and dependability, distributed ledger technology (DLT) has the potential to transform the financial industry fundamentally.18 This may change the responsibilities of stakeholders in the financial system and address enduring problems. DLT has the potential to revolutionise a number of other industries, including manufacturing, public financial management, and clean energy. The usage of distributed ledger technology assures that the data is 100% tamper-proof till the database ledger is spread and it provides a highly secure and reliable experience by distributed ledger technology enterprises.19 In the long run, Distributed Ledger Technology might boost productivity, reduce remittance fees, and possibly improve unbanked populations’ access to credit, which is currently unavailable to them because of the existing banking system. The following are a few key distinctions between the Blockchain and DLT (Distributed Ledger Technology), underscoring the fact that both exhibit notable distinctions by their very nature: Proof of Work: Proof of work is one of the primary distinctions between blockchain and Distributed ledger technology. The distributed ledger is more scalable in comparison since it does not require proof of work. Comparatively, blockchain is a subset of distributed ledger but has features that go beyond those of standard DLT. Data Storage Structure: While it takes the shape of a standard database in Distributed ledger technology, the data structure or method of data entry in a blockchain is organised in blocks. A distributed ledger technology stores data fundamentally as a database without a specific sequence, according to the sequence structure and the sequence on a blockchain, on the other hand, takes the shape of a chain of fresh blocks stitched together by encryption. Sequence and Consensus Model: In the Blockchain ecosystem, every block is set up in a specific order, or in serial mode. With regard to DLT, there is no such restriction. When it comes to distributed ledger technologies (DLTs), blocks are organised differently.20 In contrast to blockchain, which necessitates a more complex system, distributed ledger technologies often feature a consensus model for validating entries among the many nodes. A Proof-of-Work (PoW) or a Proof-of-Stake (PoS) model 18

Blockchain and Distributed Ledger Technology (DLT), The World Bank https://www.worldbank. org/en/topic/financialsector/brief/blockchain-dlt (last visited on Dec 08, 2022). 19 Chirag [7]. 20 Id. at 21.

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are the two most common types of consensus mechanism used in Blockchains.21 There is no requirement for consensus in the case of distributed ledger technologies or DLT because there are so few participating nodes. But with blockchain, everyone may take part and contribute to the insertion of a new block to the chain, hence the opposite is not true. Efficiency: Compared to blockchains, distributed ledger technology can process a much higher volume of transactions per minute. In comparison to Blockchain-based solutions, it offers higher efficiency at lower cost. Therefore, the complementary technologies of blockchain and distributed ledger coexist and function most often as blockchain ledgers or blockchain distributed ledger. The concept is straightforward: data saved in blockchains behaves as if it were a database that is typical of the underlying distributed ledgers.22 Additionally, each participating node in the blockchain network receives a copy of the modifications whenever the data within the network is changed, just as a distributed ledger has been known to do. Platforms using distributed ledger technology provide the following benefits for financial infrastructures: Interest in the underlying technology has grown in recent years along with the adoption of cryptocurrencies. It is now possible to build extremely secure and dependable platforms to transfer assets and conduct commercial transactions thanks to a technology known as blockchain or DLT wherein the latter is thought to be more appropriate) and as of 2021, 60% of central banks were testing and performing their own proof of concepts with DLT technology to enable a Central Bank Digital Currency, according to the Bank for International Settlements (BIS).23 In order to speed up the processing and settlement of financial transactions between financial institutions and/or end users, central banks will occasionally issue fiat currencies that will be made available on platforms using distributed ledger technology. The capability of DLT to circumvent limitations imposed by current financial (market) infrastructures is a major factor inducing central banks’ intense interest in it. Without the need to rely on a single centralised infrastructure, distributed ledger technology enables the creation of extremely safe and dependable platforms for the transfer of assets and the conduct of business activities. DLT-based Central Bank Digital Currency are far less susceptible to disturbances (including cyber-attacks) than traditional infrastructures, allowing them to settle payments and other financial activities in real time, around-the-clock, and with high availability whereas additionally, distributed ledger technology satisfies the highest security standards in the industry in terms of data confidentiality and dependability.

21

Benjamin [8]. Id. at 23. 23 van Oijen [9]. 22

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6 Regulations of Cryptocurrency Around the World Countries have adopted various measures to regulating the asset class as cryptocurrencies has grown in importance in the global investing scene whereas the legal aspect of cryptocurrencies has been debated for years, ever before Bitcoin was invented in 2008. Across nations, there are a variety of government perspectives on cryptocurrencies, which can be broadly categorised as favorable, unfavourable, or impartial. The majority of nations that accept cryptocurrencies think that if they are governed by the government, digital assets are merely one type of property that won’t hurt the economy. The nations who advocate boycotting Bitcoin, however, think that it will be risky for their economy.24 Additionally, they might help criminals with financial frauds, money laundering, terrorism, evading taxes, drug dealing, and other crimes. United States of America: Although cryptocurrency exchanges are lawful and subject to state-specific legislation, they should fall under the purview of the Bank Secrecy Act as cryptocurrencies are not regarded legal tender in this country (BSA). The Financial Crimes Enforcement Network (FinCEN), for instance, claims that cryptocurrencies are money transmitters. The US Securities and Exchange Commission (SEC) and the Internal Revenue Service (IRS) both refer to cryptocurrencies as securities, which are subject to the full force of the securities laws, and the IRS describes them as digital properties.25 There is no established regulatory structure at the federal level in the United States, and separate administrations have different justifications for cryptocurrencies. The European Union: In the European Union, cryptocurrency exchange laws differ by member state, cryptocurrencies are deemed lawful, and member governments are not permitted to develop their own coins. Cryptocurrency taxation varies as well, however many member nations impose capital gains tax at rates ranging from 0 to 50% on profits made using cryptocurrencies.26 Despite this, the European Union has not yet adopted any explicit legislation to control cryptocurrency-related activity, but it is actively looking into doing so. India: While the regulation of cryptocurrency exchanges is being examined, cryptocurrencies in India are not currently accepted as legal cash. Although the tax treatment of cryptocurrencies is not yet clear, finance minister Bhagwat Karad suggested in February 2022 that a 30 percent tax might be applied to bitcoin transactions.27 The Supreme Court of India, however, reversed its opinion in 2020 and allowed exchanges to reopen after finding the broad regulation banning the trading of cryptocurrencies on local exchanges to be unconstitutional. 24

What Are the Cryptocurrency Regulations Around the World? CoinCarp, https://www.coi ncarp.com/learn/what-are-the-cryptocurrency-regulations-around-the-world/ (last visited on Dec 09, 2022). 25 Dialani [10]. 26 Cryptocurrency Regulations Around the World, ComplyAdvantage, https://complyadvantage. com/insights/cryptocurrency-regulations-around-world/ (last visited on Dec 09, 2022). 27 Id. at 28.

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Singapore: In terms of embracing and advancing technology, Singapore has been at the forefront. The nation has demonstrated a favourable attitude toward cryptocurrencies in a similar manner and to govern cryptocurrencies and hasten their acceptance, Blockchain and Cryptocurrency Regulation, 2020 was just signed. Long-term capital gains are exempt from taxation, which contributes to Singapore’s reputation as a safe haven for cryptocurrencies. Companies that regularly engage in cryptocurrencies are subject to taxation in the nation, which treats gains as income.28 In 2022, Singapore released guidelines cautioning digital payment token (DPT) suppliers against showcasing their services. Japan: All bitcoin trading platforms in Japan are regulated by the Financial Services Agency (FSA) wherein the Payment Services Act, which was passed in 2017, also made cryptocurrencies legal in Japan. The nation has been focusing on a number of regulatory issues, including taxation. To stop criminals from utilising cryptocurrency exchanges to launder money, the government declared in September 2022 that it will enact remittance regulations as early as May 2023.29 To collect consumer information, the Act on Prevention of Transfer of Criminal Proceeds will be updated. China: Cryptocurrencies are not considered legal money in China. The People’s Bank of China (PBOC) forbade financial institutions from processing Bitcoin transactions from the beginning of 2013. Initial coin offerings (ICOs) and local cryptocurrency exchanges were then outlawed in 2017 and China first forbade all domestic cryptocurrency mining in June 2021, and then in September 2021 it openly outlawed cryptocurrencies. Furthermore, China has made it quite apparent that trade and exchange of cryptocurrencies are forbidden.30 The People’s Bank of China claimed to have strengthened its procedures in order to increase the monitoring of transactions using cryptocurrencies and weed out speculative trading. However, recent statements by government officials favouring blockchain technology have led to speculation that China plans to become a leader in the digital currency area and there is no sign that China intends to lift or loosen its prohibition on cryptocurrencies anytime soon. Canada: Canada is fairly supportive of the adoption of cryptocurrencies, following in the footsteps of the USA. Although they are not considered legal cash in Canada, cryptocurrencies can be used to pay for products and services online or at merchants that accept them.31 Cryptocurrencies are generally governed by provincial securities regulations in Canada, which has been relatively proactive in its approach to the issue. United Kingdom: Although there are still no official cryptocurrency rules and cryptocurrencies are not regarded as legal tender, the UK confirmed in 2020 that bitcoin holdings are property. The absence of financial and regulatory protection has been addressed in a number of warnings and statements from the Financial 28

George [11]. Id. at 30. 30 What Are the Cryptocurrency Regulations, supra note 26, at 32. 31 Cryptocurrency Regulations, supra note 28, at 33. 29

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Conduct Authority and the Bank of England, including the dangers of speculation and volatility as well as the status of cryptocurrencies as repositories of value. Exchanges must also register with the UK’s Financial Conduct Authority (FCA).32 The United Kingdom’s cryptocurrency legislation is probably going to follow the EU in the short term, but they might start to deviate from it in the long run. Argentina: Argentina allows the use of cryptocurrencies while additionally, the government of Argentina has created regulations specifically related to cryptocurrencies for anti-money laundering, taxation, and anti-financing of terrorism. They haven’t, however, put any explicit rules into place regarding the issuance, trading, or usage of cryptocurrencies.33 In fact, the Financial Information Unit (UIF) in Argentina defines cryptocurrencies as a digital representation of value that can be transferred digitally and serves as a medium of exchange but does not have the status of legal cash or be supported by any government. As a result, the above-mentioned are the various legislative perspectives on cryptocurrencies around the world.

7 Legal Issues Associated with Blockchain The Blockchain is a relatively new technology that is particularly appealing for solving both financial and non-financial company challenges because of the decentralised ledger functionality and security it offers. Blockchain technology supports cryptocurrencies because they provide a high level of privacy and anonymity that centralised currencies just can’t match. However, not all prestigious institutions want to depend on blockchain technology due to ambiguity and a lack of education surrounding it, which is leading to several blockchain legal problems. Blockchain Privacy Compliance Issues: It’s unclear what types of data stored on a blockchain qualify as personal data and what the roles and responsibilities of the people involved are, and the problem is quite complicated.34 And who is in charge of handling data in the blockchain, and who handles data processing? How are privacy rights protected, such as the right to be forgotten? As well as what safety precautions should be taken? Responsibility and Liability: Certain questions associated with blockchain legal issues are: Firstly, what is the legal position of a completely blockchain-enabled organisation (DAO or distributed autonomous organisation) that functions purely through well before smart contracts with no human intervention? Does it have a separate legal identity? How will ownership and control be decided upon if the nature of a DAO is unknown? Is it possible to classify a contribution in cryptocurrency as an 32

What Are the Cryptocurrency Regulations, supra note 26, at 34. What Are the Cryptocurrency Regulations, supra note 26, at 35. 34 Coraggio [12]. 33

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ownership stake similar to shares?35 Notably, the majority of cryptocurrency issuers do not grant ownership rights to their tokens and if a blockchain system or DAO has flaws, who will be held accountable? Would it be the distributed autonomous organisation’s i.e., DAO’s “managers” or, perhaps, the coder if problems arise because of how the underlying code was written? Federal Laws: Numerous institutions control how cryptocurrency is governed in terms of federal regulations. The Financial Crimes Enforcement Network (FinCEN), the Securities and Exchange Commission (SEC), the Commodities and Futures Trading Commission (CFTC), and others are among these entities. Despite this plethora of organisations, there is very little federal legislation on this subject while on the contrary hand, state laws are a totally other issue. Regulatory Challenges: If cryptocurrencies are deemed securities, they will be subject to Securities and Exchange Commission (SEC) regulatory guidelines, which is one of the largest regulatory challenges surrounding blockchain technologies. That’s not the best scenario for bitcoin businesses because they will have to adhere to a variety of legal requirements that they do not at the moment. As with any progress, it appears likely that legal difficulties will be settled in accordance with current regulations, guidelines, and laws. Although it’s no secret that laws can quickly become outdated, it’s almost certain that laws will need to be modified or new laws will need to be developed to account for blockchain technology. Jurisdictional Issues: Every piece of information, including sensitive personal information, is stored in participant nodes dispersed throughout the world in decentralised blockchains like bitcoin and Ethereum. What legal jurisdiction will apply in the event of a dispute? Would it be possible for a system that disseminates personal data widely to be in compliance with many regulations at once?36 If a blockchain hosts information that is illegal in a nation where the nodes are located, who is responsible? Automatic Execution of Contracts or Smart Contracts: One of the main aspects of blockchain technology is smart contracts. On the blockchain, smart contracts are created as code that is often immutable and irreversible. The post-contractual events like force majeure, fraud, and frustration are not taken into account by these contracts. The parties frequently are not aware of all the terms of the contracts, despite the fact that they are written in the form of code.37 It is uncertain who is the real party performing the contract in the case of smart contracts, where a number of subcontracts are done between machines, frequently without the assistance of humans. Therefore, the aforementioned are some of the blockchain-related problems, and businesses would be well advised to be aware of them so that they will be handled and addressed in order to ensure that the technology is used in a compliant way. 35

An introduction to Blockchain: the key legal issues, Osborne Clarke, https://www.osborneclarke. com/insights/an-introduction-to-blockchain-the-key-legal-issues (last visited on Dec 10, 2022). 36 Krishna [13]. 37 Id. at 38.

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8 Current Position of Cryptocurrency in India In an April 2018 circular, the Reserve Bank of India warned all organisations under its control not to engage in virtual currencies or offer services to help other people or organisations transact with or settle them. The finance ministry also released a statement in 2018 that read, “The government does not view cryptocurrencies as legal tender or coin and will take all efforts to eliminate the use of these crypto-assets in financing illegitimate activities or a part of the payment system. The government will aggressively investigate the use of blockchain technology for assuring in the digital economy.”38 A government committee had proposed outlawing all private cryptocurrencies in the middle of 2019, along with harsh penalties for anybody who dealt in digital currencies, including up to 10 years in prison. The Reserve Bank of India circular was rejected by the Supreme Court in March 2020, allowing banks to process cryptocurrency trades from dealers and exchanges.39 Blockchain technology, which guarantees both data confidentiality and transaction anonymity, effectively protects cryptocurrencies. Due to the network’s tight encryption and the fact that accessing someone else’s data would require a secret key, hackers won’t be able to change or steal anything from it. The finance minister has also created the “Digital Rupee,” a cryptocurrency based on blockchain technology, in an effort to deprive the nation from its reliance on the current monetary system. In addition to declaring plans to introduce a digital currency, the government also said that it would impose a 30% tax on virtual assets, which, while hefty, lays the way for the eventual classification of cryptocurrencies as a financial asset.

8.1 Is Cryptocurrency a Legal Tender or Accepted as Payments in India? A legal tender is a form of money that is accepted as payment for goods and services and a currency can be used in transactions and to pay off obligations if it has the legal tender status. Legal tender currencies are backed by the government that issued them. This indicates that the government will take the money in exchange for paying taxes and other debts owed to it.40 Bitcoin is not a legal cash in India, despite the fact that dealers and investors are allowed to trade and invest in it and because of this, utilising cryptocurrencies like bitcoin to settle payments for the exchange of goods and services, payment of taxes, or settling transactions is not recognized and may have legal repercussions. 38

Sharma [14]. Id. at 40. 40 Rauniyar [15]. 39

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The Supreme Court approved the use of cryptocurrency exchanges by anyone to buy and sell cryptocurrencies like Bitcoin, Dogecoin, and others. People can trade and invest in cryptocurrencies by buying and selling them. On income derived from cryptocurrency and other virtual digital assets, a flat 30% tax rate is payable. Any use of cryptocurrencies for nefarious purposes, such as tax evasion or money laundering, is prohibited and punished.41 There is presently no bill, act, law, or decree regulating cryptocurrency transactions in India, however one is in the works and since cryptocurrency is not recognised under the Foreign Exchange Management Act of 1999, using it to send or receive payments from other nations may be illegal. In the matter of Internet and Mobile Association v. RBI,42 Justice V. Rama Subramanian issued a lengthy 180-page ruling that stated, among other things, that the Reserve Bank of India (RBI) must not abuse its regulatory jurisdiction over virtual currencies. According to Article 19(1)(g) of the Indian Constitution, which states that firms involved in legitimate commerce are protected by the fundamental freedom to engage in any vocation, trade, or business, any trade that facilitates the use of cryptocurrencies is outlawed, which is disproportionate. Businesses can rejoin the industry and trade in virtual currencies i.e., cryptocurrency as a result of the case’s ruling. It is crucial to note that the Supreme Court’s ruling simply invalidated the RBI circular; it did not proclaim virtual currencies to be legal or unlawful. Furthermore, as there is no legislation governing them, virtual currencies continue to operate unchecked in India. The Reserve Bank of India may depend on the blockchain system to develop an administrative presence in the cryptocurrency space. It might even consider granting licenses to cryptocurrency exchanges, but only after carefully reviewing their records and making sure all necessary compliance requirements have been met. A structure that, among other things, necessitates the reporting of exchange data to the Reserve Bank of India within a specific time frame may also be established, which not only ensures the security of exchanges and restricts illegal usage but also contributes to better consumer protection, with the accounting of crypto assets aiming to lessen illegal activities and the circulation of black money through cryptos. The Centre has told cryptocurrency stakeholders that there would be no general ban on digital currencies and that it is currently drafting its final position on the matter and the transparent disclosures can also help to improve company governance.

9 Conclusion A sort of digital asset that may be traded like traditional currency is called a cryptocurrency. These digital currencies are decentralised, extremely safe, and require little to no human intervention in order to function as well as many people nowadays believe that they are the financial industry’s future. Cryptocurrencies are growing more and 41 42

Id. at 42. (2020 SCC online SC 275).

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more popular, and individuals are beginning to use them as investment purpose or financial products. One should make sure to complete research before putting any money into their digital wallet because new cryptocurrencies are constantly emerging and are a fantastic idea to invest in. With its successful solutions, distributed ledger technology has the potential to have a positive impact on problems in the financial or banking, cyber security, healthcare, government, and data security sectors, etc. A decentralised private distributed network ensures uninterrupted operation and improves the system’s robustness. Blockchain and cryptocurrency companies are working hard to find a way around the legal complexities surrounding these technologies since finding a solution to these issues is not at all simple wherein there is currently no sign that the Indian government will outlaw cryptocurrencies. In contrast, the Indian government is drafting a bill to regulate and control cryptocurrencies and other virtual digital assets. While cryptocurrency start-ups in India are optimistic about cryptocurrency’s enormous potential and future, and they are pressuring the government to avoid implementing a blanket ban, the country’s cryptocurrency industry would remain uncontrolled unless and until a robust regulatory framework is implemented. Thus, blockchain is the technology that allows cryptocurrencies to exist, and blockchain is a digitally distributed, decentralised, public ledger that exists across a network. Blockchain technology enables the functioning of Bitcoin and other cryptocurrencies without the need for a centralised authority, which lowers risk and eliminates many processing and transaction costs while blockchain is a breakthrough technology that has the potential to change the world, cryptography is a method of protecting data against unwanted access. Blockchain is efficient, transparent, accurate, and efficient in terms of time and money.

References 1. Chainika Thakar, The Journey of Cryptocurrency in India, QuantInsti, https://blog.quantinsti. com/cryptocurrency-india/ (last visited on Dec 06, 2022). 2. Haitao Liu, Zhipeng Lv, Zhenhao Song, Shan Zhou, Wenlong Liu, and Mu Fang, Application of Blockchain Technology in Electric Vehicle Charging Piles Based on Electricity Internet of Things, Hindawi, https://www.hindawi.com/journals/wcmc/2022/8533219/?msclkid=f26b38 483136155071895bd06e63c1c1&utm_source=bing&utm_medium=cpc&utm_campaign= HDW_MRKT_GBL_SUB_BNGA_PAI_DYNA_JOUR_X_Partners_Others&utm_term= Mental%20Illness&utm_content=JOUR_X_Partner_MIJ (last visited on Dec 06, 2022). 3. Dhriti Datta, The origins of cryptocurrency, digit, https://www.digit.in/features/tech/digitmag-the-origins-of-cryptocurrency-53723.html#:~:text=With%20the%20inflating%20popu larity%20of%20Bitcoin%20since%202009%2C,Ripple%2C%20ZCash%2C%20and%20M onero%20are%20some%20popular%20examples. (last visited on Dec 06, 2022). 4. John Piter, What Is the Purpose of Cryptocurrency? Crypto CPL, https://cryptocpl.com/whatis-the-purpose-of-cryptocurrency/ (last visited on Dec 07, 2022). 5. Umesh Kumar, what is the main purpose of blockchain technology?, Techbullion, https://techbu llion.com/what-is-the-main-purpose-of-blockchain-technology/ (last visited on Dec 07, 2022). 6. Edgar Mondragón Tenorio Journalist, Advantages and disadvantages of Blockchain, BBVA, https://www.bbva.ch/en/news/advantages-and-disadvantages-of-blockchain/ (last visited on Dec 07, 2022).

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7. Chirag, Blockchain vs DLT – An Explanatory Guide You Can’t Miss On, Appinventiv, https:/ /appinventiv.com/blog/blockchain-vs-dlt-guide/#:~:text=Another%20major%20difference% 20between%20blockchain%20and%20DLT%20is,has%20additional%20functionality%20b eyond%20the%20traditional%20DLT%E2%80%99s%20scope. (last visited on Dec 08, 2022). 8. Godfrey Benjamin, Blockchain Vs Distributed Ledger Technology (DLT): What’s The Difference?, iMi Blockchain https://imiblockchain.com/blockchain-vs-distributed-ledger-tec hnology/ (last visited on Dec 08, 2022). 9. Arjeh van Oijen, The Benefits of Using DLT for Digital Currencies, Payments Journal, https:/ /www.paymentsjournal.com/the-benefits-of-using-dlt-for-digital-currencies/ (last visited on Dec 08, 2022). 10. Priya Dialani, A Rundown of Cryptocurrency Regulations Across the World, Analytics Insight, https://www.analyticsinsight.net/a-rundown-of-cryptocurrency-regulations-across-the-world/ (last visited on Dec 09, 2022). 11. Kevin George, Cryptocurrency Regulations Around the World, Investopedia, https://www.inv estopedia.com/cryptocurrency-regulations-around-the-world-5202122, (last visited on Dec 10, 2022). 12. Giulio Coraggio, Legal issues of blockchain and how to deal with them, Technology’s Legal Edge, https://www.technologyslegaledge.com/2019/09/legal-issues-blockchain/ (last visited on Dec 10, 2022). 13. Krishna KP, Blockchain Technology and Legal Issues, Previewtech, https://previewtech.net/ blockchain-technology-legal-issue/ (last visited on Dec 10, 2022). 14. Manoj Sharma, Cryptocurrency in India: What’s the govt’s stand, legal status, its future, Business Today. In, https://www.businesstoday.in/latest/corporate/story/cryptocurrency-in-indiawhat-the-govt-stand-legal-status-its-future-296570-2021-05-20 (last visited on Dec 10, 2022). 15. Rajan Rauniyar, Is Cryptocurrency Legal in India in 2022? Everything You Need to Know about Crypto, Techjockey https://www.techjockey.com/blog/is-cryptocurrency-legal-in-india (last visited on Dec 10, 2022).

A Comparative Analysis of Indian Pre-packaged Insolvency Process with that of US and UK Sujatha S. Patil

1 Introduction Over the years, there has been a growing requirement felt of simplifying the process stipulated by the Insolvency and Bankruptcy Code, 2016 [“Code/IBC”]. Looking into the situation of smaller business which is into distress and also considerable amount of time taken in carrying out bankruptcy process, it is ostensible to have a change. As such, the erstwhile Ordinance sought in the year 2021 to tackle this by introducing alternate insolvency resolution process for Micro, Small and Medium Enterprises [“MSMEs”] with defaults up to INR 1 crore. The Pre-Packs encourages cutting-edge promoters to take part, with the board preserving power and the debtor imparting the bottom resolution package deal, on the way to then be positioned to the bidding procedure, through the Swiss challenge. As an end result, Pre-package is anticipated to help corporate debtors, in achieving an agreement with lenders and addressing the entire liabilities facet of the company. It is being viewed as a time-bound and budget friendly, insolvency resolution with the intention to trigger minimum market uncertainty, maximize value, defend jobs, and reduce the workload of National Company Law Tribunal (NCLT).1 The bankruptcy code in both the countries, I mean in United Kingdom (UK) and the United States of America (USA) permits any debtor stakeholders to start the pre-pack process, and the debtor is in charge of discussing the plan of reorganisation with each class of creditor.2 The 2016 Indian Insolvency and Bankruptcy Code (IBC), which draws extensively from both of these common law nations, identifies more 1

Finch [1]. Insolvency Act 1986, § 1(1); US Courts, Chapter 11—Bankruptcy Basics, US COURTS (2019), https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-11-bankruptcybasics. 2

S. S. Patil (B) School of Business and Law, Navrachana University, Vadodara, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_17

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with the UK than the US. Pre-packs are a niche idea, though, and the government has asked for input from relevant parties. The process still has to be improved and included in the bankruptcy framework in India.3 The present paper focuses broadly on four aspects (a) Part-I summaries the insolvency resolution process in India and establishes the need for Pre-packs to fill the loopholes that are there under CIRP (Corporate Insolvency Resolution Process). Part II Outlines Pre-Packaged Resolution Process in India and how it benefits the MSMEs. Part III talks about some of the challenges that are integrated with PPIR (Pre-Packaged Insolvency Resolution Process) and Part IV speaks on takeaway few best practices from UK and US.

2 Corporate Insolvency Resolution Process: Need for PPIRP Prior to 2016, India’s method for resolving stressed assets included a number of custom-made programmes, including JLF (Joint Lenders Forum),4 CDR (Corporate Debt Restructuring)5 and SDR (Strategic Debt Restructuring)6 etc. among others. Once IBC started operating, the Reserve Bank of India discontinued these programmes in February 2018.7 IBC explain how a debtor, a financial creditor8 or an operational9 creditor can file an application to begin the corporate insolvency resolution process before National Law Tribunal (NCLT). A 180 days moratorium10 is put in place, and an Insolvency Resolution Professional (IRP) is chosen. The IRP under the IBC is analogous to an administrator appointed under the UK model, and this resolution professional is in charge of all business affairs. Also, during CIRP, the board of directors of the debtor loses all managerial authority.11 To resolve the debtor’s financial stress, all of the debtor’s creditors (including offshore lenders) are expected to organise into 3

Indian Ministry of Corporate Affairs, Notice inviting Comments from Stakeholders, MCA (June 16, 2019), https://ibbi.gov.in/webfront/Notice%20for%20inviting%20public%20c omments%20on%20Code.pdf. 4 Indian Economy and Finance, What is a Joint Lenders’ Forum?, INDIANECONOMY.NET (Aug. 13, 2017), https://www.indianeconomy.net/splclassroom/what-is-joint-lenders-forum-jlf/. 5 RBI, Corporate Debt Restructuring, RESERVE BANK OF INDIA, (Aug. 23, 2001), https://www. rbi.org.in/Scripts/NotificationUser.aspx?Id=440&Mode=0. 6 RBI, Strategic Debt Restructuring Scheme, RESERVE BANK OF INDIA (Jun. 8, 2015), https:// www.rbi.org.in/Scripts/NotificationUser.aspx?Id=9767&Mode=0. 7 RBI, Resolution of Stressed Assets—Revised Framework, Reserve Bank of India (Feb. 12, 2018), https://www.rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=11218. 8 Indian Insolvency and Bankruptcy Code 2016, Ss. 5 (7), 5 (8). 9 Indian Insolvency and Bankruptcy Code 2016, Ss. 5 (20), 5 (21). 10 Indian Insolvency and Bankruptcy Code 2016, S. 14. 11 Indian Insolvency and Bankruptcy Code 2016, S. 17(1)(b).

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a Committee of Creditors (CoC)12 and participating in group decision-making for settlement of the debtor’s financial situation is necessary for all creditors, including offshore lenders. CIRP enables market to first attempt to resolve stress through a resolution plan whereby the CD survives. When market concludes that there is no feasible and viable resolution plan to rescue the CD or liquidation maximises value as compared to rescue, the CD proceeds for liquidation. Thus, the Code enables two ways of resolution of stress, first by resolution plan, failing which, by liquidation. Since the coming into force of the provisions of CIRP with effect from December 1, 2016, 4376 CIRPs have commenced by the end of March, 2021. Of these, 617 have been closed on appeal or review or settled; 411 have been withdrawn; 1277 have ended in liquidation and 348 have ended in approval of resolution plans.13 If the CIRP process fails, the debtors still face a serious prospect of liquidation. Long-term borrowers do not find it to be an acceptable solution, and micro, small, and medium-sized businesses are particularly affected because there are few investors who are interested in funding these types of businesses. Even for large organisations undergoing CIRP, time, money, and public perception loss are also significant causes for concern. Pre-packs are essential for a successful CIRP in this situation.

3 Overview of PPIR and Its Role in MSME Recent amendment of IBC brings forth the ‘Pre-packaged Insolvency Resolution Process’ [“PIRP”] as a technique of tackling establishments which are under distress with an intent to act as an alternative to the ‘Corporate Insolvency Resolution Process’ [“CIRP”] in an efficient manner. This amendments in turn pave the way for introducing the Chapter IIIA in the IBC and inserted section 54A to 54P.14 As opposed to CIRP wherein other than the company debtor itself, it’s miles often the creditor of a company that could initiate the insolvency. PPIRP foresees that the application for resolution needs to be initiated by Corporate Debtor [“CD”]. The NCLT’s choice to permit an out-of-court settlement in the insolvency case of Binani Cements, however, stoked the already raging debate on Pre-packs. Later, the NCLT order was overturned by the Supreme Court. CD who prepares a resolution plan, which needs to be approved at two stages, one by Committee of Creditors [“CoC”], and another by Adjudicating Authority.15 The Bankruptcy Law Reforms Committee (BLRC) has extensively debated with regards to viability of Pre-packs in Indian and it opined that out of court restructuring,

12

Indian Insolvency and Bankruptcy Code 2016, S. 18 (c). Annual Report-IBBI-2021-22, https://ibbi.gov.in/publication/reports. 14 Section 54C, IBC (Amendment) Act, 2021. 15 Section 6, Insolvency and Bankruptcy Code, 2016. 13

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without intervention from NCLT16 is not suitable to Indian Market.17 Nonetheless, the BLRC18 report has noted that if the NCLT must provide approval within 30 days of filing, then such a procedure may be permitted.19 In case of Essar Steel Ltd,20 Essar objected, arguing that a CIRP application shouldn’t be accepted against it because it was still in the middle of debt restructuring negotiations with its lenders.21 Essar also requested more time to finish the process. This objection was overruled by NCLT, who added that the start of CIRP does not necessitate that ongoing negotiations with lenders terminate in order for a resolution plan to be approved under the IBC.22 The CIRP appears to be sufficiently inclusive to cover the prospect of negotiating a resolution plan as a Pre-pack. The arrival of a pre-packaged insolvency regime, potent and viable firms now would have an option to keep their business running under the same board of directors and let the creditors control the commercial transactions of the CD. This stand will definitely help to reduce the interruption in the working of CD, and even business will keep running during rehabilitation process. In addition, the 3 years resting period is provided between two pre-packaged insolvency resolution processes. This gives an opportunity to the financially distress business a space to get out of the situation and regain itself. However, a CIRP can be initiated anytime after the termination of PPIRP. Hence, the Pre-pack procedure might operate similarly to a CIRP while involving creditors. However, because a pre-pack is a less formal process, it can be completed with creditors’ approval and without going through the 180-day process required for CIRP.23 If a Pre-pack is carried out in accordance with all the steps and regulations outlined in IBC, it may be at the NCLT’s sole discretion to decide whether to reopen the Pre-pack after being contacted by a dissident creditor.24

16

Bankruptcy Law Reform Committee, The Interim Report of the Bankruptcy Law Reform Committee, THE MINISTRY OF FINANCE 79 (Feb. 2015), https://www.finmin.nic.in/sites/def ault/files/Interim_Report_BLRC_0.pdf. 17 ET Bureau, NCLT Asks Binani Creditors to Consider Out-of-Court Settlement, ECONOMIC TIMES (Mar. 28, 2018), https://m.economictimes.com/markets/stocks/news/nclt-asks-binani-cem ent-creditors-to-consider-out-of-court-settlement/articleshow/63497265.cms. 18 Ibid. 19 Business Today, Supreme Court Rejects Out-of-Court Settlement for Binani Cement, BUSINESS TODAY (Apr. 13, 2018), https://www.businesstoday.in/current/corporate/supreme-court-rej ects-out-of-court-settlement-for-binani-cement/story/274793.html. 20 Standard Chartered Bank v Essar Steel Ltd, IB No. 39/7/NCLT/AHM/2017. 21 ET Bureau, Warranted time to complete debt restructuring: Essar Steel, THE ECONOMIC TIMES (July 17, 2017), https://economictimes.indiatimes.com/industry/indl-goods/svs/steel/war ranted-time-to-complete-debt-restructuring-essar-steel/articleshow/59635863.cms. 22 If 75% of financial creditors approve it. 23 Consent by majority vote—of 66.66% is required. 24 Indian Insolvency and Bankruptcy Code 2016, S. 7(5).

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4 MSMEs and the Pre-packaged Process The MSME sector is an integral part of the domestic economy as it has a significant impact on GDP and creates huge jobs among the population. According to the Bill, there should be a minimum threshold of less than Rs. 1 crore for starting pre-packaged insolvency proceedings, and there should also be provisions for handling concurrent applications for starting pre-packaged insolvency proceedings and insolvency resolution processes against the same corporate debtor.25 The statement further states: “Therefore, it is believed that there is an urgent to address the sectors specific needs by providing an alternative framework in the code with faster and cost effective insolvency resolution process, which will not much disturb the business, ensuring among other goals and job retention”. Another important provision contained in the amendment is related to corporate debtor management. Unlike CIRP’s creditor control approach, small business management continues to manage the business’s operations. This addresses the details that large companies lack. The most appropriate decision maker for a small business is a promoter who has a personal connection to the operation of the company. Internal control prevents interruptions. In February 2020, the Vidhi Centre for Legal Policy published a report on the PIRP framework.26 As per 2015 statement by the Bankruptcy Law Reform Commission, the report said, “the most important objectives in designing a legal framework for dealing with firm failure is need of the hour”.27

5 Pre-packaged Insolvency Resolution Process (PPIRP): Issues and Challenges 1. Minimum role of IRP: According to the IBC structure, an IRP is only appointed following the NCLT’s acceptance of an application for the start of the resolution process. Incharge of overseeing the debtor’s operations during the CIRP procedure is an IRP. A number of concerns have been raised regarding the sufficiency of having one person manage complex businesses of large-scale debtors during CIRP, not to mention the high costs related to hiring an IRP, despite the fact that IBC specifies specific qualification requirements for an individual to be licenced as an IRP. Also, there have been a few incidences of IRP fraud and poor management.28 25

Govt Tables Bill in Lok Sabha to Amend Insolvency Law, https://thewire.in/government/govttables-bill-in-lok-sabha-to-amend-insolvency-law (last visited Aug 23, 2021). 26 Sen et al. [2]. 27 The Report of the Bankruptcy Law Reforms Committee: Volume I: Rationale and Design (November 2015), https://ibbi.gov.in/BLRCReportVol1_04112015.pdf (last visited Aug. 23, 2021). 28 Mani and Bakshi [3].

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Similar to the “Debtor-in-Possession” idea in the US, pre-packs give the debtor and its creditors the chance to create a resolution plan without the involvement of and without investing money in hiring an IRP. IRPs are also charged with the duty of ensuring that all stakeholders’ interests—not just those of the creditors—are taken into account. This responsibility would fall on the debtor in the absence of an IRP, and he would be under pressure to reach an agreement with both secured and unsecured creditors. Pre-packs however will be challenging in India, as there is substantial opposition to allowing the debtor to manage the bankruptcy process without interference from IRP.29 After a Pre-pack has been completed and a CIRP application has been submitted to NCLT, it is also important to discuss the function of an IRP. Should the NCLT appoint an IRP after accepting a Pre-pack, who then oversees the debtor’s operations until the NCLT approves the resolution plan? It appears that an IRP will only have a modest administrative role to play in a scenario where the NCLT approves the resolution plan as soon as it is admitted. If the Pre-pack is reopened, however, the goal of resolving insolvency through a Pre-pack would be lost because IRP would oversee the debtor’s business going forward, potentially damaging the debtor’s operation. 2. Role of Creditor: In India, either the debtor voluntarily files for CIRP or one of the debtors’ creditors has the right to do so, unlike the American system where the debtor has the option to do so and then negotiate a plan of reorganisation with all parties involved. Pre-packs will mostly be a debtor-initiated process that requires the creditors’ cooperation and approval. The IBC already offers the creditors multiple levels of protection; for example, they have the opportunity to organise a Committee of Creditors that participates in the talks and has a higher position in the waterfall payment hierarchy.30 In this situation, it appears to be very little motivation for the creditor class to participate in a Pre-pack process. Moreover, even if the creditors approve of a pre-pack, there is nothing stopping the creditors from enforcing remedies against the debtor or its assets outside of the pre-pack negotiating process in the absence of an automatic stay or moratorium period. At any point during the Pre-pack negotiation, if a creditor is extremely dissatisfied, they may even go ahead and apply for a CIRP in NCLT. Even if a resolution plan has been successfully negotiated, a creditor has the power to protest once a CIRP application has been submitted and the plan has been presented to NCLT for approval, effectively ending the Pre-pack process. 3. Issue of Sale of Assets: One of the techniques for pre-pack restructuring in the Indian context is the sale of the debtor’s assets to another company or an asset reconstruction company before declaring insolvency and submitting an application for CIRP.31 The business is able to continue operating normally, the 29

Id at 26. Indian Insolvency and Bankruptcy Code 2016, S. 53. 31 Batra [4]. 30

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value of its assets is unaffected, and there are no client or employee losses as a result of a tarnished market reputation.32 The sale revenues are used to pay off the creditors. Nonetheless, the creditors frequently have a legal power to authorise or forbid the debtor from selling off their assets or placing new liens on them without their express consent. While it makes logical to obtain creditor consent before selling the debtor’s assets, some creditor classes could be reluctant to do so. This anxiety will only grow as the debtor faces bankruptcy, as the creditors worry they will lose all of their collateral against the debtor in the event of a liquidation. Unsecured creditors, who frequently do not receive such contractual safeguards, would have no vote in the decision and would be compelled to file for CIRP under insolvency right away, before a Pre-pack can take place. 4. Approval by NCLT: Although Project Sashakt heralds the beginning of the Prepack process in India, this scheme differs significantly from CIRP in that stressed assets under Project Sashakt are not needed to be subjected to the CIRP plan once those assets have been effectively resolved. Even with the approval of 66.6% of creditors, the resolution plan under a Pre-pack does not become final until NCLT accepts it, and a new negotiation of the resolution plan may be necessary if NCLT rejects the plan. NCLT has broad discretionary jurisdiction to reopen a Pre-pack because it has the capacity to provide final approval. 5. Role of Promoters and Connected Party during PPIRP: In case of Essar Steel, the management controlling the debtor, attempted to buy-back its firm by placing a bid as a resolution applicant, the high-profile case of Essar Steel ignited a debate about promoter buy-back. Section 29A was added to the IBC as a result of this incident and several other occasions33 where the promoter group undermined the CIRP procedure. The intent of Section 29A34 was to effectively forbid such buybacks of the debtor’s assets or business by its current management through a different company, a practise known as “phoenixing”35 that is very common in the UK. In a situation where the current insolvency is the result of the board and promoter group’s failure to handle the company’s affairs, such a prohibition would make sense. However, deterring the management from watching the CIRP process may be harmful to the debtor when the company’s bankruptcy is caused by other 32

Ibid. Edelweiss Asset Reconstruction Co. Ltd. v. Synergies Dooray Automative Ltd. & Ors. CA (AT) Nos. 169 to 173-2017, by divesting assets of the debtor company to an associate company, the associate company of the debtor company was able to participate in the CoC as a majority creditor. The resolution plan which was ultimately formulated envisaged a 98% haircut for the lenders of the debtor company. 34 Indian Insolvency and Bankruptcy Code 2016, S. 29A. 35 Phoenixing, or phoenixism, are terms used to describe the practice of carrying on the same business or trade successively through a series of companies where each becomes insolvent (can’t pay their debts) in turn; Government of UK, Phoenix Companies and the role of Insolvency Service, GOV.UK (Mar. 24, 2017), https://www.gov.uk/government/publications/phoenix-companies-andthe-role-of-the-insolvency-service/phoenix-companies-and-the-role-of-the-insolvency-service. 33

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circumstances, such as a halt in the growth of the relevant economic sector, a brief cash flow mismatch, etc. The Pre-pack process, where the debtor is in charge and restructuring takes place without the involvement of an IRP, faces significant challenges in India due to Section 29A. Given the legislature’s firm attitude, it is unlikely that related party Pre-packs, which are legal in the US and the UK, will ever be available in India.

6 Takeaway from USA and UK 1. Approval of the Court for Pre pack: It is possible to draw comparisons between the NCLT’s function in India and that of a bankruptcy judge in the US, both of whom have significant latitude in a debtor’s restructuring procedure. It is impossible to do away with the NCLT’s approval of a Pre-pack or the possibility to reopen a Pre-pack given the mistrust India has for out-of-court agreements. The NCLT’s wide discretionary power, meanwhile, is subject to regulation. Nowadays, the NCLT and NCLAT are guided by the concepts of natural justice36 and are governed by the regulations established under the Indian Companies Act, 2013. In the US, district courts have exclusive authority over initial bankruptcy cases; but, each district judge has the authority to refer cases to specialised bankruptcy courts by issuing “an order of reference”.37 The bankruptcy courts are staffed with specialised bankruptcy judges who have the authority to determine the bankruptcy’s “core-matters”38 and to issue a definitive judgement or order on them. It would be more appropriate to delegate the approval authority to a more specialised court with specialised bankruptcy judges, who are competent to evaluate a Pre-pack resolution plan, given the unique nature of Pre-packs and the niche market for the same in India. In order to ensure that the fundamental principles of CIRP are not compromised in the rush to reorganise the debtor’s business, such a specialised court can be established as a sub-set tribunal of NCLT. A different approach to this problem may be to rely on an IRP’s expertise, as is done in the example below. 2. Treatment of Creditor: The debtor must carry out the pre-pack process in India with the agreement and assistance of the creditor class. It’s crucial to give creditors logical incentives to pre-package rather than use CIRP in order to ensure that they comply and are deterred from objecting to the pre-pack process. Getting the approval of these classes of creditors to pre-pack for later efficient courtdriven CIRP is one approach to go about doing this. The creditors must concur to impose a “self-regulated automatic stay/moratorium” on themselves prior to 36

Indian Companies Act, 2013, S. 424 (1). 28 U.S.C.S. § 157 (a). 38 28 U.S.C.S. § 157 (b). 37

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the conclusion of the Pre-pack negotiating process and the filing of a CIRP application in NCLT once they have mutually consented to a Pre-pack. It is crucial to adopt the impaired and unimpaired classes of creditors39 from the US and assign roles in accordance with them for the treatment of creditor classes. It makes logical to define the secured classes of creditors, or financial creditors, as unimpaired classes as long as their debt is repaid to them in full, subject to the terms of their separate loan agreements, because they may be found at the top of the waterfall pyramid in the IBC40 waterfall. The unimpaired class will be guaranteed timely payment of their debt along with the interest promised (or even a greater interest rate than previously promised—to give them more motivation to join) and will be required to provide primary consent to Pre-pack. Only the classes of creditors who are financially handicapped shall have the right to object to the Pre-pack at any level of the discussion. To stop any wrongdoing by the debtor, either the creditors or any other parties involved may request the appointment of an IRP at any time. It goes without saying that the debtor will be tasked with the enormous responsibility of coordinating among all creditor classes, maintaining its credibility throughout the pre-pack process, and preventing any incident that may result in upsetting the creditors (along with an IRP, if they choose to appoint one). 3. Regulating IRPs: The administrators in the UK are more similar to IRPs under the Indian insolvency framework. It would be more beneficial to connect the duty of an IRP with a US trustee in the case of Pre-packs, though. The US Trustee does not have an economic interest in bankruptcy proceedings, unlike creditors, but it performs an important monitoring role, somewhat analogous to that of an amicus party, to help bankruptcy judges carry out their duties successfully and efficiently.41 Nonetheless, the overall idea is that the US Trustee helps support the efficient operation of the bankruptcy process as a whole.42 An IRP can be chosen by the debtor to oversee the Pre-pack process in India, at their discretion, and on the recommendation of either a creditor or any other stakeholder. Similar to a US Trustee, an IRP can act as an overseeing officer in the case of a Pre-pack, allowing the debtor to manage its own business while keeping an eye out for any IBC or bankruptcy rules that may have been broken. If the debtor and its creditors fail to name an IRP during the pre-pack process, the NCLT may do so once the pre-pack has been agreed upon by the debtor, creditors, and other stakeholders. The IRP’s role will be to review the pre-pack plan and the method by which it was accomplished and ratify that it was free of any fraudulent activities or criminal offences on the part of the debtor.

39

11 U.S. Code § 1124. Indian Insolvency and Bankruptcy Code, 2016, S. 53. 41 Avron [5]. 42 Ibid. 40

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To clarify the roles and responsibilities of an IRP in a pre-pack transaction, IBC would need to go through another round of revisions in Pre-packs process that has been implemented in India as a corporate rescue method. Since SIP16 (Statements of Insolvency Practice 16) considers the particulars of an IRP’s involvement in a Pre-pack, it may be helpful to consult it for guidance. SIP 16 is relevant in the UK and is numbered 1657 (SIP 16).43 4. Sale of Assets and Connected Party in Pre-Packs: In 2014, the UK government established a review group, the Graham Committee, to examine the Pre-pack procedure in response to a similar problem involving related party pre-packs. The Graham Committee44 advised creating a group of impartial business experts who would be entrusted with examining the debtor’s proposed pre-packaged solution, including any asset sales made as part of that process. In November 2015,45 SIP 16 was revised to include Pre-pack pool based on the Graham Committee’s suggestion in order to improve Pre-pack transparency. A comparable group of experts might be used to assess the debtor’s commercial choices made during the pre-pack phase. The Pre-pack pool will examine the debtor’s decisions on asset sales made during the Pre-pack procedure as well as any connected party transactions the debtor may be interested in. Such connected party transactions shall not be ratified if the Pre-pack pools determines that the debtor’s bankruptcy can be blamed on the board’s and promoters’ poor management. Yet, determining when the Pre-pack pool should intervene would be a significant barrier to this legislation. The confidentiality of the Pre-pack could be compromised if all business decisions during the negotiation process were subject to the Pre-pack pool’s approval. A review of these business decisions after they have been implemented will have no influence and will only make it more difficult to undo them if necessary. To maintain openness and provide comfort to the Pre-pack participants, it appears that the debtor’s voluntary appointment of an IRP in the capacity of a US Trustee is now even more crucial. An IRP may be tasked with overseeing the pre-pack process and informing the pre-pack pool of any suspected fraudulent conveyances for their evaluation and approval. The Pre-pack pool and a voluntarily appointed IRP can effectively make sure that all business dealings take place throughout the Pre-pack process at arm’s length, in the best interests of all creditors and stakeholders, and in compliance with IBC.

43

Corporate Report, Statement of Insolvency Practice 16, GOV.UK (Apr. 7, 2014), https://www. gov.uk/government/publications/statements-of-insolvency-practice-16-sip-16. 44 Independent Report, Graham Review into Pre-pack Administration, GOV.UK (June 16, 2014), https://www.gov.uk/government/publications/graham-review-into-pre-pack-administration. 45 LexisNexis, Statement of Insolvency Practice (SIP) 16—Background and Key Amendments, LEXISNEXIS (2015), https://www.lexisnexis.co.uk/legal/guidance/statement-of-insolvency-pra ctice-sip-16-pre-packaged-sales-in-administration.

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7 Conclusion With the introduction of PPIRP, the government is trying to legally sanction this process. The intent is sound, and it’s certainly good to MSME that bears the brunt during pandemic, but it’s still unclear if changes will reach the goal of a cost-effective way. The consensus process is undoubtedly a timely tool for bankruptcy systems and may reduce the number of cases faced by NCLT. Understandably, pre-pack administrations and how they are carried out have also received a great deal of criticism. The main complaints against pre-pack administrations centre on their lack of openness, exclusivity, and subsequent bias against specific creditor groupings, particularly unsecured creditors. As was already said, the transaction frequently takes place without the consent of unsecured creditors. When the buyer has ties to the bankrupt company, such as management or prior owners, the lack of visibility and openness raises concerns. Pre-packs should be tested on small group like MSME first before a full-fledged plan can be implemented, because the Pre-pack mechanism is relatively new and untested in the Indian market and as of now only 2 cases appeared related Per pack. It’s also important to note that in the US and the UK, pre-packs have proved most effective for debtors with concentrated debt and a small number of creditors. Large companies with very heterogeneous debt and larger groupings of various creditors should not be allowed to choose a pre-pack, for this reason.

References 1. Finch V., Corporate Rescue: A game of Three Halves, LEGAL STUDIES, 32(2), 302– 324 (2012) https://www.cambridge.org/core/journals/legal-studies/article/corporate-rescue-agame-of-three-halves/247133711181660F64CE0DB44BECD62F. 2. Oitihjya Sen, Shreya Prakash & Debanshu Mukherjee, Designing a Framework for Pre-Packaged Insolvency Resolution in India: Some Ideas for Reform (February 2020), Vidhi Centre for Legal Policy, https://vidhilegalpolicy.in/wp-content/uploads/2020/07/Report-on-Pre-Packaged-Insolv ency-Resolution.pdf (last visited Aug. 23, 2021). 3. Paul A. Avron, A Primer on the Role of the Office of the US Trustee, THE FEDERAL LAWYERS (June/July, 2018), http://www.fedbar.org/Resources_1/Federal-LawyerMagazine/ 2018/JuneJuly/Columns/Bankruptcy-Brief.aspx?FT=.pdf. 4. Sumant Batra, Insolvency regime: Time for Pre-packs, THE FINANCIAL EXPRESS (Dec. 7, 2018), https://www.financialexpress.com/opinion/insolvency-regime-time-for-pre-packs/140 6003/. 5. Veena Mani & Ishan Bakshi, The Curious Case of Synergies Dooray and its Implications, BUSINESS-STANDARD (Sep. 20, 2017), https://www.business-standard.com/article/compan ies/flaws-in-the-insolvency-code-117091900999_1.html.

Entering into Food Processing Market in India—Methodology of Obtaining the Food Registration and Food Licenses Rathna Malhotra Gaur

1 Introduction Food is considered as an inherent factor important for growth of any economy. India having a population of 1.38 billion people,1 food Industry is bound to grow and is one of the industries where long-term investment and returns can be projected. India’s total food import has risen from 18,780.98 ($ Million) in the year 2012–13 to 20,994.93 ($ Million) in the year 2020–21.2 The Indian food processing market reached height of INR 30,938 Billion in 2020 and is expected to grow at the rate of 12% during 2021–2026.3 The Indian food processing Industry includes diary, meat, cereals, grains, oilseeds, fruits and vegetables beverages (non-alcoholic). The industry generates an employment of 7 million4 and is the 5th largest industry in the manufacturing segment.5 It is the 13th largest recipient of Foreign Direct Investment (FDI) in India attracting over USD 9.98 billion6 (April 2000–March 2020). A few reasons that may be attributed to the growth of this Industry are—with the growth of urbanization and organized retail food sector the demand for processed food has increased drastically, high demand for 1 The statistic shows the total population of India from 2016 to 2026. In 2020, the estimated total population in India amounted to approximately 1.38 billion people, available on https://www. statista.com/statistics/263766/total-population-of-india/#:~:text=The%20statistic%20shows% 20the%20total,to%20approximately%201.38%20billion%20people.&text=India%20currently% 20has%20the%20second,ranking%20China%20within%20forty%20years. 2 Source: Department of Commerce. 3 Source: Department of Food Processing, Government of India. 4 CII-Report, Indian Food processing Sector Trends and Opportunities, August 2019. 5 IBEF website accessed in January 2022. 6 DPIIT—FDI Statistics Apr 2000–March 2020, Accessed on January 2022.

R. M. Gaur (B) Amity Law School, Amity University, Noida, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_18

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packaged and healthy food products in India, shift from loose products to branded commodities. India has not only the advantage of huge domestic market but also the raw materials available in abundance. All the above-mentioned reasons make the sector having versatile growth and giving tremendous opportunity for growth. Owing to aforementioned reasons, this sector has also attracted Foreign Direct Investment (FDI) from various foreign investors across the world. The Government of India has also promoted FDI in the sector and also came up with various schemes and incentives which promote the growth of the sector. The trade relation between India and Australia have recently showed an upward trend. The Australian Trade and Investment Commission, has recognized the potential of Indian markets in terms of fast growing and increasing affluent consumer market, a transforming economy that offers fast-growing opportunity for Australian business.7 The Australian government has recognized India’s strong fundamentals— steady urbanization, existence of youth and their demands and increase in the working class of the society, digitization and formalization of the Indian economy. Two-way goods and services trade with India was $24.4 billion in 2020. Australia’s stock of investment in India was $15.4 billion in 2020. The stock of two-way foreign direct investment was valued at $1.4 billion in 2020.8 Australia’s clean and green food has great brand and reputation in India. The Australian government has recognized several Food based sectors of India and the likely growth prospectus on the same. The Australian government has recognized Horticulture, Wine, Processed Food, Diary, Plant Protein, Agtech as the Industries having potential growth perspective and encourage the Investments in these sectors.9 Owing to the recognition of Indian Food sector and particularly Indian Food Processing Industry coupled with various schemes and incentives in FDI by Government of India, the Australian Investors can explore this market from growth and profit perspectives. The next question which comes in Investor’s mind is the regulatory mechanism for the purpose of entering Indian Food processing Industry. Apart from the approvals from Government of India, Reserve Bank of India, taxation and labour law compliances, corporate law compliances, the most important and crucial compliance is procurement of Food Licenses and registration of Food products in India under the Indian Food Laws.

7

Exporting to India, Australian Trade and Investment Commission, Australian government, https://www.austrade.gov.au/australian/export/export-markets/countries/india/market-profile#: ~:text=The%20Australia%20India%20Business%20Exchange,program%20between%20Aust ralia%20and%20India.&text=An%20India%20Economic%20Strategy%20to,Australia’s%20econ omic%20partnership%20with%20India. Visited in January 2022. 8 Indian country brief given by Australian Trade and Investment Commission, Australian government. https://www.dfat.gov.au/geo/india/india-country-brief. Visited in January 2022. 9 Food and agribusiness to India, Australian Trade and Investment Commission, Australian government, https://www.austrade.gov.au/australian/export/export-markets/countries-and-econom ies/india/industries/food-and-agribusiness-to-india. Visited in January 2022.

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Food Safety and Standards Act, 2006 (Hereinafter referred to as FSSAI) was enacted for laying down science-based standards for articles and food and to regulate their storage, distribution, manufacture and import and to ensure safe food availability to the citizens of India. The intention of the Legislature was to take care of the international practices and to create single window to guide and regulate persons engaged in manufacture, marketing, processing, transportation, import and sale of food items. The Act tries to harmonize the interest of the consumers and manufacturers to ensure (1) Food Safety (2) protect the interest of the Consumer (3) ensure safe and wholesome food for the people and at the same time ensure the growth of the Food industry in India.10 Prior to the enactment of FSSAI there was multiplicity of Food Laws which had led to lack of uniformity and approach in the Food Industry. Apart from this, there were various regulatory authorities for setting standards and enforcement of different sectors of Food which resulted in rigidity and uncertainty within the food Industry. Lack of testing laboratories coupled with thin spread of manpower and other resources led to poor dissemination of information at consumer level. In this background, there was a need for single regulatory authority at national level of all food related matters to ensure uniformity, holistic approach, ease of doing business and protection of consumer interest. Hence FSSAI was enacted to meet this objective and repealing the below orders, rules and regulations: 1. Prevention of Food Adulteration Act, 1954 (37 of 1954); 2. Fruit Products Order, 1955; the Meat Food Products Order, 1973; 3. Vegetable Oil Products (Control) Order, 1947; the Edible Oils Packaging (Regulation) Order, 1998; 4. Solvent Extracted Oil, De oiled Meal; 5. Edible Flour and (Control) Order, 1967; 6. Milk and Milk Products Order, 1992; and 7. any other order issued under the Essential Commodities Act, 1955 (10 of 1955). Thus, FSSAI was enacted to consolidate laws relating to food and to establish the Food safety and Standards Authority in India for laying down science-based standards for articles of Food. The Act also laid down penal provisions for not adhering to the provisions of the Act. Thus, it became utmost important that the provisions of the Act be properly implemented by the Food regulatory authorities to enable state achieve an appropriate level of human life and health, safeguarding the right to Life guaranteed under Article 21 of the Constitution. In order to achieve the above objective, under Section 4 of the FSSAI, a body named Food Safety and Standards Authority of India (Hereinafter referred to as Food Authority) is being constituted. This authority is being vested with the duty to regulate and monitor the manufacture, processing, distribution, same and import of food so as to ensure safe and wholesome food. Under Section 16 of FSSAI, the authority is been vested with the powers to make further regulations for exercise of their powers and appropriate implementation of the provisions of FSSAI. It is 10

Vithal Nutraceuticals Pvt Ltd V Union of India, 2014 (1) FAC 1 at pg. 6 (Bom).

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also the duty of the Food Authority to specify, by regulations, the standards and guidelines in relation to articles of food, mechanism and guidelines for accreditation of certification bodies engaged in management systems for food business.11 In order to establish any kind of business in India, you need a Food License and registration. Before entering into Food Industry, one needs to ensure that the Food product is not harmful in any manner. Hence, an industry needs to procure the Food License which would ensure the quality issues are addressed. This would also ensure better consumer confidence and better sales in the market.

2 Licenses and Registration of Food Business Under FSSAI Section 32 of FSSAI contains the provisions with regard to Licensing and registration of the food business. Below are a few highlights of the section: • It is mandatory to procure a food license for carrying on or before commencement of food business in India. • However, the below are exempted from procuring Licenses: (a) (b) (c) (d) (e)

Petty Food Manufacturers Hawkers Itinerant vendor Temporary stalls Small scale or cottage industries engaged as food business operators.

However, the exceptions provided to the above category of vendors shall not effect/ harm the availability of safe and wholesome food safe for human consumption or affecting the interests of the consumers. Though the above category is exempted from procurement of Licenses but registration of their food operations is still mandatory under the Act. • Every business operator shall submit an application to the designated officer for procuring Licenses for the food it intends to sell. The designated officer shall within a period of two months pass an order allowing or declining the application. If no order is received within a period of two months, from the date of the Application then it is deemed acceptance. However, the officer still has the power to issue improvement notice. • Apart from these there are provisions pertaining to appeal, renewal of Licenses, powers of the officers while exercising their power of granting Licenses.

11

Centre for Public Interest Litigation V Union of India, 2013 (2) FAC 135 at p. 139 (SC).

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3 Food Safety and Standards (Licensing and Registration of Food Businesses, Regulation, 2011) Having understood the substantial law with regard to licenses and registration, Food Safety and Standards (Licensing and Registration of Food Businesses, Regulation, 2011) (Hereinafter referred as regulation) was further enacted which lays down the further procedural and detailed provision on registration and licenses of food operators in India. Below is the summary of the provisions of the said regulations: I. Registration of Petty Food Business Regulation 2:1 lays down the provisions regard to registration of petty food business. As discussed above, it is not necessary to procure the license, however registration of the establishment is mandatory. The intending petty food operator shall submit a declaration12 about the basic hygienic and safety requirements as mandated under the regulation along with an Application13 requesting the registration. The registration authority shall consider the Application and pass an order within 7 days of the receipt of application for registration. II. Licenses for Food Business Regulation 2.1.1 lays down detailed provisions with regard to License for Food Businesses. As per the regulation it is mandatory for every business operator engaged in food Industry to possess a valid License. The Regulation lays down various business in Schedule 114 of the Regulation and if the operators business falls within the said Schedule then the Food License shall be granted by the Central government Licensing authority. In case the business of the Food operator doesn’t fall within schedule 1, then the state/Union Territory licensing authority shall grant the license.

12

The self-declaration needs to be submitted in the format provided under Part 1 Schedule 4 of the Regulation. 13 Format of Application is found on—https://foodlicensing.fssai.gov.in/PDF/FORM_A.pdf. 14 The list of food operators under schedule 1 can be found on: https://foodsafetyhelpline.com/sch edule-1/.

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3.1 Documents Needed for the Purpose of Registration and License15 Below documents are needed for the purpose of obtaining registration and Food Licenses: • Application required for Obtaining Central License a. Form A16 (Registration) Form B17 (Licenses) duly completed and signed b. Plan of the processing unit showing the dimensions and operation-wise area allocation (Mandatory only for manufacturing and processing units only) c. List of Directors/Partners/Proprietor with address, contact details, and photo ID d. Name and list of equipment and machinery used with the number and installed capacity (Mandatory only for manufacturing and processing units only) e. List of food category to be manufactured (In case of Manufacturers) f. Authority letter from manufacturer nominated a responsible person name and address g. Analysis report of water to be used in the process to confirm the portability (Mandatory only for manufacturing and processing units only) h. Recall plan wherever applicable i. Ministry of Commerce Certificate for 100% Export Oriented Unit. j. NOC/PA document issued by FSSAI k. Proof of possession of premises l. Partnership deed/affidavit of proprietorship m. NOC from the municipality or local body n. Supporting document for proof of turnover and transportation o. Declaration form18 Above-mentioned are generalized documents. Apart from the above, there many be specific Industry specific documents that may be required as per the applicable norms.

15

The list of documents were notified by FSSAI through order dated 19th March 2021. The copy of the order can be found on: https://foscos.fssai.gov.in/assets/docs/DocumentListMarch.pdf. 16 The form can be found on: https://foodlicensing.fssai.gov.in/PDF/FORM_A.pdf. 17 The link to form B can be found on: https://foodlicensing.fssai.gov.in/PDF/FORM_B.pdf. 18 The copy of the Declaration form can be found on https://foodlicensing.fssai.gov.in/PDF/Declar ation.pdf.

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3.2 Processing the Application for License Once the filled-up Application and the required documents are ready, the submission process in online and commences on FOSCOS (Food Safety Compliance System).19 This is an integrated system established under the FSSAI that regulates and monitors the registration process and the License procurement process in India. On receipt of the Application, the licensing authority shall scrutinize the documents, and shall revert back on the status/requirement of additional documents within 15 days of the receipt of the application. On receipt of complete application, an application ID shall be allotted for all further references. Thereon, the Licensing authority shall with the assistance of the Food inspector visit the premises and suggest the changes with regard to general hygiene and sanitary conditions. On incorporation of the changes to the satisfaction of the food Inspector, the Food License shall be granted accordingly. And if the directions are not met by the Food Operator, the Application for grant of Food License shall be rejected immediately. As a general rule, the Food License shall be issued within 60 days from the date of allocation of application ID no.

3.3 Annual Returns As per regulation 2.1.13, every manufacturer and importer who has been issued a License, shall before 31st May of each year, submit a return electronically or physical form, in Form D-120 in respect of food items handled by him during the previous financial year. However, the Licensee engaged in Milk and Milk products shall submit half yearly returns on form D-2.21 Such return shall be filled within a month from the end of the period. A separate return shall be filed for every license issued under these regulations. If there is a delay in filing these returns as stipulated in these regulations, there would be penalty of Rs. 100 for per day of delay.

19

The link for registration is https://foscos.fssai.gov.in/. Form D-1 is found on: https://www.dfda.goa.gov.in/uploads/Form_D1.pdf. 21 Form D-2 is found on https://foodlicensing.fssai.gov.in/PDF/Half%20Yearly%20Return% 20for%20Milk%20and%20Milk%20Products%20Form%20D-2.pdf. 20

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3.4 Hygienic and Sanitary Practices to Be Followed by Food Business Operators As per Regulation 2.1.2 and Schedule 422 of the Regulations, it is mandatory for the Food operators to adhere to the guidelines to ensure safe, clean and wholesome food for all the consumers of the country. These are rules which every registered or Licensed establishment engaged in food being handled, processed, manufacturer, storage and distributed needs to adhered to. a. Sanitary and Hygienic Requirements of for Food Manufacturers/Processor/ Handler and Street Food Vendors The premises where the food operations are carried out should be situated in clean environment free from filthy surroundings. There should be sufficient place and the same should be adequately lighted and ventilated. The floor of the premises needs to be maintained adequately and needs to be washed with disinfectant to keep the premises clean. There should be continuous supply of adequate portable water and in case of shortage of the same, necessary arrangement should be made for storage of portable water. All the equipment’s used in the premises should be kept clean and in good condition. Several steps are indicated for the personal hygiene of the food handlers like use of aprons, hand gloves, washing of hands with soaps/detergent etc. The vehicles used for transportation of the food commodities should be in good repair condition and always kept clean. Apart from the above, there are other basic conditions to be adhered to by the Street Food Vendors. There are specific rules with regard to vending carts- their size, hygiene and maintenance. The working surfaces of the street food vendors should always be clean and above the surface level by 60–70 cm. There are detailed provisions with regard to maintenance of utensils used for cooking the food and their hygienic standards. The notification also lays down provision on separate handling of vegetation and non-vegetarian food products. b. General Hygiene and Sanitary Practices to Be Followed by the Business Operators Applying for Food License Regulation 2.1.1 (4) and Part II of Schedule 423 of the Regulations, lay down general hygiene and sanitary practices to be followed by all the food operators applying for Food Licenses in India. Below is the summary of such requirements, i. The location of the food establishment should be away from such areas which are environmentally polluted or where hazardous industrial activities which may pose a threat to food contamination are carried on. In case there are hazardous industries located then additional steps need to be taken by the food operators to protect the area from food contamination. The 22

The detailed provisions on the Hygienic Standards can be found on https://fssai.gov.in/cms/hyg iene-requirements.php. 23 Ibid. at 14.

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manufacturing area should not have any access to direct access to residential area. The layout of the food establishment should be such that food production and manufacturing process are not amenable to cross-contamination. The floors, ceilings, walls, doors should always be made of such material to ensure minimization of dust, condensation and unnecessary particles. The windows of the establishment shall be screened by insect-proof meshes to protect the premises. The food manufacturer shall take adequate steps to ensure disinfection of the floor and proper drainage facilities on the premises. It is the duty of the food operators to keep the equipment and containers that are used for food manufacturing and handling be made of corrosion free material and shall always be kept in good order in clean and sanitary condition. The utensils shall always be covered and shall not be kept in any such place whereby the food is likely to be contaminated by impure dust or noxious gas or substance. Only portable water, shall be used as an ingredient in processing and cooking of food products. The water storage tanks shall be cleaned periodically and records about the cleaning timed and process shall be maintained at all times. Food waste and other waste materials shall be removed on regular basis from the food manufacturing area to avoid the mixing of the same. The disposal of the sewage and effluents (solid, liquid and gas) shall be in conformity with the Laws of the Land. The food operator shall ensure adequate personal facilities and toilets. The personnel handling the food should wash their hands periodically and necessary hot and cold-water facility with adequate number of bases shall be provided. Adequate number of toilets for male and females should be provided and the personnel should be made educated about the importance of hygiene and cleanliness while handling the food processes. The raw materials procured by the Food operator shall be clean and free from any kind of parasites, pesticides or other toxic substances. The records of raw material, food additives and ingredients as well as their source of procurement shall be maintained at all times for inspection purposes. The food operators shall ensure the packaged food product are used before the “expiry-date”/best-before/sue-by date. The storage facility of the raw-material should be designed in such manner to disable the contamination at all times. Adequate cold-storage facilities should be made available where ever necessary. The rule to be followed while handling the raw-material would be FIFO (First in, First Out), FEFO (First Expire-First Out). The packaging materials shall provide protection of all the food products to prevent food contamination, damage and ensure compliance with the labelling norms.

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x. The food operator shall take all the necessary steps to ensure all critical links of food supply are identified to minimize food spoilage during transportation. The transportation shall be carried out in such manner so that the requisite food temperature, humidity, atmosphere and such other conditions to avoid spoilage of the food are ensured. xi. The food operator shall ensure setting-up adequate food testing laboratory inside the food establishment. The food products shall be regularly checked for food contaminations and other adequate standards in accordance with the regulations laid down by the Food authority. In case there is no such internal testing Laboratory, then regular testing shall be carries out by accredited lad notified by FSSAI. xii. Periodic audits shall be conducted on regular basis to ensure the compliance with the food products. Appropriate records of food processing/ preparation/transportation, food quality, laboratory reports shall be kept for a period of one year or shelf-life of the product whichever is earlier. Apart from the general rules laid down above, there are specific hygiene and sanitary practices to be followed by food handlers of Milk and Milk Products24 and Meat and Meat products.25 Apart from the same there are specific regulations for food operators engaged in catering/Food Service Establishments.26

3.5 Conditions of License Annexure 3 of the Regulations lay down the conditions of License that all food operators must adhere to during all times during the course of its food business. Below is the summary of the rules, 1. Display a true copy of the License at all times at a prominent place in the place of business. 2. The authorities shall at all times be given access to the premises. 3. The authorities shall be informed about any change or modifications in activities/ content of License.

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Regulation 2.1.1 (1) (5) and Part III of Schedule 4 of the Regulation lay down specific guidelines for Milk and Milk Products. These regulations can be found at Ibid. Footnote 14. 25 Regulation 2.1.2 (1) (5) and Part IV of Schedule 4 of the Regulation lay down specific guidelines for Meat and Meat Products. These regulations can be found at Ibid. Footnote 14. 26 Part V of Schedule 4 of the Regulation lay down detailed and specific rules for food business operators engaged in Catering/Food service establishments. These regulations can be found on Ibid. Footnote no. 14.

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4. The Food Operator shall furnish an annual return27 (1st April–31st March), within 31st May of each year. The Food operator shall also submit half-yearly returns28 (wherever applicable) by stipulated time. 5. The food operator shall maintain daily records or production, raw material utilization and the sales separately. 6. The food operator shall maintain factory’s hygienic standards as specified in Schedule 4 (discussed above). 7. The proprietors of hotels, restaurants and other food stalls who sell or expose sale savories, sweets and other food articles shall display a notice board indicating lists of articles cooked in ghee, edible oil and other fat products.

3.6 Fee for Procurement of License Along with the Application form, one needs to pay the fee for procurement of License and registration. The same is stated in Regulation 2.1.3 read with Schedule 329 of the Regulations. The fee for registration is INR 200. The fee for grant of License varies between INR 2000 and INR 7500 depending upon the nature of the industry. The said fee shall be non-refundable fee. In case the food operator needs Duplicate copy of the License, then the same shall be granted on a fee of 10% of applicable fee.

3.7 Validity and Renewal of Registration and License The registration or license granted under these regulations, shall be valid and subsisting for a period of 1–5 years, as chosen by the Food operator, from the date of issue of the registration or license.

3.8 Renewal of Registration and License Regulation 2.1.7 lays down the provisions with regard to renewal of the Licenses. The food operator shall make an Application for grant of renewal within 30 days of the expiry date of the License. The Application along with the requisite fee shall be made to the Licensing authority in Form A or B30 of Schedule 2 of the Regulation. 27

The format of the Annual return is found on https://foodlicensing.fssai.gov.in/PDF/Annual%20R eturn%20Form%20D-1.pdf. 28 The format of the semi-annual return can be found on https://foodlicensing.fssai.gov.in/PDF/ Half%20Yearly%20Return%20for%20Milk%20and%20Milk%20Products%20Form%20D-2. pdf. 29 The details pertaining to the grant of fee is found on https://foodsafetyhelpline.com/schedule-3/. 30 Ibid. at Footnotes 8 and 9.

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Any delay in filing the renewal Application beyond the stipulated time in case of Food License, shall attract a penalty of INR 100 per day for each day of delay. In case the renewal is not done within time, then the License shall stand cancelled and the food operator is bound to stop all the activated from the premises. In case the operator intends to restart the business, then a fresh Application shall be made to the concerned authorities.

3.9 Guarantee Regulation 2.1.14 makes it mandatory for every food manufacturer, distributor or dealer selling an article of Food to give a warranty31 about the products sold and its compliances with the applicable laws.

3.10 Suspension or Cancellation of the Registration Certificate or License As per Regulation 2.1.8 and section 32 of FSSAI, in case the Food Operator has failed to comply the conditions of the registration or License, then the registering or Licensing authority after giving a reasonable notice of being heard, and after non-compliance of Improvement Notice32 suspend the registration and License of 31

The format of the Guarantee can be found on https://foodsafetynews.files.wordpress.com/2011/ 09/form-e-_form-of-guarantee.pdf. 32 The provisions pertaining to Rectification notice under Section 32 of FSSAI states as below, 32. Improvement notices: (1) If the Designated Officer has reasonable ground for believing that any food business operator has failed to comply with any regulations to which this section applies, he may, by a notice served on that food business operator (in this Act referred to as an “improvement notice”): (a) state the grounds for believing that the food business operator has failed to comply with the regulations; (b) specify the matters which constitute the food business operator’s failure so to comply; (c) specify the measures which, in the opinion of the said Authority, the food business operator must take, in order to secure compliance; and (d) require the food business operator to take those measures, or measures which are at least equivalent to them, within a reasonable period (not being less than fourteen days) as may be specified in the notice. (2) If the food business operator fails to comply with an improvement notice, his license may be suspended. (3) If the food business operator still fails to comply with the improvement notice, the Designated Officer may, after giving the licensee an opportunity to show cause, cancel the licence granted to him: Provided that the Designated Officer may suspend any licence forthwith in the interest of public health for reasons to be recorded in writing.

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the Food Operator. However, the authority has the power to forthwith cancel the registration and License in the interest of public health and the reasons for the same shall be recorded in writing.

4 Conclusion Above-mentioned is the detailed discussion on the provisions of the Regulations. In case any food operator fails to comply with the provisions of these regulations, there is penalty that may run upto Rs. 500,000/– (Five Lakhs) and also penal provision with regard to Imprisonment of the Food operator. Food being one of the basic necessities for human existence and India’s commitment and Indian judicial mandate of right to clean and Hygienic food for all the citizens of the country, these regulations are definitely a step forward to protect consumer welfare and interest. The compliances stated in these regulations are exhaustive in nature and aim towards the goal of FSSAI to provide healthy and hygienic food to the consumers. The mandate of getting every Food establishment to get registered and every food product Licensed will ensure compliances under the provisions of FSSAI and these regulations. The enforcement of these regulations has also been effective by government of India. Procuring a registration and food licenses are no longer problematic in the country. There is one online portal where the person seeking registration and License needs to apply on the portal, upload all the documents and the reply is also received within the stipulated time. The tracing of the Application is also an easy process and the same is also available on the same portal. All the returns are also filed on the same portal. This has led to transparency in the process and assisted the food handlers in smooth functioning.

(4) Any person who is aggrieved by: (a) an improvement notice; or (b) refusal to issue a certificate as to improvement; or (c) cancellation or suspension or revocation of licence under this Act, may appeal to the Commissioner of Food Safety whose decision thereon, shall be final. (5) The period within which such an appeal may be brought shall be: (a) fifteen days from the date on which notice of the decision was served on the person desiring to appeal; or (b) in the case of an appeal under sub-section (1), the said period or the period specified in the improvement notice, whichever expires earlier; Explanation.—For the purpose of this sub-section, the making of the complaint shall be deemed to be the bringing of the appeal.

An Australian-Based View on Reconstructing Copyright Licensing Laws Robert Cunningham, Marinos Papadopoulos, and Nikos Koutras

1 Introduction It is widely accepted that statutory licensing schemes can generate inefficiencies in a digital environment and limit the efficient exchange of copyrighted works. In the new digital landscape, contemporary issues such as the need to promote online creativity, support digital live streaming, and develop effective computer hardware have to be addressed by the copyright licensing scheme. In such a context, the purpose of the paper is to consider the effectiveness of the copyright licensing scheme in Part IVA of Copyright Act 1968 (Cth) (‘the Act’) and analyse how it can be strengthened to support creativity and digital exchange. The first part of this paper is focused on open access practice and justifications that make it a desirable mode for publishing. The first part also examines foreign jurisdictions (i.e., the European Union) where there is efficient implementation of open access practice, leading to improved scientific communication. It follows that these best practice examples should be considered in a future inquiry from the Australian Law Reform Commission (ALRC) and become part of The Future of Law Reform discussion introduced in 2020. In addition, the literature reflects that openness determines a new ‘norm’ which has been embraced by the industry of academic publishing in Australia (e.g., through institutional repositories of open access and mandatory policies of open access). The literature also reflects that discussion about a future introduction of an open access provision in ‘the Act’ is limited and there is no systematic research conducted in this area. The second part of the paper considers the institutional perspective by examining specific Australian institutions’ contribution in the discussion and the potentiality that R. Cunningham · N. Koutras (B) Curtin Law School, Curtin University, Perth, WA, Australia e-mail: [email protected] M. Papadopoulos Athens Bar Association, Athens, Greece © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_19

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stems from such contribution towards a future reform of ‘the Act’ (i.e., Australian Research Council, Australian Law Reform Commission, and the Australian Productivity Commission). This part argues that ‘reconstruction’ of copyright licencing laws applied in Australia, will further access opportunities, and enhance scientific communication. The concluding part of the paper argues that reconsideration of the final report on Intellectual Property Arrangements Inquiry issued from the Australian Productivity Commission (2016) lead to gradual integration of an open access provision in ‘the Act’, which will enhance copyright licencing laws. Overall, the paper argues that the proposed recommendations have a potential to set the background of discussion required in the context of amendments of statutory licencing schemes of ‘the Act’. Consequently, introducing an open access provision is going to enhance exchange of information produced from Australian Universities and research centres, accordingly.

2 The Openness Movement 2.1 Justifications for the Open Access Practice This section considers philosophical and practical justifications for open access. In particular, the section traverses: (a) the philosophical justification that knowledge is power and for that reason it is important that everyone has access to knowledge, and (b) the pragmatic justification that recognises that in this digital age it is impractical to enforce copyright in the traditional sense. The first justification relies on Foucault’s premise that knowledge is power. The second justification addresses the pragmatic issue and relies upon examples that highlight the impracticability of copyright enforcement, which necessitates reform of the copyright regime. Both justifications for greater access to knowledge are, in turn, arguments for access to information resources via open access practice.

2.1.1

Philosophical Justifications for Open Access

Knowledge and power have a longstanding co-existence. Desire, emotion, and knowledge, according to Plato, shape human behaviour. Sir Francis Bacon invented the renowned proverb ‘ipsa scientia potestas est’, meaning ‘knowledge itself is power’.1 Knowledge is a vital aspect in achieving outstanding accomplishments.2 As a result,

1 2

Bacon [1, 2]. Black [3].

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gaining knowledge makes one stronger. Similarly, Kofi Annan asserts that “education is the foundation of growth in every community and family”.3 This section emphasises the close relationship between access to informational resources and access to knowledge. According to Foucault, knowledge is a form of power.4 That is, disciplinary traditions shape what qualifies as authoritative information. Universities and academic periodicals thus contribute significantly to authoritative knowledge standards.5 Access to information is a prerequisite for access to knowledge, and open access is an essential tool for facilitating such access. Foucault’s writings expand sociology’s analysis of power to the social sciences He also contends that knowledge and power coexist. In order to do so, he develops the notion of discursive formations, which means discourse is more than just words and symbols. The notions of power, knowledge, and ‘discursive formations’ are interconnected in The Archaeology of Knowledge.6 In particular, he states that: [K]nowledge linked to power, not only assumes the authority of the truth, but has the power to make itself true. All knowledge, once applied in the real world, has effects, and in that sense, at least, becomes true.7

The link between power and knowledge is critical within the context of this paper. If it is accepted that in contemporary societies knowledge dissemination primarily happens through the digital media, it follows that access to information sources must be a significant instrument to “exercise” the power of knowledge. As a result, improvement of our knowledge background can happen through efficient implementation of open access practice. Not only does open access improve the process of knowledge, but it also gives users the opportunity to exercise such power.

2.1.2

Pragmatic Justifications for Open Access

The pragmatic argument for greater access to information and knowledge is related to the difficulties of enforcing copyright protections in the new context of digital publications. The difficulties in enforcing traditional concepts of copyright are threefold. The first concern is the scope of Intellectual Property (IP) law, specifically that IP is intangible and what constitutes an infringement of IP rights is invariably a matter of interpretation. The second issue is how to manage informational resources in the digital age due to the rapid transmission of information and the exchange of copyrighted works. The third issue is linked to the concept of digital publishing and concerns about copying. The pragmatic argument for greater access to information and knowledge is related to the difficulties of enforcing copyright protections in the new context of digital publications. 3

Stromquist [4]. Allen [5]. 5 Keenan [6]. 6 Foucault [7]. 7 Hall [8]. 4

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To return to the first ‘optimistic IP’ issue, determining what constitutes copyright is difficult. The framework of United States copyright law (henceforth US copyright law) is relevant here, emphasising the challenges in enforcing intellectual property rights. Whether or not a practise infringes on the creator’s copyright is always subject to legal interpretation, which can only come from the courts. As a result, the complexity of the law and the associated costs for artists or creative content creators in enforcing the rights granted to them by copyright laws act as real impediments.8 The official purpose of US copyright law is claimed to be to encourage artistic production and to provide the full ability to copy, reproduce, and profit from creative work for the general public good.9 However, it is extremely difficult for the authors to determine whether their rights have been violated and how to enforce their legal rights. This difficulty is exacerbated further by the current mode of copyright work distribution. The second ‘managing informational resource’ issue concerns the digital modes and speed of content distribution. Liu argues that copyrighted works are increasingly disseminated in digital form through the Internet. Consequently, the copyright owner’s right to limit copying is under challenge with the ease of copying made possible by the digital revolution.10 However, Liu goes on to argue that copyright law should acknowledge the unrestricted right to access digital copies in one’s possession and a more restricted right to transfer such copies to others. Houle argues that it is hard to determine what makes a great song or great sound. In addition, he argues that several record creators and authors believe they are not breaching another’s rights if they use a small part of a copyrighted work.11 Thus, copying practices are not significantly aligned with the copyright regime framework and its provisions, globally. These statements illustrate that the ease of replication does not mean that it is always ‘lawful’ to disseminate copyrighted works. There are different perspectives regarding how much copying should be permissible. The issue is compounded by the lack of uniform legal regulation across various jurisdictions and is discussed next. Among other options, it is increasingly being suggested that copyright laws ought to be relaxed.

2.1.3

The European Institutional Perspective on Open Access Practice

The primary goal of the European Union is to unify and harmonise the national laws of its members.12 As a result, it is only reasonable for the European Union to provide specific copyright policies that its members can implement. This policy is enshrined in a specific set of European directives.13 This set of directives establishes 8

Ginsburg [9]. Ginsburg [10]. 10 Liu [11]. 11 Houle [12]. 12 Antezana [13]. 13 Gonzalez-Suarez [14] and Geiger and Izyumenko [15]. 9

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legal provisions for open access and information dissemination across the European Union.14 An examination and explanation of the rationales used in the context of open access institutional repositories (IRs) in Europe will help identify the publishing standard that Australia can draw lessons from. The concept of IRs is argued to be a digital-asset management framework that is growing rapidly as a key element of current discussion about open access and the shift of the scholarly communication process.15 Several advocates of open access argue that the IRs constitute the most cost-effective and immediate channel to support access regarding publicly funded research outcomes.16 Crow claims that an IR constitutes a way to grow an institution’s reputation by illustrating its faculty’s research outcomes. Another definition is that an IR is an online archive of scholarly material created by the members of a defined institution. Thus, the institution also determines the content of the repository and the associated policies about gathering information.17 In this context, an examination of selected open access initiatives (i.e., statements, mandatory policy) is undertaken.

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The European Research Consortium for Informatics and Mathematics (ERCIM): Statement on Open Access

ERCIM is an important consortium of leading research institutions from 17 European countries committed to information technology and applied mathematics. Its affiliated researchers have an interest in open access as producers and consumers of scientific publications and as developers of technology to enable and sustain open access. Recognising the inability of institutional libraries to meet the costs of sustaining their collections, and participating actively in the development of appropriate technology, ERCIM has followed the developments in open access from the Budapest

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In particular, these European directives are as follows: Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights; Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version); Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version); Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version); Directive 2011/77/ EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/ 116/EC on the term of protection of copyright and certain related rights; and Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. 15 Cullen and Chawner [16]. 16 Harnad [17]. 17 Jantz and Wilson [18].

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Open Access Initiative (BOAI) statement18 through to the Bethesda Declaration19 to the Berlin Declaration and events since. ERCIM supports the following principles: (a) research that is funded by the public via government agencies or charities should be available freely and electronically at the point of use; (b) other research should be made equally available subject only to confidentiality required by commercial, military, security or personal medical constraints; (c) quality assurance of research publications must be continued through rigorous peer review associated with research publications, and research datasets and software should be equally openly available; and (d) open access should be provided as cost-effectively as possible and should also carry the responsibility for curation of the digital content, including cataloguing, archiving, reproducing, safekeeping and media migration.20 In the context of its practices, the most recent and accomplished program funded by ERCIM is EUREKA,21 which established cooperation between European firms and research institutes in advanced technologies. The projects associated with EUREKA subsidised the competitiveness of European enterprises via international cooperation and in building connections for innovation through open access to quality research and development outcomes.22 18

Wittmann et al. [19]. Suber et al. [20]. 20 Carbonell and Stephanidis [21]. 21 The wider and overarching objective of this program is to develop and improve the quality of life. It was launched in 1985 and accomplished in 2013. Currently, EUREKA has thirty-four full members: Austria, Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Serbia and Montenegro, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the European Union. In addition, three countries (Albania, Bulgaria and Ukraine) participate in EUREKA projects through a network of National Information Points (NIPs). Morocco gained Associate Country status in 2003. Compared to the pre-competitive projects supported under the EU Framework Programs for research and technology development, EUREKA projects concentrate on the development of marketable products and services. Projects are generated on a ‘bottom-up’ basis, with the participants deciding the objectives of the project, who is involved, who runs the project, the contribution of each of the partners, and how the results are used. EUREKA does not provide direct financial support for projects—this is the responsibility of the EUREKA members. 22 The following steps were required to implement a research project funded by the EUREKA program: EUREKA was a decentralized cooperation structure with National Project Coordinators (NPCs) located in each of the member countries. To receive the EUREKA label, a project proposal must (a) demonstrate innovation and be aimed at developing a new product, process or service with market potential; (b) involve partners from at least two EUREKA member countries; (c) aim to develop a significant technological advance in its sector and a marketable product, process or service for civilian use; and (d) the participants must be technically and managerially qualified to conduct the project with access to necessary financial resources. Interested organizations can join already existing projects or submit new ones. The steps to be followed when establishing a new EUREKA project included (a) drafting a project proposal and identification of partners: the National Project Coordinator assists with the completion of a ‘project suggestion form’ and helps to locate potential partners in other EUREKA countries; (b) developing and proposing the project: once a project consortium is established, the 19

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In addition, ERCIM pioneered a pilot project demonstrating homogeneous access to heterogeneous technical reports, and it has experience with the technology through the Delos projects and Network of Excellence.23 It is at the leading edge of integrating appropriate open access technology with Grids via the Diligent project.24 Individual ERCIM organisations have researched many aspects of the technology required for open access. Jeffery argues that member organisations of ERCIM that do not already have an open access policy will adopt these principles and implement them.25 These examples indicate that if copyright licensing laws’ overarching objective is to better serve the public good, they should be as flexible and fluid as possible. For Australia, a possible option in this regard is that its scheme of copyright licensing laws should be revisited, with special consideration to open access practice.

3 Australian Perspective on Open Access Building on this understanding of the open access as practice, this section discusses the evolution of open access in Australia and considers the contribution that has been made by governmental institutions (i.e., ALRC and the Australian Productivity Commission). These institutions play a significant role with respect to intellectual property law in Australia and the future reform of ‘the Act’. This part argues that ‘reconstruction’ of copyright regulations applied in Australia, in light of further access opportunities that enhance scientific communication, is of paramount importance. Contributions made by these institutions establish a public policy basis justification. In this context, additional discussion should be undertaken regarding the first Australian institutions that introduced open access practice as part of their functional framework.

scope, objectives and structure of the project should be defined. An application for EUREKA status must then be made by filling in what is known as the ‘18-point sheet’. The NPCs can help with this; (c) approval of the proposal by the NPC: completed project proposals are evaluated by the different NPCs of each of the partners participating in the consortium and a decision is taken on whether to grant the EUREKA label. This takes on average 2–3 months; (d) circulation of the project proposal throughout the NPC network: during a 45-day circulation period, the project is sent to all NPCs, who may bring it to the attention of other potential participants (although the decision to expand the consortium rests with the original members). During this period, many of the involved governments will begin taking the ‘EUREKA nature’ of the project into account when considering the possibility of public funding. All project proposals have been officially endorsed by the EUREKA High Level Group (HLG). See also Van Rossum and Cabo [22] and Bayona-Sáez and García-Marco [23]. 23 Candela et al. [24]. 24 Castelli et al. [25]. 25 Jeffery [26].

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Fig. 1 Deposit activity of repositories of open access in Australia (results 1–3). Source http://roar. eprints.org/cgi/roar_search/advanced?location_country=au&software=&type=&order=-activity_ high%2F-date

3.1 Timeline of Open Access Development in Australia 1. First Institutional Repository of Open Access The Australian National University established the first institutional repository of open access (i.e., an ePrint repository) in 2001 and introduced the practice of self-archiving (i.e., green open access). The literature reflects that open access started to gain ground in Australia, alongside the concept of interoperability, in the early 2000s.26 Given that, the establishment of an institutional repository of open access embraced—quite formally—the practice of green open access in Australia. According to the Registry of Open Access Repositories (ROAR) there are now 84 operational institutional repositories of open access hosted in Australia. This number illustrates that such means of publishing (i.e., through deposit in institutional repositories of open access) is greatly applied in Australia and sets up an opportunity for governmental authorities to consider and act. Yet, some of the records addressed in Fig. 1 concerning the deposit activity (i.e., records of deposited files) indicate there is still lack of awareness about the potential that stems from open access practice and how influential the practice can be in terms of research visibility and exchange of scholarly information (Fig. 2).27 2. First University in the World: Mandatory Policy for Open Access Another aspect that shows that Australia can become a front runner in terms of efficient implementation of open access practice can be demonstrated via the case 26 27

Swan and Carr [27]. Smith and Dickson [28].

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Fig. 2 Deposit activity of repositories of open access in Australia (results 12–14). Source http:/ /roar.eprints.org/cgi/roar_search/advanced?location_country=au&software=&type=&order=-act ivity_high%2F-date

of Queensland University of Technology (QUT). Particularly, the QUT was the first university in the world where open access practice was mandated for all its scholarly works in 2003.28 By way of qualification, it is noted that mandating open access in the university environment can have a deleterious effect on academic freedom.29 However, from a publishing point of view, the mandating of open access scholarly communication enhances the exchange of perspectives with flow-on benefits to the public.30 3. Open Educational Practice in the Australian Higher Education Sector In Australia, the Open Educational Practice (OEP) was initiated by the end of 1990s and by 2002 it had received Australian government funding (i.e., Backing Australia’s Ability).31 In retrospect, from a policy point of view, the early 2000s marked the beginning of the openness agenda within the Australian higher education sector, particularly with respect to open access research.32 Since then, OEP has not been explicitly supported by Australian government initiatives, funding, or policies.33 Consequently, it has led to an environment that is disconnected, with rare examples of good practice that have been shared beyond Australia.34 Nevertheless, the role of higher education sector is crucial for the Australian economy and indicates that should be also accommodated with a concrete scheme concerning copyright licensing. By introducing open access practice to this 28

Cochrane [29]. Beall [30]. 30 Rabesandratana [31]. 31 Ghalichi et al. [32]. 32 Stone [33]. 33 Stagg et al. [34]. 34 Bossu and Stagg [35]. 29

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new scheme, it will then, potentially, enhance the protection of educational sources provided. 4. First National-Level Open Access Policy The National Health and Medical Research Council (NHMRC) is Australia’s leading funder of medical research and determines another Australian institution quite familiar with open access practice. Aligning with the global implementation of open access policies by funding bodies, governments, and institutions, the NHMRC implemented the first national-level open access policy in Australia, initiated on 1 July 2012. The policy is founded on the BOAI statement (2002) and the Council’s definition of open access is the ‘availability of research outputs via the internet, such that any user can find, freely access … and otherwise use and reuse … [with] an appropriate licence’.35 A recent study focused on the compliance of produced research outcomes by affiliated researchers with the Council’s open access policy.36 This study identified that Council-funded articles in Web of Science and applied bibliometric methods met the requirements of Council’s open access policy. Therefore, starting discussions and considering gradual integration of open access practice to the copyright licencing laws framework is going to consistently bring benefits to the Australian scholarly communication.37 5. Australian Research Council: Open Access Policy The Australian Research Council (ARC)38 illustrates another perspective to be considered in discussions around the importance to introduce open access in ‘the Act’ and amend copyright licencing laws. The ARC open access policy is applied since 2013. In accordance with this policy, research outputs from ARC funded projects should be made openly available within 12-month period from the date of publication. Such requirement to be satisfied shows that implementation of open access is crucial for the governmental agency of the ARC, as well. Hence, the Australian government has officially admitted that open access practice enhances exchange of research outcomes.

35

Australian Government [36]. Kirkman [37]. 37 Bossu [38]. 38 Australian Research Council is a Commonwealth entity within the Australian government. By embracing an open access policy as part of one of its core functions establishes justifications of promotion of open access practice on behalf of the Australian government. 36

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4 Examples of International Jurisdictions and the Contribution of Governmental Agencies in Australia 4.1 Copyright and the Digital Economy: Drawing Lessons from International Jurisdictions It is undeniable the fact that copyright determines an important aspect of digital revolution.39 It follows those new ways to produce creative efforts and legally access, preserve and disseminate copyright material are also intensifying.40 Actually, copyright issues and the relevance of its discussion is consistently gaining ground. The literature shows that in the digital environment practically every user of electronic information also becomes an author hence copyrighting becomes vital not just for few people, but for everyone.41 Recognizing the contradiction of outdated copyright rules with contemporary realities, national governments, copyright holders, civil society groups, libraries, and other stakeholders are now debating (if not already enacting) a revision of copyright laws. Copyrighting remains a challenge for the community of copyright holders in Canada, notwithstanding the 2012 amendment (Copyright Modernization Act). The change resulted in significant losses for Canadian publishers and writers since it promoted the reuse of educational materials without compensating copyright holders. Almost every provincial school board and education department in Canada has filed litigation against the Collective Management Society over the issue of reimbursing licencing fees.42 The Canadian government recently began a process of analysing and perhaps modifying recent modifications to copyright law, but so far there have been no results due to a lack of political will to fix the situation.43 Efforts in the United States to adjust copyright law to technological innovation are growing. After a decade of copyright litigation in the United States, clear lines of resistance have emerged, with both sides depending significantly on lobbying. On the one hand, content rights firms, notably publishers, oppose the American legal system’s rise of fair use of copyrighted works in the digital age, which they regard as a transfer of rights away from artists and towards the technology sector. The technical industry, supported by libraries and public interest groups, maintains its right to grow within the confines of the law and for the public good. Google and other firms promote the American philosophy of conscientious use of copyrighted works as a solution to the conundrum of free access to things that appear inaccessible to them. The doctrine puts the permissible limitations of free use to the test by numerous lawsuits, resulting in substantial expenses for copyright holders to 39

Angelopoulos [39]. Griffin [40]. 41 Shrayberg and Volkova [41]. 42 Wilkinson [42]. 43 Geist [43]. 40

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defend themselves. The most well-known example of this trend is Google’s book scanning program.44 In April 2016, a unanimous verdict of the US Court of Appeals validated the Google corporation’s long-standing habit of scanning documents from library holdings, bringing an end to a decade-long legal dispute.45 The United States Congress passed a bill on copyrighting in the digital era in 1998, bringing American copyrighting rules up to date by recognizing the crucial relationship between copyrighting and the Internet. One of the purposes of this rule during those years was to accommodate for the growth of websites and Internet service providers that host user-generated content. Occasionally, such information violates the copyright of a third party, and it was necessary to grasp and identify who would be accountable for this. The objective was to safeguard artists’ rights while assuring the Internet’s ongoing functioning. The issue of copyright registration is a hot topic of discussion. On May 21, 2020, the United States Copyright Office presented the first comprehensive action report on copyright law in the digital era, called Digital Millennium Copyright Act (DMCA). The study relied on 92,000 written submissions, five roundtable discussions, and decades of judicial practise. The agency decided that the DMCA is biased in favour of technological businesses and that modifications should be made to benefit copyright holders. After previous discussion the following section focuses on actions made on behalf of Australian authorities considering uprising importance of open access practice, from a more operational perspective.

4.2 Measures Undertaken in the Australia Context Certain Australian authorities have begun to act towards advancing open access practice, albeit limited. In 2016, the Productivity Commission held an inquiry into Australian intellectual property arrangements. Open access was addressed in the Final Report, in which it was recommended all Australian State and Territory governments establish open access policies. In response to this Inquiry, in 2018, the Australian Department of Communication and the Arts (DCA) published a ‘Copyright Modernisation Consultation Paper’.46 The paper proposed a series of amendments to the Copyright Act, recognising the legislation requires updating, to bring it in line with digital developments which have occurred in the research landscape. The DCA acknowledged the crucial role of Australian authoritative bodies such as the Australian Law Reform Commission (ALRC), Copyright Law Review Committee and Productivity Commission, in the review of copyright issues.47 As part of this Consultation, a number of roundtable discussions were held between key Australian research stakeholders, with attendees from organisations such as the 44

Costantino [44]. Authors Guild v. Google 721 F.3d 132 (2d Cir. 2015) (2015). 46 Department of Communications and the Arts (n 76). 47 Ibid., 4. 45

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Australian Copyright Council, CAUL, State Governments and several Australian universities.48 Though, despite being initiated in light of the previous Inquiry by the Productivity Commission, which considered OA as a copyright issue, this Consultation failed to substantially address open accessibility of Australian research in any depth. Thus, whilst OA has been acknowledged as an issue relevant to amendment of the Copyright Act, reform to integrate OA is yet to be substantially considered or affected in Australia. Other key open access stakeholders, such as the Open Access Australasia (OAA), have also commenced minor action. OAA has begun consulting with research organisations with an interest in open access practice. Last year the group hosted a series of roundtables, attended by representatives from organisations such as the FAIR Steering Group,49 CAUL and the Australian Council of Learned Academies.50 These organisations’ efforts demonstrate those passionate concerning open access practice are beginning to come together, to advocate for reform, in a bid to increase related awareness and affect open access change in Australia.

4.3 APC: Final Report on Intellectual Property Arrangements Inquiry The APC report on the Intellectual Property system recommended that all federal, state and territory governments would be welcome to implement an open access policy for publicly funded research.51 Such statement determines additional justification based on which open access practice can become a provision of ‘the Act’ and improve copyright licensing laws of Australia. Literature reflects that an additional recommendation is required for evidencebased research and terms and conditions of contracts for different categories of copyright material (e.g., academic writing). Therefore, scientific community in Australia 48

Department of Communication and the Arts, Routable on orphan works (Consultation paper, May 2018) 3; Department of Communication and the Arts, Roundtable on uses of copyright by the government (Consultation Paper, April 2018) 2. 49 FAIR Steering Group is a group whose membership comprises of organisations with an interest in open access, such as the ARC, NHMRC, CAUL and Universities Australia. Chaired by the CAUL, the group are dedicated to working towards establishing open access in Australia, primarily by supporting and discussing the FAIR principles, see Open Access Australasia, ‘Making the case for a national approach for Open Research in Australia’ (Online document, 31 January 2021) 2 ; FAIR, ‘FAIR Steering Group’ (Web page, 2021) . 50 The Australian Council of Learned Academies is a forum whose members inform national policy, by providing expert advice, whilst developing ‘innovative solutions’ to issues both within Australia and globally. See Australian Council of Learned Academies, ‘About us’ (Web page, 2021) ; Open Access Australasia (n 242) 2. 51 Productivity Commission, Intellectual Property Arrangements, 38 (2015).

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can play a significant role in relevant discourse and it can be of support towards introducing open access practice in ‘the Act’. Additionally, the APC’s inquiry set up the background for consideration regarding ways to improve access to copyright material.52 The report highlighted the importance of intellectual property stakeholders’ (i.e., rights holders and consumers) involvement in developing a more efficient copyright licensing scheme to satisfy consumers’ interest which is, from a long-term perspective, Australian community’s interest.53 Discussion around enhancement of access to copyright material was recently (August 2020) welcomed from the Australian government, which shared its intention to proceed on copyright reforms.54 In accordance with a recent press release the changes aim to provide a more flexible and adaptable regime that will improve support required towards Australian end users’ needs to access copyright protected content in an increasingly digital environment.55 In accordance with an additional media release made by the Minister for Communications, Cyber Safety and the Arts, the Hon Paul Fletcher MP, the changes reflect the need for Australia’s copyright arrangements to continually evolve to support digital access, and provide certainty to consumer’s interest (i.e., copyright owners, creators, and users). This statement demonstrates the ‘sequence’ that should be followed in response to copyright recommendations addressed in the APC Intellectual Property Arrangements report, in 2016, examined in this paper. Introduction of an open access provision in ‘the Act’ can be also justified from the Australian government’s argument concerning the new reforms, which mentions that the objective of the new reforms is going to permit reasonable and appropriate use of copyright protected content online. And this means that these organisations have the capacity to maintain delivery of their services online.56 Another aspect that should be considered regarding the Australian government’s response to the APC inquiry is that it supports recommendations aimed at facilitating fairer access for Australians to copyright material and shows that its intention is to welcome an additional element in the context of copyright licensing scheme (i.e., the open access practice). The proprietors’ rights and the economic value generated by copyright material is of paramount importance in the context of this discussion.57 Therefore, copyright reform should be considered in a holistic manner rather than focused on individual needs and issues. 52

Stewart et al. [45]. PRODUCTIVITY COMMISSION, Intellectual Property Arrangements, 766 138 (2016), https:/ /www.pc.gov.au/inquiries/completed/intellectual-property/report/intellectual-property.pdf (last visited Jun 11, 2021). 54 ‘Copyright access reforms’, Australian Government, Department of Infrastructure, Transport, Regional Development and Communications (Web Page, 13 August 2020) . 55 Stevens [46]. 56 Ibid., 90. 57 Makkar [47]. 53

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4.4 Uniting Australian Key Stakeholders The history of developing proposals for reforming the Copyright Act and bringing together organizations interested in open research demonstrates that there are several grounds for integrating open access into Australian copyright policy. It is recognized that Australia has formed the bulk of the core open access stakeholder groups. However, to effect change in open access practice, their activities must be coordinated. In other words, Australian authorities should be oriented by stakeholders (e.g., ALRC, Copyright Law Review Committee, and Productivity Commission) to influence a legal change that will impact the Australian research environment. Consolidating the ALRC’s relationship with open access organizations is critical since the Commission is ‘one of the most successful and powerful’ agencies in Australia when it comes to legislative change. Over 85% of ALRC recommendations have been enacted, in whole or in part, by the Australian legislature. This indicates Australia’s actual capacity for legislative change. Thus, it is critical that the actions of these critical stakeholders be coordinated if open access integration is to be accomplished. As a member of this union, OAA and the various organizations with whom it has partnered should also be ‘brought on board’ to cooperate with these Australian authorities. The benefit of this is that organizations devoted to open access may directly participate in legislative reform talks and thereby influence suggestions for reforming present copyright legislation. This would guarantee that open access receives more attention from Australian authorities with the authority to enact legal change. As a result, Australia is encouraged to take measures to ensure that all major open access stakeholders are ‘on the same page, at the highest level.’ This union is seen as a critical foundation for open access reform in Australia and a method of integrating open access practice within the Copyright Act. In collaboration with the union of important open access stakeholders, it is urged Australian authorities resume their attention on the concept of open access. It is advised such authorities focus their combined efforts on the notion, to ensure further access opportunities are granted more prominence in Australian law reform talks. Past discussions and enquiries reveal Australian authorities have previously realized updating of the Copyright Act is essential, to ensure its relevance in today’s digital age. A variety of copyright difficulties have been noticed in this respect, one of which is open access. Though, despite having previously been acknowledged as a copyright problem, insufficient effort has been made to further address open access practice in Australia. Since 2016, a non-binding suggestion related to open access provisions has been already made across Australia.58 Further, Australia’s chief scientist, Dr. Cathy Foley, outlined a plan for a nationwide open access policy which indicates how important it is for the Australian nation.59 To date, additional copyright concerns have been granted more attention by Australian authorities, having been built upon 58 59

PRODUCTIVITY COMMISSION, supra note 53 at 38. Singh [48].

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and actioned in future initiatives. Meanwhile, open access looks to have been ‘put on the back burner’. Thus, it is advocated conversations related to open access entirely, be put at the top of the shared agenda of Australian authorities, as has been the case with other copyright concerns in the past. The Inquiry performed by the DCA in 2016, indicates that open access had previously been addressed in the context of legislative change. This indicates that if Australian authorities promote open access practice, amendment of the Copyright Act to include the practice is conceivable. Thus, a fresh emphasis on open access as a copyright problem is proposed, as an effective manner by which its practice may be incorporated into Australian copyright law.

5 Conclusion 5.1 Open Access as a Tool to Enhance Copyright Licencing Laws and Primary Thoughts The principle of open access within scholarly research refers to the process of making peer-reviewed research materials available to be accessed, shared, and used freely without restrictions such as journal subscription fees.60 The open access practice has been significantly growing over the past decades worldwide as more jurisdictions move towards implementing it as part of national policies that promote open access.61 The inherent philosophy of open access practice is that it aims to fulfil the original purpose of research and publishing by allowing sharing of information.62 Such sharing becomes a basis to build upon by other researchers. The increasing relevance of open access practice offers potential to better the research infrastructure and the exchange of information.63 There are not yet legislative frameworks that encompass open access practice on a national scale in Australia. Therefore, this paper recommends the future integration of open access principles into Australia’s copyright frameworks through relevant provision. Digital evolution and its means set up a framework of exchanging and sharing information characterised by convenient sharing.64 Scholarly articles determine a principal form which benefits scholarly communication.65 Learned societies took authority and responsibility for editing and publishing scholarly journals during their early years.66 This trend continues; various contemporary scholarly societies 60

Jaszi [49]. SMITH AND DICKSON, supra note 27. 62 Roy et al. [50]. 63 Shin and Soydemir [51]. 64 Frankel and Gervais [52]. 65 Bergstrom [53] and Tenopir et al. [54]. 66 Hopkins [55]. 61

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publish some of the leading journals in a variety of science areas. However, after World War II, government investment in Western Europe and the United States in the field of scientific research increased the numbers of scholarly researchers who could communicate with their fellows. Simultaneously, the learned societies were slow to adapt to this instant flow of investment and the representatives of the printing press industry entered the area in growing numbers to provide new titles in a variety of scientific areas. The growing literature obligated subscribers of scholarly journals, such as academic libraries, government agencies, industrial research centres and individuals, to obtain access to scholarly data.67 However, the affiliated expenses with such access began to increase with the rise of electronic publication.68 In addition, journal publishers were forced to produce their content in two different forms: the hard copy journal and the electronic or digital version, hosted on a digital network. As prices of scholarly journals surpassed costs, worries regarding maintenance of affordable access to this sort of literature began to amplify. What is more, the development of the Internet and specifically the World Wide Web (WWW) introduced new terms, challenges, and circumstances regarding scholarly communication. Even though the Internet establishes cost-effective methods to access information sources, commercial publishers continue to inhabit scholarly publishing with an increasing emphasis towards their remuneration. By using their collective power over pricing, for-profit publishers firmly developed journal subscription prices, obligating academic libraries and other subscribers to struggle to benefit from their patrons’ desire for access to up-to-date research. Michael Carroll argues that born out of frustrations over foregone opportunities to grow Internet diffusion of scholarly research and ever-rising journal prices, academic librarians, autodidacts and some academic leaders unified to initiate open access.69 Accordingly, Carroll argues that the principal goal of open access is quite simple, as within open access scholarly literature and relevant resources information is freely available on the public Internet for end users and researchers of all kinds.70 In addition, open access is a useful innovation, even if there are minor obstacles regarding online availability of information that end users could enjoy while using scholarly journal articles. However, more significantly, copyright protection issues emerged, and these should be considered. In this context, advocates argue that there are two ways scholars can make their articles accessible and protect copyright at the same time. They can do so either by publishing via the ‘gold road’ of open access, in which publications are freely available online to the public, or by publishing via the ‘green road’ of open access in a subscription-access journal, in which the author should self-archive an e-print version of the work in an institutional repository of open access.71 Once an article is freely accessible within either method, it is indexed by 67

Boyd and Crawford [56]. Turner [57] and Lyon [58]. 69 Carroll [59]. 70 Carroll [60]. 71 Harnad [61]. 68

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search engines and is immediately locatable and retrievable by anyone with Internet access.72 It follows that, open access practice can be also considered as a response to enhance copyright protection of intellectual creative efforts attached to technological developments. Therefore, it becomes apparent that the regulatory framework of copyright protection should be reformulated and become further aligned with continuous technological evolution where open access practice can be part of. Due to ongoing technology evolution, there is a need to balance sharing knowledge whilst still protecting the rights of those who produce and would like to share research outcomes.73 In addition, copyright licensing laws set up the appropriate framework concerning creators’ intellectual endeavours protection and capacity to safely enjoy and manage exclusive rights that stem from their works.74 Due to the previous discussion and lessons that can be drawn from Europe, it is the proper time for an open access provision to be integrated in ‘the Act’. The Registry of Open Access Repositories (ROAR) statistics demonstrate that there are currently 84 operational IRs in Australia. This brings Australia to one the top ten countries in terms of IRs implementation whereas the first holds 234 (i.e., Japan). Therefore, the time is ripe for Australia to change copyright standards and start reconsidering the introduction of open access provisions in ‘the Act’. Initially, the point to consider is the consensus required to step forward. In other words, we should accept the fact that now the priority is not to legislate. Yet, the priority should be to settle on statements of principle affiliated with OA practice. In addition, one of the cornerstones surrounding copyright law is that it sets up the background to foster creativity and innovation via intellectual efforts.75 Therefore, to enrich the public knowledge landscape, the copyright licensing laws should be revisited. Moreover, lessons should be drawn from the example of the European jurisdiction to introduce an open access provision as part of ‘the Act’. By revisiting current copyright licencing laws to integrate provisions surrounding open access practice, it will increase the awareness of open access practice. In turn, such revising will be beneficial for the field of scholarly communication and exchange of information. Actors involved in the ‘industry’ of research production (e.g., university libraries, university research centres, research organizations, public databases, private companies’ databases etc.) where there is great exchange of information should support initiatives for a more technological friendly instrument towards copyright protection in Australia. As pointed out by the Former Justice of the High Court of Australia, Hon Michael Kirby AC CMG at the Conference on Law Reform on Hong Kong (2011): [T]he true defence against … social disharmony in a modern state includes efficient machinery to review, modernise and simplify the law where it is out of touch with those whom the law serves. This is not a Rolls Royce operation. It is a Volkswagen project.

72

Cramond [62]. Alvarez-Meaza et al. [63]. 74 Bodó et al. [64]. 75 Zeilinger [65]. 73

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However, it still needs fuel and occasional care and constant maintenance by those with the power to provide this.76

Now it is time for Australia to move forward. Open access practice can play a dynamic role towards the enhancement of copyright protection. Therefore, open access should ‘participate’ in considerations around copyright licensing laws reform in the future. Law is a living entity. It has to grow; it has to develop. And we should keep in mind that law is the language to solve our future problems.

References 1. FRANCIS BACON, FRANCIS BACON: THE MAJOR WORKS (Oxford University Press, 2008). 2. FRANCIS BACON, THE WORKS OF FRANCIS BACON 244–245 (James Spedding ed., Robert Leslie Ellis ed., Douglas Denon Heath ed, Minerva Classics, 2013). 3. JEREMY BLACK, THE POWER OF KNOWLEDGE: HOW INFORMATION AND TECHNOLOGY MADE THE MODERN WORLD 98 (Yale University Press, 2015). 4. NELLY P STROMQUIST, EDUCATION IN A GLOBALIZED WORLD: THE CONNECTIVITY OF ECONOMIC POWER, TECHNOLOGY, AND KNOWLEDGE 86–87 (Rowman & Littlefield Publishers, 2002). 5. Amy Allen, Power/Knowledge/Resistance: Foucault and epistemic injustice, in THE ROUTLEDGE HANDBOOK OF EPISTEMIC INJUSTICE, 17 (2017). 6. Thomas Keenan, The “Paradox” of Knowledge and Power: Foucault on the Bias, in FOUCAULT AND LAW, 47 (2010). 7. MICHEL FOUCAULT, THE ARCHAEOLOGY OF KNOWLEDGE 133–135 (Knopf Doubleday Publishing Group, 2012). 8. HALL, STUART, DISCOURSE THEORY AND PRACTICE: A READER 81 (Margaret Wetherell ed., Stephanie Taylor ed., Simeon J. Yates ed., SAGE Publications Inc., 2001). 9. Jane C Ginsburg, The U.S. Experience with Mandatory Copyright Formalities: A Love/Hate Relationship 33 COLUM. J. L. & ARTS 311, 322–323 (2009). 10. Jane C Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41 HOUST. LAW REV. 263, 288–294 (2004). 11. Joseph P Liu, Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership, 42 WILLIAM AND MARY LAW REV. 1245, 1296–1325 (2000). 12. Jeffrey R Houle, Digital Audio Sampling, Copyright Law and the American Music Industry: Piracy or Just a Bad Rap, 37 LOY. L. REV. 879, 881–882 (1991). 13. Monica E Antezana, The European Union Internet Copyright Directive as Even More Than It Envisions: Toward a Supraeu Harmonization of Copyright Policy and Theory, 26 INT’L & COMP. L. REV. 415, 419–420 (2003). 14. Marta Gonzalez-Suarez, Restitution of Cultural Heritage in the European Directives: Towards an Enlargement of the Concept of Cultural Goods, ART ANTIQUITY AND LAW 1 (2018). 15. Christophe Geiger & Elena Izyumenko, The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!, 51 IIC 282, 293 (2020). 16. Rowena Cullen and Brenda Chawner, Institutional Repositories, Open Access, and Scholarly Communication: A Study of Conflicting Paradigms, 37 J. ACAD. LIBRARIANSH. 460, 461 (2011). 17. Stevan Harnad, Open Access: A Green Light for Archiving, 487 Nature 302, 303 (2012). 76

Kirby [66].

334

R. Cunningham et al.

18. Ronald C Jantz and Myoung C Wilson, Institutional Repositories: Faculty Deposits, Marketing, and the Reform of Scholarly Communication, 34 J. ACAD. LIBRARIANSH. 186, 188–190 (2008). 19. Tibor Wittmann et al, New European Initiatives in Colorectal Cancer Screening: Budapest Declaration, 30 DIG. DIS. 320, 323 (2012). 20. Peter Suber et al, Bethesda Statement on Open Access Publishing, HARVARD LIBRARY OFFICE FOR SCHOLARLY COMMUNICATION (Jun. 20, 2003), http://dash.harvard.edu/ handle/1/4725199. 21. Noëlle Carbonell and Constantine Stephanidis, ‘European Research Consortium for Informatics and Mathematics Workshop Adjunct Proceedings’ in Noelle Carbonell and Constantine Stephanidis (eds), 7th ERCIM Workshop ‘User Interfaces for All’ Special Theme: ‘Universal Access’ (2002) . 22. Wouter Van Rossum and Pepin G Cabo, ‘The Contribution of Research Institutes in EUREKA Projects’ (1995) 10(7–8) International Journal of Technology Management 853. 23. Cristina Bayona-Sáez and Teresa García-Marco, ‘Assessing the Effectiveness of the Eureka Program’ (2010) 39(10) Research Policy 1375. 24. Candela et al, The DELOS Digital Library Reference Model. Foundations for Digital Libraries (2007) . 25. Castelli et al, ‘DILIGENT: A Digital Library Infrastructure for Supporting Joint Research’ in International Symposium on Mass Storage Systems and Technology (IEEE Computer Society, 2005) 56. 26. Keith Jeffery, ‘Open Access: An Introduction’ (2006) . 27. Alma Swan & Leslie Carr, Institutions, Their Repositories and the Web, 34 SERIALS REVIEW 31, 33 (2008). 28. KEVIN L. SMITH & KATHERINE A. DICKSON, OPEN ACCESS AND THE FUTURE OF SCHOLARLY COMMUNICATION: POLICY AND INFRASTRUCTURE 206 (Reprint edition ed. 2016). 29. Tom Cochrane, Mandates: An Australian example at the Queensland University of Technology, in CERN WORKSHOP IN INNOVATIONS IN SCHOLARLY COMMUNICATION (OAI6) 1, 6 (2009), https://indico.cern.ch/event/48321/contributions/1992197/ (last visited Aug 6, 2021). 30. Jeffrey Beall, The Open-Access Movement is Not Really about Open Access, 11 TRIPLEC: COMMUNICATION, CAPITALISM & CRITIQUE. OPEN ACCESS JOURNAL FOR A GLOBAL SUSTAINABLE INFORMATION SOCIETY 589, 593 (2013). 31. Tania Rabesandratana, The world debates open-access mandates, 363 SCIENCE 11, 11 (2019). 32. Leila Ghalichi et al., Research centers’ ranking and resource management, 26 RAZI JOURNAL OF MEDICAL SCIENCES 18, 19 (2019). 33. CATHY STONE, Opportunity through online learning: improving student access, participation and success in higher education, 85 14 (2017), https://apo.org.au/node/94591 (last visited Jun 14, 2021). 34. Adrian Stagg et al., Open Educational Practices in Australia: A First-phase National Audit of Higher Education, 19 IRRODL 171, 184 (2018). 35. Carina Bossu & Adrian Stagg, The potential role of Open Educational Practice policy in transforming Australian higher education, 10 OPEN PRAXIS 145, 148 (2018). 36. AUSTRALIAN GOVERNMENT, National Health and Medical Research Council - Open Access Policy, 13 5 (2018), https://web.archive.org/web/20180513211220/https://www.nhmrc. gov.au/_files_nhmrc/file/research/nhmrc_open_access_policy_15_january_2018_v2.pdf (last visited May 25, 2021). 37. Noreen Suzanne Kirkman, A Study of Open Access Publishing by NHMRC Grant Recipients, 2018, https://espace.curtin.edu.au/bitstream/handle/20.500.11937/77026/Kirkman% 20N%202018.pdf?sequence=1&isAllowed=y (last visited Jun 14, 2021). 38. Carina Bossu, Open Educational Practices in Australia, in OPEN EDUCATIONAL RESOURCES: POLICY, COSTS, TRANSFORMATION 13, 15 (2016). 39. CHRISTINA ANGELOPOULOS, On Online Platforms and the Commission’s New Proposal for a Directive on Copyright in the Digital Single Market (2017), https://papers.ssrn.com/abs tract=2947800 (last visited May 22, 2020).

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40. James Griffin, ‘Copyright Evolution: Creation, Regulation, and the Decline of Substantively Rational Copyright Law (United Kingdom)’ [2013] (3) Intellectual Property Quarterly 234, 239. 41. Ya. L. Shrayberg & K. Yu. Volkova, Features of Copyright Transformation in the Information Environment in the Age of Digitalization, 48 SCI. TECH. INF. PROC. 30, 32 (2021). 42. Sarah Wilkinson, Justifying the Unjustifiable: Canadian Copyright Licensing Agency (“Access Copyright”) v. York University, 31 187, 208 (2019). 43. MICHAEL GEIST, THE COPYRIGHT PENTALOGY: HOW THE SUPREME COURT OF CANADA SHOOK THE FOUNDATIONS OF CANADIAN COPYRIGHT LAW 213 (2013), https://library.oapen.org/handle/20.500.12657/33268 (last visited Dec 21, 2021). 44. Melanie Costantino, Fairly Used: Why Google’s Book Project Should Prevail under the Fair Use Defense Note, 17 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 235, 247 (2006). 45. ANDREW STEWART ET AL., INTELLECTUAL PROPERTY IN AUSTRALIA (2018), https://research.bond.edu.au/en/publications/intellectual-property-in-australia (last visited Jun 23, 2021). 46. Jessica Stevens, The secondary sale, copyright conundrum: Why we need a secondary market for digital content, 26 AUSTRALIAN INTELLECTUAL PROPERTY JOURNAL 179, 184 (2016). 47. Jap-Nanak Makkar, A Trademark on Irony: J. M. Coetzee’s Formalism, Digital Copyright, Literary Proprietorship, 59 CONTEMPORARY LITERATURE 204, 221 (2018). 48. Chawla Dalmeet Singh, Australian institutions lag behind on open access adoption (2021), https://www.natureindex.com/news-blog/australian-institutions-lag-behind-on-openaccess-adoption (last visited Feb 18, 2022). 49. Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of “Authorship”, in INTELLECTUAL PROPERTY LAW AND HISTORY (2012). 50. Bijan Kumar Roy, Subal Chandra Biswas & Mukhopadhyay Parthasarathi, Status of Open Access Institutional Digital Repositories in Agricultural Sciences: A Case Study of Asia, 1329 LIBRARY PHILOSOPHY AND PRACTICE (E-JOURNAL) (2016), http://digitalcommons. unl.edu/cgi/viewcontent.cgi?article=3615&context=libphilprac (last visited Dec 10, 2017). 51. Sangheon Shin & Gökçe Soydemir, Exchange-traded funds, persistence in tracking errors and information dissemination, 20 JOURNAL OF MULTINATIONAL FINANCIAL MANAGEMENT 214 (2010). 52. SUSY FRANKEL & DANIEL GERVAIS, THE EVOLUTION AND EQUILIBRIUM OF COPYRIGHT IN THE DIGITAL AGE (2014). 53. Carl Bergstrom, ‘Measuring the Value and Prestige of Scholarly Journals’ (2007) 68(5) 314. 54. Carol Tenopir et al, ‘Electronic Journals and Changes in Scholarly Article Seeking and Reading Patterns’ (2009) 61(1) Aslib Proceedings 5. 55. James Hopkins, ‘The Role of Learned Societies in Knowledge Exchange and Dissemination: The Case of the Regional Studies Association, 1965–2005’ (2011) 40(2) History of Education 255. 56. Danah Boyd and Kate Crawford, ‘Critical Questions for Big Data’ (2012) 15(5) Information, Communication & Society 662. 57. Fred Turner, From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network, and the Rise of Digital Utopianism (University of Chicago Press, 2010). 58. David Lyon, The Electronic Eye: The Rise of Surveillance Society—Computers and Social Control in Context (John Wiley & Sons, 2013). 59. Michael W Carroll, ‘Movement for Open Access on Law, The’ (2006) 10 Lewis & Clark Law Review 741. 60. Michael W Carroll, ‘Creative Commons and the Openness of Open Access’ (2013) 368(9) New England Journal of Medicine 789. 61. Stevan Harnad, ‘The Green Road to Open Access: A Leveraged Transition’ in The Culture of Periodicals from the Perspective of the Electronic Age (L’Harmattan, 2007) 99 . Further details are included in Chapter 6.

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62. Stephen Cramond, Explainer: Open Access vs Traditional Academic Journal Publishers (2011) The Conversation . 63. Izaskun Alvarez-Meaza, Naiara Pikatza-Gorrotxategi & Rosa Maria Rio-Belver, Knowledge Sharing and Transfer in an Open Innovation Context: Mapping Scientific Evolution, 6 JOURNAL OF OPEN INNOVATION: TECHNOLOGY, MARKET, AND COMPLEXITY 186, 187 (2020). 64. Balázs Bodó, Daniel Gervais & João Pedro Quintais, Blockchain and smart contracts: the missing link in copyright licensing?, 26 INTERNATIONAL JOURNAL OF LAW AND INFORMATION TECHNOLOGY 311, 321 (2018). 65. Martin Zeilinger, Digital Art as ‘Monetised Graphics’: Enforcing Intellectual Property on the Blockchain, 31 PHILOS. TECHNOL. 15, 25 (2018). 66. Hon Michael Kirby, ‘Changing fashions and enduring values in law reform’ (Speech, Conference on Law Reform, University of Hong Kong, 17 September 2011) .

Regulating Strategic Communications Investigation: The Investigatory Powers Act 2016 (UK) as an Exemplar for India Phil Glover

1 Introduction This chapter posits that India should consider reforming its strategic communications investigation regulation using the UK’s Investigatory Powers Act 2016 (UKIPA) as an exemplar not only of finalised effective statutory provisions, but of a fair and detailed consultative process.1 Three arguments are offered. The first is that the UKIPA is an exemplar because it represents a ‘transparently secret’ manifestation of a comprehensive ‘social evaluation’ exercise prior to enactment driven by the UK Home Office. Such was the utility and value of the process, Australia is currently following suit as it moves towards a single electronic surveillance statute. This evidences the process model as suitable for any Westminster model democracy, including India. ‘Social evaluation’ involved the publication of initial draft legislation, extensive ‘stakeholder’ consultation and the commissioning of two independent expert reviews (themselves consultative).2 Avowal of all formerly secret state powers was impelled by this social evaluation process, thus providing transparent secrecy.

1

Investigatory Powers Act 2016 (UK) c25. These are (i) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, A QUESTION OF TRUST: REPORT OF THE INVESTIGATORY POWERS REVIEW (2015, Her Majesty’s Stationery Office), hereafter IRTL, RIPR 2015. (ii) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, REPORT OF THE BULK POWERS REVIEW (Cm 9326, August 2016), hereafter IRTL, BPR 2016. 2

P. Glover (B) School of Business and Law, Edith Cowan University, Perth, WA, Australia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_20

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‘Avowal’ of secret power and ‘transparent secrecy’ drive the second argument, which cites the UKIPA as an exemplar of statutory compliance with international3 and regional human rights norms.4 This assertion is founded in the May 2021 findings of the European Court of Human Rights (ECtHR) Grand Chamber in Big Brother Watch and Others v United Kingdom (BBW (GC)).5 With only minor reservations, this longawaited judgment not only conceded that a strategic communications investigation regime was in principle permissible,6 but also made positive remarks in respect of the UK’s oversight arrangements.7 Although a supranational, rather than international human rights arbiter, the ECtHR has developed an influential set of principles and minimum safeguards governing the secret surveillance of communications by public authorities under its Article 8 ECHR case law. These requirements have played a pivotal role in shaping data privacy standards in legal systems both within Europe and beyond.8 Ni Loideain’s ‘beyond’ cites the influential role of Article 8 ECHR case law in the South African High Court judgment of amaBhungane Centre for Investigative Journalism v Minister of Justice and Correctional Services [2019] ZAGPPHC 384 where the South African legal regime permitting secret bulk surveillance of international communications was held to be incompatible with the right to privacy.9

ECtHR endorsement matters. Consequently, any state able to label its strategic communications regulatory framework as ‘ECHR compliant’ and ‘ECtHR (Grand Chamber) endorsed’, is entitled to advertise that legislation as ‘world-leading’10 and thus suitable for replication. 3

Universal Declaration of Human Rights, Article 12 ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’; Article 19 ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. . 4 European Convention on Human Rights, Article 8(1) ‘Everyone has the right to respect for his private and family life, his home and his correspondence’; Article 10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Both rights are qualified at 8(2) and 10(2) respectively, in that signatory governments may interfere with them if the interference is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. . 5 Big Brother Watch and Others v UK (Applications nos. 58170/13, 62322/14 and 24960/15) (Grand Chamber) 25 May 2021. 6 Ibid., [426]. 7 Ibid., [406]–[415]. 8 Ni Loideain [2]. 9 Ibid. 10 Wallace [3].

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The final argument, centred on ‘pro-homogeneity’, engages the question of why, even if the first two arguments are accepted, India might wish to undertake reform, and if doing so, why it would follow the UKIPA exemplar. India’s strategic bilateral relationship with the UK, and with QUAD partner Australia, are briefly contextualised, as is their rapidly developing trilateral relationship.11 The argument is, that as their respective national security-focused policies increasingly homogenise, so should their respective national security laws. Although an informed critique of India’s current regulatory framework12 is beyond this chapter’s scope,13 its critics cite the same concerns as those voiced in respect of the UK’s framework prior to the UKIPA. It will be shown that Australia, currently embarking on regulatory reform in this area, has modelled its process, (if not yet the draft legislation) on the UK’s experience. When this is added to the three arguments outlined, it is hoped that a cogent case for adoption by India, as a multi-aligned Westminster model democracy, has been made.14

2 The Transparently Secret UKIPA The UKIPA 2016 is, to coin a phrase used by Australian Signals Directorate DirectorGeneral Rachel Noble, ‘transparently secret’.15 By this is meant that it informs the polity what the UK’s intelligence agencies are empowered to do, whilst secrecy in how they practically undertake investigations remains off-limits. All formerly secret state power is avowed on the face of the act. The UKIPA ‘covers the field’ of investigatory powers, rendering lawful the intelligence agencies’ access to data, including communications, whether ‘in transit or at rest’, and wherever located. Transparent secrecy is enhanced by the fact that the exercise of each power is constrained, or perhaps more accurately, guided, by an accompanying Code of Practice, easily accessible on the UK Home Office web interface.16 Each of these was produced after public 11 Discussed at length in Australian National University National Security Podcast, Working With India: Understanding the Limits and Potential (14 July 2022) https://play.acast.com/s/the-nationalsecurity-podcast/working-with-india-understanding-the-limits-and-potential. 12 Telegraph Act 1885, section 5, supplemented by the Information Technology Act 2000, section 69. 13 This chapter does not engage in a critical appraisal of India’s regulatory framework. A useful critique of India’s statutory provisions (principally lamenting a lack of proportionality and the existence of significant state discretion) appears in PRIVACY INTERNATIONAL, State of Privacy India https://privacyinternational.org/state-privacy/1002/state-privacy-india#commssurveillance. 14 India as a multi-aligned democracy is discussed in a detailed analysis of India’s trilateral relations with the UK and Australia involving Lisa Singh, Director of the Australia India Institute, and Dr David Brewster, Senior Fellow at the Australia National University National Security College and hosted by Will Stolz, Australia National University on their National Security Podcast (14 July 2022) (supra n 11). 15 Noble [4]. 16 See generally GOV.UK https://www.gov.uk/government/publications/investigatory-powers-act2016-codes-of-practice.

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and stakeholder consultation,17 and they are unprecedented in their detail and provision of case examples. Whilst not ‘law’, they are admissible in evidence in criminal and civil proceedings and may be taken into account by any court, tribunal or supervisory authority when determining a question arising in connection with those functions. Those exercising functions to which they relate ‘must have regard to them’.18 The finalised UKIPA and Codes of Practice are a consequence of a policy change in the UK Home Office that followed the publication of Snowden’s disclosures in 2013. The mechanics of the process of social evaluation are examined next.

2.1 The UKIPA as a Model of Social Evaluation for Westminster Legislatures It has been observed, albeit in the environmental and planning law context, that government decision-makers must have a clear sense of the requirements of justice.19 Justice research has demonstrated that proper community involvement in policy formation and implementation leads to greater levels of trust—but only if the decision-makers are genuine in their commitment.20 The same can be said for these aspects in the context of procedural fairness in the ‘path to enactment’ part of the legislative process, that is, in the publication of a draft bill and the public consultation process that follows. Indeed the authors cited correctly assert that, justice researchers and legislative drafters alike should be alive to the possibility of legislative incorporation of procedural and interactional justice mechanisms.21 It is submitted that the IPA 2016 (UK) has successfully incorporated procedural and interactional justice mechanisms in addition to transparently enabling the investigation of data in transit and at rest, whether on a targeted or bulk basis. This has been achieved by providing for an enhanced Investigatory Powers Tribunal (IPT) and Investigatory Powers Commissioner’s Office (IPCO). The IPT is A judicial body … [independent] … of government … [that can] … provide a right of redress for anyone … [believing] … they have been a victim of unlawful action by a public authority using covert investigative techniques … [and] … is also the appropriate forum to consider complaints about any conduct by or on behalf of the UK Intelligence Community, MI5, SIS and GCHQ, as well as claims alleging the infringement of human rights by those agencies.22 The IPCO has responsibility for reviewing the use of investigatory powers by public authorities and is supported by a team of Judicial Commissioners and also 17

UK Home Office [5]. UK Home Office [5, p. 6]. 19 Nisbet and Syme [6]. 20 Ibid. 21 Ibid., emphasis added. 22 The Investigatory Powers Tribunal (UK). See generally https://www.ipt-uk.com/. 18

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oversees the Office for Communications Data Authorisations. For the most intrusive powers, which include all ‘bulk’ powers relating to communications and data, a ‘double-lock’ (in essence a high judicial check on Ministerial authorisation) is applied.23 Arriving at a finalised statute that achieved all this meant a comprehensive rethink to statute creation practice, namely an ‘all-in’ comprehensive consultative approach and the issue of detailed draft legislation. In the UK, the publication of consultative draft bills as a matter of good practice has become more frequent in recent years. The UK parliament webpage explains that this ‘allows examination and amendments to be made to texts and made more easily’, as having been circulated for prior consultation, proposed changes can be made before the Bill’s formal introduction.24 Following such practice, the UK Home Secretary published an initial consultative draft of the Investigatory Powers Bill for social evaluation in November 2015.25 She already had the benefit of broad expert and stakeholder critical analysis within three separate reviews of executive investigative conduct in relation to communications and data. These were the March 2015 ‘Privacy and Security’ report of the UK Parliament’s Intelligence and Security Committee,26 the June 2015 Independent Reviewer of Terrorism Legislation (IRTL) report of the Investigatory Powers Review (RIPR),27 and the July 2015 Report of the Independent Surveillance Review independently undertaken by the Royal United Services Institute for Defence and Security Studies.28 All had recommended the consolidation of ‘all the powers available’ to UK intelligence agencies and law enforcement and ‘to make them subject to enhanced, consistent safeguards’.29 Giving effect to that aspiration meant publicising, or ‘avowing’ hitherto secret investigatory powers, a clear departure from former policy from which the Home Secretary did not shy away. Following on from the tactically impelled disclosure of GCHQ’s use of computer network exploitation (‘Equipment Interference’) on both a ‘targeted’ and ‘class’ basis ‘within and outside the UK’ in February 2015,30 the initial draft Investigatory Powers Bill disclosed that communications metadata was also being hitherto being secretly acquired on a ‘bulk’ basis, rather than in the apparently ‘targeted’ manner provided for in the Regulation of Investigatory Powers Act (RIPA) 23

See generally Investigatory Powers Commissioner’s Office website https://www.ipco.org.uk/ what-we-do/the-double-lock/. 24 UK Parliament [7]. 25 UK HOME OFFICE, Draft Investigatory Powers Bill (Cm 9152, November 2015). 26 UK PARLIAMENT INTELLIGENCE AND SECURITY COMMITTEE, Privacy and Security: A Modern and Transparent Legal Framework (HC 1075-I). 27 IRTL, RIPR 2015 (supra, n 2). 28 ROYAL UNITED SERVICES INSTITUTE FOR DEFENCE AND SECURITY STUDIES, A Democratic Licence to Operate: Report of the Independent Surveillance Review. 29 UK HOME OFFICE, Draft Investigatory Powers Bill (supra n 25) Foreword, emphasis added. 30 Disclosure was considered as necessary in light of allegations of ‘state-sponsored hacking’ made to the UK Investigatory Powers Tribunal in Privacy International and Others v Secretary of State for Foreign and Commonwealth Affairs UKIPTrib (2016) 14/85 CH and 14/120–126 CH.

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2000, Part I, Chapter II.31 Avowal meant that the full suite of communications and data investigative powers now enshrined in the UKIPA were declared to the British public on the face of the draft Investigatory Powers Bill as being available to the UK intelligence community. These powers are discussed at length after a short analysis of India’s QUAD partner Australia’s approach to ‘electronic surveillance’ reform.

2.2 Is Australia Following the UK’s ‘Social Evaluation’ Legislative Process? In the public version of its report released in December 2020, the Comprehensive Review of the Legal Framework of the National Intelligence Community by Mr Dennis Richardson AC (Richardson Review),32 Recommendation 75 was that ‘the Surveillance Devices Act, Telecommunications (Interception and Access) Act and those parts of the Australian Security and Intelligence Organisation Act governing the use of computer access and surveillance devices powers, should be repealed and replaced’ with a new ‘electronic surveillance’ Act.33 The official Commonwealth Government Response released the same month concurred,34 observing that the relevant existing legislation is ‘unnecessarily complex’, whilst envisaging the prospective Act as a ‘new landmark in Australia’s national intelligence legislation’ that will be ‘generational in its impact’.35 Despite the change of Federal Government in 2022, the latest publicly available Australian Government position is that ‘an exposure draft of the proposed electronic surveillance legislation (and supporting materials)’ will be released for public comment in late 2022.36 This marks five years since the Independent Intelligence Review 2017 recommended change.37 Comprising four volumes, totalling 1236 pages, the Review is undoubtedly comprehensive, whilst also commendably transparent, given that it examines an area of historically exposure-averse national security law still edging only slowly in the direction of Noble’s ‘transparent secrecy’. This consultative approach, when 31

By virtue of secret Ministerial directions available under section 94 of the UK’s Telecommunications Act 1984. 32 Richardson [1]. A classified version was provided to the Government in December 2019 and a declassified version in July 2020. 33 Ibid., vol 2, 16 (Recommendation 75). 34 Commonwealth Government, Attorney-General’s Department [8]. 35 Ibid. 36 AUSTRALIAN GOVERNMENT DEPARTMENT OF HOME AFFAIRS, Reform of Australia’s Electronic Surveillance Framework: Discussion Paper https://www.homeaffairs.gov.au/reportsand-publications/submissions-and-discussion-papers/reform-of-australias-electronic-surveillanceframework-discussion-paper. 37 AUSTRALIAN GOVERNMENT, DEPARTMENT OF THE PRIME MINISTER AND CABINET, MR MICHAEL L’ESTRANGE AO AND MR STEPHEN MERCHANT PSM, Report of the 2017 Independent Intelligence Review. https://www.pmc.gov.au/resource-centre/national-sec urity/report-2017-independent-intelligence-review.

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considered alongside the unprecedented transparency of the Richardson Review, is welcome, and appears to be following the UK approach. Indeed the UKIPA is cited frequently in the Review. In the official response, Australia’s then Liberal/National Coalition government language also closely resembles that of the ‘comprehensive consultation and draft legislation’ approach adopted by the UK. It expressly states that ‘public feedback and submissions … [provided] … will inform the key principles guiding the development of the draft legislation [and] help the Government develop draft legislation that reflects the interests, expectations and requirements of all stakeholders’. This supplements the Commonwealth Attorney-General’s Department’s articulation of the principles that ‘laws should be no more complex than is necessary to give effect to policy’ and that ‘the clarity of a proposed law should be continually assessed, from policy development through to consideration by Parliament (for Acts) and consideration by the rule-maker (for legislative instruments)’.38 Clearly it is intended that law in Australia will be a purposive reflection of developed policy, with that development founded on ‘careful and detailed consideration, with extensive public consultation’.39 ‘Extensive’ certainly describes the volume of documentation the Australian public were invited to navigate prior to responding to the Electronic Surveillance Act Discussion paper issued in Autumn 2021. It runs to 117 pages, whilst requesting readers to engage with no less than twelve additional government reviews (running to thousands of pages) deemed relevant before commenting.40 A significant and commendable effort has evidently gone into the production of the Discussion Paper, which offers ‘Guiding Principles for Reform’ in an effort to reconcile the acknowledged tension between ‘accountability, transparency, the rule of law, privacy and other applicable rights’.41 A logical and structured approach to its constituent parts then follows, with each part’s title phrased as a question an interested layperson might well ask.42 Each part sensibly outlines the ‘current state’ of the regulatory framework and the ‘potential future state’. In many respects the discussion paper is a masterpiece of plain English, clear and coherently structured explanations, and level of detail. However on a holistic critical view, whilst largely mirroring the ‘all-in’ consultative approach to producing the finalised IPA 2016 (UK), it differs critically by failing to take the opportunity to avow Australia’s use (or indeed non-use) of the full suite of targeted and bulk investigative powers now regulated in the British statute. The case for avowal is examined later herein, after an examination of the information about investigatory powers the UK avowed post-Snowden.

38

AUSTRALIAN GOVERNMENT ATTORNEY-GENERAL’S DEPARTMENT, Reducing the Complexity of Legislation https://www.ag.gov.au/legal-system/access-justice/reducing-comple xity-legislation. 39 Commonwealth Government Response (supra, n 34) 3. 40 AUSTRALIAN GOVERNMENT, Discussion Paper (supra n 36) 8. 41 AUSTRALIAN GOVERNMENT, Discussion Paper (supra n 36) 6. 42 Ibid. Part 1 ask “who can access information under the new framework?” Part 2, “What information can be accessed?” etc.

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2.3 What Does the UKIPA Actually Do? Returning to the assertion of the UKIPA as a transparently secret statute that covers the field, its preamble states that it is an act … to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994 …43 The focus herein is on interception of communications and equipment interference, as it is these two powers that facilitate access to data and communications at source, rather than material held by third parties (e.g. communications service providers).

3 Strategic Interception of Communications and Data The preamble evidences that the UKIPA provides investigatory powers to access data at rest and in transit, as well as ‘safeguarding of acquired material’ provisions and enhances the pre-existing oversight mechanisms. As regards communications (including data) in transit, the UKIPA grants powers (under warrant) to intercept communications in the course of transmission either as part of ‘targeted’ investigations or on a ‘bulk’ (for filtering, searching and intelligence production) purposes.44 However a more controversial power is examined first.

3.1 Equipment Interference The most controversial power on the face of the act also relates to the investigation of data at rest. The UKIPA grants powers (under warrant) authorising interference with equipment to secure access to equipment data and communications on both a ‘targeted’ investigative basis or on a bulk basis.45 ‘Equipment interference’ or ‘Computer Network Exploitation’ was only avowed as GCHQ investigative conduct in February 2015 during the course of legal proceedings in the UK Investigatory 43

Investigatory Powers Act 2016 (UK) Preamble, emphasis added—these are the principal powers explored herein. 44 See now IPA 2016, Part 2 and Part 6. 45 IPA 2016 (UK), Part 5 and Part 6.

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Powers Tribunal (UKIPT).46 In those proceedings, GCHQ’s Director-General of Cyber Security testified that, ‘the particular significance of the use of CNE is that it addresses difficulties for the Intelligence Agencies caused by the ever increasing use of encryption by those whom the Agencies would wish to target for interception’.47 Amongst its conclusions on ten distinct issues raised in those proceedings, the UKIPT ruled that ‘if information were obtained in bulk through the use of CNE, there might be circumstances in which an individual complainant might be able to mount a claim, but in principle CNE is lawful’.48 This determination was not disturbed in an otherwise successful judicial review conducted by the English High Court in December 2020,49 whilst a further legal challenge to the European Court of Human Rights (ECtHR) was declared inadmissible.50 That application remains noteworthy however for the useful synopsis of Equipment Interference techniques (and their risks) tendered in an amicus brief.51 The UKIPA therefore retains a suite of broad equipment interference powers. It is unthinkable that other developed nation-states’ intelligence agencies, such as those in India and Australia do not use these powers. Indeed despite India’s ranking as a ‘third-tier cyber power’, its offensive cyber capability has been assumed to be ‘Pakistan-focused and regionally effective’, despite little evidence being available.52 The ranking thus implicitly confirms India’s use of Equipment Interference. Consequently, India should be avow this and make explicit statutory provision for the necessity, proportionality, ‘safeguarding of accessed material’ and oversight of Equipment Interference powers. The UKIPA and its detailed Code of Practice provide the model.53 It must be conceded however, that even in the UK, Equipment Interference, particularly when undertaken on a ‘bulk’ or ‘strategic’ basis, does not yet carry the endorsement of a supranational human rights court in the same manner as for strategic interception.

46

Privacy International and Others v Secretary of State for Foreign and Commonwealth Affairs and GCHQ [2016] UKIPTrib 14_85-CH. 47 Ibid., [3]. 48 Ibid., [89] emphasis added. 49 The claimants successfully ‘overturned’ the UKIPT ruling on Issue 4, which related to property interference warrants issued under section 5 of the Intelligence Services Act 1994 (UK). 50 Privacy International and Others v United Kingdom (Application Number 46259/16). 51 ARTICLE 19 AND THE ELECTRONIC FRONTIERS FOUNDATION (EFF), Third-Party Intervention in Privacy international v United Kingdom (Application Number 46259) https://www.art icle19.org/wp-content/uploads/2019/09/Amicus-Brief-UK-A19-EFF-Sept-2019-Proofread.pdf. 52 International Institute for Strategic Studies [9]. 53 UK Home Office [10].

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3.2 What Is Meant by the Term ‘Strategic Interception’? Nora Ni Loideain references ‘bulk surveillance’,54 whilst in the UK, the term used is ‘bulk interception’.55 Both terms allude to the longstanding, and oft-controversial state practice of covertly accessing ‘foreign-focused’ communications (and thus data) entering or leaving a jurisdiction ‘in the interests of national security’.56 In the UK, this is principally conducted by GCHQ, the UK’s signals intelligence agency. Neither Australia nor India have expressly avowed bulk interception powers. The former’s Australian Signals Directorate (ASD) is silent on investigative techniques.57 Sahukar states that India’s Signals Intelligence Directorate and an Information Warfare Department established in 2007, as an arm of the Defence Intelligence Agency, ‘monitors and derives intelligence from electronic emissions’.58 This replicates GCHQ’s statutory remit.59

3.3 Bulk Interception or Mass Surveillance? It is worth noting that strategic communications investigation does not equate to ‘mass surveillance’. This allows official assurances such as that of ASD Director-General Rachel Noble that ‘Australia’s ASD cannot, under law, conduct mass surveillance on Australians, nor has it ever sought to’. Whilst undoubtedly true, it does nothing to reduce the likelihood that Australia conducts bulk interception.60 Indeed it is difficult to conclude otherwise given Australia’s longstanding UKUSA Agreement communications intelligence obligations. Originally entitled the ‘British-U.S. Communication (sic) Intelligence Agreement’ (BRUSA), what is now called UKUSA was concluded on 5 March 1946 and represented the ‘official’ commencement of communications 54

NI LOIDEAIN, supra n 8. IRTL, BPR 2016 (supra, n 2) 21–22. 56 Ibid. 57 The ASD website states that ‘details of our signals intelligence and cyber capabilities (protective and disruptive) are necessarily secret … As an analyst, you may be involved in: analysis of communication systems analysis of foreign signals intelligence developing capabilities to perform your analysis using software development skills developing new methods of analysing and exploiting data for intelligence or information security purposes investigating large and complex data sets offensive cyber operations preparation of short-term or long-term information reports to government protecting Australia from cyber adversaries as part of ASD’s Australian Cyber Security Centre solving cryptological problems using advanced mathematical concepts translating foreign language material’. See generally ASD webpage https://www.asd.gov.au/about. 58 Sakuhar [11]. 59 Intelligence Services Act 1994 (UK), section 3(1) (a) GCHQ are ‘to monitor, make use of or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material …’. 60 Rachel Noble (supra n 15). 55

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intelligence sharing between the US and UK.61 Australia, New Zealand and Canada were added in 1956. All ‘Five Eyes’ (as the five signatories are colloquially known) commit to an ‘exchange of the products of the following operations in relation to foreign communications’.62 This included (and continues to include): Collection of traffic63 ; acquisition of communication documents and equipment; traffic analysis; cryptanalysis64 ; decryption and translation; and acquisition of information regarding communication organizations, practices, procedures and equipment.65 It is plain that despite the express categories of communication set out in the agreement, ‘collection’ necessitates the ‘monitoring’ or ‘screening’ of as much communications traffic entering or leaving the signatory jurisdictions as technological resources allowed in order to establish whether or not they contained ‘information of military, political or economic value’.

3.4 The Rationales for Bulk Interception of Communications The UKUSA nations and India share similar rationales for ‘bulk’ interception. In general terms, these are: the protection of national security interests (broadly construed); the prevention or detection of serious crime; promoting diplomatic relations or protecting economic wellbeing.66 In this respect therefore, this macroinvestigative conduct is strategic, and can be distinguished from ‘targeted’ investigation of an individual’s communications at the micro-level. Although some scholars continue to distinguish ‘foreign-focused’ intelligence acquisition,67 this classification appears no longer tenable. Indeed, the Australian legislature has recently conceded that, in the electronic communications arena, ‘advances in technology,

61

The United States National Security Agency (NSA) have declassified and released many formerly top-secret documents relating to this longstanding agreement, The BRUSA is available at NSA/ CSS, ‘UKUSA Agreement Release 1940–1956’, https://www.nsa.gov/Portals/70/documents/newsfeatures/declassified-documents/ukusa/agreement_outline_5mar46.pdf. 62 Ibid. (emphasis added). 63 Despite not stating ‘all traffic’, there appears no limitation to the amount of type of traffic to be collected, emphasis added. 64 Bauer describes this as the discipline of deciphering a ciphertext without having access to the keytext. See Bauer [12]. 65 Ibid. 66 Telegraph Act 1885 (INDIA), section 5(2), The Central or State government … if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence; Intelligence Services Act 1994 (UK) section 3(2), [GCHQ] functions … be exercisable only … in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty’s Government in the United Kingdom; or (b) in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or (c) in support of the prevention or detection of serious crime. 67 Deeks [13].

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particularly widespread use of internet-based communications and mobile applications, mean that it can be impossible to know, at the point of interception, if a communication is foreign or domestic’.68

3.5 Understanding the Nature and Operational Case for ‘Bulk’ Investigative Power If state bulk investigative powers are to be avowed as state conduct, and suitable enabling provisions drafted into law, an understanding of them is prerequisite. In an area of public law notoriously secretive throughout history, it is in UK materials that the principal descriptions and ‘operational cases’ for their deployment as they relate to communications and data can be found. The primary source is then UK Independent Reviewer of Terrorism Legislation (IRTL), Lord Anderson’s report of the Bulk Powers Review 2016 (BPR).69 In alignment with the conceptualisation of communications and data as either ‘data in transit’ or ‘data at rest’, the BPR undertook ‘a consideration and discussion of the operational case’ for the four bulk powers avowed by the UK government: bulk interception of communications; bulk acquisition of communications metadata; bulk equipment interference and the acquisition and management of bulk personal datasets by UK intelligence agencies.70 There seems no reason that agencies in India and Australia could not make similar operational cases given the similarities in national security outlook (particularly in the cyber context).71 The IRTL team had a very high level of security clearance and there seems no reason to question the summaries of the operational case evidence to which they became privy. No other sources of information on bulk communications investigation (or more accurately bulk data investigation) match the level of detail provided in the BPR, although credit should be afforded to the UK Parliament’s Intelligence and Security Committee (UKPISC) for their unprecedented candour in their 2015 report that the IRTL himself referred to.72 68

Australia’s then Minister for Home Affairs Karen Andrews, Foreign Intelligence Legislation Amendment Bill 2021 (Australia) Revised Explanatory Memorandum. The bill was enacted and amended Australia’s Telecommunications (Interception and Access) Act 1979, section 11(c) accordingly. 69 IRTL, BPR 2016 (supra, n 2). 70 Ibid. The latter power is not relevant to communications investigation. 71 See generally UK Foreign, Commonwealth and Development Office [14]. For example, Part III, ‘Defence and Security’ states India and the UK will work in strategic partnership to strengthen efforts to tackle cyber, space, crime and terrorist threats and develop a free, open and secure IndoPacific Region. Our shared interests will underpin greater cooperation in multilateral fora where a strengthened UK India relationship will build understanding among diverse partners on international security and will help set global rules for cyber security and space taking into account their respective interests. 72 UKPISC, PRIVACY AND SECURITY (supra n 26).

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GCHQ’s involvement in bulk interception has a known, or state avowed, history traceable to the Capenhurst Tower scandal involving the UK and Irish governments in 1989.73 This led to the first civil libertarian challenge in the ECtHR in Liberty and Others v UK,74 which challenged the then prevailing interception of communications provisions in the Interception of Communications Act (IOCA) 1985 on the basis of assumed facts. It merits mention here because it marked the start of the UK’s journey to producing the UKIPA which would endeavour as far as possible to reduce the risk of further ECtHR challenges. The eventual adverse findings in Liberty triggered the statutory transition in the UK from the IOCA 1985 to Part I, Chapters I and II of the Regulation of Investigatory Powers Act (RIPA) 2000.75 These would again be challenged in the ECtHR in the Big Brother Watch proceedings.76 The BPR firstly describes ‘bulk interception’ as typically involving the collecting of communications as they transit particular bearers (communication links), noting by reference to the UKPISC Report that there are over 100,000 globally.77 Conceptualising the conduct as having three stages (‘collection’, ‘filtering’ and ‘selection’ for examination) the BPR outlined how at the first stage, GCHQ selects which bearers to access based on an assessment of the likely intelligence value of the communications they are carrying.78 In describing the filtering stage, the BPR summarised how GCHQ’s processing systems operate on the bearers which it has chosen to access, with ‘filtering analytics’ then applied to the traffic on these bearers, designed to select communications of potential intelligence value while discarding those least likely to be of intelligence value.79 Consequently, a significant proportion of the communications on the targeted bearers is discarded. At the selection for examination stage, the remaining communications are then subjected to the application of simple or complex queries, to draw out communications of intelligence value.80 Examples of a simple query are searches against a ‘strong selector’ such as a telephone number or email address. Complex queries combine a number of criteria, which may include weaker selectors but which in combination aim to reduce the odds of a false positive.81 Communications matching the chosen criteria are automatically retained, whilst all others are automatically discarded. Retained communications are subjected to a further triage process to determine the most useful, with analysts using their experience and judgement to decide which of the results returned by their queries are

73

On the Capenhurst Tower scandal and the Liberty ECtHR challenge see Glover [15]. Liberty and Others v UK (2009) 48 EHRR 1. 75 Regulation of Investigatory Powers Act 2000 (UK) c.23 Part I, Chapter I regulated interception of communications, and Chapter II regulated the acquisition of communications metadata from communications service providers. 76 Big Brother Watch and Others v UK (Grand Chamber) (supra n 5). 77 IRTL, BPR 2016 supra (n 2) 23. 78 Ibid. 79 Ibid. 80 Ibid., 25. 81 Ibid. 74

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most likely to be of intelligence value, examining only them.82 In 2021, in its Big Brother Watch and Others v UK decision, the ECtHR Grand Chamber opined that applications for bulk interception warrants ‘should set out the types or categories of selectors liable for selection following interception to provide extra context to the decision maker approving the warrant,’83 a requirement that the UK Home Secretary Priti Patel indicated had now been satisfied in the IPA 2016 through the tri-monthly provision of a list of ‘operational purposes’ provided to the UKPISC and reviewed annually by the UK Prime Minister.84 In a nod to the modern centrality of data in the fulfilment of intelligence agency work, the BPR stated It is GCHQ’s ability to interrogate the data obtained through bulk interception that has been retained following the selection for examination stage … that provides the capability to answer questions about developing incidents as they occur and identify the individuals involved. Much of the information needed to produce this intelligence is drawn from a composite of individual pieces of data, some of them long pre-dating the event. Whilst undoubtedly not amounting to ‘blanket’ or ‘mass’ surveillance, the amount of computing power required to undertake this type of collection, filtering and selection for retention is huge. There are clues as to the nature of the computational and data analytical powers required in modern communication intelligence production (whether in India or Australia) in Lord Anderson’s Investigatory Powers Review that preceded the Bulk Powers Review. In Chapter Four, he alludes to Machine Learning technologies, data mining and quantum computing,85 forecasting the latter to be available to the NSA by 2020 along with the ability to break encryption.86 Australia’s position on supercomputing remains significantly more reserved, however the ASD’s ‘history’ webpage reveals that as far back as 1986, the ASD acquired ‘Australia’s first supercomputer, a Cray Research system’, with a later model donated to the Powerhouse Museum in Sydney when it was decommissioned in 1994.87 It seems highly unlikely that its replacement was not significantly more powerful. Another indicator that ASD (or perhaps ASIO operating on its behalf in Australia) and by analogy, India’s SID/Information Warfare Department intercept communications in bulk appears in the statement of Charles Blandford Farr (Office of Security and Counter-Terrorism at the UK Home Office) to the UK’s Investigatory Powers Tribunal in 2013.88 In a lengthy submission, he conceded that the intelligence collectors’ view of internet communications is that any communication with a server outside of the jurisdiction, such as those made with Google, YouTube, Facebook or Twitter 82

Ibid. Big Brother Watch and Others v UK (supra, n 5) [136]. 84 Patel [16]. 85 See generally IRTL, RIPR 2015 (supra n 2) 49–69. 86 Ibid. 87 Australian Signals Directorate, ‘History’ (webpage) . 88 Privacy International v Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, GCHQ and Others UKIPTrib 13/92/CH. 83

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would constitute a communication ‘outside the jurisdiction’ and would fall within the remit of an external communications warrant.89 Going further, Mr Farr also referred to the passage of the Regulation of Investigatory Powers Bill during 2000, wherein it was conceded by Lord Bassam during Lords’ scrutiny that, since ‘external’ (or foreign-focused) interception takes place at the level of communications cables, it was unavoidable that ‘internal’ communications might also be picked up, given the unpredictable routes internet communications take.90 By analogy, Australia’s Telecommunications (Interception and Access) Act 1979 lends itself to an identical interpretation to that offered by Farr, defining ‘foreign communication’ as one ‘sent or received outside Australia’.91 India’s relevant provision makes no distinction, instead holding that the Central Government and the State Governments may issue directives for the monitoring, interception or decryption of any information transmitted, received or stored through a computer resource.92 Australia’s Independent Intelligence Review (IIR) 2017 recommended that data analytics and ICT connectivity, including the establishment of an intelligence community computing environment in which technical barriers to collaboration are minimised, be one of the highest priorities of a more structured approach to technological change and the funding of joint capabilities.93 It is highly likely that this is a work in progress. The following logical inferences can thus be drawn from the British experience about the examination of communications systems and the analysis of foreign signals intelligence by ASD and India’s Signals Intelligence Directorate/Information Warfare Department. Modern electronic communications travel up to and including the speed of light, and may thus only ‘enter or leave’ or be ‘sent and received’ in a jurisdiction in a matter of nanoseconds. To locate ‘foreign’ material from these communications will involve conduct similar to that of GCHQ in relation to internet bearers and the electromagnetic spectrum, namely the deployment of massive computational power to engage with, collect, filter and select communications and related data. As in the UK, the technology capacity of either the ASD or SID in screening communications will not be sufficient to enable ‘total’ or even ‘mass’ communications surveillance, but as the UKPISC and Anderson concluded, would constitute ‘bulk’ or ‘significant’ communications monitoring.

89

WITNESS STATEMENT OF CHARLES BLANDFORD FARR, Privacy International v Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, GCHQ and Others UKIPTrib 13/92/CH. https://www.privacyinternational.org/sites/default/files/ 2018-03/2014.05.16%20Witness%20Statement%20of%20Charles%20Blandford%20Farr.pdf. 90 Ibid. 91 Telecommunications (Interception and Access) Act 1979 (AU), section 5(1). 92 Information Technology Act 2000 (India), section 69, emphasis added. 93 COMMONWEALTH OF AUSTRALIA, DEPARTMENT OF THE PRIME MINISTER AND CABINET, 2017 Independent Intelligence Review 79.

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3.6 ‘Transparent Secrecy’ in Primary Legislation As previously outlined, it was ASD Director-General Rachel Noble who coined the term ‘transparent secrecy’. By this she explained that ‘securing the trust of the Australian people … is achieved by the government being transparent about what intelligence and security agencies are asked to do … but not how it is done’.94 This surely applies to all democracies. She additionally opined that is for governments to decide which activities require to be avowed. The experience of successive British governments is that excessive secrecy, supplemented by disingenuous legislation that masked the scope and magnitude of communications investigation being undertaken for UKUSA purposes,95 has brought about legal challenges such as those in Liberty (2008), Big Brother Watch and Privacy International.96 These undoubtedly were key drivers towards the ‘transparent secrecy’ now on the face of the UKIPA. Whilst Australia and India have no courts exercising similar functions as the UKIPT, their strategic relationships (discussed later) and increasing global harmonisation of data privacy norms such as those established in Europe’s top courts,97 mean that a strong case for avowal of secret bulk powers (if being used) can be made.

3.7 The Case for Avowal The risks posed to an incumbent government in publicly declaring the executive arm’s use of massive, formerly secret investigative powers are twofold. The first is the ‘legal challenge’ risk previously referred to. Successive UK governments have had protracted wearisome experience of this in virtually every aspect of covert investigation. The second is that of significant public outcry, with consequences ranging from calls for inquiry through to collapse of government following a ‘no confidence’ vote, and electoral defeat. As regards the latter, the UK experience in avowing all bulk powers demonstrates public reaction was muted. This mirrors the reaction to the publication by the Guardian newspaper throughout the latter half of 2013 of selected disclosures made by Edward Snowden. For any nation contemplating avowal of formerly secret communications and data investigative power, this is encouraging. As regards the ‘legal challenge’ risk, the UK weathered all previous adverse outcomes from the ECtHR, and appears to have been confident that avowal of the 94

RACHEL NOBLE (supra n 15). On the disingenuous nature of the Interception of Communications Act 1985 (UK) and Regulation of Investigatory Powers Act 2000 (UK) see GLOVER, PROTECTING NATIONAL SECURITY supra (n 47). 96 Liberty and Others v UK (2009) 48 EHRR 1 (challenging bulk interception), Big Brother Watch and Others v UK (Applications nos. 58170/13, 62322/14 and 24960/15) (challenging bulk interception) and Privacy International & Others v UK (Application No 46259 challenging equipment interference). 97 NORA NI LOIDEAIN, supra (n 8). 95

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full suite of powers coupled with advanced safeguards, the publication of detailed Codes of Practice for each bulk power, and an enhanced oversight regime would head off any serious challenge to the proposed new statute’s legality. Rectifying the safeguarding shortfalls identified in Liberty (2008) and with the benefit of the principles outlined Weber and Savaria (the Weber principles),98 it was believed the draft UKIPA as then existing would withstand ECtHR scrutiny, meaning the UK would truly have ‘world-leading’ Convention-compliant legislation. The Big Brother Watch and Others v UK (Grand Chamber) demonstrated that this view was prescient.

3.8 The IPA 2016 as a Paradigm of Compliance with Internationally Recognised Human Rights Norms The UK legislature was aware of the Big Brother Watch challenges as the draft UKIPA moved through to enactment. Whilst it was not quite a case of ‘legislate and be damned’, there was a desire to ensure maximum ECHR compliance in using all the avowed powers prior to any findings. The Big Brother Watch proceedings actually commenced in 2013 shortly after the publication of Snowden’s disclosures aforementioned. Counsel instructed by a collection of civil liberties organisations and journalists99 questioned the scope and magnitude of ‘bulk’ interception of communications as authorised by ‘certificated’ Ministerial warrants under Part I, Chapter I of the Regulation of Investigatory Powers Act (RIPA) 2000 in respect of ‘external communications’100 and the obtaining of communications data from communication service providers under Chapter II of Part 1 of the same act. By the time of the ECtHR judgments, the IPA 2016 had already repealed these impugned provisions.101 The Grand Chamber held that,

98

Weber and Savaria v Germany (Application no. 54934/00). The principles are outlined at [95]: ‘In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed’. 99 The parties were: Big Brother Watch; English PEN; Open Rights Group; Dr Constanze Kurz; Bureau of Investigative Journalism; Alice Ross; Amnesty International Limited; Bytes For All; The National Council for Civil Liberties (“Liberty”); Privacy International; The American Civil Liberties Union; The Canadian Civil Liberties Association; The Egyptian Initiative For Personal Rights; The Hungarian Civil Liberties Union; The Irish Council For Civil Liberties Limited and The Legal Resources Centre. 100 RIPA 2000, s8(4)–(6). 101 The legal challenge was also to whether the UK’s acquisition of intercepted material from foreign governments and intelligence agencies, as alleged in the published disclosures of Edward Snowden, wa sin accordance with law.

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owing to the proliferation of threats that States faced from networks of international actors, who used the Internet for communication and who often avoided detection through the use of sophisticated technology … [states] … had a wide discretion (‘margin of appreciation’) in deciding what kind of surveillance scheme was necessary to protect national security. The decision to operate a bulk interception regime did not therefore in and of itself violate … [ECHR] … Article 8.102 Despite assertions to the contrary,103 this determination is not overly significant. It is cogent and firmly grounded in reality. In none of the most well-known previous legal challenges to state surveillance regimes before the Court, dating back to Klass and Others,104 had the ECtHR even hinted that the existence of a ‘strategic monitoring’ or ‘bulk communications surveillance regime’ might be illegal in principle. Rather, the Court has repeatedly found that particular states’ regulatory governance of their data/communications investigation regimes has been either insufficiently ‘in accordance with relevant domestic law’,105 or indeed outside it, failed to pursue ‘a legitimate aim’ or that insufficient ‘end-to-end safeguards’ ensuring necessity and proportionality of implementation were in place. Indeed in outlining the Weber principles outlined previously, the ECtHR was evidently accepting the existence in ECHR-signatory states of ‘bulk monitoring’ type communications surveillance, whilst tempering any controversy over a ‘political’ acceptance by elucidating express prerequisite constraints to mitigate the potential for executive abuse of prima facie unfettered or arbitrary power. In Weber, the Court expressly shared the … [German] … Government’s view that the aim of the impugned provisions of the amended G10 Act was indeed to safeguard national security and/or to prevent crime, which are legitimate aims within the meaning of Article 82.106 The G10 Act referred to expressly regulated the ‘monitoring of international wireless telecommunications’.107 The Grand Chamber went on to reaffirm its First Section’s finding that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, it has consistently 102

EUROPEAN COURT OF HUMAN RIGHTS, UK surveillance regime: some aspects contrary to the Convention (Press Release ECHR 165 (2 ‘021) 25 May 2021) emphasis added. 103 Zalneriute [17]. 104 Klass and Others v Germany (Application No 5279/71) at [78] for example, ‘the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime’. 105 Esen [18]. 106 Weber and Savaria (supra n 98) [104] emphasis added. 107 Ibid., [88].

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recognised that the national authorities enjoy a fairly wide margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security.108 This, and the plethora of previous ECtHR judgements in this area evidence that the ECtHR has never seriously questioned the legality of bulk surveillance in principle. The real significance in the judgment is that the UK, having gone through a two year process of extensive review, consultation, draft legislation and operational casemaking prior to transforming RIPA 2000 into the UKIPA with the BBW litigation very much in contemplation, can assert their social evaluation and independent expert review process as a paradigm for the creation of national security legislation that as far as possible, and within reason, reflects the polity’s views and concerns, but which also, critically, passes the test of compliance with leading international human rights protection norms. BBW (GC) has done no more than simply reiterate (perhaps more clearly) the Court’s acceptance (as opposed to endorsement) that states require strategic communications investigation, whilst expressly expanding the Weber principles from six to eight. Given that the Court’s findings directly impact the quality of the UK law replacing that impugned in the proceedings, these enhanced ‘Big Brother principles’ are worth setting out as model law minimum safeguards. The court held that a state’s domestic law should clearly define: the grounds on which bulk interception may be authorised; the circumstances in which an individual’s communications may be intercepted; the procedure to be followed for granting authorisation; the procedures to be followed for selecting, examining and using intercept material; the precautions to be taken when communicating the material to other parties; the limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed; the procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance; the procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance.109 Any state proposing to reform strategic communications investigation regulation would do well to incorporate these principles. The ECtHR Grand Chamber also acknowledged ‘the independent and effective oversight’ and provided by the (then) Interception of Communications Commissioner (IOCC), an official charged with providing independent oversight of intelligence service activities, and the ‘robust judicial remedy’ provided by the UKIPT.110 The Court’s express endorsement of the UK’s oversight mechanisms as an example for

108

Big Brother Watch and Others v United Kingdom (Application Numbers 58170/13, 62322/14, 24960/15) First Section Judgment, September 2018 [308]. 109 Big Brother Watch and Others v UK (Grand Chamber) supra, n 5 [361]. 110 Ibid., [425].

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other nations is compelling, not least because of additional enhancements to overish created by the IPA 2016.111 Encouraged by this turnaround in their fortunes before Europe’s top human rights arbiter, the British government have been quick to respond to the Big Brother Watch (Grand Chamber) judgment. This contrasts starkly with their inaction following the adverse findings in Liberty.112 In a written statement to Parliament on 31 March 2022, Home Secretary Priti Patel firstly acknowledged the Court’s findings, stating ‘there were some deficiencies identified in the function of the regime under RIPA, most of which have already been rectified with the introduction of the [UKIPA]’.113 As regards the ECtHR finding that ‘applications for bulk interception warrants should set out the types or categories of selectors liable for selection following interception to provide extra context to the decision maker approving the warrant’, she asserted that, when the IPA came into force, it introduced a list of “operational purposes”, in effect the reasons for which an agency may select data for examination … The list is provided to the Intelligence and Security Committee of Parliament every three months and is reviewed by the Prime Minister every year. The Government consider that these operational purposes are sufficient to satisfy the requirement imposed by the Court … [and Home Office] … officials, in conjunction with those in the security and intelligence agencies, are undertaking a review of the operational purposes with this requirement in mind.114 In response to the Court’s determination that the use of certain “strong” selectors such as a personal email address or mobile telephone number clearly linking to an identified person, should be subject to prior internal authorisation, on top of the existing requirements to demonstrate each is used only where strictly necessary and proportionate in relation to bulk interception and is in accordance with all other applicable safeguards. she explained that the security and intelligence agencies use strong selectors to select data acquired under bulk interception warrants under part 6, chapter 1 of the IPA. Where those strong selectors are applied to identifiable individuals, prior internal authorisation will be required. Plans to implement this additional step are already well-developed and are soon due to be incorporated into the systems used by the analysts within the security and intelligence agencies. This will be accompanied by additional guidance and training.115 Finally, in response to the Court’s determination that, in order to comply with ECHR Article 10 Freedom of Expression requirements, prior judicial authorisation should be sought … [in operational contexts] … where targeting with strong selectors 111

Principally the establishment of the Investigatory Powers Commissioner’s Office (IPCO)—see generally . 112 Goold [19]. 113 Patel [16]. 114 Ibid. 115 Ibid.

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using bulk interception will lead to the targeting of journalists or the acquisition and retention of confidential journalistic material,116 she asserted that [Home Office] officials have been working with the security and intelligence agencies and with the Investigatory Powers Commissioners Office to establish the process for prior judicial authorisation and we will be making necessary changes to primary legislation and codes of practice in due course.117 This evidences that the British Government, after years on the ECtHR naughty step in this area of law is confident that, going forward, a few executive in-house tweaks will render the IPA 2016 a fully ECHR-compliant statute (at least as regards bulk powers to intercept data in transit and retained communications data). This has meaningful implications for nations contemplating new regulation and indicates that the avowal of secret bulk data/communications investigatory powers might be prudent. These nations now have a ‘model’ UK statute, itself informed by recently published and clear set of ‘minimum safeguard’ guiding principles from one of the world’s leading supranational human rights protection courts. Some remain dissatisfied. Citing the single dissenting judge in the case, who found the eight principles ‘inadmissibly vague’, Monika Zalneriute questions whether the criteria are ‘mandatory and cumulative, or semi-optional’, before asserting that ‘where the Court continues to grant states a wide margin of appreciation to uphold national security, vague conformity with these principles will not breach Article 8 ECHR’.118 The implication appears to be that state bulk communications investigation should not have endorsed by the ECtHR. Given that the Court has implicitly endorsed strategic communications investigation since Klass v Germany, that position in the current threat environment borders on the absurd. The UK’s IRTL findings in detailed operational cases made it clear that there are no viable alternatives to threat detection. The BBW principles have to accommodate the disparate legislative approaches across ECHR signatory nations. They are undoubtedly cumulative; the word ‘or’ is absent from what is clearly an inclusive list rather than a menu. Whatever the view, it can be concluded that the ECtHR has accepted the existence of strategic communications investigation, on the proviso that the Big Brother Watch principles are implemented. A question arises that, given that that Australia and India likely undertake bulk interception, and the likelihood that offensive cyber operations are also conducted, is the desire for a fully transparent statute that covers the field after extensive social evaluation and independent review of the operational case for each controversial power the only motivator for legislative reform? Put another way, is the UK’s legislative success based on comprehensive social evaluation and high judicial endorsement enough for India to legislate similarly, or are their other factors that would strengthen the argument?

116

Ibid. Ibid. 118 ZALNERIUTE, supra (n 103). 117

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4 Strategic Policy (and Thus Regulatory) Alignment? In 2017, Australia announced that ‘India now sits in the front rank of Australia’s international partnerships … [wherein] … security interests are congruent, particularly in relation to the stability and openness of the Indian Ocean’.119 In the five years since, ‘minilaterals’, examples of which include the Quadrilateral Security Dialogue (Quad),120 the India–France–Australia trilateral121 and the India–Japan–Australia trilateral,122 have come to be described as ‘the “go to” method for forging new, fluid partnerships to enhance regional security cooperation … instrumental in providing a platform for like-minded countries to converge on shared concerns and interests’.123 The value of India and Australia to one another in the ‘security interests congruence’ sphere is evident in the 2022 ‘elevation of the bilateral cyber cooperation through the Australia-India Framework Arrangement on Cyber and Cyber-Enabled Critical Technology Cooperation under the Comprehensive Strategic Partnership, agreed in June 2020’.124 This envisages enhanced cooperation ‘in the areas of cyber governance, cyber security, capacity building, innovation, digital economy, and cyber and critical technologies as an essential pillar of the India-Australia relationship’.125 The language used is comparable to ‘cyber cooperation’ statements issued by Australia in consequence of its participation in the Five Country Ministerial, a ‘forum for the Five Eyes security ministers to meet and discuss opportunities for collaboration’.126 So, although India is not a UKUSA Agreement signatory, it is plainly closely strategically aligned with Australia (currently rebuilding communications investigation regulation along British statutory lines) and the UK. There is a discernible increase in homogeneity in national security outlook. It is therefore not a massive leap to suggest that, in the interests of legal certainty and international human rights norms compliance across these partnerships, that loose legislative homogeneity be encouraged. It is hoped that when this argument is weighed in conjunction with the others made herein, namely that the UKIPA represents a paradigm of transparent secrecy, built on a huge social evaluation exercise and subsequently endorsed by the ECtHR, there appears a cogent case for India to pursue a similar statutory framework. 119

AUSTRALIAN GOVERNMENT, 2017 Foreign Policy White Paper, Chapter 3 https://www. dfat.gov.au/sites/default/files/minisite/static/4ca0813c-585e-4fe1-86eb-de665e65001a/fpwhitepa per/foreign-policy-white-paper/chapter-three-stable-and-prosperous-indo-pacific/indo-pacific. html. 120 See generally the AUSTRALIAN GOVERNMENT, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, Regional Architecture: Quad https://www.dfat.gov.au/international-relations/reg ional-architecture/quad. 121 Australian Government, Department of Foreign Affairs and Trade [20]. 122 Australian Government, Department of Foreign Affairs and Trade [21]. 123 Tirkey [22]. 124 Senator the Honorable Marise Payne [23]. 125 Ibid., emphasis added. 126 PUBLIC SAFETY CANADA, .

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References 1. DENNIS RICHARDSON AC, Comprehensive Review of the Legal Framework of the National Intelligence Community (Commonwealth of Australia, December 2019) (Richardson Review). 2. NORA NI LOIDEAIN, EU DATA PRIVACY LAW AND SERIOUS CRIME: DATA RETENTION AND POLICYMAKING (OUP, forthcoming) 30. 3. BEN WALLACE MP, Minister of State for Security, Investigatory Powers Act 2016 Consultation: Codes of Practice (February 2017) Foreword https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/593725/IP_Act_codes_consultat ion_Feb2017_FINAL_WEB.pdf. 4. RACHEL NOBLE (Director-General Australian Signals Directorate), Long histories, short memories- the transparently secret Australian Signals Directorate (presentation to the National Security College, Australian National University, Canberra 1 September 2020) https://www. asd.gov.au/publication/speech-transparently-secret-asd. 5. UK HOME OFFICE, ‘Investigatory Powers Act 2016 Consultation: Codes of Practice’ (2017, HMSO). 6. TOBY NISBET and GEOFFREY SYME, No way to build a highway: Law, social justice research and the Beeliar Wetlands (2017) 34 ENVIRONMENTAL PLANNING LAW JOURNAL 162. 7. UK PARLIAMENT, What is a draft bill? (UNDATED) https://www.parliament.uk/about/how/ laws/draft/. 8. COMMONWEALTH GOVERNMENT, ATTORNEY-GENERAL’S DEPARTMENT, Commonwealth Government response to the Comprehensive Review of the legal Framework of the National Intelligence Community by Mr Dennis Richardson AC (Commonwealth of Australia 2020) 3. 9. INTERNATIONAL INSTITUTE FOR STRATEGIC STUDIES, Cyber capabilities and national power: A net assessment (28 June 2021) https://www.iiss.org/blogs/research-paper/ 2021/06/cyber-power---tier-three. 10. UK HOME OFFICE, EQUIPMENT INTERFERENCE CODE of PRACTICE (March 2018, HMSO) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/715479/Equipment_Interference_Code_of_Practice.pdf. 11. BEHAM SAKUHAR, ‘Intelligence and Defence Cooperation in India’ in M TUZUNER, INTELLIGENCE COOPERATION PRACTICES IN THE 21ST CENTURY: TOWARDS A CULTURE OF SHARING (IOS Press, 2010) 34–35. 12. F BAUER, ‘Cryptanalysis’ in van TILBORG HCA (ed) ENCYCLOPAEDIA OF CRYPTOGRAPHY AND SECURITY (Springer, Boston, MA, 2005) 87. 13. ASHLEY S DEEKS, ‘Regulating Foreign Surveillance Through International Law’, in FRED H CATE and JAMES X DEMPSEY (eds) BULK COLLECTION: SYSTEMATIC GOVERNMENT ACCESS TO PRIVATE-SECTOR DATA (Oxford University Press, 2017) 349–354. 14. UK FOREIGN, COMMONWEALTH AND DEVELOPMENT OFFICE, 2030 Roadmap for India-UK future relations (Policy Paper, May 2021) https://www.gov.uk/government/public ations/india-uk-virtual-summit-may-2021-roadmap-2030-for-a-comprehensive-strategic-par tnership/2030-roadmap-for-india-uk-future-relations. 15. P GLOVER, PROTECTING NATIONAL SECURITY: A HISTORY OF BRITISH COMMUNICATIONS INVESTIGATION REGULATION (Routledge 2021), 168–174. 16. Priti Patel, Hansard Written Statement (HCWS759) to the UK House of Commons 31 March 2022 https://hansard.parliament.uk/Commons/2022-03-31/debates/22033139000028/GrandC hamberEcthrJudgmentInBigBrotherWatchAndOthersVUK. 17. MONICA ZALNERIUTE, Procedural Fetishism and Mass Surveillance under the ECHR: Big Brother Watch v. UK, VerfBlog, 2021/6/02, https://verfassungsblog.de/big-b-v-uk/, DOI: https://doi.org/10.17176/20210602-123858-0. 18. RITA ESEN, Intercepting Communications in Accordance with Law (2012) 76(2) JOURNAL OF CRIMINAL LAW 762.

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19. BENJAMIN GOOLD, Liberty and others v The United Kingdom: a chance for another missed opportunity (2009) PUBLIC LAW 5–14. 20. AUSTRALIAN GOVERNMENT, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, First Australia-India-France Trilateral Dialogue (Joint Statement 9 September 2020) https:// www.dfat.gov.au/news/media-release/first-australia-india-france-trilateral-dialogue. 21. AUSTRALIAN GOVERNMENT, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE, Joint Statement on the Supply Chain Resilience Initiative by Australian, Indian and Japanese Trade Ministers (15 March 2022) https://www.dfat.gov.au/news/media-release/joint-statem ent-supply-chain-resilience-initiative-australian-indian-and-japanese-trade-ministers-0. 22. AARSHI TIRKEY, Minilaterals and their impact on Indo-Pacific security (2020) https://fut ureshub.anu.edu.au/minilaterals-and-their-impact-on-indo-pacific-security/. 23. SENATOR THE HONORABLE MARISE PAYNE, Joint Statement on the Inaugural India-Australia Foreign Ministers’ Cyber Framework Dialogue (12 February 2022) https://www.foreignminister.gov.au/minister/marise-payne/media-release/joint-statem ent-inaugural-india-australia-foreign-ministers-cyber-framework-dialogue.

Analysis of Laws in Different Countries on Sedition Abhinav Tomer, Rupendra Singh, and Sumitra Singh

1 Introduction—Indian Laws Pertaining to Sedition Section 113 of Macaulay’s Draft Penal Code 1837 is linked to Section 124A of the Indian Penal Code. The punishment for committing the offence of sedition was life imprisonment. Sir John Romilly, Chairman of the Second Pre-Independence Law Commission, remarked on the length of the proposed sentence for sedition, stating that the most severe sentence in England had been three years, and that it should not be more than five years in India.1 Nonetheless, when the IPC was approved in 1860, this section was left out. For some, this was not appreciable and for others it was a boon. When Sir. James Stephens received knowledge regarding this omission, he referred to Sir Barnes Peacock’s letter to Mr. Maine, in which he stated: I’ve looked through my notes and believe that the omission of a section in lieu of Section 113 of the first Penal Code resulted in an error […]. In any case, I believe that the advisory group’s failure to fill in for Section 113 was an oversight.2

1 2

Gour [1]. Ganachari [2].

A. Tomer (B) · R. Singh · S. Singh Amity Law School, Amity University, Noida, India e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_21

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Mr. James Stephen set out to correct this injustice from that moment forward. As a result, through exceptional Act XVII of 1870, the term sedition was added to the IPC as a crime under Section 124A. The Treason Felony Act of 1848, which penalised rebellious articulations, inspired this section.3 Mr. Stephen highlighted one of the grounds for adding this section as the fact that, in the absence of such a provision, this offence would be punished under England’s more harsh common law.4 As a result, the adoption of this clause was portrayed as a natural alternative for safeguarding freedom of expression against the tougher common law. According to Mr. Stephen, the embraced situation was significantly more packed, significantly more plainly expressed, and free of an enormous amount of haziness and dubiousness with which the law of England was burdened.5 The Section’s objective was to thwart a demonstration of stimulating feelings of offence directed at the legislature, but this annoyance had to be distinguished from dissent. As a result, individuals were free to express their opposition to the legislature as long as they expressed a willingness to abide with its legal position.6 The Indian Penal Code (Amendment) Act 1898 (Act V of 1898) amended Section 124A of the IPC in 1898, allowing for the punishment of transportation for an indefinite or restricted period of time. While the previous Section defined rebellion as rising or attempting to stimulate feelings of annoyance toward the government established by law, the new Section also defined it as bringing or attempting to bring disdain or hatred toward the government established by law.7 The situation was remedied by Act No. 26 of 1955, which changed the punishment to indefinite detention plus a fine. The Prevention of Seditious Meetings Act, 1907, was enacted by the Westminster Parliament to prevent public gatherings that could lead to sedition or agitation, since 3

Section 3 of the Act stipulated that: If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, within any part of the United Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty, and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for the term of his or her natural life.

4

Queen Emperor v. Jogendur Chandra Bose (1892) 19 ILR Cal 35. http://archive.org/stream/onlawofsedition00dono#page/2/mode/2up (last visited on January 19, 2017 at 3:32 PM). 6 Donogh [3]. 7 Vibhute [4]. 5

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in many parts of India, assemblies were organised against British guidelines with the primary goal of overthrowing the government. The Act of 1907 was repealed by the Prevention of Seditious Meetings Act of 1911. Section 5 of the Act gave legal experts the authority to prohibit a public meeting if the gathering was likely to encourage sedition or annoyance, or to aggravate public tranquility. Infringement of the Act’s provisions was made punishable by imprisonment for a period of up to six months, a fine, or both. The stated Act of 1911 was repealed by the Repealing Act of 1927 (12 of 1927) and further by a (Second) Repealing and Amending Act (No. IV of 2018).

2 Sedition Laws of USA The United States Constitution prohibits the state from enacting any legislation that impairs the fundamental freedom to articulatie ones own opinions. There is a debate among legal experts as to whether the first amendment was aimed at eliminating subversive defamation. Many people believe that this rule “lends a legal cloak to political oppression.”8 Despite differing viewpoints and court efforts to limit the scope of sedition, it remains an offence in the United States, albeit it is rarely interpreted and can even be considered to have gone into disuse.9 Many people believed that the main revision was aimed at eradicating rebellious slander. However, this viewpoint has been challenged on the grounds that the major alteration does not guarantee all types of speech; thus, claiming that the ban on rebellion was abolished by it would tantamount to understanding history through one’s own community sensibilities. The Sedition Act of 1798 made rebellion a criminal felony in the United States.10 In 1820, the Act was repealed. The United States Congress re-enacted the Sedition Act in 1918 to protect American interests during World War I.11 In Schenck v. US,12 the court, while affirming the validity of the Sedition Act 1918, laid out the indisputable facts.

8

Koffler and Gershman [5]. Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore and Alternative Law Forum, Bangalore, Sedition Laws and Death of Free Speech in India, available at: https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf (last visited on May 23, 2018 at 7:46 PM). 10 Section 2 of the Sedition Act, 1798 defines sedition as: To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations. 11 This Act was a set of amendments to enlarge Espionage Act, 1917. 12 249 U.S. 47 (1919). 9

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Words that, in most cases and in many places, would be protected by the First Amendment’s right to free speech may be disallowed if they are of such a nature and used in such a way that they pose an obvious risk of achieving the meaningful indecencies that Congress has the authority to prevent. The Supreme Court ruled in Abrams v. US,13 that the distribution of leaflets encouraging workers to strike in order to stop the manufacture of gear that might be used to assassinate Russian progressives could not be protected under the First Amendment. Regardless of Equity Holmes’ differing opinion, the United States has a wide range of free speech freedom. He made the following observation: The current threat of quick insidious or an aim to achieve it is all that is required of Congress to designate a breaking point for the outflow of conclusion when private rights are unaffected.

Rebellion was also made a crime under the Alien Registration Act of 1940 (also known as the Smith Act), which outlawed advocacy for a violent overthrow of the government. Dennis v. United States,14 put the Act’s legality to the test. Using the undeniable danger test, the court upheld the conviction because: the terms [of the act] can’t indicate that the Government must wait until the putsch is planned, the plans are prepared, and the sign is expected before acting … If the government discovers that a group bent on overthrowing it is attempting to indoctrinate its members and subject them to a course in which they would strike when the pioneers believe the conditions permit, action by the government is required. The argument that Government does not need to be concerned because it is solid, has adequate forces to put up a fight, and could easily defeat the transition requires no response. Because that isn’t the question. Unquestionably, an attempt to overthrow the government by force, notwithstanding the fact that it is doomed from the start due to a lack of numbers or intensity among revolutionaries, is a sufficient evil. The harm that such initiatives cause to a country, both legitimately and politically, makes it impossible to assess their validity in terms of the possibility of advancement or the speed with which an effective endeavour may be implemented. However, in the aftermath, the restriction on free speech has been largely misunderstood. The Supreme Court acknowledged promotion to ‘oust as a theoretical precept from a support to activity’ in Yates v. United States.15 It was thought that the Smith Act didn’t punish the promotion of conceptual objectives of the legislature, and that the Dennis (supra) didn’t obfuscate this distinction in any way. The difference between these two sorts of support, it was claimed, is that ‘those to whom the promotion is given’. In New York Times v. Sullivan,16 the Supreme Court stated that in a vote-based system, speech must be allowed to breathe, and that the government cannot stifle anything it considers to be “rash, false, or malignant.”

13

250 U.S. 616 (1919). 341 U.S. 494 (1951). 15 354 U.S. 298 (1957). 16 376 U.S. 254, 273–76 (1964). 14

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The Supreme Court ruled in Brandenburg v. Ohio,17 that “freedom of speech and the press do not allow a State to deny support for the use of power or for law infringement except where such support is coordinated to prompting or creating unavoidable untamed activity and is likely to instigate or deliver such activity.” This decision overturned the Supreme Court’s decision in Whitney v. California,18 which held that “to intentionally be or turn into an individual from or help with arranging a relationship to promot, instruct, or help and abet the commission of violations or unlawful demonstrations of power, viciousness, or psychological warfare as a method for achieving modern or political changes include” legislations punishing such behaviour were not seen as a subjective and illogical use of state power.” In accordance with Brandenburg case, limitations on articulation are dependent upon serious examination. In this manner, analysis or backing must prompt impelling of quick rebellious activity to meet all requirements for sensible limitation of first revision. The U.S. Constitution however disallows evident limitations on discourse, there are different precepts that are polished to deflect scorn discourse. The teachings, for example, ‘sensible audience members test’, ‘present risk test’, ‘words that need defending’s are simply models’. The chilling impact idea had been perceived most habitually and explained most obviously in choices predominantly worried about the procedural parts of free discourse arbitration.

3 Sedition Laws of Australia The Crime Act of 1920 was the most far-reaching enactment that dealt with the crime of sedition. As emotional expectation, impelling to savagery, or public unsettling impact were not the sine qua non for conviction under these arrangements, the provisions on Sedition in this Act were more extensive than the custom-based law definition. The Hope Commission, which was created in 1984, recommended that Australia’s definition of rebellion be aligned with the Commonwealth’s.19 As a result, the Gibbs Committee audited the Sedition laws once more in 1991. While sedition should be prosecuted, it was suggested that feelings should be limited to acts that were motivated by feelings. Schedule 7 of the Anti-Terrorism Act (No 2) 2005 was revised in 2005, recalling sedition as a crime and adding safeguards for Sections 80.2 and 80.3 of the Criminal Code Act 1995. The Australian Law Reform Commission (hereafter ALRC) looked at whether the term “rebellion” was appropriate for describing the charges mentioned in the 2005 version. The ALRC Report recommended that the Australian Government remove the term “rebellion” 17

395 U.S. 444 (1969). 274 U.S. 357 (1927). 19 Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization (1985) cited in Australian Law Reform Commission, Report on Fighting Words: A Review of Sedition Laws in India (July 2006). 18

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from administrative criminal law after a thorough investigation. To that purpose, the heads of Part 5.1 and Division 80 of the Criminal Code (Cth) should be altered to ‘Conspiracy and encouraging political or between bunch power or savagery,’ and the heading of section 80.2 should be changed to ‘Asking political or between bunch power or brutality,’ respectively. The ALRC’s recommendation was implemented in the National Security Legislation Amendment Act of 2010, which removed the term “sedition” and replaced it with reference to “encouraging atrocity acts.”

4 Laws of Sedition of England The crime of rebellion can be traced back to the Statute of Westminster of 1275, when the King was seen as having Divine power.20 The reality of the discourse as well as the intent were considered to demonstrate the crime of sedition. The crime of sedition was created to prevent discourses that were “hostile to a fundamental regard for governance”.21 The De Libellis Famosis22 case was possibly the first time that ‘subversive defamation’ was declared liable, regardless of whether it was ‘legitimate or spurious.’ This case permanently ended slander against dissidents in the United Kingdom. The explanation behind this decision was that a true examination of government has a greater power to denounce the regard in question. Sedition was defined by Fitzgerald J. in R. v. Sullivan,23 as: Sedition is a broad phrase that encompasses all the actions, whether by word, deed, or composition, that are intended to disrupt the state’s tranquilly and drive unaware citizens to attempt to destroy the government and the Empire’s laws. The most common goals of sedition are to stir up discontent and uprisings, to build up hostility to the government, and to incite hatred among the people; and sedition’s extreme proclivity is to cause individuals to revolt and disobedience. In 1977, the United Kingdom Law Commission, in considering the need for a law on dissident slander in the current majority rule government, alluded to the Supreme Court of Canada’s decision in R. v. Boucher,24 which held that only those demonstrations that involved brutality and caused public request or aggravation with the goal of upsetting sacred authority could be considered dissident. In its working paper, the Commission stated:

20

English PEN [6]. Mayton [7]. 22 77 Eng. Rep. 250 (K.B. 1606). 23 R v. Sullivan (1868) 11 Cox C.C. 44 at p. 45 cited in United Kingdom Law Commission, Codification of the Criminal Law: Treason, Sedition and Allied Offences, Working Paper no. 72, available at: http://www.lawcom.gov.uk/wp-content/uploads/2016/08/No.072-Codification-of-the-CriminalLaw-Treason-Sedition-and-Allied-Offences.pdf. 24 [1951] 2 D.L.R.369. 21

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Apart from the fact that there will almost certainly be an adequate range of different offences covering conduct amounting to sedition, we believe that it is better to rely on these standard legal and custom-based law offences on a fundamental level than to resort to an offence with the suggestion that the direct being referred to as ‘political.’ As a result, our current position is that the penal code does not require an offence of sedition. This marked the beginning of the movement in the United Kingdom to eliminate subversive criticism. With the passage of the Human Rights Act of 1998, the appearance of rebellious defamation began to be regarded as a rejection of the values.25 The prevailing trend around the world has been against revolt and the expectation of favourable dialogue. In 2009, the then-Parliamentary Under-Secretary of State for Justice at the Ministry of Justice of the United Kingdom considered that: Sedition and rebellious and slanderous criticism are concealed offences—from a time when freedom of expression wasn’t regarded as the right it is today. … Different countries have used the prevalence of these old charges in this country as justification for maintaining similar laws that have effectively stifled political opposition and limited journalistic freedom … By abolishing these offences, the UK will be able to lead the way in putting similar laws to the test in other countries where they are being used to stifle free speech.26 Section 73 of the Coroners and Justice Act, 2009,27 finally put an end to the subversive criticism.

5 Conclusion Having a pointless and overbroad custom-based law offense of rebellion, when similar issues are managed under other enactment, isn’t just befuddling and superfluous, it might chillingly affect the right to speak freely of discourse and imparts some unacceptable sign to different nations which keep up and really use sedition offenses as a method for restricting political discussion.28

25

European Convention on Human Rights, 1950, 213 UNTS 221. Criminal libel and Sedition Offences Abolished, Press Gazette (Jan. 13, 2010). 27 Section 73: Abolition of common law libel offences etc. The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished: (a) the offences of sedition and seditious libel; (b) the offence of defamatory libel; (c) the offence of obscene libel. 28 Liberty’s Report Stage Briefing and Amendments on the Coroners and Justice Bill in the House of Commons (March 2009) available at: https://www.liberty-human-rights.org.uk/sites/default/files/ liberty-s-coroners-and-justice-report-briefing-excluding-secret-inquests-.pdf (last visited on June 5, 2018 at 6:23 PM). 26

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References 1. Dr. Hari Singh Gour, Penal Law of India, vol. 2, 11th edn., Law Publishers (India) Pvt. Ltd., Allahabad, 2011, p. 1232. 2. Arvind Ganachari, Nationalism and Social Reform in a Colonial Situation (Kalpaz, 2005). available at: https://catalogue.nla.gov.au/Record/3356419 (last visited on May 12, 2018 at 3:23 PM). 3. W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India (Thacker, Spink and Co., Calcutta, 1911). 4. K.I. Vibhute, P.S.A. Pillai’s Criminal Law 335 (Lexis Nexis Butterworths, Nagpur, 2012). 5. Judith S. Koffler and Bennett L. Gershman, New Seditious Libel 69 Cornell L. Rev. 816 (1984). 6. English PEN, A Briefing on the Abolition of Seditious Libel and Criminal Libel (2009). 7. William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Speech 84 Colum. L. Rev. 91 (1984).

Bargained Justice: Legal Psychological Analysis of Plea-Bargaining in India and USA Komal Vig, Ruchi Lal, and Priyanka Ghai

1 Prelude “Justice delayed is justice denied”. Speedy trial is one of the most significant fundamental rights which have been read by the apex court to be inferred within the protection ambit of the guarantee of “right to life and personal liberty” as incorporated in Article 21 of the Indian Constitution. This entitlement is also a sine qua non for effective administration of justice in the country. However, despite of several decisions of the apex court on this issue, objective of speedy trial remains to be a distant dream because of constant escalation of arrears of cases in the courts. Unfortunately, as a consequence, justice has become the principal fatality.1 For the purpose of curbing the problems in criminal justice system in India, an amendment was made in Criminal in the code.2 The concept of Plea bargaining or pre-trial negotiations or a deal is described as an arrangement made in a criminal case amongst the prosecution and the offender or his counsel wherein the accused accepts his guilt in lieu of a more stringent punishment. This kind of arrangement is beneficial for both everyone involved as prosecution will have a conviction on record, accused will have to undergo a lesser sentence and the judge will be free to handle other cases.

1 2

H. Khatoon v. State of Bihar, 1980 SCC (Crime) 40 (India). Gupta [1].

K. Vig (B) · R. Lal Sharda School of Law, Sharda University, Greater Noida, India e-mail: [email protected] P. Ghai Amity Law School, Amity University, Noida, India © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 J. Aston et al. (eds.), Comparative Approaches in Law and Policy, https://doi.org/10.1007/978-981-99-4460-6_22

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2 Origin The emergence of the concept of plea bargaining can be traced to USA where around 90% cases are resolved by resorting to the mechanism of plea bargaining and thus in contemporary times it has come to be regarded as become one of the most remarkable features of the criminal justice administration in America. The idea of plea bargaining is regarded as founded on Nolo Contendere principle, a Latin word which is implying—“I do not wish to contest.” American Supreme Court acknowledged the constitutionality of plea bargaining in the year 1970 in the case of Brady vs. United States3 and thereafter promoted its application in other cases as well. The fair trial principle is enshrined in the US Constitution’s Sixth Amendment. However, the act of plea bargaining was left out. The constitutionality of this procedure has been maintained by the US judiciary, nonetheless. Plea bargaining has now become an important aspect of the criminal justice system in the USA.

3 Indian Adaptation of Plea Bargaining There is denial of justice when a person who is not guilty is punished, guilty person is acquitted and also when there is massive deferment in disposal of the cases.4 On this point, before the incorporation of the concept of plea braining in India, there were recommendations made by various Law Commissions for introducing the concept in India for effectively tackling the delay in the justice delivery system. This recommendation was primarily given by Law Commission in its 154th Report which finally found concurrence in the Malimath Committee Report which thereby recommended incorporation of plea bargaining in Cr.P.C so as to ensure quick disposal of criminal cases. Towards this end, a new chapter XXIA which dealing with the concept of Plea Bargaining was inserted into Criminal Procedure Code (Sections 265A to 265L) by Criminal Law (Amendment) Act, 2005. It has been provided under the provisions that where the cognizance of offence has been taken on a complaint or on a charge sheet, an offender shall be allowed to make an application along with an affidavit to strive a deal with the prosecution for the purpose of finding out an acceptable mutual disposition. If the offender is convicted with an imprisonment, the term of imprisonment shall be determined as per the provisions of the section 428 of Cr.P.C. In contrast, if there has not been any mutual satisfactory disposition of the case, the statement of the offender shall not be utilized for any other purpose in the trials. It has also been provided in the Act that its applicability doesn’t extend to juveniles.

3 4

Brady v. United States, 397 US 742 (1970). Id. at 3.

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3.1 Critical Analysis of the Main Features of Plea Bargaining Section 265-A deals with the application of plea bargaining. Assistance of Plea bargaining can be extended in two situations. One, if after the conclusion of investigation, a report is forwarded to the magistrate by the SHO of respective Police Station. Secondly, when the cognizance of an offence on a private complaint {S. 190(a)} is taken by the Magistrate and after examining the complainant and witness (S.200/S.202), he orders the issue of process (Section 204). This provision permits plea bargaining under following circumstances: 1. If the full sentence is imprisonment up to 7 years; 2. If the wrongdoings are not connected with the socio-economic circumstances of the country; 3. If the crimes committed are not against a female or a child below fourteen years. The section excludes offences with capital punishment or of confinement for life or of detention above 7 years. The main criticism is that this section fails to meet the most important objective of plea bargaining, i.e. to reduce the pendency in criminal cases which results into deferment of justice. Since the application of this piece of legislation is limited to offences with sentence up to 7 years and offences related to socio-economic conditions and offences against females and children are excluded, the purpose of this amendment is defeated. Thousands of pending cases deal with Dowry Prohibition Act, 1961; Protection of Women from Domestic Violence Act, 2005; corruption and money laundering. Thus, the provision loses out here. Another major issue for its futility is that the scope of plea bargaining is limited in the offences where minimum sentence is prescribed by law. The accused may not opt for plea bargaining if seven years or so is the minimum imprisonment. In addition to this, there is no clarity on the classification of socio-economic offences by the government. The absence of any guidelines can lead to arbitrariness and discrimination by state authorities and further in to into violation of constitutional guarantees. S. 265B lays down the procedure for plea bargaining. The application for plea bargaining is to be filed by the accused in the court where the case is pending and it should contain brief details of the case. An affidavit has to be submitted along with stating that this application is made voluntarily and after full understanding of the consequences and the accused has not been convicted earlier under same charge. Thereafter, the court will issue a notice for appearance to the public prosecutor, victim and accused on a specified date. Then court may examine the accused (incamera) to discover that the application is made voluntarily. If the court is of an opponent opinion, the case will proceed as per regular trial process, ignoring the plea application. But if the court is satisfied with the mandatory qualifications, it court shall grant reasonable time to the parties of the case to reach on a mutual agreeable disposition. Since the courts have to decide upon the voluntary submission of application and verification of other formalities, it will make the process lengthy and time taking. And

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in the absence of any specific time frame regarding mutual satisfactory disposition, it will defeat the spirit of speedy justice. Moreover, the accused is always tempted with the offer of lesser charge or reduced sentence, the concept of voluntary act is eclipsed. Another point of concern is that this provision does not allow the benefit to be extended to the accused for an offence of same nature, thereby, restricting the scope of plea bargaining. This may even restrict the scope in offences of lesser gravity. Section 265C explains the rules for joint acceptable disposition. The section casts a duty on the Court to issue notice to the parties involved and to ensure that the whole process is carried out voluntarily. One major area of concern is that there is no guiding principle for the court to ensure the transparency of the process and a guarantee that the accused is not pressured at any phase of the practice. It is pertinent to note here that the victim’s counsel is not authorised to take part in the course of working out a disposition in the cases instituted on a police report. This position can give a chance for many to raise an eyebrow. Section 265D directs for the preparation of report of the mutual satisfactory disposition. If adequate disposition of the case is made up, the report of such disposition shall be prepared by the presiding officer of the court and shall be signed by all the members of process. If no such agreeable decision is reached upon, the court shall record its observations and continue ahead according to the regular process laid down in this Code i.e., from the stage when an application {section 265B (1)} was filed. Section 265E recommends the system to be observed in the cases of successful disposition. The Court will listen to the parties of the case on the time period of the sentence and the claim from the accused to release him on probation of good conduct or after admonition. The Court has the discretion to release the suspect on probation (Section 360) or under the provisions of Probation of Offenders Act, 1958 or under any other statue or penalize the respondent by awarding him an imprisonment. Also, while convicting the faulted, the Court, can exercise its discretion to award minimum punishment. Here, the expectation of the defendant may fail, if even after plea bargaining, the court, in its discretion, opts to award more punishment. Section 265G directs that no appeal is allowed against such judgment except Special Leave Petition (Article 136) or Writ Petition (under Article 226 or 227) of the Constitution. This limits the scope of remedy to accused, if he is dis satisfied with the judgement, even after pleading guilty and paying the price for it. The only relief given is that the statement given by accused under this chapter is not permitted to be used for any other purpose.

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4 Plea Bargaining and Judicial Pronouncements Plea bargaining was generally disapproved by the Indian judiciary since its inception. The courts were unwilling to apply this concept with a view that the offences should be tried and punished according to the guilt of the accused and this idea of bargaining can destroy the spirit of justice. Even after the recommendations of the Law Commission, the courts continued giving opponent judgement to this concept. The US judiciary has pronounced their views in the following leading judgments on plea bargaining. In State ex Rel. Clark v. Adams,5 the Nolo Contendere doctrine was explained by the Court. The court ruled that the plea of “Nolo Contendere”, also referred as “Plea of Nolvut”, signifies that the accused does not intend to contest. In Bordenkircher v. Hayes6 the US Supreme Court affirmed the legitimacy of plea bargaining while imposing a life sentence on the accused that refused to accept a guilty plea in exchange for a 5 years jail sentence. The Court noted a slim chance that the accused individual would be forced to select the smaller of the two penalties. As the accused individual is allowed to accept or reject the offer presented by the prosecutor throughout the plea bargaining negotiating process, the Supreme Court also emphasised that there is no likelihood of pressure or coercion. The earliest attempt where the concept of plea bargaining was observed by Hon’ble Supreme Court was in the case of Madanlal Ramachander Daga v. State of Maharashtra.7 The court remarked, In our opinion, it is very wrong for a court to enter into a bargain of this character Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence.

In Murlidhar Meghraj Loya vs State of Maharashtra,8 the Apex Court condemned the concept of Plea Bargaining by declaring it an intrusion on the interests of society. To begin with, we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance.

Again, in Ganeshmal Jasraj v. Government of Gujarat and another,9 the Apex Court deliberated upon the effects of plea bargaining on evidence and order of conviction. There can be no doubt that when there is an admission of guilt made by the accused as a result of plea bargaining or otherwise, the evaluation of the evidence by the Court is likely to become a little superficial and perfunctory and the Court may be disposed to refer to the evidence not critically with a view to assessing its credibility but mechanically as a matter 5

State ex Rel. Clark v. Adams, 363 US 807 (1960). Bordenkircher v. Hayes, 434 US 357 (1978). 7 Madanlal Ramachander Daga v. State of Maharashtra, AIR 1968 SC 1267 (India). 8 Murlidhar Meghraj Loya vs State of Maharashtra, AIR 1976 SC 1929 (India). 9 Ganeshmal Jasraj v. Government of Gujarat and another, AIR 1980 SC 264 (India). 6

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of formality in support of the admission of guilt. The entire approach of the Court to the assessment of the evidence would be likely to be different when there is an admission of guilt by the accused …. In the instant case, it is true that the learned magistrate did not base his order of conviction solely on the admission of guilt made by the appellant, but it is clear from his judgment that his conclusion was not unaffected by the admission of guilt on the part of the appellant and in the circumstances, it would not be right to sustain the conviction of the appellant.

In the same year, in another case of Kasambhai v. State of Gujarat,10 the court declared this concept against public policy. The court observed, It would be contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of Art. 21 of the Constitution. It would have the effect of polluting the pure fount of justice because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial.

Subsequently, in Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr,11 Hon’ble Court pronounced plea bargaining as highly disgraceful practice. The court went to the extent of holding the view that “this concept is illegal, unconstitutional and tends to encourage the corruption, collusion and pollute the pure fount of justice.” In Thippaswamy v. State of Karnataka,12 the Court announced that “inducing or leading an accused to plead guilty under a promise or assurance would be violative of Article 21 of the Constitution.” However, after the incorporation of Chapter XXI-A in CrPC, the court acknowledged the significance of plea bargaining. In State of Gujarat v. Natwar Harchandji Thakor,13 the apex court remarked that Every plea of guilty which is construed to be a part of the statutory process in the criminal trial, should not be understood as a “plea bargaining” ipso facto. It is a matter of matter and has to be decided on a case-to-case basis. Considering the dynamic nature of law and society, the court said that the very object of the law is to provide an easy, cheap and expeditious justice by resolving disputes.

In Pradeep Gupta v. State,14 while taking up the bail application filed by accused, Delhi High Court observed, Prayer of plea bargaining can be made by an accused against whom a report under section 173 CrPC has been filed for offences punishable for seven years or less than seven years. Also the request can be considered taking into account the role of the accused, and the nature of offence etc. The application for plea bargaining cannot be rejected on the ground that he was involved in Section 120B IPC and therefore the request for plea bargaining was not available to him. 10

Kasambhai v. State of Gujarat, AIR 1980 SC 854 (India). Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr, [1980] 3 SCC 120 (India). 12 Thippaswamy v. State of Karnataka, [1983] 1 SCC 194 (India). 13 State of Gujarat v. Natwar Harchandji Thakor, (2005) 1 GLR 709 (India). 14 Pradeep Gupta v. State, Bail Application No. 1298/2007 (India). 11

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5 Psychological Influences Affecting Plea Bargaining The whole process of plea bargaining involves various actors, such as accused, victim, public prosecutor, police personnel and judge, etc. An experience with this concept has revealed that there are numerous psychological influences which may distort the decision making in many situations. These influences are exogenous to the merits of the case and may distort the plea-bargaining process. The self-interest of these participants is majorly affected by decision alternatives. It is often observed that decision alternatives impact on the willingness of persons involved in the process to take risks. If the options are framed in terms of losses, the decision makers become more unenthusiastic to risk, whereas, if options are framed in terms of advantages, actors are more willing to take chances. Assume the instance where a five-year plea deal is getting offered in place of a tenyear sentence, given that a fifty per cent chance of conviction at court hearing persists. Prosecutors, defence counsel, and defendants all may be impacted by framing.

5.1 Public Prosecutors It is generally observed that public prosecutors are in favour of resolving cases by plea bargaining than trials. It is argued that trials involve a more commitment of time and resources of public prosecutors. Almost everywhere, they are overburdened with numerous cases, thus, by necessity they prefer a proficient plea bargain to dispose most of the cases. However, the data collected by some researchers has revealed that even in the zones where there is no more pendency of the cases, the rate of application of the process of plea bargaining is at the same high level. The reason for the same is that the public prosecutor may choose not to dedicate all his time and dynamism to one case, especially when the reputation of prosecutors is measured with the conviction rate of his cases. It is pertinent to note that in a case where an accused has appealed guilty as a result of a plea bargain is counted as a victory of conviction in the account of public prosecutor. Thus, for him, even if a plea-bargained sentence is affected from a self-regard viewpoint, it is still desired because it is counted as a conviction.

5.2 Police Officers Police Officers may also have certain self-interests that affect the plea negotiating resolutions. Like public prosecutors, police officers are also paid a fixed salary. So, the case goes to trial or plea bargain, has no financial impact on them. Also, they are over loaded with the investigation of hundreds of cases, along with other administrative

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and executive affairs. It is practically difficult for them to deeply and effectively investigate into all cases, if they go on trial. Added burden on police officers to plea bargain originates from public prosecutors and judicial officers which makes them more vulnerable. And if this process of plea bargain is desired by the main actors, the police officers do not dare to refuse, as this may jeopardise him in future cases and the chances are high that they may receive harsh treatment in reprisal.

5.3 Defence Lawyers Defence lawyers are the private attorneys hired by clients and they have their own interests that tend to influence the plea-bargaining process. Prominent defence lawyers with rich clients may select plea bargaining above trials for monetary motives. For these types of cases, where the reputation of client is at stake or the time is more precious for a client, these lawyers are paid a hefty amount to settle with the negotiations. In most of the cases, these lawyers are paid on hour basis. Moreover, the time consumed in formulating for a trial is saved and the lawyers can take more cases and the lawyers may attempt to capitalize on their pecuniary gains by laying emphasis on quantity over quality. For average clients, the defence lawyers can contract for more quantity of cases at a fair amount and then solve the cases swiftly through request negotiation. Plea bargain opens further opportunities for the lawyers to work on quantitative basis, and establish a profitable practice.

5.4 Judges Though the terms and conditions of actual bargaining are negotiated between public prosecutor and accused, the judge plays a substantial role. It is at the discretion of the judge to approve to the terms of the plea bargain, particularly when there is sentence bargaining as compared to charge bargaining. Like other actors of the process, judicial officers may also have self-interest issues that prejudice their responses in the mutual disposition of the claims. Due to the pendency of lakhs of cases, plea bargaining is often seen as an efficient tool to reduce the workload of the judge. Another, more elusive concern is the reputation of judge’s reputation. The repute of a judge is severely damaged if any judicial error in the proceedings or judgement of the case results in reversal of a trial in appeal. However, if a case is decided through plea bargain, the possibility of a judicial error in trial is reduced. Thus, the interest of the judge to opt for plea bargaining often casts direct or incidental stress on the other actors too.

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5.5 Accused Most obvious and important is the interest of accused as his freedom, career and life is at stake. He is the one who will be most affected by the way, the case is handled. The psychological perspective of accused can be influenced by number of issues. These influences will work beyond the merits of the case for his preference for plea bargaining or trial. As per financial aspect, plea bargain is comparatively less expensive to that of a trial, represented by private lawyer. The bail issues and imprisonment during the pendency of the trial can majorly affect the psyche of an accused. For minor offences, if an accused fails to get a bail and the chances of his acquittal are high, he may opt for plea bargaining. Another concern raised by critics is that in order to escape from lengthy and tedious trial, even an innocent accused may plead guilty to the crime, he has not committed. They are coerced for plea bargaining by other actors of this process, through faulty information. This may defeat the spirit of justice, as their decisions are not based on any rational assessment.

5.6 Victim For the first time, an attempt is made to include victims in the process of decision making. This chapter allows the victim to participate in the mutual agreement disposition and to bargain for a decent and appropriate amount of compensation. This incorporation of victim compensation is a remarkable feature to address the plea and sufferings of victim. But there is another set of psychological influences which may affect the decision of victims in the procedure of plea bargaining. The victim may be forced by other actors, especially the police officer, to accept the terms of plea bargaining. They may be misled by incorrect information about the findings of the investigation and the harms of lengthy and tiresome trials. Moreover, it is observed in many cases that the amount of compensation received by victim at the end of trial is so meagre that it does not serve the ends of justice. Other actors give examples of bad precedents and thereby unduly influence the decision of victim.

6 Comparative Analysis Between India and USA Both India and the USA use the notion of Plea Bargaining, but the application is different in each country. One of the three possible pleas—Guilty, Not Guilty, or Nolo Contendere, can be advanced by the accused in the USA. The Court will determine

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whether he is guilty or not, depending on the Nolo Contendere doctrine, which treats the plea as an implied admission of guilt. The Court, however, is not obligated to accept the accused’s plea. Depending on the circumstances and facts of the case that is brought before it, the Court has the authority to accept or reject such a plea. The Court’s responsibility is to verify that the accused entered his or her plea wilfully and without being under pressure or any compulsion. Confidentiality must be provided for the accused. The overpopulation in American prisons gave bargaining more traction. The USA doesn’t have a rule against accepting a plea deal for some crimes. Plea Bargaining is a possible option for an accused charged with any crime. While section 265A of Indian law provides for exceptions. The victim plays a significant part in the plea bargaining process under Indian law. If a settlement that is acceptable to all parties cannot be reached, the victim has the right to reject or veto. Nevertheless, in the USA, the victim is not actively involved in the Plea Bargaining process. In the USA, when a plea bargaining motion is accepted, the court does not have discretion. But, in the Indian system, the judge has the authority to accept or reject a plea bargain motion that the accused has presented. In conformity with Indian law, if the court determines that the punishment imposed in a Plea Bargaining proceeding is inadequate or governed by unjust conditions, it may overturn the decision by either an SLP under Article 136 or a writ petition under Articles 226 or 227 of the Indian Constitution. Meanwhile, in USA, it attains its finality. The NCRB initially provided information in 2014 detailing the proportion of cases resolved through plea bargains. According to the data, this method was adopted to resolve 35,000 offences that fell under the IPC in 2014. Plea agreements were only used in a little over 2% of cases, when measured as a percentage. Although the number of cases resolved through plea bargains was only 0.045 and 0.043% in 2015 and 2016, correspondingly. In contrary, 31,857 cases out of 11,524,490 underwent plea bargaining in 2017, representing a rise of 0.27%. There was a substantial decline in the number of cases settled by plea bargaining in 2018, with only 20,062 out of 12,106,309, or 0.16%, of the total cases. Plea bargains are significantly more common and widely used in the United States than they are in the majority of other nations. 97% of Federal cases and 94% of Civil cases are resolved through plea bargains.15

7 Conclusion and Suggestions The notion of plea bargain is not absolutely new to Indian judicial system. This process is more an instrument of convenience and shared advantage than a concern of morals. With the advent of time, an inevitable need was felt to bring a radical change in the penal mechanism of the country. Like any other change, this concept didn’t receive a warm welcome at the hands of judiciary and other actors of criminal 15

Goode [2].

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justice system. Every amendment is surrounded with the mist of uncertainty about the utility and practicability of an idea. Such was the case with plea bargaining. To understand it in a better way we have to list the advantages and disadvantages of this concept. The system of plea bargaining is always appreciated by both the parties and judiciary for the speedy disposal of the case. There is huge pendency of the cases in all the courts of the country. Most of the cases are unnecessarily dragged for so many years. This concept can reduce the back log and help the courts to deliver justice quickly and efficiently. This can further result in quick and satisfactory relief to the victim and witness. The object of compensation and rehabilitation of the victim can be achieved easily through plea bargaining. Lengthy and tiresome proceedings not only stigmatize the accused, but also infringe his human rights. He has to spend more time in jail pending the trial than the actual punishment. And in many cases, negative publicity is an embarrassment to the accused and his family. Plea bargaining will bring some certainty to the accused also and reduce the congestion of under trials in prisons and will raise the conviction rate. The accused may plead guilty in exchange for reduction in more intense offences and can contend the rest for minimum punishment. And for those lighter charges, he may be released on probation or one fourth of punishment. Moreover, on the failure of mutual disposition, the confession cannot be used for any other purpose. Every coin has two sides, so has plea bargaining. It can be an effective tool of swift and inexpensive resolution of case and can be a way of ruining the spirit of justice delivery system. It may defy the spirit of reformative approach towards the wrongdoer. He may escape punishment by paying the money for it. Or on the other side, he may plead guilty even after being innocent, just to avoid tiresome hearings and adjournments. This is a sheer mockery of any justice system. The process of plea bargain involves many actors with their own self interests. It is always criticised for the involvement of police officer, as Indian police is infamous for its corrupt practices and custodial torture. The chances are high that the accused can be tortured to an extent to opt for plead guilty, even if he is innocent. Similar role can be played by public prosecutor against the accused and victim. The accused with poor financial status will be devoid of this process due to lack of resources. The participation of victim in deciding the quantum of compensation can also give rise to corruption. The collusion between the parties may monopolise the justice for economic gains and ultimately degrade the standard of justice system. The process of plea bargaining also gives a chance to raise an eyebrow on the transparency and fairness of the system. The officer representing the judge as a participant of this process is not an independent body. He may influence the parties and judge too. The in-camera examination of the accused by the court may cast doubt on the impartiality of the system. More powers given to the public prosecutor as compared to the judicial officer may bring uncertainty and suspicion about the misuse of the powers under the process. The police officer and public prosecutor may collude to levy heavy charges on the accused to have a profitable bargain.

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Another hidden disadvantage is that if the negotiations in plea bargain process fail, then the judge may develop a biased approach due to the plea of guilty by accused. Though the written law provides safeguard against it, but psychological approach may be affected. Also, the scope of this concept has been narrowed in terms of the years of punishment and the nature and types of offences. This has limited its utility because the accused has to anyway undergo a trial for offences punishable above 7 years. And the offences dealing with dowry and false cruelty by husband charges are kept out the purview of this legislation. To sum up, Indian legislature has adopted this concept of plea bargain from the west. We have tried to adjust it according to the Indian legal system. The main reason given behind this process was to resolve the issue of pendency of trials in the courts, but it should not be treated as a substitute. All the agencies of the criminal justice system must be overhauled and trained to ensure reasonable fast and fair trials. As far possible, an independent wing of judiciary must be established to deal with the cases of plea bargaining. More powers should be given to judicial officers than the public prosecutors. The shortcomings of the criminal justice system should be addressed and police personnel should be trained to hold proper investigations. Plea bargain should not be adopted as a short cut method for speedy disposal of any case. The scope of this provision should be expanded in terms of its applicability on the cases and flexibility, by empowering the judges. The list of socio-economic offences should be revised with a broad approach and more certainty. This benefit can be given under some more stages of trial to maximise its utility. Maximum time for stipulations and negotiations on mutual satisfactory disposition should be laid down. At the end we can conclude that plea bargaining is an inevitable component of our adversarial form of criminal justice system. But it should be applied with great care and caution keeping a hawk’s eye on the malpractices prevalent in our criminal justice system. All the provisions of plea bargaining must be analysed and improved by legal debates and practical experience. Only then, the amendment can serve its purpose.

References 1. Gupta, A. (no date) Law finder live, Law Finder!! Available at: https://www.lawfinderlive.com/ Articles-1/Article9.htm?AspxAutoDetectCookieSupport=1 (Accessed: December 2, 2022). 2. Goode, E. Stronger hand for judges in the ‘bazaar’ of plea deals (published 2012), The New York Times. Available at: http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rul ings-on-plea-deals.html (Accessed: December 1, 2022).