Editorial 1: More than just an address
Context:
Recently Governor of Tamil Nadu R N Ravi walked out of his inaugural address to the state assembly following differences on the content of his address.
A special address
- Article 87 of the Indian Constitution requires the President to make a special address to both Houses of Parliament assembled on the commencement of the first session of each year. The President has to inform Parliament of the causes of its summons.
- Similarly, Article 176 requires the Governor to make a special address at the first session of each year of every State Legislative Assembly and to both Houses wherever the State also has a Legislative Council. The language of these provisions were borrowed from the rules of the House of Commons.
- Jawaharlal Nehru, speaking in the Lok Sabha in 1960, stated that the President’s address is nothing but a statement of policy of the government. He observed: “If the President’s address has anything wrong in it or objectionable in it, it is the government to blame not the President, and it is open to hon. Members to criticise or condemn government because there is some such statement in it which they disapprove of”.
|
- The Calcutta High Court, while interpreting this article in Syed Abdul Mansur Habibullah case (1966), held that the special address is not an idle or ceremonial formality. It keeps the members informed about the executive policies and legislative programme of the State government. The High Court further observed that the non-delivery of the special address hampers legislative debates and budgetary criticisms.
The case of India:
- Both in the U.K. and in India, it is a time-honoured constitutional convention that the King or the President or the Governor must read out the exact text of the speech or special address which informs the nation or the State of the policies that an elected government intends to pursue. There has never been an incident of the monarch in the U.K. departing from the official text of his speech.
- The Governor of Tamil Nadu, R.N. Ravi, made constitutional history in the State by omitting certain paragraphs and departing from the official text of his special address at the opening of the Legislative Assembly of Tamil Nadu for 2023.
- It is interesting that during the Constituent Assembly debates, Professor K.T. Shah proposed an amendment to Article 87 giving discretion to the President to also make an address on “other particular issues of policy he deems suitable for such address”. This amendment was rejected as B.R. Ambedkar pointed out that the President, under Article 86, had the right to address either House or both Houses of Parliament together and Parliament had to assemble for this purpose.
- Similar power was given to the Governor under Article 175. Thus, when there is an independent power provided under Article 175, it is a serious impropriety for any Governor (or even the President) to omit several paragraphs from the speech prepared by the incumbent government.
- The Supreme Court has held that constitutional conventions are as much a part of the Constitution as its written text. And it is well-settled that constitutional morality consists of not only adherence to the written text of the Constitution but also to constitutional conventions. These conventions fill the interstices of a written Constitution and enable effective coordination between the legislature, executive and the judiciary.
- Article 361 of the Constitution gives the Governor complete immunity from any legal action because our founding fathers hoped that Governors would maintain the highest standards of rectitude and propriety. It is disturbing that serious breaches of constitutional conventions continue to be made by Governors in States ruled by Opposition parties.
- The swearing-in of a Chief Minister early morning, the continued friction now between the Governor and the ruling party in Kerala and formerly in West Bengal, the omission to invite the single largest party to form a government in Manipur and Goa, the deliberate delay in providing assent to bills passed by the elected legislature in Tamil Nadu are some disturbing examples that have not met any censure.
The role of the Governor
- The special address of the Governor is an important constitutional duty, which is performed with the aid and advise of the Council of Ministers with the Chief Minister at the head.
- The constitutional role of the Governor is that of an elder statesman who brings a sense of gravitas to this high office, and by his oath, must preserve, protect and defend the Constitution and the law.
- The residents of Raj Bhavans are expected to be above party politics and should not hamper the functioning of a duly elected State government. It is a tribute to our Constitution that it continues to be the steel-frame of India’s republican democracy and has survived for over 70 years.
- But there is always the danger that this frame can be corroded and destroyed by short-sighted constitutional amendments and by repeated breaches of constitutional conventions. And the even greater danger is that no one can predict when the tipping point will come.
Conclusion:
Parliament should examine the role of governors and bring suitable amendments to ensure smooth functioning of state assemblies and maintaining good federal relations. In this context, Sarkaria and Punchhi commissions had proposed many reforms with regard to the position of Governor. These may be examined and implemented.
Editorial 2: Take a step to regulate deepfakes
Introduction:
Rules are vital for self-governance. This is particularly relevant in the context of Artificial Intelligence (AI) regulations in India. The lack of proper regulations creates avenues for individuals, firms and even non-state actors to misuse AI. The legal ambiguity, coupled with a lack of accountability and oversight, is a potent mix for a disaster. Policy vacuums on deepfakes are a perfect archetype of this situation.
About deepfakes:
- Deepfakes (a portmanteau of "deep learning" and "fake") are synthetic media in which a person in an existing image or video is replaced with someone else's likeness. For example,
- Deepfakes “leverage powerful techniques from machine learning (ML) and artificial intelligence (AI) to manipulate or generate visual and audio content with a high potential to deceive”.
Issues with deepfakes
- While appreciating the technology, we should be aware of the serious issues with deepfakes.
- Since they are compelling, deepfake videos can be used to spread misinformation and propaganda. They seriously compromise the public’s ability to distinguish between fact and fiction.
- There has been a history of using deepfakes to depict someone in a compromising and embarrassing situation like pornographic material of celebrities. Such photos and videos do not only amount to an invasion of privacy of the people reportedly in those videos, but also to harassment.
- Deepfakes have been used for financial fraud. Recently, scammers used AI-powered software to trick the CEO of a U.K. energy company over the phone into believing he was speaking with the head of the German parent company. As a result, the CEO transferred a large sum of money — €2,20,000 — to what he thought was a supplier.
Creating tensions in the neighbourhood
- There are three areas where deepfakes end up being a lethal tool in the hands of India’s non-friendly neighbours and non-state actors to create tensions in the country.
- Deepfakes can be used to influence elections. Recently, Taiwan’s cabinet approved amendments to election laws to punish the sharing of deepfake videos or images. Taiwan is becoming increasingly concerned that China is spreading false information to influence public opinion and manipulate election outcomes, and this concern has led to these amendments. This could happen in India’s upcoming general elections too. Ironically, China is one of the few countries which has introduced regulations prohibiting the use of deepfakes deemed harmful to national security or the economy.
- Deepfakes can also be used to carry out espionage activities. Doctored videos can be used to blackmail government and defence officials into divulging state secrets.
- In March 2022, Ukrainian President Volodymyr Zelensky revealed that a video posted on social media in which he appeared to be instructing Ukrainian soldiers to surrender to Russian forces was actually a deepfake.
- Similarly, in India, deepfakes could be used to produce inflammatory material, such as videos purporting to show the armed forces or the police committing ‘crimes’ in areas with conflict. These deepfakes could be used to radicalise populations, recruit terrorists, or incite violence.
- As the technology matures further, deepfakes could enable individuals to deny the authenticity of genuine content, particularly if it shows them engaging in inappropriate or criminal behaviour, by claiming that it is a deepfake. This could lead to the ‘Liar’s Dividend,’ the idea that individuals can exploit the increasing awareness and prevalence of deepfake technology to their advantage by denying the authenticity of certain content.
Way forward: Need for legislation
- Currently, very few provisions under the Indian Penal Code (IPC) and the Information Technology (IT) Act, 2000 can be potentially invoked to deal with the malicious use of deepfakes.
- Section 500 of the IPC provides punishment for defamation. Sections 67 and 67A of the Information Technology Act punish sexually explicit material in explicit form.
- The Representation of the People Act, 1951, includes provisions prohibiting the creation or distribution of false or misleading information about candidates or political parties during an election period.
- But these are not enough. The Election Commission of India has set rules that require registered political parties and candidates to get pre-approval for all political advertisements on electronic media, including TV and social media sites, to help ensure their accuracy and fairness. However, these rules do not address the potential dangers posed by deepfake content.
- There is often a lag between new technologies and the enactment of laws to address the issues and challenges they create. In India, the legal framework related to AI is insufficient to adequately address the various issues that have arisen due to AI algorithms.
Conclusion:
- The Union government should introduce separate legislation regulating the nefarious use of deepfakes and the broader subject of AI. Legislation should not hamper innovation in AI, but it should recognise that deepfake technology may be used in the commission of criminal acts and should provide provisions to address the use of deepfakes in these cases.
- The proposed Digital India Bill can also address this issue. We can’t always rely on the policy of self-regulation.