Editorial 1: A disturbing example of the normalisation of lawfare
Introduction:
- The word “lawfare” is a portmanteau of “law” and “warfare”. It refers to the weaponisation of law, and of legal systems, in order to intimidate, harm, or delegitimise an opponent (often, a political opponent).
Recent developments:
- In thriving constitutional democracies, judiciaries are often alert to the possibility of powerful political figures deploying lawfare against their rivals, and are quick to turn back such attempts.
- However, the conviction of the now former Congress Member of Parliament from Wayanad, Rahul Gandhi, for criminal defamation by a court in Surat, and his subsequent immediate disqualification from the Lok Sabha, represents a disturbing example of the normalisation of lawfare in India.
Legally unsustainable judgement
- Leaving all that aside, however, it is evident that the judgment itself is legally unsustainable. In this case, the complainant had claimed that by virtue of his surname, he, along with all other people bearing the surname “Modi”, had been defamed by Mr. Gandhi’s remark.
- To prevent people from being dragged to the courts in frivolous proceedings, the law of defamation is clear that if references are made to an indefinite “class” of people, an individual cannot claim that they are a member of that class, and have, therefore, been defamed.
Quantum of sentence
- While the fact of conviction is one thing, the quantum of the sentence is another. Criminal defamation has a maximum penalty of two years’ imprisonment. This ‘maximum penalty’ is very rarely awarded, on the understanding that defamation is a pure speech offence, and that, ideally, people should not be imprisoned for lengthy periods purely on the basis of something they said.
- There are almost no recorded instances of courts awarding the maximum sentence, two years, in a criminal defamation case. While sentencing is discretionary, and guidelines for sentencing are rare, the court’s decision to award the maximum possible penalty is another strange feature of this case.
- It has not escaped public attention that, indeed, the quantum of sentence was exactly that which was needed to attract an MP’s disqualification from Parliament. Indeed, immediately after the judgement was delivered, the Lok Sabha Secretariat served a disqualification order upon Mr. Gandhi.
- The disqualification proceedings are another example of lawfare. The Constitution authorises the disqualification of a Member of Parliament (MP) insofar as it is provided for under law.
Provisions under the Representation of the People Act (RPA), 1951
- It stipulates that if a person is convicted of any offence and sentenced for a period of not less than two years, he shall stand disqualified from the legislature for the period of his sentence, and for a further period of six years after his release.
- Until 2013, the Act also stated that the disqualification would not take effect for a period of three months from the conviction, or if an appeal or a revision was brought within that period that appeal or revision had been disposed of by a court.
- The intent behind this proviso was evident: disqualifying an elected member of a legislature is an extremely serious action in a parliamentary democracy that is founded on the principle of representation. Not only does this deprive the people of their choice of representative, but also, upon disqualification, leaves them without representation until such time that a by-election is announced and the seat is filled.
On judicial interventions
- However, in 2013, acting on a public interest litigation brought by Lily Thomas, the Supreme Court (SC) of India struck down this part of the section as unconstitutional. In Lily Thomas case, it was expressly argued that striking down this grace period would leave politicians at the mercy of frivolous court judgments, but was given short shrift by the SC, which reasoned that the convicted politician could always move the appellate court for a stay upon their conviction.
- However, not only does this interpretation concentrate more power in the hands of courts when it comes to the political process but it is also naive from the perspective of lawfare: as the case of Mr. Gandhi has shown, when the Lok Sabha Secretariat issues the disqualification order before even a translation of the judgement was available, and before the convicted individual’s lawyers have had a feasible chance to move for a stay, the protection the Court thought was available is nothing more than a chimera.
Conclusion:
- For these reasons, the conviction and disqualification of Mr. Gandhi represents another signpost in a concerning drift towards the normalisation of lawfare as a political tactic. It is concerning because one crucial component of the legitimacy of courts is their reputation for impartiality between contending political forces. Recent examples from Poland and Hungary have shown how quickly that reputation can be lost. It is for the judiciary to ensure that what could also happen here, does not happen here.
Editorial 2: The need for sector-specific safeguards in ‘techade’
Introduction:
- India’s digital economy is set to reach a whopping $1 trillion by 2026. People are going digital rapidly for everything — from shopping and socialising to education and government services. But, as we embrace convenience, we are also generating massive amounts of personal data. Understanding how this data is handled and protected is fast becoming critical.
Digital Personal Data Protection (DPDP) Bill 2022
- This bill was proposed recently, and comes after years of discussion and deliberation on a framework to safeguard citizens’ information from misuse and unauthorised access. Even as the Bill outlines citizens’ rights over their personal data and the responsibilities of data collectors, it lacks specificity in certain clauses such as the interaction with sectoral data protection regulations.
On sectoral regulation, global approaches
- The current draft of the Bill tries to tackle the issue of conflicting sectoral regulations; in Section 29, it states that the provisions of the Bill will complement and not create exemptions from existing regulations, but in case of conflict, the Bill will take precedence.
- Data protection and privacy are highly dependent on context, including the type of data collected, how it is collected, the intended use and the associated risks. This makes sectoral expertise crucial to regulate effectively.
- Sectoral expertise offers a deep understanding of a particular sector, including its market dynamics, technologies, risks and business models. It also enables regulators to engage with stakeholders and industry experts in a well-informed and productive manner.
- The global community has adopted two major approaches to regulate privacy and protect data: comprehensive legislation and sector-specific regulations. The European Union’s General Data Protection Regulation (GDPR) embodies the comprehensive approach, offering the strongest and most stringent framework to date.
- The GDPR, despite being a comprehensive framework, has specific provisions for certain industries such as health care. Additionally, GDPR also permits EU Member States to implement measures which go beyond the provisions given in the GDPR.
- The GDPR model may not work for India as the Data Protection Board is designed as a grievance agency, and not as a regulator. The earlier version of the Bill with a Data Protection Authority (DPA) of India may have been better suited as an independent regulator such as the EDPB.
- Therefore, the current draft of the Bill, while a major step towards ensuring the protection of citizens’ personal data, needs greater clarity and specificity regarding the interaction with sectoral regulations; we need to draw from our experience to find the right balance
Finding the right space for the Bill
- In India, for example, we already have sectoral regulations regarding data protection such as the Reserve Bank of India’s directive on storage of payment data and the National Health Authority’s (NHA) Health Data Management Policy.
- These are the result of extensive industry consultations and expert input. Neglecting these regulations and establishing a new framework would undermine the considerable effort invested in their creation. Any deviation from existing regulations will further require the industry to readjust their operations again at considerable cost.
Conclusion
- The DPDP Bill, therefore, must serve as the minimum layer of protection, with sectoral regulators having the ability to build on these protections. This framework will be especially useful in India where not all regulators may have the same capacity. Data protection is a complex subject and we must create room for sectoral experts to weigh in to safeguard the interests of citizens more effectively. This will ensure a safer, more secure, and dynamic digital landscape in the years to come.