Chief Justice of India should restore the dignity of the Supreme Court

The Supreme Court of India will start functioning again after vacation from July 11th. Unfortunately during the Vacation  the reputation of the Court has been damaged almost irreversibly.

The responsibility to put it back on the rails is with the Chief Justice of India.

The judges who erred by pronouncing a judgement escaping the responsibility to record their views in a speaking judgement, are now under an intense public scrutiny.

The erring judges, have promptly started  justifying their action calling India as an immature democracy. They are now hitting out at the Social Media as the culprit and suggesting gagging of the social media. They may also invoke the powers of Contempt of Court to curb the freedom of expression selectively .

Such measures may silence criticism for the time being and push the disrespect of Supreme Court underground. But it will ensure that the reputation of the Supreme Court would be permanently damaged and the public will no longer trust the Courts at any level.

It is now in the hands of the Chief Justice of India prevent such a catastrophe and restore the honour of the honourable court by initiating appropriate action as the Chief Justice of India may deem fit.

If the Chief Justice of India decides to condone the mistakes of his brother judges, We the people of India will get a message that we should be ready for the  Shariatization of the supreme Court.

It must be acknowledged that the action of the vacation bench of the  Supreme Court has resulted in the spreading of a fear psychosis  in the country since we as Citizens of India can no more trust the  highest Court of the land for protection of our life.  If there is no protection from the Supreme Court, it means there will be no support from other Courts or the Police. The future of India as a law abiding democracy is in threat because of the actions of the vacation bench of the Supreme Court.

I therefore personally request the Chief Justice of India  to act now to protect the Country. As an elderly citizen born before the current Chief Justice of India was born, I remind him that it is his constitutional duty to protect the country and this duty towers above everything else including protecting brother judges.

Naavi

(P.S: Followers of this blog may excuse me for this off-topic expression since there is an existential crisis for the people of India because we the people of India have lost the judicial protection enshrined in the constitution. If no remedial action is taken by the CJI, the writing on the wall is clear that it is the end of road for all our professional activities. Since it is no longer safe to express an opinion in India and to move around, the professional activities of Naavi may need to be suspended. Naavi)

Also Read:

Legal Rights Protection Forum urges President of India to call a meeting with CJI ..opindia.com

The court can be discretionary but not whimsical: Dangerous waters, comments by Judges and legality of oral observations …opindia.com

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“Obiter Dictum”.. a Concept that needs debate

The “Obiter Dictum” maxim in law refers to the expression of an opinion by a Court during the proceedings which is not necessary for the decision of the case. Legally such statements lack the force of precedent.

In a written judgement the reasons for a decision is elaborated and this is referred to as “Ratio Decidendi” or “Reason for the Decision”.

In the written judgement, the Judge may make some additional comments by way of illustration which is referred to as “Obiter Dicta”.

However, during the trial, the judges some time need some clarifications and throw some questions at the counsels. When experts are deposing before the Court, the Judges may need to seek clarifications of theoretical nature which may be extraneous to the judgement per se but required for understanding the context.  These should be  fact seeking questions and not expression of opinions and hence are not forming part of obiter dicta.

It has however become a practice amongst some Judges to speak out their opinion during the trial to intimidate the counsels or with the intention that the remarks are picked out by the media present in the Court room.

This tendency should be considered as “Judicial Misconduct”. Such dialogue between the Chair and the counsels should not become a forum for the Judges to vent out their personal opinion since this cannot be part of obiter dicta.

It is very important  for the Judiciary to maintain a high level of ethical standard and behaviour when they are visible in the public and raise their questions in such a manner (includes the tone)  that they are not interpreted as opinions.

I refer to an article in unodc.org titled Judicial Misconduct and Public Confidence in the rule of law by David J Sachar, which rightfully observes …”More than any other branch of government, the judiciary is built on a foundation of public faith-judges” and regulation of judicial misconduct is necessary to ensure that this public confidence is not eroded.

It is not easy to define the “Ethical behaviour” of a judge during the proceedings and off the Court. But mature Judges know and always err on the safer side when the crunch comes.

For example, if the case before the judge is likely to have a conflict of interest or is likely to be perceived as a “Conflict of Interest” then it is expected that an ethical judge would offer to recuse from the case even when the parties to the dispute are unaware of the issue of conflict.

While “Obiter Dictum” refers to the addition of comments in a written judgement, there does not appear to be any legal sanction for oral judgemental opinion expressed by the Judge in the open court knowing fully well that the media is likely to pick it up and present it to the larger public as the “Opinion of the Court”.

The “Conflict” as well as “Expression of Oral opinion not part of the final judgement” were both seen in the recent Supreme Court vacation bench handling of the petition for clubbing of FIRs by a politically exposed person.

The Court came down on the counsel with a hammer and ensured that the petition was withdrawn. The media picked up the comments and spread it like wild fire as if it is a judicial precedent. Many of the lower Courts will also consider these remarks as the “Obiter dicta” which it is not.

In the above case which was recorded as withdrawn,  it is possible that the petitioner would not on her own withdrawn the petition.

But the order records “Petitioner seeks to withdraw and is permitted to withdraw the petition”. This could be unfair on the petitioner and her right to seek judicial protection.

This situation arises since the trial is a discussion between the Counsels and the Judges who are from the same fraternity. Since in many courts, the Judges are past members of the Bar, they hold close personal relationship with senior counsels and this often vitiates their judgement. It is for this reason that many of the counsels only put up their arguments before friendly judges. Some senior counsels may be so senior that the judge might have even worked as his/her junior several years when he was practicing.

It is not an argument that the Judge cannot disagree with one of the counsels strongly and give a scathing judgement. What is however important is that the Judge should be confident of owning up his/her opinion and express it with reasoning in the judgement. In that case there will be an opportunity for the aggrieved parties to appeal to a higher forum for justice.

Making oral observations, intimidating the counsels to withdraw the petition and not being accountable for the decision in the end is not a desirable conduct of a good Judge.

As regards the Conflict situation, if a case is politically sensitive and the father of one of the Judges is a political worker, then it calls for sensitivity of the judge to recuse himself.

Similarly, if the case is involving a party who is in a position to provide a favour  to a close  relative of the Judge in another dispute,  mentioning the dispute could be considered as an indirect hint to the party to provide that favour.

There should be no reason for the public to point out these kinds of conflicts and the Judges should realise it themselves and recuse themselves from such cases.

There are many judges who are extremely sensitive to such conflict situations and avoid them with a barge poll. Unfortunately there are also some judges who may be ignorant of the required ethical standards or some who are aware but chose to ignore.  They bring bad  name to the entire fraternity.

It is the duty of the managers of the Judicial system to take appropriate disciplinary action against such judicial misconduct. Where the Judicial system has no remedy for such a situation, the Legislature has to use its powers of impeachment to ensure that such conduct is nipped in the bud and better discipline is instilled in the Judiciary.

When the legislature intervenes in the disciplining of the Judiciary, there will be an inevitable charge that the Executive is trying to influence the Judiciary. However, “Executive” and “Legislature” are different and disciplinary action by the legislature is not to be treated as creating an influence on the Judiciary.

However, such action requires “Conviction” and “Commitment to maintain public confidence on the Judiciary” on the part of the legislature. If the legislature is either too soft to take the bull by the horn or enters into a compromise, then democracy is at stake.

Hope India is still having a living vibrant democracy. However, it needs to be proved..

Naavi

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Judges should refrain from speaking to the media in the form of “Observations”.

The recent observations made by a judge of Supreme Court in the Court hall appears to have have crossed all limits of judicial propriety and created an environment of fear amongst the citizens of the country that Supreme Court does not protect the citizens of the country against the threats from terrorists.

The observations were made in front of the media and gave a justification to a terrorist act by linking it to the remark made by the petitioner in a TV debate. This was in the mould of the Rajiv Gandhi statement that the riots of 1984 was justified because of the assassination of Indira Gandhi.

Judges have the freedom to say what they want to say in their judgements but making observations particularly when press is around who could report it with a twist is completely unacceptable. This is irresponsible and indicates that the observation was made deliberately with an intention to get it reported and have consequential impact on others in the society.

I would have appreciated if the judge had made the same observations as a part of a reasoned judgement and recorded it. But making a remark for the gallery shows immaturity of the concerned judge or other motives to be explored.

The current developments indicate that the concerned Judge was guilty of gross impropriety and the Chief Justice of India need to take suitable action to remove him from any political cases. The Government of India should also take steps to impeach him since he has destroyed the respect for Judiciary through his remarks.

I may recall that we had a similar situation recently in the Madras High Court where the judge made some observations which were considered avoidable. However the affected parties decided to gloss it over as an indiscretion and avoided a possible confrontation.

Courts expect a high level of decorum from the Advocates and visitors to the Court room and it must be stated that the public also expect the Judges to follow certain decorum.

It is time for the CJI to respond to this crisis of confidence in Judiciary created by the incident.

Naavi

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Is Meity looking like Mohammad Bin Tughlaq?

If media reports are to be believed, Meity is looking like a Mohamad Bin Tughlaq changing its stand again and again…. and again. It appears that there is no clarity on what is to be done in respect of the data protection law in India.

This is the inference one can draw from the article which has appeared in Hindustan Times under the title “Non Personal Data likely to be dropped from new data law”under the byline of Deeksha Bharadwaj.

There is every possibility that the report might have been planted by the vested interests who donot want the law to be passed, which includes the top Tech Companies and is an attempt to project Indian Government as indecisive.

The inclusion of two amendments  in the Act namely one which included “Non Personal Data including Anonymised Personal Data” under applicability and the “Reporting of Non personal data breach to the regulator” were suggested by the Joint Parliamentary Committee.

If these two amendments are dropped, there will be no serious effect on the law. It may even be considered as a welcome move. CERT IN will take care of the data breach report of Non Personal Data and the concept of “Anonymisation” which is an irreversible process subject to a standard approved by the regulator keeps the ITA 2000 and data protection law different.

The other consequential change that will be required would be the dropping of the change of name of the Act from DPA 2021/22 back to PDPA2022.

The need to include non personal data was felt because of the opposition to Section 92 which states

“The Central Government may, in consultation with the Authority, direct any data fiduciary or data processor to provide any personal data anonymised or other non-personal data to enable better targeting of delivery of services or formulation of evidence-based policies by the Central Government, in such manner as may be prescribed.”

This is an enabling provision and with or without the law considered as a legitimate right  of the sovereign Government. Even if it remains in the statute there is going to be no impact on the constitutionality of the law though the Andolan Jeevies” may continue to raise their  voice.

All the dilly dallying by the MeitY is indicative of complete lack of conviction on its part on how to go about the law. MeitY needs proper guidance to take decisions which are routine but are needlessly portrayed as “Controversial”.

Government must accept  that as long as Andolan Jeevies are alive, any thing done by the Government would be challenged in the Court and this is now part of the law making process. Hence expected objections from them cannot be excuses for the Government to look like a spineless body.

I hope that the views expressed in Hindustan Times is not indicative of Meity’s reluctance to pass the law and the issues referred to there in would be suitably factored into the current draft whether the act  is called PDPA 2022 or DPA 2022.

Naavi

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US Cloud Act ..an attempt for bilateral arrangement

While a discussion is going on on the CERT-In Guidelines and the Data Protection Act in India, the United States  Cloud Act (2018) is said to offer an approach to enabling law enforcement agencies in India accessing data stored by US Service providers.

According to this article in orfonline.org foreign law enforcement agencies may be able to  access evidence directly from US service providers in case of investigation of “serious crimes”, through an executive agreement drawn up by the two countries for the purpose.

To enter such an agreement with the US, a foreign country must meet certain procedural and substantive requirements, including having protections against surveillance and safeguards against unbridled government access to data. It also requires the partner country to show a commitment to an open and interconnected Internet, and to free flows of data across borders. This is like the adequacy clauses in the GDPR.

It is stated that the United Kingdom (UK) was the first country to have entered into a CLOUD Act agreement with the US, in 2019.

Probably this consideration may be kept in mind by the MeitY while passing the PDPB2019.

Naavi

 

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CERT In Rules on data breach notification etc for MSMEs

On 28th April 2022, the Government of India notified certain requirements under Section 70B of ITA 2000/8 regarding information security practices to be followed by all IT system owners.

Subsequently, a detailed FAQ was also published by CERT IN.

These regulations were applicable to all service providers, intermediaries, data centers, body corporates and Government organizations.

The regulation were to come into effect 60 days from the date of the notification. In other words, the regulation became effective from the morning of 27th June 2022.

Now the CERT-IN has notified that in respect of MSMEs as defined under the notification of the MSME ministry dated 1st June 2020, the regulations shall become effective only from 25th September 2022

According to the definition of MSME under this notification, it refers to

i) A micro enterprise where the investment in Plant and Machinery or Equipment does not exceed one Crore rupees and turnover does not exceed Rs 5 crore rupees

ii) A small enterprise where the investment in Plant and Machinery or Equipment does not exceed ten crore rupees and turnover does not exceed fifty crore rupees.

iii) A medium enterprise where the investment in Plant and Machinery or Equipment does not exceed fifty crore rupees and turnover does not exceed two hundred and fifty crore rupees.

It may be recalled that the guidelines require the following to be in place:

  1. All entities shall ensure that their time source is synchronized to the NC/NPL time source
  2. All entities report data breach within 6 hours
  3. Act in accordance with the directions of CERT-In if any
  4. Enable logs of all ICT systems and maintain them securely for a rolling period of 180 days
  5. Shall preserve the service registration information for a period of 5 years or longer as mandated by law after termination of registration and such information shall include
    1. Validated names of subscribers/customers hiring the services
    2.  Period of hire including dates
    3.  IPs allotted to / being used by the members
    4.  Email address and IP address and time stamp used at the time of
      registration / on-boarding
    5.  Purpose for hiring services
    6.  Validated address and contact numbers
    7.  Ownership pattern of the subscribers / customers hiring services
  6. The virtual asset service providers, virtual asset exchange providers and custodian wallet providers (as defined by Ministry of Finance from time to time) shall mandatorily maintain all information obtained as part of Know Your Customer (KYC) and records of financial transactions for a period of five years so as to ensure cyber security in the area of payments and financial markets for citizens while protecting their data, fundamental rights and economic freedom in view of the growth of virtual assets.

For more details kindly refer to the FAQ document.

Naavi

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