Law

The Police Should Not Police Hate Speech

by

A recent report (of which I was a co-author) looked at the way in which hate speech provisions in the Indian Penal Code, 1860 (the IPC) need to be reconfigured to fulfil their function and prevent their abuse. The report recommended replacing certain existing provisions in the IPC with narrowly constructed alternatives that do away with vague standards and instead hold liable only that speech which incites violence.

As I think more about how this will be an improvement on the status quo, I also believe that more must be done to further reduce the scope for abuse. One way of achieving this is by rethinking the way these hate speech provisions (in particular, sections 153-A, 295-A, and 505 of the IPC) are categorised under the Code of Criminal Procedure, 1973 (the CrPC).

These provisions are cognizable offences at present. What this means is that a police officer receiving a complaint about one of these offences can arrest anyone without an order or a warrant from a magistrate. The subjective satisfaction of a police officer that this entails is a recipe for disaster. This is particularly so for complaints regarding hate speech, where there is a need to evaluate the content of the speech itself and its proximity to violence before taking any action. It is too much to expect police officers to perform this function. Thus, in addition to reworking the provisions of the law, it would be prudent to classify them as non-cognizable offences under the CrPC to ensure an additional layer of scrutiny.

What Hate Speech Is Not

by

The CEO of Twitter, the social media platform, recently found himself the subject of some heckling on, irony be damned, Twitter. The reason was a photograph taken of Jack Dorsey holding a poster that read ‘Smash Brahmanical Patriarchy.’ Some claimed that this amounted to hate mongering and hate speech, a notion that is as misguided as it is dangerous.

To begin with, the plain text of the poster is not directed against any individual and arguably, it does not target a particular community either. What it does is call for the end of a regressive tradition of patriarchy that anyone can subscribe to.

Which brings us to the second point: the inordinate amount of focus on the use of the word ‘smash’ and how this is tantamount to a call for violence. It is almost as if the hecklers have seen one too many movies containing a certain green-skinned comic book character who likes to wreak havoc and now cannot help but associate the said word with violence. In reality, the word is little more than an example of the usage of a forceful verb.

This examination of the plain text of the poster must also be seen in the context of what the intent behind it was. In the Shreya Singhal judgement, the Indian Supreme Court looked at the conditions under which the right to freedom of speech and expression can be restricted. It held that speech and expression that amounts to either discussion or advocacy, howsoever unpopular, cannot be restricted. The only valid ground is that of incitement. Can the language of the poster be categorised as incitement? Clearly not, judging by a measured understanding along the lines of the first two points above. Does it fall within the scope of discussion or advocacy? Yes.

Thus, the claims of hate mongering and hate speech against the poster are ill-founded. Their attempt to lower the bar for the freedom of speech and expression is as regressive for society as the patriarchy that they implicitly champion.

Consent by Default

by

Trello, the project management app, updated its terms of service recently. This is the notification it used to convey the change to its users:

We’ve replaced the Trello Terms of Service with the Atlassian Cloud Terms of Service. Learn more about the changes here.

By clicking “I Agree” or otherwise continuing to use Trello, you agree to these new terms. If you don’t want to agree to the new terms, you may delete your Trello account. [emphasis supplied]

The highlighted portion assumes consent by default. This is an admittedly loose usage of the term consent because it is questionable if what is being assumed here can even be called consent. For example, would such language be valid if the draft Personal Data Protection Bill, 2018 were to be in effect in its current form? The Bill says that for processing of personal data based on consent to be valid, the consent must have five features. It must be free, informed, specific, clear, and capable of being withdrawn. Are these features present in the language used? The answer is no.

Would this be covered under any of the other grounds for processing data that do not require consent under Chapter III of the Bill? The answer is no again. Besides, a company’s claim of relying on a different ground for processing will be undermined by the fact that they are also providing users with the option of providing their consent. A larger question that needs to be asked here is how often should an individual be required to provide her consent after she is already subscribed to a product or service.

For now, the clumsy framing of the highlighted language might land a company using it in a tricky situation when the law comes into effect. This only goes to show that the data protection landscape is still hazy and much care and foresight will be required when drafting the legalese to govern it.

New Perspectives for Independence Day

by

Last week, India celebrated more than seventy years of being independent. This is a fact that Indians should be proud of and we are, judging by the articles and news segments that are common during this time of the year. At the same time, it is useful to not look at the country’s independence and its progress in isolation. Taking a step back and looking at the experiences of other countries can provide an interesting perspective on our own journey and offer some lessons for the future. I thought of this as I came across some literature about Kenya over the past few weeks.

First was the novel A Grain of Wheat by Ngũgĩ wa Thiong’o, set during the time Kenya became independent in the sixties as well as the long period of emergency that preceded it. While the book illuminates much about how Kenya gained independence and how ordinary Kenyans approached it, what took me by surprise were the multiple references to India. India, by then, had already been an independent nation for the better part of two decades and was a model of resistance for people still struggling against colonialism elsewhere. One of the characters in the book makes repeated references to Gandhi and the spirit of non-violence that contributed to India’s liberation. There are also less charitable references to Indians vying with the Europeans to seize local markets at the cost of the indigenous population.

The second was about the prosecution service in Kenya which is, on paper, an excellent and well thought out mechanism. It provides for the Director of Public Prosecutions to be a Constitutional position answerable to the Parliament with adequate safeguards against executive interference. It is also a relatively recent system, with the current version of the Kenyan Constitution having been in force for less than ten years. It shows the advantage of learning from the mistakes of other countries. For instance, as was pointed out to me, it would be difficult for India, without a Presidential form of government and with the anti-defection rule in place, to adopt a similar model even if it guarantees to be an upgrade on our existing system.

So, to recap the lessons learnt: one, we should be mindful of our influence and our power in being role models for other countries. And two, wherever possible, we should take advantage of being late to the party by adopting systems and institutions that do not carry the heavy burden of legacy while being best-suited for our unique needs.

Hard and Soft Data Localisation

by

Last year, when conversations were taking place on the kind of data protection framework India should adopt following the landmark privacy judgement, one issue kept turning up over and over. It seemed strange that the Justice Srikrishna Committee was seriously considering data localisation when most evidence suggested it did not protect citizens from foreign governments or agents and was harmful to the economy. It was little surprise then that the draft Personal Data Protection Bill released last week revealed a strong data localisation mandate.

Looking at the provisions around this in the proposed law, I see a distinction between two types of data localisation: a hard data localisation and a soft one.

Hard data localisation can be seen in Sec. 40(2):

40(2) The Central Government shall notify categories of personal data as critical personal data that shall only be processed in a server or data centre located in India.

This is the stereotypical notion of data localisation, one that completely restricts the ability of an entity to transfer data outside a set territory.

Soft data localisation, on the other hand, can be seen in Sec. 40(1) of the Bill:

40(1) Every data fiduciary shall ensure the storage, on a server or data centre located in India, of at least one serving copy of personal data to which this Act applies.

While this is not a complete restriction on cross-border data transfers like the previous one, it does impose costs on a data fiduciary. These costs, which might take the form of setting up local servers or procuring the services of an entity that provides local storage, is a real and tangible one. When the inevitable criticisms of the data localisation mandate in the Bill make it to the headlines, I hope this softer variant also attracts equal attention.

Quotable Quotes from Le Guin

by

Ursula K. Le Guin’s The Dispossessed is an intellectual tour de force. While there are enough ideas in the book to write a full-blown thesis, I will restrict this post to highlighting two quotes that are reflective of the state of the country today, in the light of the recent spate of mob lynching.

The first quote goes thus:

Coercion is the least efficient means of obtaining order.

And the second one:

You can’t crush ideas by suppressing them. You can only crush them by ignoring them.

What do these passages tell us about tackling mob lynching?

First, is a new law, as the Supreme Court recommended in its order last week, the best way forward? A law is a blunt instrument and is coercive more often than not. Amit Varma has already written about this in a recent post, where he mentions the lack of a rule of law as being of more concern than the absence of a legal provision.

Second, are there more subtle solutions for addressing the rumours that spark a lynching than restrictions on services like WhatsApp or a blanket shutdown of internet in a region? The second passage might hold the key here. However, I would argue that the ignoring that is mentioned there cannot be passive. This is a case where there might be merit in fighting fire with fire, instead of being a firefighter.

We Don’t Need Another Law

by

One expects individuals to engage in virtue signalling, but sometimes institutions can do it as well. Today’s headline news: the Supreme Court has asked the Indian parliament to enact a new law to stop lynching.

This is so pointless. Lynching is already covered by the law. Beating people is already a crime. Killing is a crime. There are even laws under which the people who spread fake news on Whatsapp can be prosecuted. Exactly what will the new law cover that existing laws don’t already?

Our problem isn’t the laws that we have–though we do have some shitty laws–but the dual one of will and capacity. There are crimes that the state may not want to prosecute. And even when it does want to prosecute them, state capacity is not up to the task. These are the hard issues to tackle–and a Supreme Court diktat would make no difference in these areas.

If parliament does enact a new law to tackle lynching, it will be yet another new law that is never enforced. What we lack in India is not laws, but the rule of law.

 

Categories Law

Scott Alexander, Bryan Caplan and Nitin Pai on fighting crime (feat. Matt Levine)

by

The basic idea is that coming down hard on a small number of high-profile crimes can have disproportionate effects in terms of curbing crime

It all started with the pseudonymous blogger Scott Alexander, in what seemed like a justification of outrage. Or maybe it started earlier – with a post by Bryan Caplan deploring outrage. Caplan was commenting about the propensity of people to jump on to bandwagons deploring seemingly minor crimes while not caring enough about worse crimes that were not in the public spotlight already. Caplan had then written:

I can understand why people would have strong negative feelings about the greater evil, but not the lesser evil. But I can’t understand why people would have strong negative feelings about the lesser evil, but care little about the greater evil. Or why they would have strong negative feelings about one evil, but yawn in the face of a comparable evil.

Now, while “Alexander”‘s response seems to justify outrage (and I’m no fan of online outrage), he did so with an interesting analogy, on how to curb crime when the police has limited resources. He writes:

[…] the police chief publicly commits that from now on, he’s going to prioritize solving muggings over solving burglaries, even if the burglaries are equally bad or worse. He’ll put an absurd amount of effort into solving even the smallest mugging; this is the hill he’s going to die on.

Suppose you’re a mugger, deciding whether or not to commit the first new mugging in town. If you’re the first guy to violate the no-mugging taboo, every police officer in town is going to be on your case; you’re nearly certain to get caught. You give up and do honest work. Every other mugger in town faces the same choice and makes the same decision. In theory a well-coordinated group of muggers could all start mugging on the same day and break the system, but muggers aren’t really that well-coordinated.

The police chief’s public commitment solves mugging without devoting a single officer’s time to the problem, allowing all officers to concentrate on burglaries. A worst-crime-first enforcement regime has 60 crimes per day and solves 10; a mugging-first regime has 30 crimes per day and solves 10.

And then it is again Caplan’s turn to respond. I’m bad at detecting satire, so I’m not sure if he is being serious (I don’t think he is). But he proposes a “sure fire way to end all crime”:

Step 1: Credibly announce that all levels of government will mercilessly prosecute the first crime committed in the nation each day.

Step 2: There is no Step 2.

But then, I’m sure that Nitin Pai is being serious in proposing a similar method to curb the spate of violent crime in India based on WhatsApp forwards. In his piece for the Quint, he writes:

the Home Ministry ought to use its considerable powers to tackle the problem. It’s not hard either. One well-advertised arrest, prosecution and sentencing will deter the cowards that comprise lynch mobs. Three high profile arrests and prosecutions – and see how quickly lynchings stop. The smallest police station in the remotest village can stop lynchings if the local sub-inspector has received clear political messages against it.

Finally, the reason why I figured Caplan’s “solution” is satire is because of this passage from Matt Levine’s excellent Money Stuff newsletter (likely it’s behind a Bloomberg paywall, but it’s free if you subscribe by email). Commenting about high frequency trading, Levine writes:

But the answer in actual U.S. market structure is, come on, there is no such thing as “the same time.” Do you know how many nanoseconds there are every single second? (A billion.) The odds that each of us would hit the “Buy” button at the exact same nanosecond are infinitesimal. So if I put in my order to buy the stock at 10:45:06.543210876 a.m., and you put in yours at 10:45:06.543210987 a.m., then I got there first and I win.

Is this a good answer? It has a simple appeal. It just gets rid of the question “who gets the stock if we put our orders in at the same time?” It replaces an economic question about how to allocate the stock with an empirical question of who got there first.

So the problem with fighting the first crime of the day, or year, or whatever, is that a criminal will know fully well, given a reasonably high enough crime rate, that the probability of his crime being recorded as the first in the year or day or whatever is less than one. And the higher the crime rate, the lower the probability that his crime will be recognised as the first one. And so there is a high chance he can get away with it.

And that is where Nitin’s idea scores. Rather than going after the “first crime”, pick a few crimes arbitrarily and “go after them like hell”. Since in this case most of the people who are forwarding dangerous forwards are “ordinary people”, this will likely shake them up, and we’ll see less of these dangerous forwards.

 

A Police Officer in an Assistant Public Prosecutor’s Clothing

by

I came across a strange provision in the Code of Criminal Procedure, 1973. Part of Section 25, which concerns the appointment of Assistant Public Prosecutors (APPs), reads as follows:

…(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case: Provided that a police officer shall not be so appointed—

(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or

(b) if he is below the rank of Inspector.

Yes, the appointment of a police official as an APP is an exception rather than the rule and yes, an officer involved in a case is not eligible to be a prosecutor as well. Even then, it seems stretching the bounds of propriety to have a provision such as this.

So many questions come to mind about this provision. How is it consistent with the principle of separation of powers? Can it be said with a high degree of certainty that an individual will not be conflicted between her loyalty to the police force to which she belongs and the responsibility she has been entrusted with as an APP? Is there such a lack of qualified advocates who can be appointed as APPs that this provision needs to exist? How often has this been utilised over the years?

On the last question, it would be a relief to know if, like several legal provisions, this one is seldom applied in practice. But even if it is never used, we need to take a long hard look at the continued existence of such language in the statute.

Let’s Elect Chief Justices?

by

The other day I was engaging in a favourite pastime of lawyers (and more recently, everyone else): complaining about the judiciary. In the discussion, my colleague and I bemoaned the way in which Chief Justices were selected. Whether it is for the High Courts and Supreme Court, the tenure of a Chief Justice is a lottery of fate dependent on three factors – the date on which judges are appointed, their ages and the age of the incumbent Chief Justice. Consequently, the tenure of a Chief Justice can vary from a few months to over a year. Which lead me to a thought – what if Chief Justices only served a fixed tenure of maybe one or two years? And why stop there? What if they were also elected by their peers and not merely appointed on the basis of age. Here are the immediate advantages:

  1. Master of the Roster
    As a judge, a Chief Justice is merely the first among equals, but the post of Chief Justice also confers extraordinary administrative powers. He gets to decide which cases get heard by which bench of judges – a decision that can swing the outcome of the case depending on the predilections of each judge. This power has been controversially employed recently and led to a public face-off between the senior most judges of the Supreme Court. Having judges elect their superior could not only help select a better candidate, but more importantly provide at least some mechanism of accountability. The added bonus is that it would give the Chief Justice a sense of legitimacy that would ward against public press conferences by his juniors.
  2. Merit
    Age is to judges, what height is to footballers. Classical convention holds that the more you have the better, but Lionel Messi and the last decade of the Spanish football team shows that it is not a necessary precursor to success. This is only compounded when you factor in that the primary role of a Chief Justice is to be an administrator – something which very few judges have expertise in (whether experientially or through formal qualification). Allowing judges to elect Chief Justices would thus better ensure that a more suitable candidate is found. I should clarify that the proposal is for the election of Chief Justices from a pool of judges already sworn in. The appointment of judges to the court itself would remain untouched.
  3. Continuity
    The advantage of a fixed tenure is that it guarantees an opportunity to affect change. If they are only going to be in office for a couple of months a Chief Justice won’t try to do much. This can have a significant impact on the functioning of the court – the Chief Justice gets to determine the priorities of the court through his role as the chief administrator. Guaranteeing a minimum time to do work would allow Chief Justices to do the meaningful work of adapting the court in a period where the world is going through mass transition.

These are just a few of my initial thoughts. The idea requires a lot more consideration before it can be described as reasonable; an examination of the political economies it could create is an obvious starting point. Another would be its legality or constitutionality, but given that there is a general consensus that the process of judicial appointments is in need of reform (which would require constitutional amendments) it shouldn’t be too hard for this tweak to piggyback on those efforts.

US Congress should bring in legislation on Taiwan Issue!

by

The naming issue of Taiwan is heating up between the US and Chinese governments as the deadline approaches in China for airline companies to comply. The Chinese government has asked airlines to remove any reference to Taiwan as an independent country and address it as Taiwan, China. Many international airline companies have already made the change, and US-based airline carriers are the only major holdouts, as they seek clarity from the US government. The US government has already called it ‘Orwellian nonsense’ and is in consultation with its allies such as Australia and UK on the issue.

The solution for this is for the US Congress to bring in legislation on the issue, and debar the US-based airlines from changing the name by law. This issue has blown up way beyond China’s regular diktats against private companies, and should be challenged by the United States and its allies.

Not only that, the US Congress should force by law, the Chinese airline carriers to list Taiwan as a separate country on their international websites in a tit for tat measure.

Obviously, there will be economic consequences for US airlines for not toeing the Chinese diktats, but by bringing in US laws on the naming issue, Chinese airlines will also suffer. Furthermore, if Chinese airlines do cave into the naming of Taiwan as a separate country on their US and international websites, it will be tacit acceptance of the status quo by the Chinese government since most of them are state-owned enterprises!

This kind of retaliatory measure will hopefully put some sense into China to steer clear of the naming issue in future.

 

Wanted – A Solicitor General for India

by

I found out today that India has not had a Solicitor General for the past seven months. The last Solicitor General, Ranjit Kumar, resigned from the post in October of last year.

The Solicitor General is the second highest ranking legal advisor to the government, only below the Attorney General. While the post of a Solicitor General is not a constitutional one like that of the Attorney General, a person appointed to it still performs a very important role. It is necessary for the government to be well-represented so that the strictest legal scrutiny and defence is made possible for its own policies. At present, the Additional Solicitor Generals are bearing the responsibility of representing the government in important cases. This status quo is not ideal.

Such dithering over an appointment to the role does not reflect well on the Appointments Committee of the Cabinet (AAC), the body responsible for filling the vacancy. One can only hope that an appointment to this important position is made sooner rather than later.

Categories Law