Supreme Court upholds verdict matching NREGA pay with state wages

Supreme Court of India

NEW DELHI: The Supreme Court has refused to stay a recent Karnataka High Court verdict that has said the central government is liable to pay higher wages under the country’s flagship rural employment programme in tandem with that of the state minimum wage rate. It has further asked the government to find a way to end the disparity between the wages paid under Mahatma Gandhi National Rural Employment Act (MGNREGA) and state mandated rates under the Minimum Wages Act. The move might mean an additional outgo of around Rs 900 crore in the current financial year from the central government to six states which have a minimum wage rate that is higher than the MGNREGA rate. The Karnataka High Court had in September directed the central government to match the wages under MGNREGA with the state’s minimum wage rates.

The central government had however decided to file a Special Leave Petition to the SC contesting the order. The SC, however, stayedthe order on the payment of arrears prior to the Karnataka high court order providing the central government some relief. The Court stated that non-payment of minimum wages under the scheme is tantamount to forced labour. It had further strongly urged the Solicitor General to harmonise the MGNREGA wage rates with minimum wages in a manner in which the state Minimum Wages Act is respected. The court also said that the matter should not be treated in an adversarial manner and asked the government to resolve the issue in a consultative manner. Earlier rural development minister Jairam Ramesh had favoured softening the central government’s stance by complying with the KHC order while suggesting an amendment to create a special wage rate for MGNREGA under the Minimum Wages Act to tackle the issue on a long term basis. Ramesh, however met opposition from the Finance Ministry and the Law Ministry and on the insistence of PM Manmohan Singh had to file the SLP. The six states with disparate wage rates are Andhra Pradesh , Rajasthan, Kerala, Karnataka , Mizoram and Goa.


Independents will not lose separate identity on joining coalition government: court




Bench lists reasons for setting aside disqualification of five Independents for expressing lack of faith in Yeddyurappa regime

By joining a coalition government and becoming Ministers, Independents will not lose their separate identity, and later by expressing lack of faith in the Chief Minister, they will not attract disqualification, the Supreme Court ruled on Wednesday.

A Bench of Justices Altamas Kabir and Cyriac Joseph gave this ruling while setting aside the Karnataka Assembly Speaker’s order disqualifying five Independents for expressing lack of faith in the government, led by the former Chief Minister B.S. Yeddyurappa. In May 2011, the Bench quashed the order and said it would give detailed reasons later.

Writing the judgment, Mr. Justice Kabir interpreted the provisions of the Tenth Schedule of the Constitution relating to defections and held that the fact that the Independents had joined the BJP government would not mean that they had sacrificed their identities.

The Bench said: “It is no doubt true that an Independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Mr. Yeddyurappa and the decision to join his Cabinet, in our view, were not sufficient to conclude that the appellants had decided to join and/or had actually joined the BJP, particularly on account of the subsequent conduct in which they were treated differently from the members of the BJP.”

“In the facts of this case, there is no material or evidence to show that the appellants had, at any time, joined the BJP. Even as Independents, the appellants could extend support to a government formed by a political party and could become a Minister in such government. There is no legal bar on… such extension of support or joining the government. Hence, such extension of support or joining the government as Minister by an Independent does not by itself mean that he has joined the political party which formed the government. There is also no evidence to show that the appellants were accepted and treated as members of the BJP by that … party. It is to be noted that the petitioners before the Speaker had no grievance about the appellants supporting the BJP government and becoming Ministers in the government for more than two years.”

The Bench said: “Only when the appellants withdrew support to the government led by Mr. Yeddyurappa and a confidence vote was scheduled to be held did the petitioners rake up the issue of alleged disqualification. The appellants, D. Sudhakar and others, even while participating in the meetings of the BJP Legislature Party, were shown separately in a category different from the other participants in such meetings, which clearly indicates that the appellants, though Ministers in the government led by Mr. Yeddyurappa, were treated differently from members of the BJP and were considered to be only lending support to the government…, without losing their independent status. Mere participation in the rallies or public meetings organised by the BJP cannot lead to the conclusion that the appellants had joined the BJP.”

The Bench said: “The order of disqualification passed by the Speaker was against the constitutional mandate in para 2(2) of the Tenth Schedule of the Constitution.”

Indicting the Speaker for the procedure adopted by him to disqualify the MLAs, the Bench said: “It is obvious from the procedure adopted by the Speaker that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the appellants and the 13 BJP MLAs stood disqualified prior to the date on which the floor test was to be held. Having concluded the hearing on October10, 2010, by 5.00 p.m., the Speaker passed detailed orders, in which various judgments, both of Indian courts and foreign courts, and principles of law from various authorities, were referred to, … holding that the appellants and the other MLAs stood disqualified as Members of the House.”

The Bench pointed out that the vote of confidence took place on October 11 2010, in which the disqualified members could not participate, and in their absence Mr. Yeddyurappa was able to prove his majority. Unless it was to ensure that the trust vote did not go against the Chief Minister, there was hardly any reason for the Speaker to have taken up the disqualification applications in such a great haste.”

On the contention that the Speaker was not amenable to court jurisdiction, the Bench, citing various decisions, held that under the Constitution, “the Speaker discharges quasi-judicial functions, which makes an order passed by him in such capacity subject to judicial review.”

Who should judge the judges?




The object of placing the power of judicial appointments in an independent body is to remove patronage from the system and ensure that judges are appointed only on the basis of their qualifications.

The present system of judicial appointments in the constitutional courts exemplifies the misalignment between the core values of judicial independence and accountability. The process by which a judge is appointed to the High Court or the Supreme Court has been described by Justice Ruma Pal, a former judge of the Supreme Court, as “one of the best kept secrets in this country.”

The text of the Constitution that provides for the appointment of the judges of the Supreme Court (Article 124) and the High Court (Article 217) is deceptively simple. They provide for the President to appoint them in “consultation” with other judges. Originally, the power to appoint judges vested ultimately in the executive. It is now with the Chief Justice and the senior judges of the court, i.e. the Collegium. It is unnecessary to trace the evolving jurisprudence of the Supreme Court regarding the issue of judicial appointments beyond this. Suffice it to say, that in the last of the famous trinity of the Judges Cases, the Supreme Court changed the character of “consultation” to “concurrence”. As Anil Divan pithily points out, the Judges Cases have not really broken the mystique behind the “Sacred Ritual” of appointments — they have only changed the circle of “High Priests.” Now, instead of the executive, primacy is given to the CJI and the Collegium of Judges. The way in which judges are appointed embodies a set of values about democracy. Choosing judges based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit.

The recent case of the impeachment motion of Soumitra Sen, former judge of the Calcutta High Court, once again highlighted the need to have a relook at the process of appointment. The unanimous voice of Parliament, while considering the impeachment motion of Sen, was that there was now a greater need for a National Judicial Commission than ever before. The legislators were, in fact, only echoing the view that has time and again been stressed upon by various legal luminaries and jurists.

The rationale

The rationale for the establishment of a commission must be that it will guarantee the independence of the system from inappropriate politicisation, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary and therefore rebuild public confidence in the system. By placing the power of judicial appointments in an independent body, the object is to remove patronage from the system and ensure that the judges are appointed on the basis of their qualifications for the job rather than anything else.

It is here that we can learn from systems elsewhere which have managed to provide for a transparent process of appointment, while maintaining judicial independence. International consensus seems to favour appointments to the higher judiciary through an independent commission.

Form of the commission

A key question is whether the new body should be appointing (The Israel Judicial Commission is the only appointing Commission) or recommending commission. The former in which the commission takes over the full responsibility for making appointments, removes the danger of inappropriate influence by politicians but also weakens democratic accountability and lacks a potential check on abuse, corruption or incompetence on the part of the commission. These advantages and disadvantages are reversed under a recommending commission. Therefore, there is need to adopt a hybrid model where the Commission makes a recommendation, which should be ordinarily binding. The recommendation may be rejected only in cases where the candidate is disqualified or in cases where the procedure adopted by the Commission is legally flawed. The reasons for such rejection must also be recorded in each case.


The example of the U.K. may be taken where the Constitutional Reforms Act, 2005 has established a Judicial Appointments Commission (JAC) with one Chairperson and 14 other Commissioners, including five judicial members, one barrister, one solicitor, five lay members, one tribunal chairman and one lay judge. The Chairperson and 12 Commissioners are appointed through open competition, while the other three are selected by the Judge’s Council.

In South Africa, the establishment of the Judicial Service Commission (JSC) has attracted much attention for the way it has made the appointments process more independent. Its 23 members are drawn from the judiciary, the two branches of the legal profession, the national and regional legislatures, the executive, civil society and academia. The entire process of appointment is geared towards securing maximum transparency.

The nine-member Commission that selects judges for all levels of courts in Israel consists of the President of the Supreme Court, two other Supreme Court judges, the Minister of Justice (Attorney General), another Cabinet Minister, two members of the Legislature (one of whom has traditionally been selected from the opposite ranks) and two representatives of the Israeli Bar.

In India, it would be more prudent to follow the U.K. model where politicians are kept out of the Judicial Appointment Commission. The Judicial Commission should not be a very large body, containing not more than 7 or 9 members. The Commission should consist of representation from the Judiciary, the Bar, eminent members of civil society (who should be appointed by a high powered body, for example presided over by the Vice President, the Prime Minister, the Chief Justice of India, the Law Minister and the Leader of the Opposition).

An equally important feature of public accountability is institutional and procedural openness. The requirement of openness is particularly important in the judicial appointment process, because a recurring criticism of the old system was the high level of secrecy within which the selection process functioned. The extent to which the Commission operates transparent procedures is therefore a critical test of its legitimacy.

Transparency & openness

To give an example, the Commission in South Africa has made efforts to ensure that the process by which candidates are selected for interview is as open as possible. The statutory provisions provide that when a vacancy arises, the Commission must advertise the post and seek nomination from a wide variety of sources. The names of candidates short-listed for interview by a screening sub-committee are made public and the views of relevant institutions (among them, the Law Society of South Africa, the General Council of the Bar and the Department of Justice) on their suitability are canvassed by the Commission.

On the other hand, the system of public interviews was opposed by pointing towards the example of the United States Senate Judiciary Committee confirmation hearing as demonstrating the danger which public interviews posed since the same could degenerate into personalised attacks on the candidates, and such demonstrations, far from increasing legitimacy, would undermine public confidence. The system was further opposed by stating that leading members of the Bar would be discouraged from coming forward if the meetings were made public.

However, public interviews may not be a plausible model for a country like India and therefore should not be introduced here. We should follow the U.K. model and should publish the Annual Judicial report and the names of the selected candidates should be posted on the website.

Merit and diversity

There is no gainsaying that there is a need to preserve and of course, if possible, to improve the professional and personal quality of our judiciary and therefore, merit should be given great primacy. Yet, it is equally important to consider the importance of social diversification in public institutions and the need to include hitherto under-represented groups for a more holistic advancement of all sections of society. A wider range of social backgrounds should mean not just representation from the backward classes and the minorities but also women. This underlying policy aim is perfectly respectable, namely that the public may well have more confidence in its judges if they are more reflective of the make-up of the community at large.

Fresh approaches

Tackling this lack of diversity in the judiciary will require fresh approaches and a major re-engineering of the process of appointment. Diversity is likely to be achieved only if equal opportunities are placed at the heart of the judicial appointments process and are promoted through sustained and proactive initiatives. One such example comes from Ontario, where one of the first actions of the newly established Judicial Appointments Advisory Committee in 1990 was to ask the Attorney-General to write a personal letter to 1,200 senior women lawyers in the province asking them to apply for judicial office. This conscious and innovative attempt to expand the number of workmen in the recruitment pool produced such a marked increase in the number of applications from well qualified women that between 1990 and 1992, 41 per cent of the judges appointed by the Judicial Appointments Advisory Committee were women.

The outcome of the reforms would depend on the way in which the commission is set up and the model adopted. The detail of the commission must be thought through with great care. Issues such as the division of responsibility between the commission and the appointing Minister, composition of the membership and the process for selecting the commissioners themselves are key factors in determining the success of the new system.

(Ajit Prakash Shah is the former Chief Justice of the High Courts of Delhi and Madras. )

A people’s Constitution

Nehru and Gandhi at the opening of the Indian ...

Image via Wikipedia


This Thursday, as we celebrate our Republic Day, Salil Misra reminds us of the struggle that went behind the framing and adoption of a Constitution that has stood the test of time and ensured equality and justice to one and all.

By and large, it can be said that most constitutions of the world have been made in two different ways — the democratic-consensual way and the elite-bureaucratic way. In the first way, the Constitution is made by the genuine representatives of people, keeping in mind popular aspirations. In the second way, the Constitution is made by specialists and experts, keeping in mind legal and technical points and necessities. The second exercise is necessarily an elite one and the accomplishment of a tiny minority. The experts decide in their own wisdom what is best for the people. The Constitution made thus is for the people, but not necessarily by the people.

Quite characteristically, the Indian constitution was a combination of the two. Both the impulses, the democratic-consensual, and the technical expertise of the specialists, were equally active during the making of the Indian Constitution. The document carried the mandate of a Constituent Assembly which was a large body consisting of over 300 members who were elected by the representatives of the people from India’s central and provincial legislatures. But the choice of the elected representatives was deliberately done in such a way as to bring some of the best constitutional minds into the Assembly. Experts like B R Ambedkar, K T Shah, K M Munshi and N Gopalaswami Ayyangar were thus brought into the Assembly. Ambedkar’s election was ensured by not fielding any candidate against him from Bombay presidency. Above all, the expertise of top Congress leaders — Jawaharlal Nehru, Sardar Patel, Maulana Azad and Rajendra Prasad — was constantly pressed into service during 1946-49 to prepare a blueprint for modern India that would be both — the best and the most representative.

Question of relevance

There is no doubt that some of the success, durability and tenacity of the Indian Constitution can easily be attributed to this combination. The Indian Constitution continues to be a relevant and vibrant document today, even after 60 years. No fundamental changes have occurred in its structure. In its basic spirit, it continues to be the same document that it was in 1950. To fully understand the relevance of this, a comparison with India’s neighbours would be instructive. Sri Lanka acquired a Constitution immediately after its independence in 1948, through the elite-bureaucratic way. In less than five years’ time, the Constitution was heading towards obsolescence.

By now, Sri Lanka has had three different constitutions. Pakistan acquired a Constitution as late as in 1956, nine years after its birth. The Pakistani Constitution too was made by legal experts without seeking any democratic mandate. It was abolished in two years’ time, in 1958, and was replaced by another Constitution in 1962. The second Constitution too did not last long and was replaced by yet another one in 1973. In the first three decades of its existence, Pakistan had as many as three different constitutions. The Indian Constitution, by comparison, has continued uninterrupted and has retained its basic features. Except for three major amendments, first, 42nd and 73rd-74th, all the amendments have been in the nature of nuts-and-bolts, without really altering its basic character.

The story of the making of the Indian Constitution is long and goes back to the beginning of the 20th century. The actual making of the Constitution during 1946-49 constitutes a small, though significant, part of its long story. The earliest documents resembling a Constitution for India were the various Council Acts passed by the British parliament for India as its colony. These Acts enabled the British to rule India. The early nationalist leadership accepted this right of the British and only demanded that better Acts be passed by the British parliament for India. In the 1920s, leaders like Motilal Nehru and C R Das  added a new dimension to this by insisting that an Indian Constitution should be made only by Indians. The Indian leaders followed this demand by actually preparing a full-fledged Constitution for India in 1928. It was known as Nehru Report, after Motilal Nehru, one of its architects. Representatives from all the major political parties had participated in preparing this report.

The Nehru Report was a remarkable document. It recommended fundamental rights for the people, a parliamentary form of government, a bi-cameral legislature, universal adult franchise, administrative units to be formed on linguistic basis and an independent judiciary with a Supreme Court at the apex. None of the British Acts, both before and after the Nehru Report, ever talked about either adult franchise or fundamental rights of the people. The British granted voting rights only to the rich and powerful and did not consider any mention of the fundamental rights of the people as necessary at all.
As was to be expected, the British government refused to accept the Nehru Report.

Unfortunately, some of the Indian political parties, Muslim League in particular, also withdrew their support. As a result, the Nehru Report was reduced to being a mere paper document and not a powerful and vibrant constitutional alternative for a modern India that it was expected to be. Yet, if we look at the Nehru Report and the Indian Constitution closely, we would find that the Indian Constitution was profoundly inspired by the Nehru Report. The report had enlisted 19 human rights of the people, 10 of which were included in the Indian Constitution.

Behind the scene

The next major step towards the making of an Indian Constitution was the birth of the idea of a Constituent Assembly in the 1930s. The Nehru Report had been prepared in a conference mode. It was young Jawaharlal Nehru who expressed his dissatisfaction with this method of making a Constitution. He started insisting from 1933 onwards that an Indian Constitution should be prepared by a Constituent Assembly, elected for that purpose, on the basis of the widest franchise possible. The idea of a Constituent Assembly soon began to gather momentum. In 1934, the Congress Working Committee rejected the British constitutional proposal and resolved that the only satisfactory alternative to the British proposal “is a Constitution drawn up by a Constituent Assembly elected on the basis of adult suffrage or as near it as possible.” From this point onwards the demand for a Constituent Assembly became the linchpin of the demand of the national movement led by Nehru. In an interesting debate between Nehru and Gandhi in Wardha in 1940, while Nehru insisted that the British must first declare India independent and then call for a Constituent Assembly, Gandhi argued that the Assembly should be called first and be left free to decide on the question of independence.

It was as late as in August 1940 that the British government conceded for the first time the idea of a Constituent Assembly. The second world war had broken out and, desperately needing Indian support in the war effort, Lord Linlithgow, the Viceroy, declared that the framing of the new Constitution should be primarily the responsibility of Indians themselves. The government offered to set up, after the end of the war, a Constituent Assembly consisting of representative Indians. It was still not spelt out how this Assembly would be constituted — by direct or indirect elections, based on adult or a restricted franchise. The proposals in their totality were found to be unsatisfactory and rejected by all the major political parties.

In the meanwhile, the war came close to the Indian shores. The possibility of a Japanese invasion of India appeared imminent. Growing increasingly frustrated by the British effort and restless at the thought of India becoming a major site of the war, Indians, under Gandhi’s leadership, launched the Quit India movement in August 1942. A panic-stricken British government arrested all Congress leaders and ruthlessly suppressed the movement. Congress was banned, the national movement came to a standstill and all talk of a Constituent Assembly faded into the background.

The end of the war and the victory of the Labour party in the British elections in 1945 once again brought the Constituent Assembly proposal back to life. By this time, Indian independence had begun to be seen as inevitable. The question was not whether, but when, India would become free. It was in these circumstances that the Viceroy Lord Wavell, announcing the India policy of the new Labour government, promised to convene a Constitution making body for India as soon as possible. The British government declared that a Cabinet Mission would be sent to India to resolve the two questions of freedom for India and Constitution making. The Cabinet Mission arrived in March 1946 with a blueprint for both.

By consensus

It was finally in July-August 1946 that a Constituent Assembly was set up through indirect elections. It was envisaged as a large body consisting of 389 members (296 from British India and 93 from princely states). Initially, only the members from British India were included. The first session of the Assembly was held on December 9, 1946. This indeed was a historic day for independent India. Initially, only 207 members attended the first session as the Muslim League had decided to boycott the Assembly. Rajendra Prasad was elected as the president of the Assembly. Nehru moved the famous Objectives Resolution which became the guiding principle for the entire exercise of Constitution making. B R Ambedkar became the head of the drafting committee. With India becoming independent on August 15, 1947, the Constituent Assembly became a sovereign body and doubled up as the Legislative for the newly independent Indian State. It was now responsible for framing the Constitution as well as for making ordinary routine laws.

One of the earliest decisions taken by the leaders of the Assembly was to resolve not to take any decision through the majority vote. The Assembly decided at its floor that the majority decision was not the most satisfactory way of making a Constitution. Once a proposal was moved and there was a minority opinion opposed to it, it was the responsibility of the majority view to appease and satisfy the minority opinion and thus arrive at a consensus. Nothing short of a consensual decision was to be entered into the Constitution. Thus, every effort was made to protect the Constitution by the tyranny of the majority view. This decision not to go only by the majority view and keep trying till a consensus was reached naturally implied that there would be delays in arriving at a decision. It was therefore inevitable that the entire exercise took nearly three years.

A total of 7,635 amendments to various clauses were placed, of which 2,473 were actually moved. Yet, in the end, this procedure produced a Constitution which was owned by the entire Assembly, and through the Assembly, the entire nation. Above all, what made the Indian Constitution truly consensual was that the national movement, during its long life of over three decades, had popularised the ideas of parliamentary democracy, republicanism, civil liberties and social and economic justice. As a result, Indians had begun to look upon these values as their own and not as alien impositions. The Indian Constitution was therefore rightly seen as a document of the people as a whole and not of a few at the top.

Report card

So, how has the Constitution fared as a blueprint for the transformation of Indian society and polity? There is no doubt that the pace of transformation has been slow. But the transformation has to be eventually brought out by the people. The Constitution can only play an enabling role. Constitutions do not work on their own; they have to be worked. It is however undeniable that even though the much-needed transformation has not occurred, the Constitution has created enough space for the socially marginalised people to organise their struggles for a better life and a share in the social benefits.

One success of the Indian Constitution has been its ability to chalk out a middle path between conflicting conditions. One such middle path is between being fixed and unchangeable on the one hand, and being very volatile on the other. The real challenge has been to ensure that the letter of the Constitution should not become an obstacle to genuine social change and the Constitution should be able to modify itself in the light of real societal change. At the same time, if it were to be too volatile and prone to change, it would not really be effective.

Finally, the real big challenge is to find a middle path between being too emancipatory and being completely rooted in the social structure. The real dilemma is this: in order to be transformative, the blueprint has to be emancipatory. A truly emancipatory document would not be fully representative. If, on the other hand, it is rooted in the social structure, it would cease to be transformative.

And this, perhaps, is the biggest strength and achievement of the Indian Constitution. It is sufficiently rooted in the Indian conditions and the people see the Constitution as their own. Yet, it does not represent the conservative side of the Indian social condition. It is sufficiently emancipatory to be able to carry out a transformation of the existing conditions with the help of the people. The Indian Constitution, in this respect, is the finest gift of the national movement to its people. It is truly a Constitution of the Indian people, for the Indian people, and by the Indian people.

(The writer teaches history at the Ambedkar University, Delhi)

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Choking off free speech on the web

Choking off free speech on the web

Choking off free speech on the web


What makes SOPA and PIPA especially toxic is the threat they pose to all dimensions of a website’s existence – physical presence, findability and revenue stream.

With 4.5 million signatures on a Google petition and one million messages sent to the United States Congress via the Electronic Frontier Foundation (EFF) in a single day, January 18, advocates of a free Internet have mounted a determined bid to stall new legislation that can chill free speech. The global chorus against two Bills that are winding their way through the American legal system is growing.

The two draft laws in the U.S. House of Representatives and Senate, now known around the world by the acronyms SOPA and PIPA (for Stop Online Piracy Act and Protect IP Act), have raised a storm on the Internet. They are seen as updated versions of the “Combating Online Infringements and Counterfeits Act” (COICA) which could not make progress in the Senate earlier. In a small victory for opponents, key movers of the Bills have backtracked a little, as Google, Yahoo!, Facebook, Twitter, Mozilla, Ebay, Zynga, Linkedin and AOL, among others, provide heft to the protests. Wikipedia went dark for 24 hours to make the point and when it was back, it said “millions of people have spoken in defence of a free and open Internet.”

Vague definitions

What makes the two laws obviously detrimental for free speech worldwide is their focus on poorly defined “rogue” websites that are not based in the United States. The definitions in the draft legislation are vague in the assessment of not just free speech advocates, but most major technology companies. The legal tools to punish “infringing” websites as originally drafted in SOPA included a provision for Domain Name System blocking, and denying them the ability to exist as an address on the Internet. The firestorm of protest from U.S. voters that virtually “melted the servers” of Congress has forced the sponsors of the two laws to announce that the DNS blocking provision is now off the table.

Yet, the two Bills are far from dead and there is still plenty to worry about. The attempt to introduce strong-arm measures must be viewed against the backdrop of a persistent effort in the U.S. to use judicial processes to access personal data about individuals abroad using services such as Twitter, in the wake of the WikiLeaks expose. It makes matters more difficult that the U.S. court order prohibits the disclosure of its contents. Are there more technology companies that were covered, that have not come to light, for instance?

Moreover, the new Bills aim to create a procedure to blacklist inconvenient websites and censor them. They have many other weapons to kill websites. These include ordering search engines to remove them from results, prohibiting distribution of advertising, and, quite akin to the WikiLeaks experience, stopping companies such as PayPal or Visa from processing their financial transactions.

It is natural that the prevailing sentiment among international users of the Internet, who have either themselves experienced or have closely observed its power to bring communities together in the Middle East, North Africa and the Occupy movement cities, is “We are all Americans now.” They have no Congressman or Senator to call and petition, but they have made known their opposition to the two Bills widely online. There is a legitimate fear that if the new legal provisions go into force, technology companies coming under U.S. legal jurisdiction could be compelled, or perhaps even be willing, to disclose information on them. Some may simply react to domestic political imperatives and purge foreign websites with an inconvenient point of view. It is important to remember that unlike the existing scheme of filtering — where individual pages and search links are removed — the omnibus penal provisions in SOPA can erase the presence of entire websites.

Ironically, strong fears haunt U.S. companies as well. Some of them dread a new, high-cost technology landscape emerging in America, driving innovation, online traffic, and thus jobs and commerce to other countries that guarantee freedom. In this balkanised future, a social networking website may prefer, say, Iceland, where activists hosted early initiatives of WikiLeaks.

The “group of nine” technology companies including Google and Yahoo! that wrote the joint petition to Congress pointed to a McKinsey study that shows 3.4 per cent of GDP in 13 countries is accounted for by the Internet. In the U.S., the contribution is even larger. The Internet has increased the productivity of small and medium-sized businesses by as much as ten per cent. Trying to put in new conditions at the behest of traditional media companies including those trying to save old models of distribution and profits (for which they massively funded a lobbying campaign during 2011), can crimp growth and the new ventures.

That message is not lost on the White House, and a statement released by the Obama administration says it “will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” Whether through a veto or through legislative defeat, halting the progress of SOPA and PIPA will be crucial to online communities that fear direct, creeping censorship of the Internet.

Not new

Censoring of Internet content is not new. All search engines remove content and filter search results based on directions and orders issued in different countries to meet the requirements of domestic laws. The toxic potential of SOPA and PIPA lies in their capacity to comprehensively throttle free speech, at least until a new competitive set of alternatives emerges on the Internet. All dimensions of a website’s existence — physical presence, findability and revenue stream are under threat.

In the democratic scheme of things, governments that guarantee free speech through statute should baulk at making domestic copies of the controversial American model to suppress their own citizens. Yet, in the Indian context, there will obviously be keen interest in the two U.S. Bills for their possible replication.

Even now, the Indian Information Technology Act, 2000 contains provisions that would not meet the accepted definition of judicial due process. Orders are issued to technology companies hosting content on websites to remove allegedly offensive or infringing material by officials of the government, circumventing a legal process that involves the courts, as is necessary in the case of traditional media.

There is also a marked preference among some leading politicians, such as Communications and Information Technology Minister Kapil Sibal, for a purge of websites and social media platforms such as Facebook, of content that is deemed “offensive”, instead of ignoring criticism from the fringe. Google has been asked to remove several items on the ground that they criticise the government or individual politicians. That there are ample provisions in existing law to handle the more egregious cases is conveniently ignored. Protections earlier available to Internet Service Providers against liability for third party content are sought to be weakened systematically. There may be a specific case to remove material that is obviously inflammatory and capable of doing harm, but the policy compass clearly points to a lurking desire for censorship. If SOPA and PIPA were to succeed in America, the move towards copycat laws in India can only be a step away.




The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.

The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.

The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.

SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.

The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.

These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.

Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.

 The writer is executive director of the Bangalore-based Centre for Internet and Society