20th January 2020 : The Hindu Editorials Notes : Mains Sure Shot
Question – Analyse the frequent cases of internet shutdown and suggest the way forward.
- On Friday, the Supreme Court declared that the fundamental right to freedom of speech and expression and the right to carry on trade or business using the Internet are constitutionally protected.
- the verdict has laid down a framework of how the Internet can be suspended, and what rights and legal resources a citizen has when it is suspended.
What analogy did the court draw?
- Analogy means a comparison between one thing and another.
- The Court drew an analogy between the Internet as a “tool” on the one hand, and the expression of free speech through the means of the Internet on the other.
What does the judgement say about internet shutdowns?
- Though it did not declare access internet as a fundamental right but it said that the Internet as a medium is used to exercise other fundamental rights.
- The observations made by the court essentially laid out guidelines that Internet shutdowns cannot be arbitrary and can be challenged in the courts.
- The court also said the orders suspending the Internet would have to necessarily state how the action was justified and proportionate to the imminent threat to law and order.
At present what procedure does the government follow to suspend internet service?
- The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with suspension of Internet services.
- Before 2017, Internet suspension orders were issued under Section 144 of the CrPC. A law retained from the colonial era, it empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
What did the judgement say about the rules?
- The court recognised that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”.
- Quoting from the 2017 Rules, the verdict reiterated that the competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs. The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
- Clear reasons for such orders need to be given in writing, and need to be forwarded to a Review Committee by the next working day. Further, the confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.
What did the judgement say about rights?
- For, in the judges’ belief, the right to freedom of speech and expression includes within its ambit the freedom to disseminate and receive information through any means possible, including through the Internet. Additionally, the Court also recognised that the Internet today is critical to the conduct of commerce. Therefore, any restriction on the web will necessarily impinge on the right under Article 19(1)(g), “to carry on any occupation, trade or business”.
But what is the real question in this whole case?
- The real question is this: under what circumstances would a limitation made on accessing the web be constitutionally justifiable? In answering this question, the Court restated the law with special brio. It found, as in “Lord Diplock’s aphorism”, that “you must not use a steam hammer to crack a nut, if a nutcracker would do.” Or, in other words, that any restraint made on a fundamental freedom must be necessary and proportionate to the goal that it seeks to achieve.
- This notion of a doctrine of proportionality can be traced back to the administrative law of Prussia at the end of the 19th century. There, when the police invoked a power, which allowed it to restrict liberty as was “necessary for the maintenance of public order”, the Prussian Supreme Administrative Court held that it had to examine whether the measures adopted by the police surpassed in its intensity what was considered necessary for fulfilling the intended objective.
Apart from proportion, what can be the other measures to check legality of shutdowns?
- First, it requires the state to show the Court that the basic aim that the restriction seeks to achieve is legitimate; second, the state must demonstrate that it has chosen the “least restrictive” measure possible to achieve its purported objective; and third the state must establish that there exists a rational nexus between the limitation imposed and its purported aim. Therefore, the basic nub of the test is to confirm that the government in pursuit of a legitimate aim has treated people’s fundamental rights with the greatest care and attention possible.
What can an affected individual do?
- The Latin maxim, Ubi Jus Ibi Remedium — that where there is a right there is a remedy — is reflected through Article 32 of the Constitution, which guarantees a liberty to move the Supreme Court when a fundamental right is violated.
- Then these orders are made available, an individual can challenge the orders in court on grounds of proportionality. “We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism,” the court said.
Why is this significant?
- While suspension orders were always subject to judicial review, lack of availability of such orders in public domain prevented such challenges before courts. The court also ruled that the government cannot refuse to publish such orders citing logistical inconvenience.
- It is welcoming that the right of individuals to move to the court in case they are affected has been upheld but the citizens should exercise this option responsibly.
- Also the government must exercise its powers more responsibly keeping long-term impacts in mind.
Note – There is another article titled ‘Equity’s weak pulse and commodified medicine’. The following are the important points:
- The article sheds light on why health-care in India became heavily dominated by the private sector through a chronology and gives the example of the British healthcare to unlike it.
- As early as in 1938, only 23% of doctors were in the public sector with the rest working in the private sector, predominantly in single practices.
- Post-Independence, perpetual sub-optimal investments in public health allowed the private sector to capitalise, flourish, and increasingly gain the confidence of the masses. The private sector went from having about 1,400 enterprises in 1950 to more than 10 lakh in 2010-11. To doctors, this promised greater professional liberty, lesser restrictions, and higher incomes.
- After liberalisation, the greater focus shifted to the lucrative tertiary-care sector and led to an onslaught of sophisticated private health care in cities.
What does this mean?
- This means that since there is a dominance of the market, by the private sector has over 70% of the health-care workforce and 80% of allopathic doctors, it is scarcely possible for a health-care provider to function in defiance of its norms. And the malpractices in this private sector market has made the conditions such that it nearly impossible for the doctors to stay away from it.
- Quite amazingly, players in this market, in much of their malpractices, have also learnt to function as a harmonious family. The family plays its role in safeguarding its members, acquainting them with its norms and interests, and leveraging the power of its patriarchs to defend its interests in society.
- Also the market has also come to dictate the avenues of aggrandisement (to increase the power or reputation of something) and yardsticks of professional success for health-care professionals. Business finesse and social adroitness rather than clinical excellence and empathy become the touchstones of calibre in this market.
Indian healthcare and the National Healthcare System of Britain:
- In India mostly spending on healthcare sector is low and they are the first to be cut in case of economic downturns.
- A larger chunk of Indian health care (and health workforce) could not be brought under a “national system” having some form of overarching state control or involvement — which could avail of essential health care without most people having to rely on a vagarious market, except as a luxury.
- For example, The National Health Service of the United Kingdom, despite having seen a number of pro-market reforms over the years, remains the single largest health-care provider, employs nearly the entire health-care workforce, and makes essential health care available to all practically free at the point of service.
- As a result, the profit-driven private sector, the minor component, caters mainly to the affluent lot as largely a matter of deliberate choice rather than desperate compulsion.
- The Indian example, much like the United States’s, bespeaks the failure of the idea that a free market will compel players to be more efficient. Rather than increasing efficiency, the players have found it expedient to scrupulously exploit the prevailing cracks in the system and employ devious methods in order to maximise profits.
- It needs to be understood that:
- When necessary controls are loosened, the vices thrive and when controls are tightened values and the right traits develop.
- Over time, a culture of exploitation and profiteering has got entrenched and hardened, and now it is difficult to alter it .
- It is little wonder that in such systems, doctors require hefty incentives to stay motivated.
- Also, the medical profession attracts more of those with an ambition to earn riches than ones with an aptitude for medical service, thus leading to a generation of doctors who become the apologists of a profiteering system.
- So, a system founded on the concept of equity (which, while remunerating doctors well, is able to separate incomes from patient care decisions by and large) cultivates a totally different culture of patient care. Doctors manufactured under its aegis cherish a spirit of service and hanker less for extravagant incentives.
- Things such as professional satisfaction and success come to be measured by a different yardstick, and there exists a different kind of motivation towards work, which is then bequeathed to the forthcoming generation.