Ban of sale of cattle for slaughter- Unsustainable, Unconstitutional and Void

The Prevention of Cruelty to Animals(Regulation of Livestock Markets) Rules 2017 notified by the Central Government with effect from 23.05.2017 is unsustainable in law to the extent it imposes ban of sale of cattle in animal markets for the purposes of slaughter.  

The said Rules is yet another instance of mischievous and deceptive law making practice which is being followed by the Union Government for some time. This colourable law making practice involves camouflaging a controversial provision with seemingly progressive and innocuous provisions, in order to deceive and mislead general public. It was done in the case of Motor Vehicles Amendment Bill, wherein the provisions introducing limit on third party insurance were sugar-coated with provisions increasing penalty for traffic violations, thereby making people believe that it was a ‘Road Safety Bill’. Likewise in AADHAAR Act, which was introduced as a money bill, touted to be having the objective of plugging subsidy leaks, provisions permitting private entities to use AADHAAR data for their private purposes were sneaked in. Following the same manipulative tactic, the said Rules have been framed. The Rules predominantly contain provisions to control cruel behaviour meted out to cattle, which are laudable. However, the prohibition imposed in the Rules for selling cattle for slaughter(vide Rule 22(b)(iii), 22(e)(i)), sticks out like a sore thumb in the Rules, as the said prohibition does not fit in logically into the scheme of the Rules.

The Ban is contrary to the parent Act.

It is important to remember that the said Rules are made under the Prevention of Cruelty Act 1960, particularly in exercise of powers under Section 38(1), which enables the Central Government to make Rules to carry out the purposes of the Act. The objective of the Act, as revealed by its preamble is to prevent infliction of unnecessary pain or suffering on animals.

Now, it is very pertinent to note that the Act does not prevent slaughtering of animals. In fact, the Act saves and permits killing of animals for the purposes of food. It is very clear from the proviso of Section 11, which excludes acts done for destruction of any animal for food of mankind, on the condition that such destruction was not accompanied by unnecessary pain and suffering.

Here the Rules imposes ban of cattle in markets for slaughter. Also, the purchaser of cattle is totally prohibited from selling the cattle further for slaughter, whether in an animal market or elsewhere. This ban of sale of cattle for slaughter operates as an indirect absolute ban of slaughter of cattle. When the parent Act expressly permits slaughter of animals for food, how can the Rules impose a ban on sale of cattle for slaughter? When slaughter for food is not prohibited by the parent Act, how can the Rules impose ban of sale for slaughter? This is the apparent anomaly of the Rules, which makes it ultra-vires the parent Act. It is well settled principle that if the Rules made under an Act are contrary to the parent Act, then such Rules will be void an inoperative.

So the ban of cattle for slaughter introduced in the Rules is void, inoperative and ultra-vires, as the same is repugnant to the parent Act.

                             (Kerala Beef Fry. Image source :- A little bit of spice)  

Expansive definition of “Animal Markets”

One may feel that the ban is only with respect to sale of cattle for slaughter in animal markets, and that one is still free to sell cattle elsewhere. But, the definition of “animal market” given in Rule 2(b) is quite wide and expansive than the common understanding, and negates such possiblities. It reads as follows:

“animal market” means a market place or sale-yard or any other premises or place to which animals are brought from other places and exposed for sale or auction and includes any lairage adjoining a market or a slaughterhouse and used in connection with it and any place adjoining a market used as a parking area by visitors to the market for parking vehicles and includes animal fair and cattle pound where animals are offered or displayed for sale or auction;(emphasis supplied)

The phrase “lairage adjoining a market or a slaughterhouse is doing the mischief here. ‘Lairage’ refers to a place where animals are kept before slaughter. Most slaughter houses keep the animals to be slaughtered near. Even if one animal is kept near the slaughterhouse, the place occupied by the animal would be a ‘lairage’, and consequently it would become an ‘animal market’ as per the definition of the Rules. This is actually a ploy to efface the differences between ‘animal markets’ and ‘slaughterhouses’. As a result of this, one can’t even seek to sell cattle directly to a slaughter house.

This will have a far reaching impact on small scale operators of slaughter houses and abattoirs Small scale operators are in effect precluded from procuring cattle for slaughter, driving them out of their trade.. The result of the Rules is that only those persons who rear cattle on their own in their farmyards can slaughter them. So the ban is nearly absolute.

Infringement of fundamental rights.

The rules infringe one’s fundamental right to practise trade and business, guaranteed under Article 19(1)(g). The said right can be restricted only by means of an enacted law, and not through a delegated legislation framed by the executive. The Rules also infringe one’s right to livelihood, which emanates from Article 21. The impact on one’s food choices, which forms part of right to privacy, is also evident.  

The Rules harm many, by infringing their rights, and benefit none, except certain animals, upon whom no explicit fundamental rights are conferred by the Constitution. This seemingly man-vs-animal plot in effect sets men against men, and has potential to vitiate the harmonious atmosphere of our society. Ignoring all other pressing needs of this country, the government has come up with these legally unsound and constitutionally void Rules, without any moral support or rational basis, possibly eyeing a future where cattle might enjoy voting rights as well. 

[ Published by 'Outlook' and 'Live Law']

Constitutional Right to Drink Alcohol :- A distant dream

“To drink or not to drink. That is the Hamletian dilemma of Anoop, the appellant. He has chosen to drink. He rails at the rules that obstruct his passion for the pint, his right to choose, to be let alone, to privacy, and, of all, his right to life. He claims that the laws prohibiting alcoholic drinks fall foul of the fundamental rights guaranteed to a citizen, to him. Do they? Our answer: No.”

Thus begins the recent judgement of the High Court of Kerala in Anoop M.S vs. State of Kerala and others, dealing with right to drink alcohol. The dramatic beginning of the judgement quite well befits the unusualness of its subject matter. Testing the validity of the liquor prohibition from the perspective of a consumer of alcohol is a rare instance. Although there are umpteen number of judgement upholding validity of liquor prohibition/regulation, most of them are rendered in the context of right to trade in liquor and right to vend alcohol referable to Article 19(1)(g) of the Constitution of India. The rights under Article 19(1)(g) carry with them inherent reasonable restrictions, and it is always a difficult task to overwhelm the legislations banning/regulation liquor enacted on the basis of constitutional directive under Article 47 of the Constitution of India. Implicit in the Constitution is the thought that liquor prohibition furthers social welfare, and it is not easy to tide over such legislations/policies using one’s commercial rights. But when a consumer comes before Court, asserting that his right to consume alcohol peacefully and responsibly within the confines of his home forms part of his right to privacy, which is nothing but a facet of right to life and personal liberty under Article 21 of the Constitution of India, and complains that liquor prohibition infringes his right to privacy and individual autonomy, it adds a twist to the narrative throwing up several interesting questions.

The taboo of alcoholism

Alcohol is generally regarded as a social taboo in most cultures. The reasons could primarily be two. First, alcohol intake in large quantities could injuriously affect one’s health. Second, alcohol could affect one’s cognitive abilities and faculties of mind.  In a state of intoxication induced by alcohol, one’s ability for rational judgement and sound discretion would be lowered, and consequently the person tends to indulge in impulsive behaviour, forgetful of personal and social inhibitions. The behaviour and attitude of a person under the influence of alcohol could be drastically different from his otherwise normal and sober behaviour. It is due to this effect of alcohol that it is regarded as corrupting one’s character and hence morally abhorrent. The proneness to act on instinct and impulses, and to indulge in risky behaviour under the influence of alcohol can lead to public order issues, like public brawls, abusive behaviour, drunken driving, etc. Intoxication can also give the impetus to a person to indulge in violence and crimes of passion. The law and order issues attendant to alcoholism is definitely an area of concern for the State and hence the State can wield control over it.

Having said that, it is also pertinent to note that the above said negative effects are not definite and direct outcomes of alcohol consumption. It’s just that alcohol could increase the probabilities for such effects. Not all persons who consume alcohol suffer from health problems. And, not all persons who consume alcohol become a social nuisance and public threat. There are a lot of intervening and subjective factors which determine the negative effects of alcohol, and such factors have correlation with the level of maturity and sense of responsibility a person possesses. Therefore, it is also indisputable that there is a responsible way of drinking alcohol. Alcohol can induce a sense of joy, ecstasy, and euphoria in one’s mind, and can instil a feeling of camaraderie. In a stupefied state, one might delve deep into the unexplored alleys of the sub-conscious, and might toy with thoughts which otherwise might not surface up in sobriety. In short, alcohol could enable a person to endure the tedium and misery of life by instilling a sense of joy, however illusory and short-lived it might be, and can even help one ‘rejuvenate and relax’, as claimed by the petitioner in Anoop vs. State of Kerala. So, the question to be examined is whether such responsible and disciplined intake of alcohol, which is purely done in pursuit of individual happiness and enjoyment, causing no harm or injury to others, has any constitutional protection.

Fundamental right vs Directive Principles of State Policy.

What militates against the said right is the Constitutional directive under Article 47 that the state shall endeavour to bring about prohibition of the consumption of intoxicating drinks…’. If the State has the Constitutional duty to prohibit alcohol, and acts in furtherance of the same, then obviously a citizen cannot complain that his right to drink alcohol has been violated. However, this issue has been dealt with in an interesting manner by Justice N.P Singh, Judge of Patna High Court in Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar. In the said case dealing with legality of liquor prohibition effected in Bihar, Justice Singh held that a person has the right to drink alcohol within the confines of his privacy so long as it does not cause any harm or injury to others.(However, Chief Justice I.A Ansari dissented on this point, and held that there was no such right to drink alcohol. The liquor prohibition was nonetheless struck down on other reasons).

According to Justice Singh, the expression shall endeavour in Article 47 means that there is no mandate, in positive terms, making it obligatory on the state to impose prohibition. Justice Singh further proceeds to establish that right to privacy forms part of right to life under Article 21 of the Constitution, on the basis of decisions in Gobind vs. State of M.P (1975) 2 SCC 148, Kharak Singh vs. State of UP AIR 1963 SC 1295. Reference was also made to the observations in State of T.N vs. R.Rajagopal that right to privacy under Article 21 is the right to be let alone.

Further, Justice Singh places the right to drink alcohol under the ambit of right to privacy, on the basis of decisions in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33, and In Re Ramlila Incident (2012) 5 SCC 1 to hold that what one eats is one’s personal affair and forms part of right to privacy under Article 21.  Having thus established that right to drink alcohol comes under Article 21, the stage was set for the apparent conflict between a  fundamental right and a law enacted in furtherance of a directive principle under Article 47. Based on the decision in Minerva Mills that directive principles cannot override fundamental rights, Justice Singh held that the right to drink under Article 21 must prevail over the constitutional directive under Article 47.

Constitutional courts often strain to uphold the constitutionality of an enactment or policy. However, here Justice Singh has strained to stretch the contours of Article 21 to set aside the liquor policy. In contrast, the Kerala High Court did not attempt any such maverick interpretations, and chose to follow the precedents and conventional interpretations. According to the Kerala High Court, right to drink, and also right to privacy wherefrom the former right emanates, are mere penumbral rights, yet to be elevated as central rights. The gist of the reasoning is that such rights cannot be invoked to trump an executive act done in terms of a clear constitutional directive to effect liquor prohibition.

 Individual autonomy vs State Paternalism

The judgement of the Kerala High Court can be said to be more in accordance with constitutional scheme, and its legal soundness cannot be assailed on the basis of existing principles of law. However, if one analyses the issue without being circumscribed by the constitutional text, one tends to agree more with the conclusions of Justice Singh in Patna High Court decision, though their constitutional soundness is suspect. The classical concept of liberty is that one is free to do whatever within his confines and powers so long as it causes no harm or injury to others. This concept of liberty supports right to consume alcohol in a responsible manner without being a social nuisance or threat. An individual should possess the autonomy to fashion his life and to choose his habits. The dictates of the State in that regard reeks of paternalism, which is not desirable in a democratic republic state constituted by ‘We the People’.

It is tough to discern on which side of the issue our Constitution is. Our Constitution abounds in grand paradoxes; it leaves the door open for state paternalism as much as it tries to protect individual autonomy.

The Division Bench of Kerala High Court must have been caught up in this dilemma of whether to be formally right in the constitutional sense or really right in the philosophical sense. And the Bench chose to be formally right within the constitutionally imposed limitations. The Court was primarily enamoured by the sweep of Article 47.  But it chose to sympathise with the cause of the petitioner, probably to get over the guilt of not being able to be ‘really right’. The parting words of Justice Naidu, extracted below, are an indication of that.:-

But, before parting with the matter, we acknowledge that “the times they are a-changing.” What is today morally reprehensible and socially unacceptable may not be so tomorrow. Anoop, the appellant, may still have hope, but he seems to have raised his voice rather prematurely. We conclude with the lines of Bob Dylan, the Nobel laureate:

“[A]nd don't speak too soon

 For the wheel's still in spin

And there's no telling who that it's naming

For the loser now will be later to win

 Cause the times they are a-changing”

So till the times change to cause a radical change in constitutional scheme to protect individual autonomy without any moral hangover, the tipplers will have to reconcile with the moral injunctions of the State. 

References :-
Kerala High Court Judgement in Anoop vs. State of Kerala.
Patna High Court Judgement in Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar.

Culture Fascists

the culture fascists are the most boring people.
for them life is just a mechanical process of adding years to age.
they don't know passion, they dont know romance, they dont understand art, they can't think, they can't love, they can't laugh- to put it simply, they cant enjoy life and nature. 
with stunted individually, decayed minds, and thoughts frozen in medievality, they perish away without contributing an inch towards human progress..
but throughout their putrid life they inflict much harm and injury on other beings..
.for they know only to spread misery and hatred.
.but sadly they always constitute the majority..

MALAYALAM FILM STRIKE :- BOYCOTT BY EXHIBITORS IS AN ANTI-COMPETITIVE PRACTISE

The Malayalam Film Industry is witnessing an unprecedented crisis now, in view of the tussle between the film producers and film exhibitors over percentage of revenue sharing. The association of single screen theatre-owners, Kerala Film Exhibitors Federation(KFEF), has demanded a share of 50% of the collection of first week of new releases, as against the present share of 40%. They demand parity with multiplex chains like PVR, Cinemax etc, who are given 50% share. The Exhibitors Federation has resolved not to exhibit Malayalam Films, until their demands are met by the Producers and Distributors. Since the Producers and Distributors are not ready to accede to the demand, a crisis developed. Resultantly, none of the Malayalam Films, including that of super-stars, was released during the Christmas season, causing huge disappointment to movie-goers.  

Let us examine the legality of the boycott called by Exhibitors Federation, in the light of the provisions of Competition Act 2002. Kerala Film Exhibitors Federation(KFEF) is an association of more than 300 single screen theatre owners out of nearly 500 theatres in Kerala. Most of them are classified as ‘A’ class theatres, eligible for getting fresh releases. KFEF is definitely a ‘cartel’ within the meaning of Competition Act. Section 2(c) sets out an inclusive definition of ‘cartel’, whereby an ‘association of producers, sellers, distributors, traders, or service providers, who, by agreement amongst themselves, limit, control, or attempt to limit or control the production, distribution, sale or price of, or trade in goods or provisions’.

Any agreement by a cartel, which limits or controls production, supply, markets, technical development or provision of services is an ‘anti-competitive’ agreement as per Section 3(3)(b) of the Act. Here, the decision of the KEFF to refrain from screening Malayalam Films is definitely limiting the provision of services. It is also pertinent to note that “service” is defined under Section 2(u), and it includes “entertainment”, and “amusement”, correlating to watching of movies. Therefore, it is clear that the boycott by KEFF is limiting the provision of services, rendering it an anti-competitive agreement.

Section 19(3) Act also enumerates certain factors, which the Competition Commission needs to look into, while inquiring whether an agreement is anti-competitive or not. They are :-

aa.    Creation of barriers to new entrants in the market

bb.    Driving out existing competitors out of market

cc.   Foreclosure of competition by hindering entry into market

dd.    Accrual of benefits to consumers

 e.  Improvements in production or distribution of goods or provision of services

f.f.     Promotion of technical, scientific, and economic development by means of production or production or distribution of goods or provision of services.

In the instant case, the decision of Federation has created barriers for market entry to new releases and has foreclosed competition by hindering entry into market. There is no accrual of any benefit to consumers; in fact, consumers are in the losing side, as they were deprived of movie watching experience.  The barriers are not intended for promotion of any technical, scientific or economic means of production or distribution. The barriers are erected for mere show of strength and bargaining.

There is no doubt that the said boycott by Federation falls foul of Competition Act. The Competition Commission can inquire into contraventions of the Act, either suo moto, or on the basis of any information received under Section 19(1)(a), or any reference made to it by Central or State Government or a statutory authority under Section 19(1)(b). As per Section 19(1)(a), a consumer can also make information to the Commission regarding anti-competitive practice. So, it should be open to an ordinary movie-watcher in Kerala to give information to the Commission. Further, the State Government can also make a reference to the Commission regarding the issue as per Section 19(1)(b). Even the Kerala State Chalachithra Academy, which is an state instrumentality existing for promotion of films in Kerala, can make reference under Section 19(1)(b).

It would be interesting to know that the very same Federation, and its President P.V Basheer @ ‘Liberty’ Basheer, were pulled up by the Competition Commission in 2015 for having adopted similar arm-twisting tactics earlier. There is another association of single screen owners of Kerala, namely Kerala Cine Exhibitors Association(KCEA), which largely comprises ‘B’ Class theatres. When producers and distributors started adopting the strategy of giving wide release to movies in the first week itself to rake in maximum collection during initial opening days, even ‘B’ class theatres under KCEA started getting fresh releases, along with theatres under the Federation. The Federation took objection to such practice, and demanded that only theatres under the Federation should be given fresh releases. The Federation threatened that the films of those producers and distributors who give films to theatres under KCEA would be boycotted by theatres under Federation. Buckling under the pressure of Federation, producers and distributors stopped giving fresh films to theatres under KCEA.  Even the film of Kamal Hassan, “Vishwaroopam”, which was initially planned for wide release in Kerala, could not withstand the pressure of Federation, and was released only in theatres of Federation. Aggrieved with the situation, KCEA approached the Competition Commission.

By order dated 23.06.2015 in CaseNo.45/2012, the Competition Commission held that the Federation had indulged in anti-competitive practices. It was found that there was illegal cartelization in the case.  The Commission passed a ‘Cease and Desist’ order against the Federation, and imposed penalty on it. The Appeal filed by the Federation was dismissed as per order dated 04.02.2016 in Appeal No.100/15 by Appellate Tribunal. The Appellate Order may be accessed here. http://compat.nic.in/compat-old-site/CAT-07-2013/upload/PDFs/judgement-orders-2016/FINAL%20ORDER%20-26%20Feb.%2016%20-%20A.%20100%20of%2015%20KERLA%20FILM%20EX.%20FED..pdf

However, the Federation seems to be not learning from the past mistakes. Instead of knocking the box office windows, it appears that the movie lovers will have to knock the doors of Competition Commission.

Published in Live Law as http://www.livelaw.in/malayalam-film-strike-boycott-exhibitors-anti-competitive-practice/

OPINION: Kerala HC in ‘Ka Bodyscapes’ Case is Promoting Censorship rather than Artistic Freedom

The film ‘Ka Bodyscapes’ by acclaimed director Jayan C. Cherian had run into several controversies due to its theme of homosexuality and contrarian views about prevalent norms and mores. The Central Board of Film Certification (CBFC) had refusal to grant certificate to the film for public exhibition. The reason stated in the refusal order was that the film is “ridiculing, insulting and humiliating Hindu religion, in particular portraying Hindu Gods in poor light”.The film revolves around the homosexual relationship between two men, one who is an artist and another a staunch devotee of Hanuman. Towards the end of the film, the artist makes a painting, depicting his male partner as flying like Hanuman holding Maruthwamala in hand; however holding a mountain of books instead, including the Indian Penal Code with its controversial Section 377 (criminalising “unnatural” sexual offences) written in bold over the book-spine. This imaginative painting, which symbolizes the ‘coming out’ moment of the homosexual protagonist, irked the sensibilities of the CBFC. Apart from that, there were scenes dealing with female masturbation, menstruation, etc., which the CBFC found objectionable. Therefore, certificate was altogether refused to the film.

However, the Hon’ble High Court of Kerala came to the rescue of the film maker. The Court set aside the refusal order of CBFC terming it as arbitrary, unreasonable, and vague. The Court held that the Board ought to have made an effort to certify the film in the appropriate classification by giving an opportunity to the film-maker to modify or delete the scenes which are found to be objectionable. The learned Single Judge who allowed the petition filed by the film-maker observed that mere reference to homosexuality or sexual acts would not make a film obscene. The Board filed appeal before the Division Bench. However, the Division Bench upheld the judgment of the single judge.

The judgment of the Division Bench carefully avoided any discussion regarding the merits of the issue and confined itself to the examination of the decision making process. Since the film was straightaway refused certificate, without exploring other possibilities, the Court found that the procedure was not fair and hence directed the Board to take a fresh decision within a time frame by complying with all procedural fairness and also by giving an opportunity of being heard to the film-maker. The judgment cannot be termed as not legally sound as it is well within the parameters of judicial restraint, which more often seeks to confine itself to the examination of decision making process instead of the decision itself. By conceding its own lack of subject expertise and by reposing trust in the specialized institution, the Court cedes ground for ultimate decision to the institution itself, limiting judicial review to ascertaining whether proper procedure has been followed in decision making process. This is a well settled judicial principle and the judgment is strictly adhering to this judicial principle.

Nevertheless, being legally sound and being just are totally different.The judgment disappoints a votary of free speech and creative liberties. Given the rising intolerance in the society towards artists and thinkers who express contrarian views and also given the recent trend of CBFC taking umbrage at any sort of counter-majoritarian themes, the Court ought to have ventured into a larger debate to examine the rationality of the objections raised by the Board. Instead, the ball was thrown back to the Board with a direction to take a decision regarding the “modification or excisions to be made to the scenes of the film, including its dialogues, so as to bring it in conformity with the statutory guidelines and provide him an opportunity to carry out such modification”.

These observations seem to suggest that the film deserves to be modified to make it worthy of exhibition and approve the stand taken by the Board except for the manner in which the order was passed. In an earlier part it is observed that “we are not proposing any latitude or leniency to the respondent(film-maker) with respect to the application of the statutory guidelines in examination of the film but we are only indicating that the true nature of censorship should not be to ban and render it still-born but to allow it parturition by extirpatory process of removal of the objectionable content, if possible”.Implicit in these observations is the assumption that the contents of the film are objectionable. It appears that the judgment is tacitly approving the Board, though seemingly siding with the film-maker. Although the Court expressed its concern regarding the money and time invested by the film-maker and emphasised the need for an expeditious decision in the matter, lest the film lose its contemporary value, the Board was given three months time to take a final decision, which certainly is on the higher side especially in the light of the fact that the film was submitted for certification in April, 2016. One can only say that the film-maker won the war but lost the battle.

According to the judgment, law exists to ensure that the medium of film provides a “clear” and “healthy” entertainment, and “satisfactory” aesthetic value with “themes being responsible to social change”. These observations can be viewed as Freudian slips, which disclose a moralistic view on art. Art should exist for art’s sake. It need not be clear, clean, healthy, entertaining or even meaningful. Art cannot be burdened with the task of social reform and change. They are mere self expressions which express awe, despair, joy, dismay, sorrow,etc. about society, nature, and life in general. They often challenge and question social norms and community standards rather than conforming to them. Certainly, the Bench did not believe in such supreme artistic functions.

Contrast this with the approach of the Bombay High Court in the “Udta Punjab” case. There, the Court actually examined the merit of the objections raised by the Board instead of restricting itself to only examining whether the Board has complied with the procedure. The Court stated emphatically that the function of the Board is to certify films and not to censor it. The Court rubbished the objections of the Board as unreasonable and stated that “no one dictates to the maker how to make his film and what should be the context… it is entirely for them to choose the setting, the underlying theme, and story line”.The Bombay High Court directed the Board to give certificate within two days as opposed to the three months time given by the Kerala High Court.

In the instant case, the Kerala High Court shied away from such proactive approach and chose a narrow approach. Also, the observations in the judgment are questionable. By implying that the objectionable scenes will have to be cut to render the film viewable, the judgment has done a disservice to the free-spiritedness of art.

 Published in Kochi Post on 30.12.2016 as http://www.kochipost.com/2016/12/30/opinion-kerala-hc-ka-bodyscapes-case-promoting-censorship-rather-artistic-freedom/

EXEMPTION FROM QUARRYING PERMIT FOR BUILDING CONSTRUCTION ULTRA VIRES- RULE 14(2) OF KERALA MINOR MINERAL CONCESSION RULES ULTRA VIRES – KERALA HC

In a significant judgment, the High Court of Kerala has struck down Rule 14(2) of Kerala Minor Mineral Concession Rules 2015, which exempted the activity of extraction of ordinary earth in connection with construction of buildings on the strength of prior valid building permits issued by Local Self Government Institutions from the requirement of obtaining mining permit.

The Court noted that this provision was being rampantly misused. On the basis of the report filed by the Tahsildar in the instant case, and also on the basis of several other instances of misuse which had come to the attention of the Court, the learned Single Judge Justice Vinod Chandran noted that “Time and again it was brought to the notice of this Court that there is widespread illegal mining on the strength of building permits and no construction being effected. There are also no safeguards to ensure that a building is constructed, when earth is removed, on the strength of an exemption based on the building permit.”

In the instant case, the grievance of the writ-petitioner was regarding the unauthorised and large-scale excavation of ordinary earth being carried out by the party-respondents from the adjacent plot, on the strength of building permits. It was contended that under the guise of building construction, commercial scale excavation of ordinary earth was being carried out, without any bona fide construction activity.

For transportation of ordinary earth so excavated out of the property, transit passes are to be obtained in Form (OA) under the Rules from Geologists. Several writ petitions were being filed before the High Court seeking issuance of Form(OA) for transportation of ordinary earth excavated on the strength of exemption. The Tahsildar reported that in the particular Taluk 100 permits for excavation of ordinary earth permitting excavation of 500 metric tons were issued by the Geological Department, thus resulting in excavation and sale of more than 50000 metric tons of ordinary earth;which meant excavation of almost 5000 to 10000 lorry loads of ordinary earth. The Court described the figures as ‘mind-boggling’. This was found to be a short-cut method to circumvent the need for obtaining quarrying permit, and also to avoid payment of royalty.  According to the Court, there was credence to the allegation that there is a mafia operating in the State carrying out illegal excavation under the guise of extraction for the purpose of building residential houses

In the light of facts revealing rampant misuse of the exemption, the Court examined the vires of the exemption. It was held that the State Government lacked the power to provide such exemption in the form of Rule 14(2). The Mines and Minerals(Development and Regulation) Act[MMDR Act] is a Central Act. Rules are framed by State Government as empowered by Section 15 of MMDR Act. The legislative power of State to regulate mining activity is subject to that of Union, as per the entries in Schedule VII of the Constitution. As per Section 4 of MMDR Act, permit/lease/license is a mandatory requirement for carrying out mining activity. Excavation of ordinary earth for commercial gains, amounts to a mining activity, which requires permit under Section 4. Therefore, State made Rules cannot grant exemption from such requirement under the Central Act. Hence, Rule 14(2) was struck down as ultra vires the MMDR Act. It was held that :-

The State in its  anxiety to ensure payment of royalty had overlooked the object sought to be achieved by the Union Parliament in providing for regulatory measures for mining operations, which earlier resulted in indiscriminate removal of mineral resources. The State exceeded its power in providing for exemption and issuance of transit passes under the KMMC Rules for excavation carried on without a permit. It is hence declared that Sub-rule (2) of Rule 14 and sub-rules (1), (2), (3) and (4) of Rule 106 of the KMMC Rules are ultra vires the MMDR Act.

The Court also examined the need for getting ‘Environmental Clearance’(EC) for such activity. Adverting to notification dated 15.01.2016 of MoEF, digging of foundation of buildings were exempted from need for EC. However, if there was commercial exploitation of ordinary earth, EC would be necessary. Transit passes in Form OA are sought for commercial exploitation of ordinary earth, and in such cases EC would be necessary.

The Court also held that hills and hillocks cannot be razed down for building constructions. It was held that the original intent of Rule 14(2) was to exempt excavation of ordinary earth for digging building foundation, and that the exemption cannot be used for leveling of land.

The findings and directions can be summarized as

·         There cannot be excavation of ordinary earth on the strength of building permits issued by LSGI

·         No transportation passes in Form OA can be issued to transport ordinary earth excavated without permit/license under the MMDR Act.

·         If no transportation of ordinary earth is required, the Geologist shall ascertain the exact quantity of ordinary earth to be removed for digging of foundation, in consultation with the engineer of LSGI.  Such earth cannot be taken out of property.

·         Undertaking shall be obtained from the person by the Geologist that construction of foundation would be completed within six months, failing which proceedings for recovery of royalty and penalty can be initiated. 

Published in Live Law on 24.12.2016 as <http://www.livelaw.in/exemption-quarrying-permit-building-construction-ultra-vires-kerala-hc-read-judgment/>

Use Of Aadhaar To Get Mobile SIM Connections: Legal Issues Involved

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These days telecom operators are relying on AADHAAR data for customer verification before activating SIM cards.  Reliance JIO, which is creating waves in the telecom field,  is making use of this facility to its fullest potential. Operators like Airtel and Vodafone have also started to make use of AADHAR date. Ever wondered how such private players are able to make use of AADHAR data containing personal and sensitive information? Are there any regulations in place to ensure that nothing untoward happens when sensitive information passes through the hands of private agencies.? This article attempts to analyze the legal framework within which private entities are using AADHAAR data for giving service benefits.

The Parliament passed the AADHAAR(Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act during March 2016.  Section 57 of the Act enables corporates and persons other than Government to use AADHAAR number to establish identity of person for any purpose pursuant to a law or contract. Section 57 reads as follows :

Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect:

 Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.

The proviso makes it clear that the use of AADHAAR number by private entities should be in compliance with Section 8 and Chapter VI of the Act. Section 8 and Chapter VI are based on two fundamental principles which are recognized by the AADHAAR Act :- ‘individual consent’ and ‘confidentiality of information’. The Act recognizes biometric data to be ‘sensitive personal information’, as per Section 30. Chapter VI of the Act, comprising Sections 28 to 33, deal with safeguards for protection and security of confidential information. Section 8 deals with the manner in which the consent of individual should be obtained before using his AADHAAR number for ‘authentication’. Before proceeding further, it is important to understand certain concepts regarding the scheme of the Act.

The biometric and demographic information of persons collected under the Act is stored in a centralized database called ‘Central Identities Data Repository’(CIDR), which is under the control of Unique Identification Authority of India(UIDAI). An entity which wants to use the AADHAAR data to ascertain the identity of a person for giving any service or benefit is called a ‘requesting entity’(Sec.2(u)). This ‘requesting entity’ could be government department(like Income Tax Dept.), PSUs or Banks, Telecom Operators etc, whether in public or private sector, by virtue of  Section 57. The AADHAAR number and biometric data of the intending customer is passed on by the requesting entity to the Central Depository. If the data supplied by the requesting entity is matching with the information in the central data-base, a positive response is returned by the Authority to the requesting entity, verifying correctness of identity. If there is no matching, a negative response is returned. This process is called ‘authentication’(2(c)).

A requesting entity can use AADHAAR number and biometric data of an individual for authentication only with the informed consent of the individual. This is the mandate of Section 8. The individual has to informed be about  the nature of information shared for authentication, and also the uses to which the information so received will be put. The information should be given and consent should be obtained in the manner specified in the regulations.  

AADHAAR(Authentication) Regulations 2016

The informed consent of the individual has to be obtained in the manner specified in the said Rules.  The requesting entity, who is desirous of using AADHAAR data, should register itself with the Authority as per the Regulations as an ‘Authentication User Agency(AUA)’. There are agencies which act as intermediaries between the AUA and the UIDAI by providing infrastructure for connectivity and access, registered under the Regulations as ‘Authentication Service Agency(ASA)’ . The AUA will only get a Yes/No response from the Authority regarding the data supplied. The Authority will not share the demographic or biometric information of the customer with the AUA, except for giving a Yes/No response on the basis of verification search. However, if the AUA is registered as a ‘e-KYC User Agency(KUA)’,  the biometric and demographic information of the customer stored in the Central Depository will be shown to the Agency so that the identity of the customer also could be physically verified by the Agency.

Having analysed the scheme of registration under the Regulations, it is pertinent to refer to Regulation 6, which specifies the manner of obtaining consent. Regulation 6 reads as :

       6. Consent of the Aadhaar number holder.—

(1) After communicating the information in accordance with regulation 5, a requesting entity shall obtain the consent of the Aadhaar number holder for the authentication.

(2) A requesting entity shall obtain the consent referred to in sub-regulation (1) above in physical or preferably in electronic form and maintain logs or records of the consent obtained in the manner and form as may be specified by the Authority for this purpose.(emphasis supplied)

It is clear from the above that mere oral consent of the individual will not fulfil the mandate of the Regulation. The consent has to be recorded, preferably in electronic form. Also, the requesting entity has to maintain logs or records of the consent obtained. Requesting entity has also to ensure that ensure that persons employed by it for performing authentication functions, and for maintaining necessary systems, infrastructure and processes, possess requisite qualifications for undertaking such works(Reg.14(f)). The entity has also to maintain logs and records, and preserve them for two years; the AADHAAR number-holder has the right to access such logs and records(Reg.18). The Act also enables the number-holder to access the authentication records(Sec.32).

Worrying practises of non-compliance by agents of telecom operators

Although the Act and Regulations prescribe mandatory guidelines to be followed while using demographic and biometric information of the individual, the ground realities show that such guidelines are mostly observed in breach by the agents of telecom operators. When telecom operators like Relaince Jio offer a honey-pot of free internet packages, it is natural that customer swarm to mobile shops for activating new sim-cards. When they are required to provide their biometric data for getting new connection, they will not be reluctant to do so. From the personal experience of this author, it was observed that Reliance Jio is a ‘e-KYC User Agency(KUA)’. The customer has to furnish his AADHAAR number and biometric data in the form of finger-prints. Upon pressing the finger in the device of the telecom agent, the Authorirty sends back the AADHAAR information of the customer, including photograph, and other demographic details to the agent after verification. However, this process is done in total contravention of the Regulation, particularly Regulation 6(2). Firstly, the agents in mobile shops who operate the device for taking bio-metric information are not at all aware about the legal requirements of the process. The customer is not made aware of the ramifications of supplying biometric data. Also, the requirement under Regulation 6(2) is to obtain consent in written form, preferably in electronic form. There is also a requirement to maintain logs and records of consent obtained. There is a further requirement to maintain records of authentication process as well. Sadly, none of these requirements are followed in the mobile shops; at least in the mobile shops across city of Kochi, the process is done in contravention of Regulations, and in all probability the same is likely to be the situation in other parts of the country as well. The process is done by the agents in mobile shops with total ignorance of the Regulations. Since the customers are also unaware, and also eager to get a new sim at the earliest, they too part away with their sensitive information without insisting on compliance with the Regulations.   

The Act and Regulation confer a right on the AADHAAR number-holder to access the logs and records of consent and authentication in future. However, since the records and logs of consent and authentication are not at all maintained as prescribed by the Regulations, the said statutory right gets irredeemably frustrated.  In short, there is no mechanism to ensure that the process in carried out in a transparent manner, in compliance of all security and protection requirements.

This is not to suggest that the AADHAAR data is being misused by the telecom operators or their agents. However, it is evident that there is total ignorance in this process. There is also total disregard of the Regulations in using AADHAAR data for activation of SIM cards. Neither the public nor the mobile operators seem to be aware of the procedure specified by the Regulations. Hence, there is complete anarchy in this field.

Also, the situation has to be analysed in the light of the apprehensions and security concerns expressed by several experts regarding collection and storage of AADHAAR data. The Act is criticized by many on the ground that there is severe infringement of privacy rights. It is also relevant to note that the matter regarding the validity of AADHAAR and right to privacy was referred to the consideration of the Constitutional Bench of the Supreme Court during August 2015.  The Act was passed thereafter during March 2016. The manner in which the Act was passed is also subject to harsh criticism, as it was introduced and passed as a money-bill. Hence, the validity of the manner in which the Act was passed has been challenged before the Supreme Court and the issue is pending.

So, a lot of questions and doubts are surrounding regarding AADHAAR. In this backdrop, the haphazard manner in which the AADHAAR data is used for authentication in giving mobile connections is a matter of serious concern. The authorities must act to spread awareness about the Regulations and to ensure compliance with them. By reposing trust in the State, the citizens have furnished their vital personal information including biometric information, and when the State is acting as a custodian of biometric and demographic information of crores of Indian citizens, it must act with extra care and caution to ensure that the Regulations framed by it are complied with, both in letter and spirit, without any fail; especially so, when such information is passing through the hands of private entities.

Published in 'Live Law' on 05.12.2016 as http://www.livelaw.in/use-aadhaar-get-mobile-sim-connections-legal-issues-involved/