ASSIGNMENT – 2

Name – ABINASH DAS

Institution – P. G. Department of Law, Utkal

University

(Q.1) In order to inculcate the feeling of pride among

youngsters about made in India products introduce a new
brand of India made laptop to the Students of your college?

“In the technocratic world where everything is niching itself in the cyber arena, it becomes
imperative for the youngsters to be vigilant about the benefits without transgressing upon
national security”

India with its massive tech savvy population is often referred to as a “golden bird” especially
for any tech start up both in terms of popularity as well as growth. This can be fathomed by
AppAnnie’s recent report which shows India as the largest growing market worldwide for
app downloads.1

The ‘BHARAT TECH – LAPTOP’ coincides with the ‘Digital India Atmanirbhar Bharat
Innovate Challenge’ which aims to evangelize India into a techno-friendly nation by
incentivizing Indian application developers and innovators to come up with their own apps
and facilitate the growth of the Indian technology market. The newly developed laptop,
which is a part of ‘Made in India Campaign’ would instil a new ray of hope in the life of
many Indian youths. These Indian youths include people from marginalized groups such as
Trans, lower caste, independent artists from rural areas who could get an unlimited access to
internet and upskill their talent and creativity by purchasing the ‘Bharat Tech Laptop’, which
comes at a very low price as compared to other foreign brands. Furthermore, it gives a
platform to the Indian youths to create content without imposing any socio-economic
barriers. Interestingly, from an economic perspective it will surely be a big setback for many
Chinese internet giants and foreign technology gadgets with ambitions of global expansion.
This is because they act as a potential threat to our national security and individual privacy.

1
SindhuHariharan, With 19 billion in 2019, India No.2 in app downloads, January 20, 2020.
 1. Bharat Tech - A boost to Indian Data Protection Regime

“The students’ personal data would be protected without any third party interference”

The epiphany that “data is the new oil” hassled to the emergence of data protection laws
across the world, creating a variety of legal and commercial challenges for global
organizations. One such challenge relates to data localization restricting the cross-border
transfer of data. India is also a part of this tectonic change in data protection regime with the
introduction of the draft Personal Data Protection Bill, 2018 and various sector-specific
reforms in that direction. The newly developed laptop by Bharat Tech is a part of the ‘Make
in India’ initiative in order to encourage manufacturing in India and to galvanize the economy
with dedicated investments in manufacturing and services.

2. Escape from Underdevelopment: To upskill and upgrade your talent and

creativity

It is a clarion call to the young talents of India to be a part of this digitalised innovation
campaign, in order to enhance their skill development and to further the cause of Digitalised
India. The benefits of getting the “Bharat Tech Laptop” are mentioned in three folds:

a. The Government has established a separate Ministry of Skill Development and

Entrepreneurship. An exercise is being undertaken on setting up common norms for
skill training across central ministries/ departments.
b. Efforts are underway to create a common standard for skills training and certification
in the country efforts by aligning the National Council for Vocational Training
(NCVT), school boards, and the University Grants Commission (UGC).
c. The skilling of rural youth has also been refocused and reprioritized towards capacity
building of poor rural youth. New programmes have also been initiated for bringing
minorities into mainstream development.
d. Free access to online data would be provided by the Bharat Tech for a period of one
year so that it does not act as a hindrance to the right to education, guaranteed under
Article 21A of the Constitution of India.
(Q.2) What according to Vicci C. Jackson are the four goals of
comparative study? Explain with suitable examples.

1. Developing Better Understanding of Other Systems

The first goal is simply to develop a better intellectual understanding of one or more other
systems. For this purpose, the challenges include time, the need to develop expertise,
language barriers, and the need to understand the broader context-both legal and socialin
order to develop that expertise.

Example - For judges, there is a risk of losing their credibility or principle of reasoning,
which is commonly called a "situation sense" about their own constitutional system if they
spend a lot of time developing expertise on others.

2. Developing Better Understanding of One's Own System

A second kind of goal for comparative constitutional study is to enhance one's capacity for
self-reflection on one's system, in order to develop a better understanding of it. In this regard,
we have all of the challenges I set out initially, plus the following. Many of us will have
experienced that delightful moment of saying, "something I thought was really necessary in a
constitutional systems is not. Look at how well country 'X' functions with a very different
approach." This illustrates a lifting of the sense of false necessity. But it turns out that
deciding what are true and what are false necessities is quite a challenge. For example, the
United States has what is called the "case or controversy" doctrine, which limits, inter alia,
who can bring cases to federal courts and what can be decided.2

Example- Legislators who vote against a law because they think it is unconstitutional do not
as such have standing to bring a case before a court. However, other constitutional systems in
other democracies have abstract review of laws; they may let objecting legislators challenge
the constitutionality of statutes. In the United States, the federal courts are very powerful and
very independent. The judges are appointed (essentially) for life. Maybe in the United States,
something like the case or controversy limitation is necessary to limit the occasions when
these very powerful and politically unaccountable judges can intervene in the process.

2
Allen v. Wright, 468 U.S. 737, 750-52 (1984) (discussing the "case or
controversy" requirements of U.S. CONST. art. III.
 3. Identifying "Best Practices"

A third purpose of comparative constitutional study goes beyond simple self-reflection to

understand your own system, and aims at reflection to develop a better understanding of what
are the normatively preferable best practices-what Professor Donald Kommers might refer to
as general political truths about well-designed constitutions. Now, there are at least three
additional challenges in pursuing this goal.

a. First, implicit in this inquiry is the idea that one can agree on or develop a notion of
the normative good, or of just results.
b. Second, not only does this inquiry require a normative baseline of the good or just, it
also depends on implicit notions of causality, that is, of the relationship between law
and/or legal structures and good and/or just results in society.
c. The third challenge in research to identify best practices, which is a more technical
and methodological one, of how to select cases for purposes of doing causal analysis
of comparative constitutional law.

Example - Comparative constitutional study can help us figure out what to avoid in
constitutional design, but may be less useful in establishing strong causal connections
with very positive results because the processes of causality (and the relationships
between law and society) are so complex and interdependent. Contemporary foreign
experience may be inconclusive as to the wisdom of lodging emergency powers
somewhere in a modem government," but it suggests that emergency powers are
consistent with free government only when their control is lodged elsewhere than in the
Executive who exercises them"). Whether inferences as to negative effects really can be
more easily drawn than inferences about positive effects is complex, as issues of causality
arguably may arise in both settings.

4. Responding to Doctrinal or Textual Questions

A fourth kind of goal is that sometimes we study comparative constitutional law because
domestic constitutional doctrine or constitutional text asks a question that is comparative
in nature.

Example - In Europe, the case law of the European Court of Justice resorts to the
common constitutional traditions of the Member States to help protect fundamental
 rights.3 In Canada, the idea is that if a law or a practice is found to intrude on protective
rights, nevertheless the law may still be constitutional if (using the Canadian language) it
can be "demonstrably justified in a free and democratic society”.

(Q.3) What according to your understanding should be areas

for comparison in Constitutional law? Give suitable examples
and cite relevant judicial decisions, if any?

The ambit of progressive areas of comparison in Constitutional law can be briefly analysed in
the following ways:

1. Constitutional liberties, freedoms and progressive realisation of rights in the context

of gay rights
2. Challenges to secularism in a pluralistic society
3. Welfare State and changing contours of citizenship
4. Vulnerable sections of Society, viz. women, children, refugees, minorities, elderly,
daily wage labourers.
5. Detention of migrants and refugees – ‘Extra-ordinary times of the prevalent
pandemic for Tablighi Jamaat foreign Nationals’
6. Right to reservation – Should it really be at states discretion
7. Untouchability – The Inadequacy of purity
8. Fundamental right to protest
9. Right to Privacy – ‘An indefeasible right in a Constitutional democracy’.

“Access to justice in an egalitarian democracy must be understood to mean

qualitative access to justice, which is imperative of an individual’s access to courts
or guaranteeing representation as enshrined under Article 21 of the Constitution.
Denial of this right undermines public confidence in the justice delivery system and
poses a threat to the rule of law.”

3
Michel Rosenfeld, Comparing Constitutional Review by the European Court
of Justice and the US. Supreme Court, 4 INT'L J. CONST.
 I. Reimagining the Role of the Data Protection Authority - The Kenyan High
Court’s Judgment on the National Biometric ID System

The High Court of Kenya delivered a landmark judgment on the constitutional validity of
Kenya’s biometric identification system (the National Integrated Identity Management
System (NIIMS)/Huduma Namba). In short, the High Court held that (a) the consensual
collection of Kenyans’ biometric details for the purpose of identification and verification was
constitutionally valid; (b) however, the collection of DNA and GPS details was
unconstitutional; and (c) NIIMS itself would have to be halted until the Kenyan government
implemented data protection legislation, as well as framed regulations in order to safeguard
the data collected. The collection of biometric data for the purposes of identification was
valid, but that its storage or use without an implemented data protection legislation was
unconstitutional. The government, thus, was found in breach of its constitutional obligations
In a similar footing, in the landmark judgment of Justice K.S.Puttaswamy (Retd) v. Union of
India (2017), the Supreme Court instructed the Justice Srikrishna Committee to formulate a
comprehensive legislation for personal data protection. A law was deemed necessary in the
context of the surveillance and privacy threats to individuals, primarily from the executive
action. The main purpose of the law would be to incorporate data protection principles and
also ensure accountability of government use of data. The efforts on instructions of the
Supreme Court eventually culminated in The Personal Data Protection Bill, 2019 (“PDP
Bill”) which sets out data protection principles for collection and processing of personal data,
both by government and private parties. It envisages a Data Protection Authority (“DPA”)
having wide powers to carry out policy setting, monitoring enforcement, investigation,
research, awareness and grievance redressal functions. The powers and the structure of the
DPA in the PDP Bill are largely inspired from other sectoral regulatory bodies – such as
SEBI or TRAI, which carry out core economic functions of the executive and are under its
direct supervision and control. It is the author’s argument that the proposed DPA in its
current form greatly deviates from its originally envisaged primary function i.e. to ensure
accountability of the executive (both Central Government and State Governments and its
various arms) – while it collects and processes personal data of its citizens. Given the intent
and context of the PDP Bill, setting up the DPA as a sectoral economic regulator under the
control of the Central Government, amounts to defeating its mandate. To ensure that the Bill
effectively meets its purpose, the DPA should be reimagined as a ‘Fourth Branch’ Institution
or a ‘Democracy Branch’ Institution.
Further, the right to privacy has already been recognized as a civil political right which
requires heightened protection from the executive abuse, for they are inextricably linked to a
free exercise of other democratic rights such as a right to vote or the right to freedom of
movement and association. Thus, protection of right to privacy as a fundamental right is not
merely an end in itself but also instrumental in protecting the minimum democratic core of
our Constitution. It is for safeguarding this fundamental right of privacy that the Supreme
Court instructed the Committee chaired by Justice B N Srikrishna to draft an appropriate
legislation, knowing fully well that an unchecked collection and use of personal data can lead
to executive aggrandizement and adversely affect democracy.

II. The Dutch Court on Privacy, Surveillance, and Welfare Fraud

In an interesting judgment delivered by the Hague District Court, the Dutch government’s
Risk Indication System [“SyRI”] was found to violate the European Convention on Human
Rights. SyRI was an algorithmic system designed to “prevent and combat fraud in the field of
social security and income-related schemes, tax and social insurance contributions and labor
laws.” It involved using data held by various government departments, and linking it in order
to generate a “risk report.” The data then collected would be processed against certain “risk
indicators”, and according to a “risk model”, in order to produce the “risk report”. And the
“risk report”, in turn, would flag a person as potentially involved in possible fraud (in relation
to access to welfare benefits, tax payment etc.), and a possible subject of further
investigation. That data that could be processed included information about work, taxes,
property ownership, trade, demographic details, and multiple other categories.

III. Constitution is not bound by any religious practices – Moving beyond the
ERP(Essential Religious Practice) Test

The Supreme Court of India held that the Constitution of India prohibits exclusion of any
community or section of people from places of worship and those constitutional values would
prevail over religious practices. The judgement brought back into light a very disputed and
controversial part of jurisprudence- ‘The essential religious practice test’. The doctrine has
developed in three judgments of the Supreme Court. The Doctrine was originally conceived
in the ‘The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar
Thirtha Swamiyar of Shri Shirur Mutt’ or popularly known as The Shirur Matt case. In Sri
Venkataramana Devaru v. State of Mysore, the Court laid down a crucial precedent which
marked a shift in judicial approach wherein the Court’s role became determinative in
determining whether a practice qualified as essential. The judgement demonstrates that
exclusion of women does restrict freedom and dignity and is thus, legally invalid. It was
widely contested whether the court had the mandate to interpret religious practices, the judges
held that irrespective of a religious practice being essential or not, the constitutional values
will and should prevail over essential and certain aspects of religion.

A Transformative Constitution

It is a well-known fact that the Indian Constitution was introduced to bring in a radical
transformation of the society and country. This transformation included placing four
principles at the very foundation of the new social order - Justice; Liberty of thought,
expression, belief, faith and worship; Equality of Status and opportunity; and Fraternity. The
purpose of these principles is to ensure the dignity of the individual, which the Constitution
enshrines as the “focal point of a just society”1. These four principles must work together for
the “pursuit of happiness” of the individual, in order to fulfil the purpose of a social
transformation. In order to find solutions to problems or conflicts between two rights, the aim
of constitutional transformation must be kept in mind. The present case and judgment serve
exactly this purpose.

Women and Untouchability

The most radical and transformative aspect of Justice Chandrachud’s judgement is however
his take on untouchability. Article 17 of the Constitution abolishes untouchability in all its
forms, and on this basis the Hon’ble Justice has expanded the definition of untouchability by
including the exclusion of women from the Sabarimala temple as one of these “forms”. He
has gone to great lengths to discuss how the makers of the Constitution did not attempt to
define untouchability to ensure that the scope and ambit of the same was not restricted.
According to this view, the exclusion of women of a certain age group is a form of graded
inequality similar to the caste based discrimination. Caste based discrimination was based on
notions of purity and pollution wherein the higher classes were seen as of purity and pollution
wherein the higher classes were seen as pure and the lower were considered to be impure. As
a result, contact or interaction of any sort with the lower classes was seen as polluting the
purity of the higher classes. The exclusion of women has been contended on the ground of a
biological process menstruation. Since time immemorial, the stigma and stereotypes around
menstruation has seen a woman as impure and restricted her social and religious activity.
Justice Chandrachud states that the Constitution cannot and must not allow such prejudice
and discrimination. The equality of status of all individuals and their equal citizenship must
be ensured.