Resuetude?

Section 66A of the Information Technology Act, 2000 is straight out of a Zombie movie. It just refuses to die, though it quite certainly isn't alive. Killed 5 years ago by Chelameshwar and Rohintan Nariman, JJ, in the Shreya Singhal case in the Supreme Court, it appears that FIRs are still being filed under its provisions.

Let's remind ourselves at the outset what those provisions, added in 2008, state:

Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

(The Dormant Lawyer particularly likes the use of "menacing character" in the section. Perhaps some day this blog would qualify as possessing that). Not surprisingly, the Supreme Court found the section "over broad" and vague, or to quote Rohintan Nariman, J:

It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.

The Supreme Court thus struck down S. 66A in its entirety as being violative of Art.19(1)(a). It became a dead letter that day onwards (24 March 2015) and it was no longer an offence to send electronic messages "for the purpose of causing annoyance" (and a collective and viral sigh of relief was heaved by Twitter users). But, as reported, apparently the police refuse to believe it is a dead letter and continue to entertain complaints under it.

The latest such instance was quashed gleefully by the Allahabad High Court, but the mind boggles at this stubbornness and activism of the law enforcement authorities. Obviously, TDL is using euphemisms here; it may not be stubbornness/activism but politicking. Or worse, ignorance. Either way, one wonders how often this sort of situation occurs, where a law has been struck from the statute book but still is "in force" somehow. It reminded TDL of the opposite situation: Desuetude, examples of which would be perhaps what most people hoped S. 377 of the Indian Penal Code would become (barring the bestiality bit), before the Supreme Court stepped in anyway. Or perhaps, in a more expanded definition, what the powers of the British monarch have become. Defunct by non-use, whatever may be the reason for the non-use.

Every lawyer remembers taking a course in "Interpretation of Statutes", traditionally in their final year of law school, and would recall the concept of desuetude being taught therein, when dealing with "Expiry and Repeal of Statutes". Desuetude comes to us from Scottish law (and not common law, though the latter did acknowledge the concept of "non-observance" for a while) and refers to the situation where a law might technically be still in force but is not considered to be so by the courts since it has not been enforced for a significant, continuous period of time and there is actual accepted usage that is contrary to it. 

To quote Lord Mackay in Brown v. Magistrate of Edinburgh (1931):

[D]esuetude requires for its operation a very considerable period, not merely of neglect but of contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law to establish a quasi-repeal.

Wonderfully expounded indeed, especially the quasi-repeal part, which really makes things clear. TDL would also refer you to this very readable scholarly article by Jitendra R. Bhat, J, that appeared in the SCC, which he begins as follows:

The jurisprudential meaning of "desuetude" is that long and continued non-use of law renders it invalid, at least, in the sense that courts will no longer tolerate punishing its violators or transgressors.

Now, desuetude, even on the face of it, appears immediately controversial. It almost goes against that most basic "Ignorantia juris non excusat" principle: if everyone has been ignorant of a law, one is allowed to break it, as it were. But what do we do with the opposite of this situation, where an actual repeal is being ignored? Where a law which does not exist, which has been repealed or rather has been struck down as violating the Constitution, continues to be in force? To twist Lord Mackay's words, does such practice set up a counter law to establish quasi-reinstatement? And what should we call this incredibly inexplicable and unprecedented unprincipled behaviour? Resuetude?

Prime Ministerial Incapacitation: A Constitutional Perspective

Covid-19 has begun infecting the Westminster Constitutional System now, with the British Prime Minister Boris Johnson coming down with it, leaving him incapacitated and confined to St. Thomas' Hospital's ICU on 7th April. Since he had tested positive for the virus back on 26th March, he had considerable time on his hands to set in place his interim succession, with Foreign Secretary Dominic Raab notified as next in line, and Chancellor of the Exchequer Rishi Sunak to follow him. There's no immediate worry about who's in charge, therefore. What has interrupted The Dormant Lawyer's lockdown reverie though is, who would be India's stand-in in the event of a similar occurrence? TDL's concern, as ever, is not about who the person(s) would be, but about what the system in place is.

We have, thanks to the unique Donald Trump, discussed in these pages the interim/temporary succession of the US President, if he's incapacitated due to an illness or is undergoing surgery or has been too Trumpy to tolerate. The equivalent of the 25th Amendment to the US Constitution however does not exist in Westminster Constitutions. Or rather, one should say, does not need to exist. 

Since the Head of the Government in a Parliamentary system is merely the leader of the cabinet - the first among equals - the functioning of the government continues unabated through this highest decision-making executive body, and through the permanent civil service, when the doctors of said primus inter pares get too worried. Since collective decision-making by the cabinet is how policy is formulated anyway, there is no requirement to formally recognise a primus inter residual pares, for the short duration of the PM's temporary absence. Consequently, there never arose an occasion to nominate a stand-in to the Prime Minister of India. That is, until we became a declared nuclear power.

Assuring the global community that the nuclear arsenal is in the hands of not the military but the civilian establishment achieved paramount importance after Pokhran-II. It should be remembered that the lack of "peace of mind" regarding the nuclear arsenal of North Korea, or the alleged WMDs possessed by Iraq, was due to the fact that those nations are not functioning democracies, and any decision to employ the nuclear weapons would not be considered the will of the people of those countries. The citizenry, in fact, would be completely bypassed in any such cataclysmic decision. As a self-proclaimed responsible nuclear state, India needed to demonstrate that she could be seen as a responsible nuclear power.

Accordingly, in January 2003, India published the structure of her nuclear command-and-control ("C2") setup, announcing that it will be comprised of the Strategic Forces Command (responsible for managing the nuclear weapons stockpile, headed by an Air Marshall or equivalent) and the Nuclear Command Authority. The SFC is the military wing of the command structure, and is not the concern of our constitutional discussions, so we'll stick with the NCA; it is composed of two arms: the Political Council (headed by the Prime Minister) and the Executive Council (headed by the National Security Advisor). The Political Council in turn (probably) consists of the Cabinet Committee on Security (viz. the PM, the Home Minister, the Defence Minister, the External Affairs Minister and the Finance Minister), while the Executive Council is made up of several top bureaucrats alongside the NSA. In the event of a proposed nuclear strike (retaliatory, assuming continuance of our No First-Use doctrine), the Executive Council would provide inputs to the Political Council for decision-making. The Political Council is the sole body that can authorise the use of India's nuclear weapons, and its ultimate executive decision would be made by its chair: the Prime Minister. Said decision will then be operationalised by the SFC in association with the Executive Council. The purpose of this sophisticated structure is to reassure the world that India's nuclear command is headed by a civilian, democratically accountable authority, and precludes the possibility of unauthorised/accidental use of nuclear weapons.

As is clear, the Prime Minister is not merely a primus inter pares in this setup, but is instead the sine qua non. Recognising this several years before the formalisation of the NCA, a key part of the PMO had been moved to Mumbai when Prime Minister Vajpayee underwent a knee-replacement surgery at the city's Breach Candy Hospital in October 2000. However, as far as is publicly known, this first "opportunity" for setting a precedent in these matters was not utilised to the fullest: Prime Minister Vajpayee did not officially designate one of his cabinet colleagues to take his place at the helm of the country's nuclear retaliatory apparatus, though Deputy Prime Minister Advani would have probably done the job if called upon. (It should be noted here that the post of "Deputy" PM is not a constitutional creation, and does not by default assume the responsibilities of the PM). 

The next occasion for setting a precedent of appointing a stand-in chair of the Political Council of the Nuclear Command Authority came 6 years after the formal creation of the NCA, when Prime Minister Manmohan Singh went under the knife for a coronary bypass in January 2009. On that occasion too, the interim chair was not disclosed. Now, TDL should make it clear that this does not mean that a line of succession was not defined, all we know for sure is that it wasn't disclosed. The narration of the two occasions in these last two paragraphs should not be seen as a criticism of those two Prime Ministers, especially, since it came post-NCA, of the second one (unlike this opinion from the archives). It must be discerned that disclosing the line of succession would endanger the very working of our nuclear deterrent: a motivated enemy would know which successor to incapacitate, along with the PM, in order to leave the NCA headless. This would cause untold anxiety in the rest of the world regarding the transparency of our C2, apart from the utter breakdown of our deterrent, and that anxiety would invite the intervention by other world powers in India's nuclear command and control structure.

However, us paranoid system-worshippers need some hint as to the second-in-command, in case our Prime Minister has to contemplate some downtime for medical reasons. And TDL submits that the secundus inter pares, as it were, would be the first minister to be sworn in after the Prime Minister when the government was formed after the last elections. That would make the successor not Home Minister Amit Shah, as many would assume, but Defence Minister Rajnath Singh. In fact,  come to think of it, there doesn't seem to be much else to discern from the order in which the Cabinet Ministers were sworn in. That oath-taking sequence points to the order of succession. TDL can now go back to lockdown mode peacefully!