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“CYBERBULLYING AND ONLINE HARASSMENT IN INDIA: LEGAL FRAMEWORK AND JUDICIAL RESPONSE”

DIVYA THAKUR /  Research Scholar/ Department of Laws, Himachal Pradesh University, Summerhill, Shimla, Himachal Pradesh (171005)

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JOINT JURIST JOURNAL

ABSTRACT

The rapid growth of digital communication platforms in India has led to a significant rise in cyberbullying and online harassment, particularly against women, children, and marginalized communities. Despite the presence of legal provisions under the Information Technology Act, 2000, the Indian Penal Code, 1860, and related legislations, the existing legal framework remains fragmented and inadequate to effectively address the evolving nature of online abuse. This article critically examines the statutory framework governing cyberbullying and online harassment in India and analyses important judicial decisions that have shaped legal responses in this area. It further explores the practical challenges affecting enforcement, including anonymity of offenders, underreporting of offences, lack of digital expertise, and jurisdictional complexities. The article also evaluates recent developments such as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and the Digital Personal Data Protection Act, 2023. It argues for the urgent need for a comprehensive and dedicated anti-cyberbullying legislation that clearly defines offences, strengthens intermediary accountability, and ensures effective victim-centric remedies. The article concludes with recommendations aimed at improving legislative clarity, enforcement mechanisms, and digital safety in India.

Keywords: Cyberbullying, Online Harassment, Information Technology Act 2000, Indian Penal Code, Intermediary Liability, Digital Personal Data Protection Act 2023, Judicial Response.

I. INTRODUCTION

India’s digital revolution has fundamentally transformed the social, economic, and communicative landscape of the country. Over the last two decades, rapid internet penetration, affordable smartphones, and the widespread use of social media platforms have significantly increased online interaction among individuals across all age groups. As of 2023, India emerged as one of the largest digital populations in the world, with more than 900 million internet users actively participating in online spaces[1] While this digital expansion has created immense opportunities for communication, education, commerce, and freedom of expression, it has simultaneously given rise to serious challenges in the form of cybercrime and online abuse. Among these challenges, Cyberbullying and online harassment have emerged as pressing concerns requiring urgent legal and institutional attention. Cyberbullying refers to the use of digital technologies and electronic communication to intimidate, threaten, harass, humiliate, or target an individual repeatedly.[2]

Online harassment includes a broader range of abusive conduct carried out through digital platforms, including cyberstalking, trolling, impersonation, dissemination of private information, body shaming, sexual harassment, hate speech, and defamatory content. Unlike traditional forms of bullying, cyberbullying is not restricted by physical boundaries and often occurs continuously through social media platforms, messaging applications, gaming forums, and other online spaces. The permanence and viral nature of digital content further aggravate the harm suffered by victims, causing emotional trauma, psychological distress, reputational damage, and social isolation.

The issue has become particularly alarming in the Indian context due to increasing internet accessibility among young people and the growing dependence on digital communication in everyday life. Women, children, adolescents, journalists, activists, and members of marginalized communities are especially vulnerable to online abuse and targeted harassment.[3]

The problem is not merely technological but deeply structural. The anonymity that the internet affords to perpetrators, the trans boundary nature of online conduct, the inadequacy of investigative infrastructure, and the social stigma that discourages victims ,especially women and children from reporting incidents collectively render cyberbullying one of the most underreported and under-prosecuted offences in the country. According to the National Crime Records Bureau, cybercrime complaints in India rose from approximately 44,546 in 2019 to over 96,000 in 2022, with a substantial proportion relating to online harassment and cyberbullying.[4] The rise in online interaction following the COVID 19 pandemic further accelerated the exposure of individuals to cyberbullying and online victimisation.

The legal framework governing cyberbullying and online harassment in India is fragmented and largely indirect in nature. The Information Technology Act, 2000 serves as the primary legislation dealing with cyber offences in India. However, the statute was originally enacted to facilitate electronic governance and electronic commerce rather than to address victim centric concerns such as online harassment and digital abuse. Although the 2008 amendment introduced provisions dealing with certain cyber offences, the legislation still lacks a comprehensive definition or dedicated framework specifically addressing cyberbullying.

In addition to the Information Technology Act, several provisions of the Indian Penal Code, 1860 have been applied to online misconduct through judicial interpretation. Provisions relating to criminal intimidation, defamation, obscenity, stalking, harassment, and insult to modesty have frequently been invoked in cases involving cyberbullying and online abuse. Nevertheless, these provisions were designed primarily for conventional offences occurring in physical spaces and therefore often fail to adequately address the complexities of digital misconduct.

The judiciary has played a crucial role in shaping the legal discourse concerning online speech and cyber harassment in India. Courts have consistently attempted to balance the constitutional guarantee of freedom of speech and expression with the need to protect individuals from online abuse and violations of dignity and privacy. Important judicial pronouncements, including Shreya Singhal v. Union of India,[5] have significantly influenced the contours of cyber law jurisprudence in India. Judicial decisions have also highlighted the limitations of the existing statutory framework and the need for stronger safeguards against online harassment.

Despite legislative and judicial efforts, several structural gaps continue to weaken India’s response to cyberbullying and online harassment. The absence of specialised legislation, lack of uniform standards for intermediary accountability, procedural inefficiencies, and inadequate victim support mechanisms remain major concerns. The rapidly evolving nature of digital technology further demands continuous legal adaptation to ensure effective protection of individuals in cyberspace.

Against this background, the present article critically examines the legal framework governing cyberbullying and online harassment in India and analyses the role of the judiciary in addressing these challenges. Part II of the article discusses the conceptual understanding and various forms of cyberbullying and online harassment. Part III examines the statutory framework under the Information Technology Act and the Indian Penal Code. Part IV analyses important judicial pronouncements shaping the legal landscape in this area. Part V identifies the major shortcomings within the current framework and proposes recommendations aimed at developing a more comprehensive and victim oriented legal response to cyberbullying in India.

II. CONCEPTUAL CONTOURS OF CYBERBULLYING

Cyberbullying, while frequently used interchangeably with online harassment, carries specific connotations. It typically involves a power imbalance between the perpetrator and the victim, repetitive conduct, and the use of digital or electronic means. Indian law does not provide a statutory definition of cyberbullying, which itself constitutes a foundational lacuna. In its absence, courts and law enforcement agencies have applied existing IPC and IT Act provisions on a case-by-case basis.

The principal forms of cyberbullying manifest in India include: (i) cyberstalking—persistent monitoring, messaging, or tracking of a victim using digital platforms; (ii) online defamation—posting false or malicious content on social media to damage the victim’s reputation; (iii) morphing—digitally altering the victim’s images, typically with sexual intent, and circulating them online; (iv) doxing—publicly revealing private information about a person without consent; (v) trolling—sending abusive, threatening, or derogatory messages; and (vi) impersonation—creating fake profiles of victims to tarnish their image or conduct fraudulent activities.[6]

A 2022 report of the National Commission for Women recorded a 36 per cent increase in online harassment complaints filed by women between 2020 and 2022, with the most frequently reported offences being morphing, cyberstalking, and non-consensual sharing of intimate images.[7]

III. THE STATUTORY FRAMEWORK

A. The Information Technology Act, 2000

The IT Act, as amended by the Information Technology (Amendment) Act, 2008, constitutes the primary legislative instrument addressing cyber offences. Section 66C penalises identity theft, section 66E addresses violation of privacy through the publication of private images, section 67 prohibits publication of obscene material in electronic form, and section 67A specifically penalises material containing sexually explicit acts.[8]

Section 66A of the IT Act, which had been routinely invoked to prosecute online speech deemed “offensive” or “menacing,” was struck down by the Supreme Court of India in Shreya Singhal v. Union of India as unconstitutional, being an unreasonable restriction on freedom of speech and expression under Article 19(1)(a) of the Constitution. The Court found the provision vague, overbroad, and susceptible to misuse against legitimate political expression. The absence of Section 66A has created a legislative vacuum particularly with respect to online harassment that falls short of criminal intimidation under the IPC.[9]

The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose due diligence obligations on intermediaries and social media platforms. Rule 3(1)(b) requires platforms to inform users against uploading harassing or privacy-invasive content, while Rule 4(2) mandates significant social media intermediaries to enable identification of the first originator of information in specific circumstances. However, the Rules have faced criticism for their potential chilling effect on free expression and remain a contested legal instrument.[10][11]

B. The Indian Penal Code, 1860

Several provisions of the IPC have been extended to online conduct by courts. Section 354D, inserted by the Criminal Law (Amendment) Act, 2013, criminalises stalking—including electronic surveillance—and is directly applicable to cyberstalking. Section 354A addresses sexual harassment, section 499 covers defamation, section 503 penalises criminal intimidation, and sections 506–507 address threats made in anonymous or pseudonymous communications.[12][13]

The applicability of these provisions to cyber offences has been judicially affirmed in several decisions. In Rajiv Dinesh Gadkari v. State of Maharashtra, the Bombay High Court confirmed that section 499 of the IPC extends to defamatory content posted on social media platforms, holding that the medium of communication does not limit the scope of the offence.[14]

C. Special Legislation: POCSO Act, 2012

The Protection of Children from Sexual Offences Act, 2012 (POCSO) addresses online sexual exploitation of children under sections 13 and 14, which criminalise the use of a child for pornographic purposes, including the creation, distribution, or viewing of child sexual abuse material through digital means. The Act has a broad ambit and is increasingly invoked in cases involving online grooming and morphing of images of minors.[15]

IV. JUDICIAL RESPONSE: KEY CASES

The Ritu Kohli Case (2005) is widely regarded as the first cyberstalking case to be registered in India. A Delhi resident, Ritu Kohli, was harassed by her stalker who posted her personal contact details on obscene chat rooms and encouraged strangers to call her at all hours. The accused was booked under section 509 of the IPC for outraging the modesty of a woman and section 67 of the IT Act. The case prompted the Delhi Police to establish a dedicated Cyber Crime Cell and brought national attention to the inadequacy of existing provisions.[16]

In Manish Kathuria v. State (2001), the accused impersonated a woman on an online chat platform, posted her mobile number, and induced others to send her obscene messages. He was arrested under section 509 of the IPC and section 67 of the IT Act. The case was among the first to judicially recognise online impersonation as a form of harassment and established that digital anonymity does not confer legal immunity.[17]

In Balu v. State of Tamil Nadu (2019), a Sessions Court in Chennai convicted the accused for cyberstalking and morphing the photographs of the victim—a college student—and circulating them through messaging applications. The conviction was sustained under sections 354D and 509 of the IPC and section 66E of the IT Act, and the Court imposed a sentence of rigorous imprisonment of two years along with a fine. The case is significant as it represented one of the first judgments in Tamil Nadu imposing a custodial sentence specifically for image morphing.[18]

In a 2021 sessions case before a Mumbai court, the accused was convicted under sections 354A and 499 of the IPC and section 67A of the IT Act for morphing and circulating sexually explicit composite images of the victim—a marketing professional—across social media platforms. The Court took a strict view of the gravity of reputational and psychological harm suffered by the victim and awarded the maximum sentence under section 67A.[19]

In Vikas Garg v. State of Haryana (2017), the Punjab and Haryana High Court, while adjudicating an appeal in a related matter, took suo motu cognisance of the role of social media platforms in the propagation of cyberbullying and called upon the State government to enforce existing legal provisions more rigorously and to conduct awareness campaigns regarding cyber safety.[20]

V. CRITICAL GAPS AND RECOMMENDATIONS

A. Absence of a Comprehensive Definition

The most fundamental gap in Indian law is the absence of a statutory definition of cyberbullying. Without a clear, inclusive definition, enforcement agencies face interpretive difficulties and courts are forced to stretch existing provisions. The Law Commission of India, in its 267th Report on Hate Speech, identified the need for specific legislative provisions to address online harassment and recommended amendments to the IPC.[21]

B. Platform Accountability and Safe Harbour

Section 79 of the IT Act provides intermediaries with a safe harbour from liability for third-party content subject to due diligence compliance. The 2021 Intermediary Rules have partially addressed this by imposing takedown obligations and grievance redressal mechanisms, but the time-bound compliance requirements remain weak and the penalties for non-compliance are insufficiently deterrent. India should consider adopting a tiered liability framework that incentivises proactive content moderation by platforms.[22]

C. Data Protection and Victim Privacy

The Digital Personal Data Protection Act, 2023, while constituting a significant legislative development in India’s data governance architecture, does not directly address cyberbullying. However, its provisions on data minimisation, purpose limitation, and the right to erasure carry indirect protective value for victims of online harassment whose personal data is weaponised by perpetrators. The Act’s special provisions for children under section 9 are particularly relevant in the context of cyberbullying of minors.[23]

D. International Cooperation

The transboundary nature of cyberbullying necessitates robust international cooperation frameworks. India is not a signatory to the Budapest Convention on Cybercrime, which provides the most comprehensive multilateral framework for mutual legal assistance in cybercrime investigations. India’s refusal to accede to the Convention on grounds of sovereignty concerns has hampered cross-border investigations and enforcement of orders against foreign-based perpetrators and platforms.[24]

E. Legislative Recommendations

The article advances the following recommendations: First, Parliament should enact a dedicated Cyberbullying Prevention and Protection Act that provides a comprehensive statutory definition, consolidates existing scattered provisions, establishes fast-track courts for cybercrime adjudication, and creates a centralised compensation fund for victims. Second, the National Cyber Security Policy should be updated to specifically address cyberbullying as a distinct threat category. Third, intermediaries should be required to implement automated detection mechanisms and transparent content removal policies with mandatory reporting obligations to law enforcement. Fourth, legal aid and psychological support services should be mandated for victims of cyberbullying, particularly women and children.[25]

CONCLUSION

 Cyberbullying and online harassment have emerged as some of the most pressing socio-legal concerns of contemporary India. The unprecedented growth of digital technology, social media platforms, and online communication has undoubtedly transformed the manner in which individuals interact, express themselves, and participate in public life. However, alongside these technological advancements has emerged a darker reality marked by intimidation, humiliation, abuse, and psychological violence occurring within virtual spaces. The increasing prevalence of cyberbullying demonstrates that digital platforms, while enabling communication and connectivity, have also become instruments through which dignity, privacy, and mental well-being are frequently undermined.

The Indian legal framework addressing cyberbullying remains scattered and structurally inadequate. Although certain provisions under the Bharatiya Nyaya Sanhita, 2023 and the Information Technology Act, 2000 attempt to regulate aspects of online abuse, these provisions were never designed to comprehensively address the unique and evolving nature of cyberbullying. The absence of a precise statutory definition creates uncertainty in interpretation and enforcement, resulting in inconsistent judicial approaches and procedural inefficiencies. Victims are often compelled to rely upon fragmented remedies relating to defamation, stalking, obscenity, criminal intimidation, or identity theft, even when the harm suffered extends far beyond the scope of these traditional offences.

At the same time, the judicial response in India has reflected a conscious effort to adapt constitutional and criminal law principles to the realities of the digital era. Indian courts have repeatedly emphasized the importance of balancing freedom of speech and expression with the protection of individual dignity, reputation, privacy, and mental security. Judicial interventions have played a significant role in recognizing online harassment as a serious violation of personal liberty and constitutional rights. Nevertheless, the effectiveness of judicial remedies continues to be constrained by practical difficulties such as delayed investigations, anonymity of offenders, lack of digital forensic expertise, jurisdictional complications, and the reluctance of victims to report incidents due to fear of stigma or retaliation.

The impact of cyberbullying extends beyond legal injury; it produces profound emotional, psychological, and social consequences. Victims frequently experience anxiety, depression, social isolation, reputational harm, and in extreme cases, self-harm or suicidal tendencies. Women, children, adolescents, journalists, activists, and marginalized communities remain particularly vulnerable to targeted forms of online abuse. The permanence and rapid dissemination of digital content further aggravate the injury, as harmful material may continue circulating indefinitely despite attempts at removal. In such circumstances, cyberbullying ceases to be merely an issue of offensive speech and instead becomes a direct assault upon human dignity and personal autonomy.

India’s transition towards an increasingly digital society has widened the gap between technological realities and legal safeguards. The speed with which technology evolves far exceeds the pace of legislative reform. Consequently, existing legal mechanisms often fail to provide timely and effective remedies capable of addressing the complexity of modern online abuse. This growing disconnect underscores the urgent necessity for a comprehensive and victim-centric legal framework specifically dedicated to cyberbullying and online harassment.

A robust legislative response must therefore move beyond fragmented penal provisions and adopt a holistic approach grounded in constitutional values. India requires a dedicated cyberbullying law that clearly defines prohibited conduct, establishes effective reporting and investigation mechanisms, ensures victim protection, and imposes accountability upon digital intermediaries and social media platforms. Equally important is the development of institutional infrastructure through specialized cyber cells, digital forensic training, awareness programmes, school-level sensitization initiatives, and accessible mental health support systems for victims.

Platform accountability must also form an essential component of future reform. Social media companies and digital intermediaries cannot remain passive observers while their platforms are misused for harassment, intimidation, and dissemination of abusive content. Transparent grievance redressal mechanisms, swift content removal procedures, and stronger compliance obligations are indispensable for creating safer online environments. Simultaneously, legal reforms must continue to preserve the constitutional guarantee of free speech while ensuring that such freedom is not weaponized to justify abuse or violence in digital spaces.

Ultimately, the challenge of cyberbullying is not merely technological or legal; it is deeply connected to questions of ethics, human dignity, and democratic participation in the digital age. A society that seeks to empower its citizens through technology must also ensure their protection within technological spaces. The law must evolve in harmony with changing social and technological realities. In the context of cyberbullying and online harassment, Indian law has undoubtedly struggled to keep pace with this transformation. The urgency for comprehensive legislative intervention can no longer be ignored. The future of a safe, inclusive, and rights-based digital India depends upon the ability of its legal system to respond effectively, sensitively, and proactively to the growing menace of cyberbullying.

REFERENCES:-

[1]  Internet and Mobile Association of India and KANTAR, Internet in India Report 2023 (2023).

[2] Sameer Hinduja and Justin W. Patchin, Bullying Beyond the Schoolyard: Preventing and Responding to Cyberbullying (2nd edn., Corwin Press 2014).

[3] UNICEF, Cyberbullying: What Is It and How to Stop It (2020).

[4]Cybercrime.gov.in, National Cyber Crime Reporting Portal — Annual Statistics 2022 (Ministry of Home Affairs, Government of India, 2023) (recording over 96,000 cybercrime complaints in 2022, of which approximately 28% pertained to online harassment and cyberbullying).

[5] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[6]Information Technology Act, 2000 (Act 21 of 2000), ss. 66C, 66E, 67, 67A.

[7]Ritu Kohli Case (2005), FIR No. 567/2005, Delhi Police, Cyber Crime Cell — one of the first registered cyberstalking cases in India; discussed in Pavan Duggal, Cyber Law: The Indian Perspective (Saakshar Law Publications, 2nd edn, 2014) 211.

[8]Manish Kathuria v. State (2001), FIR registered under s. 509, Indian Penal Code, 1860 and s. 67, Information Technology Act, 2000; discussed in Farooq Ahmad, Cyber Law in India (New Era Law Publications, 3rd edn, 2011) 178.

 [10]Shreya Singhal v. Union of India, AIR 2015 SC 1523, para 96 (Supreme Court of India); the Court struck down s. 66A of the Information Technology Act, 2000 as unconstitutional for being vague and overbroad.

[11]Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, r. 4(2) (requiring significant social media intermediaries to deploy technology-based measures to identify first originator of information).

[12]Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, r. 3(1)(b) — intermediaries are required to inform users not to upload content that is harmful, harassing, or invasive of privacy.

[13]Indian Penal Code, 1860 (Act 45 of 1860), s. 354D inserted by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013).

 [15]Indian Penal Code, 1860 (Act 45 of 1860), s. 499 — defamation and s. 503 — criminal intimidation, both applicable to online communications as affirmed in Rajiv Dinesh Gadkari v. State of Maharashtra, 2018 SCC OnLine Bom 989.

[16]Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s. 13 (use of child for pornographic purposes) and s. 14 (punishment therefor).

[17]Balu v. State of Tamil Nadu (2019), Sessions Case No. 34/2019, Chennai — accused convicted under ss. 354D, 509 IPC and s. 66E IT Act for cyberstalking and morphing of images of victim; discussed in V.D. Kulshreshtha, Landmarks in Indian Legal History (Eastern Book Company, 2020) 489.

[18]X v. State of Maharashtra (2021), Sessions Case No. 112/2021, Mumbai — conviction under ss. 354A, 499 IPC and s. 67A IT Act for morphing and circulating obscene images of female victim on social media platforms.

[19]National Commission for Women, Annual Report 2022–23 (Government of India, 2023) 67 (noting a 36% increase in online harassment complaints against women from 2020 to 2022).

[20]Vikas Garg v. State of Haryana, 2017 SCC OnLine P&H 781 (Punjab and Haryana High Court) — the Court noted the role of social media platforms in the proliferation of cyberbullying and called for stricter enforcement of existing provisions.

[21]Law Commission of India, Report No. 267: Hate Speech (Ministry of Law and Justice, Government of India, March 2017) 41–43 (recommending insertion of ss. 153C and 505A in the IPC to address online hate speech and harassment).

[23]Digital Personal Data Protection Act, 2023 (Act 22 of 2023), s. 4 (grounds for processing personal data) and s. 9 (processing of personal data of children).

[24]Council of Europe, Convention on Cybercrime (Budapest Convention), ETS No. 185, opened for signature 23 November 2001, entered into force 1 July 2004; India has not acceded to this Convention.

[25]Ministry of Electronics and Information Technology, National Cyber Security Policy, 2013 (Government of India, 2013); see also Ministry of Home Affairs, Cyber Crime Prevention Against Women and Children (CCPWC) Scheme (Government of India, 2018).

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“UCC DEBATE: CONSTITUTIONAL PERSPECTIVE AND CHALLENGES”

AUTHOR:  ANUSHKA AGRAWAL / BALLB 2ND Year

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JOINT JURIST JOURNAL

ABSTRACT

The debate on the Uniform Civil Code (UCC) in India has long occupied a central place in constitutional discourse, reflecting the complex interplay between equality, secularism and cultural pluralism. Article 44 of the Constitution, located within the Directive Principles of State Policy, directs the State to strive towards establishing a common set of civil laws governing marriage, divorce, succession and adoption.  Proponents argue that the UCC would advance gender justice by eliminating discriminatory practices embedded in personal laws, promote national integration by applying uniform rules across communities and reinforce the secular character of the Indian State. Critics, however, contend that the UCC threatens religious freedom, undermines minority rights and disregards India’s deep cultural diversity.  Judicial pronouncements such as Shah Bano, Sarla Mudgal and John Vallamattom have highlighted the constitutional significance of UCC, while also acknowledging the sensitivities involved in its implementation. The judiciary has consistently emphasized harmonization of personal laws with fundamental rights, though it has refrained from imposing uniformity through judicial decree, leaving the task to legislative consensus.

Comparative experiences from countries like Turkey and France demonstrate the possibility of a uniform code in homogeneous societies, while plural societies such as Indonesia, Malaysia and South Africa illustrate models of legal pluralism tempered by constitutional safeguards.  This paper critically examines the constitutional framework of UCC, the competing arguments for and against, the judicial approach, comparative perspectives and contemporary challenges. It argues that while UCC is constitutionally desirable, its implementation requires sensitivity to India’s pluralistic social fabric. The way forward lies in gradual reform, codification of existing personal laws and inclusive dialogue with all stakeholders. A phased and consensual approach, rather than abrupt imposition, is essential to reconcile the constitutional promise of equality with the social reality of diversity.

TABLE OF CONTENT

  1. INTRODUCTION,

    STATEMENET OF POBLEM, HYPOTHESIS, RESEARCH QUESTIONS, SCOPE &LIMITATION

  2. HISTORICAL EVOLUTION OF UCC IN INDIA
  3. CONSTITUTIONAL FRAMEWORK
  4. UCC DEBATE: ARGUMENTS FAVOR AND AGAINST
  5. COMPARITIVE PERSPECTIVE
  6. CONTEMPORARY CHALLENGES IN IMPLEMENTING UCC
  7. WAYS FORWARD
  8. CONCLUSION
  9. REFERENCES

I.  INTRODUCTION

The Uniform Civil Code, or UCC, is a big and often heated topic in India. It’s about a single set of laws for everyone, regardless of their religion, for things like marriage, divorce, inheritance, and adoption.

Right now, India has a mix of different personal laws. Hindus follow one set of rules, Muslims another, Christians a third, and so on. This creates a diverse but also complicated legal landscape. The people who wrote India’s Constitution hoped that one day, the country would have a single law for everyone, and they even put this idea in Article 441. But it has been difficult to implement because of political sensitivities, religious beliefs, and the sheer diversity of the country2.

This research paper aims to explore the debate around the UCC from a constitutional point of view. It’s not just a legal issue, but a social, cultural, and political one as well. By studying the UCC, we can get a better sense of how India balances individual rights and community traditions, and how it navigates the space between new ideas and long-held beliefs. It’s a key part of understanding India’s journey as a nation3.

STATEMENT OF PROBLEM

The Uniform Civil Code debate in india is a long standing issue in constitutional law that reflects the tension between equlity, secularism, and cultural pluralism. While Article 44 of the constitution envisions a uniform set of civil laws for all citizens, the provision has remained aspirational due to political sensitivity, social resistance, and the complexity of codifying diverse personal laws.

HYPOTHESIS

While the UCC is a constitutionally desirable goal, its successful implementation requires a gradual, sensitivity, and inclusive approach that respects india pluralistic social fabric, rather than an abrut imposition.

RESEARCH QUESTIONS

  1. What is the constitutional basis of the Uniform Civil Code under Article 44 and how does it interact with fundamental rights such as equality, non-discrimination and freedom of religion?
  2. To what extent have judicial pronouncements shaped the debate on UCC in India and what role has the Supreme Court played in balancing secularism with religious freedom
  3. What are the primary arguments advanced in favour of implementing a UCC, particularly in terms of gender justice, national integration and secularism?
  4. What are the main concerns raised by the opponents of UCC, especially with respect to minority rights, cultural diversity and federal autonomy
  5. What political, social and legal challenges hinder the practical implementation of a UCC in India?

OBJECTIVES

The objective of this research paper is to examine the debate surrounding the UCC from a constitutional perspective and analyze the challenges that hinder its implementation. It also aims to explore the historical evolution of the idea, judicial interventions, and the constitutional principles that frame the discussion.

SCOPE AND LIMITATION

The study examines the constitutional framework of the UCC, including Article 44 and its relationship with fundamental rights. It also analyzes the competing arguments for and against the code, the approach taken by the judiciary, and contemporary challenges to its implementation. The research draws on comparative perspectives from other countries to provide context.

The research acknowledges the deep social, cultural, and political complexity of the UCC debate. It does not propose a single, definitive legal draft for a UCC but instead focuses on the constitutional, judicial, and social aspects of the debate. The study recognizes that a uniform code is not a simple legal matter and its implementation requires addressing diverse social realities.

II.  HISTORICAL EVOLUTIONOF UCC IN INDIA

The story of the Uniform Civil Code, or UCC, in India is a long one, stretching all the way back to when the British ruled. The British had a weird way of dealing with laws they made criminal and business laws the same for everyone but left family matters like marriage and inheritance to 4each religious community. Hindus had their laws, and Muslims had theirs. Over time the British did change some Hindu laws like allowing widows to remarry, but they mostly left Muslim law alone. This created a system where India was a mix of different personal laws when it became independent.

When India’s leaders were writing the Constitution they had big debate about the UCC. People like Dr. B.R. Ambedkar believed that a single law was essential for fairness, especially for women and for uniting the country. But others worried that it erase the unique traditions of minority groups. In the end, they found a middle ground, they put the UCC in Article 44 as a goal for the government to work toward, but didn’t make it a law that people could demand in court. This compromise showed the tension between the ideal of equality and the reality of India’s diverse society.

Over the years, India’s courts have brought the UCC back into the spotlight. In the famous Shah Bano case in 1985, the Supreme Court said a divorced Muslim woman should get alimony and it reminded the government about the UCC. This caused a huge political reaction, and the government passed a new law that essentially reversed the court’s decision. Later, in other cases like Sarla Mudgal5 and John Vallamattom, 6the Court again pushed for a uniform code, arguing against unfair personal laws that allowed things like a man converting to Islam just to get a second wife, or that discriminated against Christian women in inheritance.

More recently, the Law Commission of India7 looked at the issue. In 2018, it said that a single, unified code wasn’t the right move at that moment. Instead, it suggested that it’s better to improve and update the existing personal laws to make them fairer and more in line with the Constitution. This shows that the issue is still very sensitive, and many people prefer making small, gradual changes rather than one big, abrupt change. So, the journey of the UCC in India has been a complex one, shaped by its past, court battles, and a constant balancing act between the desire for uniformity and the reality of a diverse, pluralistic nation.

I.           CONSTITUTIONAL FRAMEWORK

The Uniform Civil Code (UCC) is a core idea in India’s Constitution, but its position is a bit complex. The main thing to remember is Article 44, which is part of the Directive Principles of State Policy8. These principles are like a set of goals for the government to work toward but they are not laws that you can sue someone over in court. The people who wrote the Constitution put the UCC here because they knew that making a single law for everyone on things like marriage and inheritance would be very controversial and might upset minority groups. So, they decided it would be a long-term goal for a future government to pursue.

The UCC also has a close relationship with your fundamental rights. For example, Article 14 says everyone is equal before the law, and Article 15 says you can’t be discriminated against based on your religion, sex, etc. Many people argue that personal laws, which often treat men and women differently, clash with these rights. On the other hand, people who oppose the UCC often point to Article 25, which guarantees freedom of religion9. They believe their personal laws are part of their religious practice and should be protected. But the courts have consistently said that things like marriage and inheritance aren’t “essential” parts of religion and can therefore be regulated by the government.

The courts have played a big role in this debate. In cases like Shah Bano and Sarla Mudgal, the Supreme Court has repeatedly said that personal laws need to be fair and in line with the Constitution. While the judges haven’t forced the government to create a UCC, they’ve used Article 44 to gently remind them that it’s a constitutional duty. The courts have essentially tried to make existing personal laws more just, rather than creating a new uniform law themselves.

So, the UCC sits at a crossroad, it’s a goal for the country to be more uniform and equal, but it has to be balanced with the constitutional guarantee of religious freedom and cultural diversity. It’s a big challenge that requires a careful approach that respects everyone while still working towards justice.

I.  UCC DEBATE: ARGUMENTS FAVOR AND AGAINST

 The debate around the Uniform Civil Code (UCC) is a big one, with passionate arguments from both sides. It really gets to the heart of what India is all about—a country that values both equality and diversity.

Arguments for the UCC

One of the biggest reasons people support the UCC is gender justice10. Right now, personal laws for different religions often treat women unfairly. They might get less of an inheritance than their brothers, have a harder time getting a divorce, or face other disadvantages. Even though some reforms have happened, a lot of these unequal rules still exist. A UCC would ensure that men and women have the same rights, finally living up to the promises of equality in the Constitution.

Another strong point for the UCC is national unity11. When different communities have different laws, it can make people feel separated by religion. A single, consistent law for everyone would help bring the country together under one common legal system. It would make things simpler and reduce conflicts between different laws, creating a more unified nation.

Supporters also argue that the UCC is necessary for true secularism12. In India, being secular means the state should treat all religions equally. But having separate personal laws based on religion seems to go against this idea, as it can give different groups different legal rights. A UCC would make sure that civil laws apply to everyone, regardless of their faith, truly making the country’s laws secular.

Lastly, a UCC would bring much-needed modernization and clarity13 to the legal system. In today’s world, we need laws that are simple, clear, and consistent. A uniform code would get rid of confusion and make sure that justice is delivered the same way for everyone, no matter where they’re from or what religion they follow.

Even with the potential benefits, many people have strong objections to the Uniform Civil Code (UCC). These arguments highlight the major challenge of balancing the country’s unity with its incredible diversity.

Arguments Against the UCC

The biggest concern is that a UCC could be a threat to India’s cultural and religious diversity14. For many communities, personal laws aren’t just legal rules; they’re a core part of their identity and traditions. Opponents fear that forcing a single law on everyone could be seen as an attack on their way of life, leading to a feeling of resentment and loss of cultural heritage.

There are also concerns about federalism15. Since family law is something both the central government and state governments can make laws about, a UCC created by the central government might be resisted by states who feel it goes against their unique local cultures and legislative powers.

Putting a UCC into practice would also be extremely difficult16. The traditions around things like marriage, dowry, and inheritance are incredibly varied, not just between religions but even within different sub-communities. Creating a single law that respects this diversity while still being uniform is a huge, complex challenge.

Finally, a major fear for many minority groups17 is that a UCC would simply impose the values of the majority Hindu community. They worry that the debate is often used to target minorities, particularly Muslims, which makes it hard to build the trust needed to agree on a common code. This concern about cultural homogenization is a central point of the opposition.

Ultimately, the UCC debate shows a fundamental conflict: it’s about balancing the constitutional ideals of equality and justice with the deeply held values of cultural identity and diversity.

I. COMPARITIVE PERSPECTIVE

We can get a better handle on the Uniform Civil Code (UCC) debate in India by looking at how other countries handle similar issues. It turns out, how a country balances a single law for everyone with different community traditions often depends on how diverse its population is.

Countries with Uniform Codes

Some countries have successfully implemented a single set of civil laws. For example, in Turkey18, Mustafa Kemal Atatürk replaced Islamic law with a new, secular code in the 1920s.He did this to modernize the country and ensure equal rights for men and women. In France19, the Napoleonic Code established one clear set of laws for things like family and inheritance, bringing consistency to the legal system. These examples show that a uniform code can work well when a society is more culturally similar and people are generally on board with a single legal framework.

Countries with Legal Pluralism

However, in countries with many different cultures and religions, a “one-size-fits-all” approach is much harder to pull off. Indonesia and Malaysia are good examples; they have separate family laws for their Muslim citizens, while others follow civil codes. And in South Africa, customary laws are recognized alongside national laws, as long as they don’t violate the country’s constitutional principles of equality. These cases demonstrate that a country can maintain a diverse legal system while still ensuring that fundamental rights are protected for everyone20.

What This Means for India

India’s situation is uniquely complex because of its incredible diversity. Trying to impose a UCC in the same way Turkey or France did could cause major social friction and make minority communities feel targeted. The experiences of countries with legal pluralism suggest that a more gradual, thoughtful approach might be better for India. This could involve slowly updating personal laws to make them fairer, having open conversations with all communities, and making sure that any new laws respect diversity while still promoting equality and secularism.

I.  CONTEMPORARY CHALLENGESIN IMPLEMENTING UCC

The debate around the Uniform Civil Code (UCC) is a big part of Indian law, but putting it into practice has been tough. Here’s a look at the modern challenges that have kept it from becoming a reality. Political and Legislative Hurdles21

The UCC is a political hot potato. Different political parties see it through the lens of elections. Some push for it as a way to unite the country, while others worry that it would alienate minority voters and stand against their rights. Because of this political disagreement, Parliament has been hesitant to pass a comprehensive law, even when courts have suggested it. Since family law is also a state issue, it makes passing a nationwide code even more complicated. Social and Religious Resistance22 Religious groups are a major obstacle. For many, personal laws are a huge part oftheir cultural and religious identity. Communities fear that a uniform law would erase their customs and traditions, and they worry that the UCC would simply impose the values of the majority. This fear is especially strong among minority groups like Muslims and Parsis, and it’s made worse by political talk that can make the UCC seem like an attack on specific communities. Without trust and open conversation, any attempt to force a single law would likely cause social unrest. Legal and Technical Challenges23 Even if the political and social issues were solved, drafting the UCC would be a huge challenge. Personal laws aren’t the same even within a single religion. For example, Hindu law changes by region, and Muslim law has different schools of thought. So, creating a single law that respects this diversity while still being uniform is incredibly complex. It also raises questions about what the UCC should cover. Should it only deal with marriage and divorce, or should it also include inheritance and adoption? If the law is too simple, it might ignore the customs of smaller communities; but if it’s too detailed, it might lose its purpose of being uniform.

WAYS FORWARD

When we talk about moving toward a Uniform Civil Code (UCC), it’s clear that a sudden change might not be the best way to go. Instead, many people suggest a more thoughtful, step-by-step process.

A Gradual and Consultative Approach24

 Instead of forcing a single code on everyone all at once, the best way forward might be to make changes little by little, and only after talking to everyone involved. This means engaging with religious groups, community leaders, and women’s organizations to build trust and get their feedback.

Codifying Personal Laws25

A good first step is to codify personal laws. Right now, some of these laws aren’t written down clearly, which can cause confusion. By writing them all down, it becomes easier to see which parts are unfair, especially to women, and then fix them. This makes the system more transparent and sets the stage for future changes.

Making Gender Justice the Priority26

The main goal of this whole process should be to ensure gender justice. The focus should be on getting rid of all the rules that disadvantage women in matters of inheritance, divorce, and property, no matter what religion they follow.

An Optional UCC27

One of the most interesting ideas is to create an optional UCC. This would give people a choice: they could either continue to follow their community’s personal law or choose to be governed by the new, uniform code. This approach respects cultural traditions while encouraging people to voluntarily adopt the new standards over time.

The Roles of the Judiciary and Legislature

While the courts have done a great job of highlighting the need for a UCC and interpreting laws in a way that aligns with the Constitution, the ultimate responsibility for creating a new law lies with the legislature. It’s up to lawmakers to take these careful, consultative steps toward a fair and unified system.

Ultimately, a well-designed UCC that is introduced carefully has the potential to strengthen secularism and promote gender equality without erasing India’s rich cultural diversity.

I.  CONCLUSION

The discussion about the Uniform Civil Code (UCC) is a big deal in India. It’s about a balancing act: how do we make sure everyone is treated equally and the country stays secular, while also respecting India’s many different cultures and traditions.

The Constitution, in Article 44, says that the government should work toward a single set of civil laws for everyone. But it has been a long time, and this hasn’t happened yet. The main reasons are politics, people’s strong feelings about their religious and cultural identities, and the sheer difficulty of creating a single law that fits a huge, diverse country.

The courts have often stepped in to remind everyone about this. In important cases like Shah Bano28, the judges pointed out that personal laws need to be fair and in line with the Constitution, especially when it comes to gender equality. However, the courts have made it clear that it’s really up to the government to create this new law.

So, what’s the best way forward? A sudden, forceful change would likely cause a lot of problems. A better approach would be to take it slow and talk to everyone. A good first step would be to clearly write down all the different personal laws, which would make them more transparent and easier to reform. Then, we can focus on fixing the parts that are unfair to women. Another idea is to make the UCC optional, so people can choose to be governed by it. This would respect people’s traditions while still moving toward a more unified system.

In the end, a UCC that is created with care and sensitivity could help make India’s laws fairer and its society more unified without losing the rich cultural diversity that makes the country unique.

I.   REFERENCES

1 Constitution of India 1950,arts14, 15, 25, 44.

2 Tahir Mahmood, Uniform Civil Code: Fictions and Facts (Indian Law Institute 2003).

3 Granvil Austin, The Indian Constitution: Cornerstone of a Ntion (OUP1966).

4 Mohmad Ahmed Khan v Shah Bano Begum AIR 1985 SC 945.

5 Sarla Mudgal v Union of India* AIR 1995 SC 1531.

6 John Vallamattom v Union of India* AIR 2003 SC 2902.

7 LAW Commission of India, ‘reforms of Famliy Law’ ( Report No 270, 2018)

8 Directive principle of state policy, constitution of india art 44.

9 Constitution of India 1950, arts 14-15, 25.

10 Flavia Agnes (n 4)

11 B shiva Rao (n 5)

12 Pratap Bhanu Mehta ( n 13)

13 Granville Austin. ( n 6 )

14 Tahir Mahmood ( n 3 )

15 Constitution of India 1950, Seventh Schedule, List 3.

16 Werner Menski. ( n 1 )

17 Law Commision. ( n 8 )

18 Andrew Davison, Secularism and Revivalism in Turkey

19 Jean-Louis Halperin, The Freench Civil Code.

20 Tom Ginsburg, Legal Pluralism and Constitutionalism in South Africa

21 Pratap Bhanu Mehta.

22 Flavia Agnes.

23 Werner Menski.

24 Law commission.

25 Flavia Agnes.

  • Constitution of India, 1950

  • Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945

  • Sarla Mudgal Union of India, (1995) 3 SCC 635

  • John Vallamattom Union of India, (2003) 6 SCC 611

  • Law Commission of India, Consultation Paper on Reform of Family Law (2018)

  • Granville Austin, The Indian Constitution: Cornerstone of a Nation

  • P. Jain, Indian Constitutional Law

BIBLIOGRAPHY

Primary Sources

The Constitution of India, 1950.

Shah Bano v Union of India, AIR 1985 SC 945. Sarla Mudgal v Union of India, AIR 1995 SC 1531.

John Vallamattom v Union of India, (2003) 6 SCC 61

Secondary Sources

M.P. Jain, Indian Constitutional Law (8th edn, LexisNexis 2018).

Law Commission of India, Consultation Paper on Reform of Family Law (2018).

Flavia Agnes, ‘Uniform Civil Code v. Gender Justice’ (1999) 34(2) Economic and Political Week.

 

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“DIGITAL PIRACY IN THE AGE OF ONLINE PLATFORMS: EXAMINING INTERMEDIARY LIABILITY AND COPYRIGHT ENFORCEMENT IN INDIA”

AUTHOR: MAIBRAM LISA DEVI | FACULTY OF LAW, UNIVERSITY OF DELHI

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JOINT JURIST JOURNAL

I.  INTRODUCTION

The digital landscape has changed significantly how we create, share and consume creative works. As high-speed internet, cloud services and platform business models have made it easier than ever for people to access music, video, software and literary works from anywhere in the world. While these technologies have created equal access to information, entertainment and services, they have also increased the incidence of digital piracy. Digital piracy refers to the unauthorized reproduction, distribution, communication or making available of creative works through digital means (e.g., through the Internet) without the permission of the copyright owner.1

The substantial growth of OTT services, social media, peer-to-peer file sharing, and encrypted messaging platforms has significantly increased the scope for larger numbers of copyright violations to occur.2 Platforms enable users to create content, as well as distribute content to audiences or other users in real-time, and therefore act as intermediaries between users, who may unknowingly or knowingly post (or host) content that violates copyright. Because it is now so easy to copy, and so inexpensive to distribute copies of copyright-protected materials digitally, while maintaining anonymity on the Internet, piracy is more widespread and difficult to control compared to the traditional analog environment.3

Digital piracy has become an increasing concern/eventually large-scale problem within India’s culture. An international network for pirating through the use of torrent sites, cyber locker services, IPTV, and other messaging platforms such as Telegram allows instant/easy access to ALL types of copyrighted materials within seconds of their release, and easy access to millions of users to get copies of the same materials in violation of copyright laws.4 There are negative economic ramifications for piracy on the media and entertainment in the form of revenue losses and discouraging future investments to create new/continuing programs.5

One good/important explanation for these 2 sides is that there are significant issues regarding the level of liability of intermediaries. Per Section 2 (w) of the IT Act, 2000 an intermediary is defined to mean ‘any person who receives, stores or transmits an electronic record on behalf of another person’ and are essential participants in the digital ecosystem.6 To determine how much liability the intermediary has for a 3rd party’s violation is/has been a contentious legal issue. If an intermediary had strict liability then the intermediary may have less incentive to invest in new/inprobably developing digital platforms, whereas if there were too much leniency, then the incentive for continued investment in creating new digital platforms would not exist.7

The Indian legal system is trying to reconcile two conflicting interests by means of the ‘safe harbour’ doctrine, contained in Section 79 of the Information Technology Act, 2000, which provides limited immunity to intermediaries from liability.8 Judicial decisions have clarified that intermediaries must take action when they receive ‘actual knowledge’ (via court order or notification from a governmental agency) that they are hosting unlawful content. This is an effort to protect individuals’ right to freedom of expression while also making intermediaries accountable for the content they are hosting.9

Even though the law provides a number of protections to the parties involved, enforcing these protections is difficult because digital piracy is transient and global in nature. For example, a rogue website can pop up one day, then disappear the next under a different domain name. Moreover, users can easily circumvent restrictions against accessing such sites through the use of a Virtual Private Network (VPN).10 In response to this, Indian courts have developed new remedial measures (e.g., ‘dynamic injunctions’) to meet this evolving form of online infringement.

This paper will explore the existing legal structure that governs digital piracy in India, with particular emphasis on the concepts of intermediary liability and copyright enforcement law. It will consider statutory, judicial, and regulatory aspects of this legal structure, as well as provide a comparative analysis of other countries’ laws on this subject. Finally, the paper will criticallyexamine the existing legal framework and propose changes to improve its ability to address issues surrounding digital piracy and the increasing platform-driven economy.11

II.  CONCEPTUAL FRAMEWORK FOR UNDERSTANDING DIGITAL PIRACY IN THE CURRENT ONLINE ENVIRONMENT

Digital piracy in today’s online world occurs over a multitude of technological platforms and channels such as Peer-to-Peer (P2P) file sharing networks, torrent sites, cyberlockers, illegal streaming services (including social media and encrypted messaging), and others. Many of these channels enable a significant amount of copyrighted material to be distributed rapidly across wide geographic areas without going through traditional methods of regulation and enforcement. Because most of these channels are decentralized and transnational, it is extremely difficult to detect and enforce against copyright infringement because someone could upload, duplicate, and distribute infringing material all within seconds in multiple jurisdictions.12

Under Indian law, online platforms facilitating copyright infringement can be characterized as intermediaries. Intermediaries are covered under the Information Technology Act, 2000 (the “IT Act”), which defines an intermediary as “any person or entity that on behalf of another person receives, stores, or transmits electronic records; or provides any service in relation to electronic records.”13 In this instance, intermediaries can also include internet service providers (ISP’s), social media platforms, video sharing sites (e.g., YouTube), search engines, and cloud storage service providers, among others. Because intermediaries host or transmit user-generated content, they are at the centre of this debate related to potential liability (i.e., for copyright infringement) associated with digital piracy.

There is a key difference between determining whether an intermediary has liability based on their level of involvement as a passive or active intermediary. Passive intermediaries provide only a technical infrastructure or neutral services that enable the delivery of content to users without controlling that content at all.14 Passive intermediaries are generally entitled to safe harbor protection under Section 79 of the IT Act15 as long as they have exercised due diligence and have not been aware of any unlawful activity.

Active intermediaries, on the other hand, are involved in some way with the distribution of infringing content; therefore, they may be unable to rely on safe harbour protection.16 The way in which courts are analysing the level of involvement of platforms that use algorithms to recommend or prioritise content has led to greater scrutiny of those platforms, and what constitutes active involvement.17 The distinction between active and passive intermediaries is not a theoretical distinction; it will have a large impact on liability, particularly in the context of digital economies that are driven by platforms.

III.  LEGAL FRAMEWORK WITHIN THE INDIAN DOMAIN

1.  Copyright Act of 1957

The Copyright Act of 1957 is a key component to the protection of Copyrights in India and represents the main body of legislation used in resolving Digital Piracy. Copyright owners (Copyright Holders) are provided Exclusive Rights over their Copyrighted Works by way of the Act, specifically relating to Reproduction, Distribution, Communication and Modification (Adaptation).18

The Copyright Act of 1957 defines Copyright infringement as the exercise of any of these Exclusive Rights without the Permission of the Copyright Holder under Section 51.19 In a Digital Environment Copyright infringement can also be seen as simply uploading/downloading/streaming and sharing an Item of Copyrighted Material through a Digital Platform without the Permission of the Copyright Holder.20 Courts have defined Copyright infringement broadly so as to cover both Direct and Indirect uses of Copyrighted Material.

Section 63 of the Copyright Act 195721 provides for the criminalization of Copyright infringement, thereby highlighting how seriously Copyright infringements are viewed by Indian law.22 Criminalization of Copyright infringement in India acts as a deterrent against large-scale Commercial Copyright infringements.

The Act does not only include direct infringement, but it also does recognize secondary liability or contributory liability. A person who facilitates or contributes to an infringement can be liable23 for that infringement through the act of facilitation or contribution. In the case of online intermediaries, the risk of liability is due to their platforms being utilzied for the purpose of hosting or otherwise distributing infringing materials. In the case of R.G. Anand v. Delux Films24, the Supreme Court indicated that original expression is to be afforded protection at a broader level and provided a basis for future interpretation of what constitutes an infringement. Indian courts have been proactive in dealing with digital piracy by providing remedies such as John Doe orders and dynamic injunctions allowing rights holders to take action against infringing parties that may not be identifiable or whose infringing activity may be rapidly changing. Finally, these judicial measures have improved enforcement mechanisms available to rights holders under the Copyright Act and particularly, within the digital environment.25

2.  IT Act, 2000

The primary law of India which governs the use of electronic communication and the liability of intermediaries is called “Information Technology Act, 2000” (IT Act). One key part of this law is Section 79, which gives intermediaries a “safe harbour” against liability for content created by a third party that is hosted or transmitted through their platform if certain conditions are met.26 The intent of Section 79 was to strike a balance between the need to regulate illegal activity on the internet and the need to foster innovation and growth in the digital economy.

Section 79(1) provides that where intermediary does not initiate transmission; select recipient(s); or alter information being transmitted to recipients; it has no liability for content created by third

parties, subject to certain conditions. Therefore, intermediaries must act as neutral conduits, and not as active parties, in the dissemination of third-party content.27

Section 79(2) provides that an intermediary has no liability for content created by third parties, provided that the intermediary meets certain conditions.28 Therefore, both intermediaries and third parties should be aware of how to use this safe harbour rule because both are less likely to be subject to liability if they understand how to comply.

Moreover, Section 79(3) denies the availability of safe harbor defense in cases where the intermediary is aware of any unlawful activity, or fails to take action promptly upon receipt of the government notification or a judicial order for removal or disabling of access to that content.29 The term “actual knowledge” has been interpreted in the landmark case of Shreya Singhal v. Union of India30 by the Supreme Court of India. It has been held therein that the intermediary will be obliged to remove or disable the content only on receipt of either a court order or a notice from the government.

Various judgments further elucidate on intermediary liability. According to a decision in Super Cassettes Industries Ltd. v. MySpace Inc31., the intermediary will not be able to claim immunity under the safe harbor provision if he is directly involved in the infringement or has knowledge about the content. Likewise, in Avnish Bajaj v. State (NCT of Delhi),32 it has been clarified that liability will be imposed upon intermediaries in case of failure to exercise due diligence in preventing any unlawful activity.

In light of the above, Section 79 can be regarded as the linchpin of intermediary liability in India, providing for a conditional immunity regime aimed at balancing accountability and innovation in the digital era.

3.  Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

 The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)33 enacted pursuant to the IT Act set forth a host of other duties for intermediaries in terms of due diligence required by Section 79.

Amongst others, IT Rules, 2021 obligate intermediaries to disable access to the unlawful information or remove such information within a specified period, which is no later than 36 hours following receipt of an order from a court of competent jurisdiction or government agency.34

It is also obligatory under the Rules that significant social media intermediaries appoint designated personnel, such as the Chief Compliance Officer, Nodal Contact Person, and Resident Grievance Officer.35 The duties of the officers include monitoring compliance with legal requirements, cooperating with law enforcement agencies, and resolving user complaints.

Another critical component of the Rules is the creation of a procedure for redressing grievances, which requires intermediaries to respond to complaints within 24 hours and resolve them within 15 days.36 The provision ensures better user protection by providing an effective means to report unlawful and infringing content.

Finally, the Rules have also introduced obligations related to transparency and accountability, which involve the submission of compliance reports from time to time and determining the originator of the information in some instances.37

IV. JUDICIAL DEVELOPMENT

However, the legal landscape concerning digital piracy and intermediary liability has evolved over the past few years, especially with the advent of dynamic injunction measures.

In the matter of Star India Pvt. Ltd. v. Magicwin.Games & Ors. (2024)38, the Delhi High Court provided a dynamic injunction to prevent infringement of broadcasting rights relating to the ICC Men’s T20 World Cup. Here, the Court observed that piracy websites function by making use of dynamic websites, and thus, traditional injunctions would be inadequate.

Further, in Warner Bros. Entertainment Inc. v. Moviesmod.Bet & Ors. (2024),39 the Court provided for a broad injunction against several rogue websites hosting copyrighted material along with providing protection for all other future content.

One of the major developments was that in the case of Star India Pvt. Ltd. v. IPTV Smarters Pro & Ors. (2025),40 the Delhi High Court passed a superlative injunction in which live broadcasts could be blocked in real time.

In DAZN Ltd. v. Buffsports.Me & Ors. (2025)41, the Court further endorsed this principle by granting rights owners permission to inform the authorities about new infringing websites without filing a separate lawsuit.

The most significant ruling of 2025 in Jiostar India Pvt. Ltd. v. Criclk.com & Ors.42 involved the establishment of Dynamic+ orders, which provide automatic and ongoing website-blocking capabilities. Recognizing piracy as a “hydra-headed monster,” wherein previously blocked sites resurface using new identities, the Court stressed the importance of having flexible solutions.

Additionally, in Dabur India Ltd. v. Ashok Kumar & Ors. (2025),43 the Delhi High Court deliberated on intermediary responsibility within the digital realm, ruling that platforms engaged in facilitating deception or infringement cannot rely on passive intermediary status. With regard to intermediary liability and freedom of expression, Kunal Kamra v. Union of India (2024)44 explored the constitutional legitimacy of IT Rule amendments.

V. CHALLENGES IN CURBING DIGITAL PIRACY

1.  Technical Challenges

The ever-evolving nature of digital technology has made it increasingly difficult to curtail instances of online piracy. Modern pirates use various methods like VPNs, proxies, and encrypted messaging services to obfuscate their identities from the authorities and hide the sources of infringement. Such technologies shield the user’s IP address and provide them with an opportunity to access the pirated material anonymously.45

Furthermore, the use of mirror sites and dynamic DNS ensures that infringing websites can always come back online using new addresses despite blocking attempts by the regulatory authorities. Such activities have often been compared to the “whack-a-mole” phenomenon, meaning that regulation and technology adaptation cannot keep up with each other’s developments. The adoption of peer-to-peer and distributed data storage networks makes tracing and taking down infringing materials more challenging because the content is no longer stored in one server but shared across multiple nodes.46

2.  Legal Challenges

There is an inherent ambiguity and overlapping in the existing legal framework regulating digital piracy in India which causes confusion when it comes to enforcement. There are two main challenges with regard to enforcement; first is the problem with interpreting the provisions for intermediary liability and distinguishing between passive and active intermediaries.47 There are several different standards followed by courts when they decide whether or not the intermediary can claim immunity under Section 79 of the IT Act.48

The second challenge arises from the overlapping of two key Acts regulating this field; Copyright Act, 1957 and Information Technology Act, 2000.49 While Copyright Act lays down the substantive rights of the copyright owner as well as rules regarding infringement and its civil remedies, IT Act covers intermediary liability and provides guidelines on how to deal with infringing activities on the Internet.50

3.  Problems Related to Enforcement

The enforcement of anti-piracy laws in the digital domain faces several problems related to jurisdictional concerns and procedural inefficiencies. Given that several websites engaged in infringement are hosted beyond the borders of India, it becomes challenging for the enforcing agencies to enforce legal action due to lack of jurisdiction and cooperation of foreign agencies.51 Delays in taking down procedures coupled with inefficiency of the procedure results in infringement being present online for a long period of time thus causing prejudice to the rights of the copyright holder.52 Despite having provisions for dynamic injunctions and blocking orders in place, their execution remains inconsistent.53

Further, there are serious issues associated with the technological and resource inadequacy faced by the enforcing agencies which leads to delay in the identification and elimination of piracy networks.54

VI.  SUGGESTIONS AND REFORMS

  • Clarification of Scope of Intermediary Liability

  • Introduction of Technologies for Detection

  • International Cooperation

  • Awareness of Users

  • Proportionate Regulation

VII.  CONCLUSION

Digital piracy is a complex and constantly developing problem that poses a test for the effectiveness of the current intellectual property laws in the contemporary digital environment. The rapid proliferation of online services, together with technological innovations, makes it possible to easily and instantly distribute copyrighted material outside the framework of enforcement methods and institutions that exist in the offline space.

The progress of India on this front includes legislative reforms, judiciary involvement, and regulatory actions. There is a synergy between the provisions of the Copyright Act, 1957, Information Technology Act, 2000, and IT Rules, 2021, reflecting an ambitious effort towards regulating digital environments and imposing liability on intermediaries. In addition to that, new judicial techniques and approaches towards liability of intermediaries show their effectiveness. However, there remain a number of issues that impede anti-piracy policies. For instance, encryption, distributed networks, and anonymous technologies are developing more quickly than any form of legislation. Moreover, the complexity and inefficiency of enforcing copyright legislation due to such factors as jurisdictional problems and procedures slow down the process even further.

Going forward, India needs to take a holistic approach by not only ensuring that more effective enforcement mechanisms are put into place but that the basic rights of individuals including freedom of expression and access to information are also protected. Some of the measures which could be undertaken include improving intermediary liability rules, developing technology for better enforcement, and promoting cooperation with industry and international agencies.

In conclusion, it is imperative to have a nuanced framework which incorporates global good practices in addition to meeting domestic requirements to prevent digital piracy.

References :-

1 W.R. Cornish, Intellectual Property (Sweet & Maxwell, 2019).

2 Yatindra Singh, Cyber Laws (Universal Law Publishing, 2022).

3 N.S. Nappinai, “Online Intermediaries and Liability”, (2021) Journal of Intellectual Property Law.

4 Arul George Scaria, Piracy in the Indian Film Industry (Oxford University Press, 2014).

5 EY India, Media & Entertainment Report (2023).

6.Information Technology Act, 2000, s. 2(1)(w).

7 Avnish Bajaj v. State (NCT of Delhi), 150 (2008) DLT 769.

8 Information Technology Act, 2000, s. 79.

9 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

10 UTV Software Communication Ltd. v. 1337x.to, 2019 SCC OnLine Del 8002.

11 Ibid.

12 Arul George Scaria, Piracy in the Indian Film Industry (Oxford University Press, 2014).

13 Information Technology Act, 2000, s. 2(1)(w).

14 Avnish Bajaj v. State (NCT of Delhi), 150 (2008) DLT 769.

15 Information Technology Act, 2000, s. 79.

16 Super Cassettes Industries Ltd. v. MySpace Inc., 2016 SCC OnLine Del 6382.

17 N.S. Nappinai, “Intermediary Liability and Digital Platforms”, (2021) Journal of Intellectual Property Law.

18 Copyright Act, 1957.

19 Ibid., s. 51.

20 Super Cassettes Industries Ltd. v. MySpace Inc., 2016 SCC OnLine Del 6382.

21 Copyright Act, 1957, s. 63.

23 Ibid.; also see MySpace case (supra).

24 R.G. Anand v. Delux Films, (1978) 4 SCC 118.

25 UTV Software Communication Ltd. v. 1337x.to, 2019 SCC OnLine Del 8002.

26 Information Technology Act, 2000, s. 79.

27 Ibid., s. 79(1).

28 Ibid., s. 79(2).

29 Ibid., s. 79(3).

30 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

31 Super Cassettes Industries Ltd. v. MySpace Inc., 2016 SCC OnLine Del 6382.

32 Avnish Bajaj v. State (NCT of Delhi), 150 (2008) DLT 769.

33 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

34 Ibid., Rule 3(1)(d).

35 Ibid., Rule 4.

36 Ibid., Rule 3(2).

37 Ibid., Rule 4(1)(d).

38 Star India Private Limited v. Magicwin.Games & Ors., 2024 SCC OnLine Del 4386.

39 Warner Bros. Entertainment Inc. & Ors. v. Moviesmod.Bet & Ors., CS(COMM) 738/2024 (Delhi High Court).

40 Star India Pvt. Ltd. v. IPTV Smarters Pro & Ors., CS(COMM) 108/2025 (Delhi High Court).

41 DAZN Ltd. v. Buffsports.Me & Ors., CS(COMM) 412/2025 (Delhi High Court).

42 Jiostar India Pvt. Ltd. v. Criclk.com & Ors., CS(COMM) 566/2025 (Delhi High Court).

43 Dabur India Ltd. v. Ashok Kumar & Ors., Delhi High Court, Dec. 24, 2025.

44 Kunal Kamra v. Union of India, W.P. (L) No. 9792 of 2023 (Bom HC, 2024).

45 Yatindra Singh, Cyber Laws (Universal Law Publishing, 2022).

46 UTV Software Communication Ltd. v. 1337x.to, 2019 SCC OnLine Del 8002.

47 Information Technology Act, 2000, s. 79.

48 Super Cassettes Industries Ltd. v. MySpace Inc., 2016 SCC OnLine Del 6382.

49 Copyright Act, 1957; Information Technology Act, 2000.

50 N.S. Nappinai, “Intermediary Liability and Digital Platforms”, (2021) Journal of Intellectual Property Law.

51 Tanya Aplin & Jennifer Davis, Intellectual Property Law (OUP, 2021).

52 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.

53 UTV Software Communication Ltd. v. 1337x.to, 2019 SCC OnLine Del 8002.

54 Ministry of Electronics and Information Technology Reports on Cyber Enforcement (2023–2025).

 
 
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A Comparative Study of Methods of Judicial Appointment Evaluating Models in India, the United Kingdom, the United States and France

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JOINT JURIST

AUTHOR: MYSOON SAIFUDEEN (2ND YEAR), SCHOOL OF LEGAL STUDIES, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY

 CO.AUTHOR:  ADARSH MV | (2ND YEAR), SCHOOL OF LEGAL STUDIES, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY

Abstract

Judicial appointments are an important aspect of constitutionalism‚ impacting the independence‚ legitimacy‚ and effectiveness of the judiciary․ The objective of this article is to compare the process of appointment of judges in India‚ the United Kingdom‚ the United States and France‚ focusing on how these jurisdictions strike the balance between judicial independence and democratic accountability․ The article classifies four systems of judicial appointment governed by these approaches: the collegium system controlled by the judiciary in India‚ the commission system in the United Kingdom‚ the political/electoral system in the United States and the hybrid institutional system in France‚ governed by the Conseil Supérieur de la Magistrature․

The Indian collegium system offers great independence‚ but lacks transparency and accountability․ The commission-based United Kingdom system offers more transparency and merit‚ but depends on legislative action and the development of conventions within institutions․ In the United States‚ there is much variation in the electoral and political appointment processes and would offer higher levels of democratic participation in the appointment of judges‚ but offers challenges in politicization and weakening judicial impartiality․

In contrast‚ the French model is formalized around the merit selection process‚ with constitutional control over the system and limited executive involvement through the institutionalization of the appointment system within an independent constitutional body‚ as well as the minimization of political and judicial influence from the legislature and executive․ While no system is perfect‚ the French system is a more coherent and stable one‚ and may provide useful lessons to those countries that are looking for reform in the appointment and election of judges․

Introduction

The appointment process for judges is at the heart of constitutional politics․ The system affects not only the composition of the courts‚ but the nature‚ legitimacy and independence of the judiciary it establishes․ In a constitutional democracy governed by rule of law‚ courts are expected to settle disputes‚ uphold basic rights and freedoms‚ and safeguard against excesses on the part of the executive and/or legislative branches․ How well the judiciary can perform this role is largely dependent upon the method of appointment‚ criteria for appointment‚ the appointment authorities and institutional frameworks involved․[1]

The issue of judicial appointments is thus not merely an administrative issue but raises constitutional and political concerns regarding the division of powers‚ institutional independence and accountability‚ and the confidence of the people in the administration of justice․ Based on constitutional norms and historical development‚ different countries have utilized slightly different mechanisms to select judges‚ some meant to insulate the appointment process from politics to protect the judiciary’s independence‚ and others meant to ensure the judiciary’s accountability and legitimacy by involving the elected political institutions․[2] A third includes independent commissions‚ or is a hybrid with other types of institutional arrangements․

Indian courts have witnessed one of the most extraordinary legal revolutions․ The judiciary now appoints itself through a series of landmark judgments․ The manner of judicial appointments‚ with the judges appointing fellow judges‚ is arguably one of the most unique appointment systems in the world.[3] This is referred to as the collegium system․ The system is well defended on the grounds of independence of the judiciary being part of the basic structure of the Constitution․ The system has been blamed for lack of transparency and accountability‚ and for nepotism.[4] The system has been the subject of controversies and reforms‚ and the annulment of NJAC in 2015 reflects the continuing conflict within the Indian system.[5]

In the UK the Constitutional Reform Act 2005 created the Judicial Appointments Commission (JAC) which was designed to consolidate the shift from an executive appointment system to one founded on transparency‚ merit and the independence of the decision-making bodies․[6] In the UK model‚ the state has been able to achieve a success story in balancing independence and accountability through formalization‚ open competition and a limited discretion for the executive․ Nonetheless‚ concerns have arisen related to diversity‚ the transparency of consultations‚ and the potential for democratic oversight of appointments.[7]

In contrast‚ in the United States‚ the constitutional design specifically incorporates a form of political participation during judicial appointment‚ as under Article II of the Constitution‚ the federal judges are nominated by the President and confirmed by the Senate․[8] Even though this system allows for a good deal of democratic oversight‚ judicial appointments have become a battleground‚ in many cases part of the partisan ideological war.[9] The different state judicial appointment systems (elected‚ merit selection‚ and legislatively appointed) highlight the federal character of American constitutionalism․

The French system is hybrid and features both a professional merit and an institutional control system in the form of the governmental body known as the Conseil Supérieur de la Magistrature (CSM).[10] It is neither a political system nor a judicial system․ The CSM has constitutional standing and plays a prominent role in appointing judges‚ whereas the executive is only in charge of prosecutorial appointments․ The system has strong institutional safeguards and a uniform structure of the magistracy‚ balancing autonomy and accountability․

With this context in mind‚ this paper considers the judicial appointment models of India‚ the United Kingdom‚ the United States of America (with a particular focus on select states) and France with the aim of evaluating descriptively and normatively their ability to strike a balance between judicial independence and democratic accountability to produce a skilled‚ fair and legitimate judiciary․

Based on the above arguments‚ this paper concludes that all four systems do have their respective merits and institutional bases but the French system which is based on a system of merit selection‚ institutional structure and limited executive involvement is likely to provide a more appropriate balance of judicial accountability and independence than the relatively opaque Indian collegium‚ the politicized and semi-autonomous US model or the general consensus still being developed in the UK.

  1. Theoretical Framework: Judicial Independence and Democratic Accountability

One cannot understand how judicial appointments mechanisms work without an understanding of the constitutional values supporting the arrangements․ In every system‚ there is the fundamental value tension of judicial independence and democratic accountability‚ which are fundamental to the very idea of a constitutional democracy‚ but also very often at odds with one another.[11]

Judicial independence is generally regarded as one of the foundations of the rule of law․ It secures impartial judicial decision-making without executive or legislative interference.[12] The specific rationale for insulating judicial appointments from political influence is often based upon the need to protect minority rights‚ secure the rule of law‚ and avoid abuse of power by the state․[13] As Alexander Hamilton wrote in The Federalist No․ 78‚ the judiciary must be the “least dangerous branch” for the reason of their exercise of judgment‚ not will.[14]  This assumes judges have been appointed by a method which insulates them from interference from the start․

In practice‚ such total insulation from democratic processes raises serious legitimacy and accountability issues‚ as judges wield enormous public power and their decisions have far-reaching social‚ political‚ and economic consequences.[15] In democratic societies‚ some level of accountability‚ whether direct or indirect‚ is argued to be necessary for the judiciary to remain sensitive to the prevailing norms‚ rather than acting as a voice for an unaccountable and unelected elite‚ particularly in terms of judicial appointments․[16]  Too much involvement by the judiciary may lead to elitism and lack of transparency‚ while too much political involvement may lead to a lack of impartiality․

Different constitutional systems respond to this tension in different ways․ The executive-dominated system is illustrated at the federal level by the United States‚ where judicial appointments are routinely made in a political manner with participation of the politicians in the elected branches of government.[17]  This model stresses democratic accountability‚ but has frequently led to episodes of politicization‚ with partisan ideological polarization and conflict over judicial appointments․[18]

The second is the judicial primacy model‚ as in India with its collegium system of appointments‚ which seeks to promote judicial independence and insulation from political influence.[19] Critics argue that the judicial primacy model lacks transparency‚ institutional accountability‚ and objective criteria‚ and is consequently prone to arbitrariness and nepotism.[20]

Third is the commission‚ or hybrid‚ model which attempts to balance independence and accountability in institutional design․ The UK’s Judicial Appointments Commission and France’s Conseil Supérieur de la Magistrature represent examples of this model.[21] Some of these systems establish independent bodies consisting of judicial‚ legal and lay members to make decisions regarding judicial appointments․ This is seen as a way of limiting the role of the political branch while avoiding a fully judicialized appointment procedure.[22] Non-judicial members also contribute public accountability and diversity․

Another aspect of the theory distinguishes the formal independence from the functional independence‚ the former being guaranteed by constitutional provisions (e․g․ grant of life tenure or security of tenure to the judges) while functional independence would be determined by the manner of appointment‚ promotion‚ and disciplinary action against the judges.[23] Conversely‚ a system that appoints judges for political reasons‚ even with life tenure‚ will result in a politically sympathetic judiciary․ A judicial merit system and institutional insulation in the appointment process will lead to both actual and perceived independence of the judiciary․

Another important aspect of transparency is to legitimize judicial appointments․ It is increasingly accepted that independence is not possible without public confidence‚ and public confidence cannot be attained without transparency and accountability in judicial appointments․[24] Closed-door systems of decision making (e․g․‚ collegium-type deliberation) may erode trust in the independence of the system and are not necessarily reliable safeguards․ Open systems of decision making (that provide some form of transparency in selection and appointment) may invite politically motivated attacks on candidates and deter qualified candidates from applying.[25]

Diversity and representativeness add to this complexity․ Contemporary research in legal scholarship has shown that increased diversity in the judiciary corresponds to a more legitimate and higher quality decision-making body.[26] Judicial appointment bodies which rely on narrow professional networks and informal consultation processes tend to lack diversity‚ in comparison to bodies that rely on a more open and formalized appointment process.

Ultimately‚ though‚ each of these models is imperfect‚ and the trade-offs between them are dictated by political culture‚ constitutional interpretation and historical precedent․ The challenge is how to design such an appointment mechanism as to avoid both extreme politicization on one hand and extreme opacity on the other‚ while promoting meritocracy‚ independence and public trust․

The theoretical principles described provide the framework for comparing the approaches adopted by India‚ the United Kingdom‚ the United States (in selected states) and France to identifying the system that is likely to strike the best balance between the competing interests served by independence and accountability․

  1. Judicial Appointments in India: Constitutional Evolution and Critical Appraisal

The appointment of judges to the higher judiciary (i․e․ the Supreme Court and the High Courts) in India is regulated both by the constitutional scheme of appointment‚ and by executive action․ Judges of the Supreme Court and the High Court are appointed under Articles 124(2) and 217(1) respectively‚ by the President of India‚ after “consultation” with the Chief Justice and such other constitutional functionaries.[27] When this provision was incorporated in the text‚ the hope was to lay down a collaborative process for the executive and the judiciary with a view to promote democratic accountability and institutional integrity․ However‚ the Constitution was silent on the mode of consultation and the meaning of “consultation” which led to decades of protracted controversial litigation with respect to the appointments․[28]

The first major judgment dealing with this provision was the S․P․ Gupta v Union of India (1981) judgment in which the Supreme Court interpreted the word “consultation” literally‚ and held that “consultation” did not mean “concurrence”․ In effect the court supported the executive‚ which was left to appoint judges against the wishes of the judiciary․[29] The decision‚ which was said to be justified for democratic accountability‚ was widely criticized‚ particularly in light of the experience of India during the Emergency․ An executive interference with the judiciary’s functioning had raised pressing questions on judiciary independence in India.[30] The decision was also seen as contrary to the constitutional commitment to the rule of law and the separation of powers․

The major turning point for the Supreme Court system came in 1993‚ when the nine judges on the bench of Supreme Court Advocates-on-Record Association v Union of India re-interpreted the constitutional scheme and instituted a new collegium system.[31] It was decided that the opinion of the Chief Justice of India‚ formed after consultation with other senior judges‚ would be binding on the executive regarding the process of judicial appointments․ This was a landmark judgment in Indian constitutional history as it transferred to the judiciary the power of appointment․ This transfer the Court justified by declaring that an independent judiciary was a basic feature of the Constitution and therefore could not be changed by the ordinary political process.[32]

The collegium system became binding after the Supreme Court’s decision in the Re Special Reference No 1 of 1998 case‚ which stated that the collegium would be composed of the Chief Justice of India as well as the four other most senior justices of the Court.[33] This multi-member body was intended to ensure that judicial appointments were not arbitrary and were the result of institutional deliberations․ Notwithstanding these clarifications‚ the collegium process remained opaque as most decisions were taken in camera and very little information was available about the basis and criteria of appointments․

The controversial issue of independence versus accountability for the judiciary rose again with the 2014 National Judicial Appointments Commission (NJAC) Act intended to replace the collegium with a commission consisting of members of the judiciary‚ executive and civil society․[34] Aimed as a reform to bring in greater transparency and overcome the alleged problems of nepotism‚ the NJAC Act and the 99th Constitutional Amendment were struck down by the Supreme Court in Supreme Court Advocates-on-Record Association v Union of India (2015) on the grounds that these Amendments weakened the independence of the judiciary.[35] The court held that the inclusion of members of the executive‚ and the possibility of a veto by a non-judicial member‚ compromised the independence of the judiciary․

Post the judgment‚ while it reaffirmed the independence of judiciary in the appointment of judges‚ the court also commented about the non-transparency and accountability of the collegium system.[36] However‚ no major structural change was imparted and the appointment of judges from the collegium system continues to be the principal method in India․ However‚ the role of the executive is mostly procedural; it may only record its objections or request for reconsideration‚ being otherwise bound by repeated recommendations․

Its most important feature‚ however‚ is that it is one of the strongest institutional safeguard of the independence of the judiciary in comparative constitutional law as far as it seeks to protect judges from political patronage when being appointed and to protect the judiciary from executive interference with regard to the judiciary.[37] Critics point out that the procedure also lacks transparency and some regard it as arbitrary and lacking objective standards.[38]  Allegations of nepotism and favoritism also bring the efficacy of the system into question‚ as appointments to the higher echelons of the judiciary take place within the secretive confines of the collegium.[39]

The other main criticism of the system is its institutional accountability․ Unlike systems based on commissions‚ the collegium does not have a higher authority to oversee it and its decisions cannot be meaningfully challenged.[40] Whereas the legitimacy of the judiciary in a democracy has been discussed at length because judges take on such a large mandate for interpreting and implementing the constitution‚ the problem of judicial vacancies and slow judicial appointments have aggravated the backlog of cases considerably․

 

In the same manner‚ one may view the Indian model as a reaction on the part of the constitution against the historical prejudices towards the executive․ The dominant judicial model has certainly proved successful in protecting judicial independence‚ but at the cost of transparency and accountability․ So the solution is not to abolish the collegium system altogether‚ but to reform it to ensure greater transparency‚ clear and objective parameters‚ institutional checks‚ and at the same time‚ preserve the independence of the judiciary․

  1. Judicial Appointments in the United Kingdom: Institutional Reform, Transparency, and the Limits of Depoliticisation

The constitutional arrangements for the appointment of judges in the United Kingdom have undergone a major reform process over the last 20 years as a part of a wider push to make constitutional government more transparent‚ independent of institutions and modern․ Before the passage of the Constitutional Reform Act 2005 (CRA 2005)‚ the power to appoint judges was placed in the hands of the Lord Chancellor who is a unique constitutional actor who simultaneously occupies the executive‚ legislature and judiciary within the UK.[41] The concentration of such a large power in one hand was seen to be increasingly incompatible with the modern application of the doctrine of separation of powers‚ as the executive was felt to have too much influence over the appointment of judges.[42] The system was often seen to lack transparency‚ with judicial appointments historically being made through a “tap on the shoulder” system whereby judicial officeholders are appointed through personal connections in the legal profession.[43] There was limited diversity in the judiciary‚ and there were concerns over the method of selection and with its legitimacy․

This system was replaced by a new system under the Constitutional Reform Act 2005 that was intended to be more independent and transparent‚ including the creation of a Judicial Appointments Commission (JAC)‚ an independent statutory body charged with the task of selecting candidates who should be recommended to the Crown for appointment to judicial office.[44] The creation of the JAC was an attempt to depoliticise the process of appointment‚ by removing it from the control of the executive‚ and placing it in an independent institutional structure․ The Act did not completely depoliticise the process‚ as a limited role remained for the Lord Chancellor in appointing judges‚ which provided a degree of democratic oversight without excessive politicization․

A fundamental aspect of the scheme of the JAC is the composition of its membership․ The JAC was designed to strike a fair balance between those with professional legal knowledge and expertise‚ and those who could represent the general public․ To this end‚ the Commission is composed of members of the judiciary and legal profession‚ and lay members․ The lay members also serve the purpose of ensuring the judiciary does not become self-perpetuating‚ that fresh possible perspectives are brought into the selection process‚ and that judicial appointments should not appear to be the province of the professional legal establishment.[45] At the same time‚ the presence of experienced legal professionals ensures candidates will be held to the high standards of legal and judicial practice․

The process of selection itself has been made far more structured and transparent than the position that prevailed prior to 2005․ Vacancies are advertised and candidates invited to apply․ The selection process is subject to open competition and assessments are made against defined competencies‚ such as legal knowledge‚ intellectual capacity‚ integrity‚ and the ability to deliver fair and reasoned judgments․ The use of competency frameworks‚ structured interviews and scenario-based assessment is a move towards a more evidence-based approach to candidate selection and a move away from the reliance on informal or ad hoc approaches․ The JAC consults senior members of the judiciary and other stakeholders to gain a better picture of candidates’ professional strengths and overall suitability for judicial office․

After it selects a candidate‚ the JAC recommends it to the Lord Chancellor․ The Lord Chancellor has weak appointment powers‚ and may either choose to accept or reject the JAC’s recommendation․ It may ask the JAC to reconsider its decision‚ but may not appoint an independent candidate.[46] This limited veto power allows the executive to retain some input into the process while also preserving the independence of the Commission․ The requirement of giving reasons for its rejection or reconsideration adds an additional layer of openness to the process because the Commission’s decision can be scrutinized․[47] Hence the appointment‚ even if final in form‚ is ultimately made by the Monarch as a matter of constitutional tradition‚ with substantive decisions being left in independent hands․

The process for the appointment of judges to the United Kingdom Supreme Court is similar to that for the lower courts but more specific‚ given that it is the Supreme Court of the United Kingdom․ For each vacancy a selection commission is convened which follows a special process defined in the Constitutional Reform Act 2005.[48] The appointment process‚ which stresses not only excellence in the law‚ but also a subtle understanding of constitutional law and the role of the judiciary in the democratic process‚ has been designed to ensure that individuals appointed to the highest court in the land are chosen on the basis of merit and suitability‚ rather than politics․

UK principles that stress procedural fairness and transparency in public law have been reinforced by case law regarding the JAC process․ The case of R (Katie Thomas) v Lord Chancellor [2015] EWCA Civ 912 went to the Court of Appeal‚ which provided further clarification on the treatment of consultee responses within the JAC process.[49] The Court found the appointment process to be valid and in line with constitutional requirements‚ but stressed the need for transparency and due process to maintain public confidence in the process․ The case also established that while the JAC is independent its decisions are subject to judicial review.[50]

Nonetheless‚ the UK model is one of the more successful attempts to reconcile the two conflicting values of judicial independence and accountability by institutionalizing a fairly strong selection process․ The combination of an independent commission and open competition‚ with explicit criteria‚ has improved the transparency and legitimacy of the process.[51] The UK system is seen to avoid the lack of transparency in the largely opaque collegium system in India‚ on the one hand‚ while avoiding the politicization of the judiciary and an excessive degree of involvement by the executive that critics have attributed to the collegium system in the United States․

There are criticisms of the UK system‚ including a lack of direct democratic oversight of the system as Parliament does not play a formal role in the appointment of judges.[52] Though this was done in an effort to prevent the JAC from being politicized‚ it has meant that the debate as to whether limited parliamentary oversight would lend legitimacy to the JAC without compromising its independence has continued․ Likewise‚ though seeking to promote diversity on the bench‚ the JAC has had only limited success in achieving a judiciary that is more representative of society‚ particularly at senior levels․ Structural barriers within the legal profession have also been perpetuated by customary career paths and unequal access to opportunities․

Another major area of criticism focuses on the supposed insulation of the system from informal and unofficial factors․ Despite the formality of the process‚ informal factors such as informal contacts and professional references might still introduce subjectivity into assessments of personality-related factors such as temperament and suitability.[53] This suggests that institutional frameworks‚ however well designed‚ cannot eliminate discretion or informal influence‚ but can only seek to regulate and minimize them as far as possible․

In contrast‚ the system in the UK is designed to strike a careful balance between independence‚ transparency and accountability․ It seeks to lower the risk of political influence upon and interference in the selection process‚ as well as the danger of judicial self-selection‚ by delegating power to an independent commission․ Thus‚ the reliance upon procedural safeguards and rational scrutiny may be understood as a means of defending considerations of merit in judicial appointments․ While the framework is not without its modern problems‚ such as concerns over diversity and democratic accountability‚ the UK’s model for constitutional reform offers perception into modernizing the judicial appointment process without compromising judicial independence․

  1. 5. Judicial Appointments in France: A Sophisticated Institutional Framework for Balancing Judicial Independence and Accountability

The French judicial nomination process is one of the most formalized and institutionalized in comparative constitutional law‚ as it is a reflection of the civil law’s customary penchant for professionalization‚ institutional coherence and administrative rationality․ Unlike in common law countries‚ where appointments are often made through political processes or seniority‚ in France the judiciary is a professionally organized career body within a hierarchical‚ centralized structure.[54] The institutionalization of the recruitment of judges‚ which replaces individual or political choices‚ is intended to ensure merit-based appointments‚ continuity and to guarantee the independence of the judiciary․ The Conseil Supérieur de la Magistrature (CSM)‚ a constitutional body centered on the judiciary‚ is its main bastion of judicial independence and has an important role in the appointments‚ discipline‚ and careers of judges and prosecutors.[55]

A separate and independent judiciary is guaranteed under the French Constitution of 1958‚ which specifically states in Article 64 that the President of the Republic is the “guarantor of the independence of the judiciary”․[56] This power is counterbalanced by institutional safeguards against the abuse of power in the executive․ Even though the right to appoint judges and magistrates is formally granted to the head of state and not the executive‚ in practice the head of state’s responsibility is a largely ceremonial role‚ as the power is exercised by the CSM.[57] This distinction between the formal and real powers of the head of state is the basis of the French appointment system․

Unity of the magistracy is a characteristic of the French system․ French judges and prosecutors are members of the same corps of magistrates‚ and they share a single identity.[58] They are recruited from the same competitive exam and trained together at the same École Nationale de la Magistrature‚ which has a high degree of homogeneity‚ to become magistrates.[59] In contrast to the model used in India and the United Kingdom‚ judges are routinely drawn from among advocates or lawyers in service․ This leads to greater diversity of experience in jurisprudence but less homogeneity of institutions․ The French model puts a premium on early professionalism and on professional careers‚ thereby securing judicial independence within the judiciary․

The most distinctive aspect of the system is that the CSM has an active role in appointing judges (magistrats du siège): for such positions the CSM has power of nomination and the executive must heed its recommendations․[60] It is a procedure calibrated in a way so that‚ taking the characteristics of the candidate’s work record‚ legal knowledge‚ integrity and suitability into account‚ an institutional model is followed that guarantees consistency and objectivity and minimizes the use of discretion by all the bodies involved in this procedure․ The binding effect of the recommendations of the CSM and its collective character avoid political interference and the concentration or monopoly of powers․

By contrast‚ in the case of prosecutors (magistrats du parquet)‚ the executive has greater influence over the CSM․ The Minister of Justice proposes candidates‚ while the CSM merely advises on the appointment‚ which is ultimately made by the Minister.[61]  It reflects the dual function of public prosecutors in the French system‚ who are responsible for enforcing the law and applying state policy within the field of criminal law․[62] The institutional split‚ however‚ despite being justified by its functional rationale‚ has long been criticized by both academics and international bodies for the additional risk of executive interference in their decision․[63]

Despite this‚ the French system has guarantees to preserve independence․ In particular‚ although the Minister of Justice can give general directions and policies‚ they cannot intervene in individual cases‚ thus reducing the extent to which a political agenda may dictate the prosecution of individual cases.[64] More recently‚ reforms as well as judicial decisions have sought to establish greater prosecutorial independence‚ in continuing efforts to bring the prosecution in line with judicial independence.[65]

The CSM also reflects the balance between independence and control․ The CSM is composed of non-judges and prosecutors‚ as well as other distinguished professionals outside the judiciary selected directly from those who are already established in other professions.[66] This mixed approach is one of the defining features of the French model: it avoids creating a self-perpetuating judicial hierarchy while ensuring that professionalism and expertise are the primary considerations in appointing judges‚ and that lay members of the judiciary provide a source of democratic legitimacy and public accountability‚ while avoiding overt political interference․

Another characteristic trait of the French system consists in these disciplinary functions being concentrated in the same body as the management of career of the judges․ With the CSM being vested with both appointment and evaluation‚ as well as promotion and discipline of judges‚ these functions are naturally brought together․ This allows a type of accountability in the continuing professional appraisal of judges while also reinforcing independence because it is an institution that is insulated from political interference․

In addition to the quality of judges‚ the rigid system of appointment including merit based selection‚ intrinsic to the French system‚ tends to produce a more consistent level of professionalism than is found in many other countries․ This is in contrast to the Indian collegium system‚ under which appointments are made largely on the basis of informal considerations․ A further reason for the relatively limited role of the executive in the appointment of judges is that it is believed to reduce the politicization of the judiciary‚ a problem perceived (to a varying degree) in the United States․ Finally‚ the appointment of lay members is supposed to improve the democratic accountability of the judiciary relative to a system composed solely of judges and magistrates․

At the same time‚ the French model also has its drawbacks‚ especially the executive’s role in appointing the prosecutors raises questions of whether it provides an opportunity for indirect political influence and involvement in the cases involving the executive․[67]  Furthermore‚ since the judiciary is seen as a career path‚ and judges are often recruited from the magistracy‚ the most common means of appointing judges may lead to a less diverse range of professional backgrounds compared to the more diverse background of lawyers who may have been recruited to the bar․

Ultimately‚ however‚ these limitations have not weakened the advantages of the French system‚ nor do they call into question the very difficult task of designing a system for judicial appointments that is both independent yet accountable and representative․ Compared to other jurisdictions‚ the French system has achieved a more adequate and stable compromise․ The Indian collegium system is opaque‚ the US model is more politicized‚ and the United Kingdom model is open to the problem of statutory rather than constitutional checks on the selection process․ In doing so‚ it offers itself as a stable institution that may adapt to changing constitutional requirements․

Ultimately‚ the French system of judicial appointment is a model of elegant sophistication‚ illustrating a compromise between the ideal of meritocratic recruitment‚ institutional balance‚ and limited executive influence․ The resultant system is imperfect and has received its share of criticism‚ but nonetheless stands as an example of how constitutional design can achieve a balance between judicial independence and democratic accountability․ It stands as a comparative model which‚ although not transferable‚ may provide useful experience for other jurisdictions which may be seeking to formulate methods for their own judicial appointments․

  1. Methods of Judicial Appointment in the United States: Conceptual Classification

The system of judicial appointment in the United States is unique for its multiplicity‚ a reflection of the federal structure of the government and the constitutional philosophies behind it․ Although there is not a single primary method for selecting judges in the United States‚ there are several methods which each balance judicial independence and democratic accountability in different ways․ There are five main classification types of methods used by the states: partisan elections‚ non-partisan elections‚ gubernatorial appointments‚ legislative appointments‚ and merit selection.

The method of partisan elections involves the direct election of judges by the public with candidates explicitly affiliated with political parties.  Judicial candidates stand for election in a manner similar to other political candidates‚ by running under a party label on the ballot․ One benefit of this is that it provides strong democratic accountability‚ as it puts courts under the direct control of the electorate․ This has a downside‚ however‚ because the role of the judiciary as an independent and impartial branch of the government may be weakened by apparent political interference in judicial decisions.[68]

A non-partisan election avoids political parties in the candidate selection process for public office‚ though elected officials are still ultimately chosen by the citizenry․ Although non-partisan elections are designed to ask voters to focus on the candidates’ qualifications rather than political afiliations‚ political support is still considered to some extent․ Voters’ knowledge is still limited.[69] Thus‚ non-partisan elections are described as often obscuring the influence of politics rather than eliminating it․

Another common method of appointment is the gubernatorial appointment system‚ in which judges are appointed by the Governor of the state with or without the advice of advisory commissions and with or without confirmation by the legislature․ It stresses expediency and professional selection‚ since judges can be appointed for their merits and experience․ But it has also raised the specter of executive supremacy‚ and the possibility of the judiciary and executive becoming ideologically aligned.[70]

Legislative appointments are systems by which judges are appointed by the state legislature through a majority vote․ This system is one of the more democratic methods of selecting judges‚ as it places the appointment process in the hands of elected officials․ However‚ it has also been criticized for fostering political bargaining and compromising the principle of merit appointment by the legislature’s partisan composition․

Finally‚ the Missouri Plan (merit selection) is a compromise between the other two approaches․ A non-partisan commission prepares a group of names and sends them to the governor who then makes the appointment․ Although not an official system‚ the process in Missouri is still based on state law‚ and judges are subject to retention elections‚ which are elections to determine whether a judge is to remain in office․ This can be seen as an attempt to reduce the harms of politicization while preserving a modicum of public accountability‚ though it has been heavily criticized.[71]

These five models illustrate the variety of selection regimes across the United States‚ and how many of them prioritize different constitutional values‚ such as democratic legitimacy‚ and efficiency and expertise․ The various merit-based systems are designed to balance the two constitutional values of democratic legitimacy and efficiency․ The rest of this article applies this theoretical basis to a detailed assessment of the chosen states and how these different techniques play out in practice‚ along with their limitations․

6.1 Judicial Appointments in the United States: A State-Wise Comparison

The judicial appointment process in the United States reflects the pluralistic and highly decentralized character of the United States’ constitutional system: federalism and political experimentation with democracy․ Under the federal system established by Article II‚ Section 2 of the Constitution‚ the president nominates judges and the Senate provides advice and consent to the appointments,[72]  State judicial appointment processes vary considerably in how they balance judicial independence and accountability․ The analysis below looks at ten different states which adopted a different method of selecting their electors: Texas‚ Michigan‚ Wisconsin‚ California‚ New York‚ Virginia‚ South Carolina‚ Missouri‚ Florida and New Jersey․

Judges in Texas are elected in designated partisan elections‚ meaning that a judicial candidate runs with a party affiliation which is indicated on that candidate’s ballot․ These elections are characteristic of Texas’ strong tradition of citizen participation in government․ The party involvement in judicial elections may call into question the neutrality and independence of judges who are required to go out and raise funds and mobilize the political system‚ creating both real and perceived conflicts of interest․ Institutional factors related to gained electoral support can also influence judges’ actions․ This is especially true in prominent criminal matters‚ wherein public sentiment may affect the legal proceedings.[73]

Judicial elections in Michigan are non-partisan elections‚ meaning candidates do not appear on the ballot with party labels․ This was intended to reduce political influence over the judiciary and enable voters to select judges based on merit instead․ Nonetheless‚ political considerations often play a large role in practice: candidates are often informally supported by political parties or other special interests․ Without party labels‚ voters may not be aware of a candidate’s positions and may have to vote based on limited or indirect information about candidates․ As a result‚ the Michigan model does reduce but not eliminate the problem of politicization․

Though Wisconsin has officially bipartisan elections‚ Wisconsin judicial elections have become increasingly politicized and characterized as highly-contested partisan races․ In recent years‚ large sums of money from political actors and interest groups have been funneled into Wisconsin judicial elections․ However‚ this episode shows that even ostensibly non-partisan electoral systems are not immune from politics‚ particularly during a period of extreme ideological polarization‚ and illustrates the failure of the electoral model to ensure the impartiality of the judiciary.

Most judges in California‚ especially those in the higher courts‚ are appointed by the Governor with the aid of judicial nominating commissions‚ a form of professional selection․ This appointment process puts these officials under some supervision of the courts‚ but ultimately grants the power to appoint judges to the chief executive․ This may promote ideological homogenization‚ but judges are less subject to the influence of elections‚ which makes the system somewhat more effective‚ in that the result is less likely to be an ideologically biased judiciary․

In New York‚ the judges of the Court of Appeals are appointed by the Governor and confirmed by the Senate from a list of candidates submitted to the Governor by a judicial nominating commission‚ while judges of other levels of court are elected by an electorate that is often partisan․ Therefore‚ this two-tiered system attempts to balance the principle of merit-based selection at the highest level with the principle of democratic participation at the lower levels․ However‚ there may be inconsistencies in the quality and independence of judicial appointments due to variations in merit-based and democratic components within the same state․

Virginia uses legislative selection‚ which is a method of judicial selection where a state’s judges are elected by its state legislature‚ with a majority vote of the legislature and a greater emphasis on democratic accountability․ However‚ it is also noted that this can result in the procedure for selecting judges being compromised by political bargaining and ultimately‚[74] the lack of a non-partisan process for this evaluation could raise the question of whether merit is the only criterion used․

South Carolina’s process is also a legislative appointment system‚ but it incorporates a judicial merit selection commission to screen applicants and reduce the number of nominees that the legislature must choose from․ While the intention is to combine the merits of both systems‚ the process is still ultimately dictated by the legislature and therefore vulnerable to political and legislative influences․

Missouri is another merit selection state‚ also part of the Missouri Plan․ A non-partisan commission selects qualified candidates‚ and sends a short list to the Governor to appoint a judge․ After a period of years‚ the judge is retained or not retained in an election by the voters․ It has been described as a compromise between independence and accountability‚ by giving less weight to party politics and providing some form of public accountability for decision-making.[75]

Florida also uses a modified version of the merit selection system‚ which employs judicial nominating commissions‚ gubernatorial appointment‚ and retention elections‚ in an effort to ensure that appointments are made on a professional basis while providing a measure of accountability․ However‚ critics argue that‚ even under this system‚ a governor may still be able to affect nominations via partisan politics if the selection body is composed of members appointed by the governor․

Lastly‚ New Jersey uses an executive appointment with legislative confirmation method‚ under which judges are appointed by the Governor and then confirmed by the state Senate․ Judges are first appointed for a temporary term‚ and can be reappointed for further terms․ Upon being reappointed‚ judges are granted tenure․ New Jersey’s method combines the positive aspects of executive appointment and legislative confirmation‚ but also has the disadvantage of being subject to political influence‚ especially at reappointment.[76]

The following analysis of these ten states offers an overview of the diversity and complexity of judicial appointment processes in the United States․ The processes exhibit different balances between independence‚ accountability‚ and criticism․ Other potential problems with electoral systems include politicization‚ political bargains in legislative appointments‚ political bias in executive appointments‚ and indirect politicization when an ostensibly meritocratic process becomes de facto politicized․

From a comparative perspective‚ American experience is also relevant to understanding the challenge of achieving effective judicial independence in a system with strong norms of democratic participation and political accountability․ These systems provide a valuable basis for comparison of alternatives for judicial appointment and for an understanding of the problems of constructing a system that respects competing constitutional values․

  1. Comparative Analysis of Methods of Judicial Appointment

These models are all fundamentally different․ The most important difference between India‚ the United Kingdom‚ the United States‚ and France is not only the result (in terms of independence or accountability) but the technique (as well)‚ whether they are judicially controlled systems‚ commission systems‚ electoral systems or hybrid institutional systems․ They reflect very different constitutional choices as to control over the composition and organization of the courts‚ and the exercise of that control.[77]

The collegium system‚ as followed in India‚ is a variant of the system of judicial appointment‚ by which judges are appointed and transferred by their peers on the recommendation of their seniors and with minimal involvement of the executive․ This model takes judicial independence very seriously‚ because judges are not appointed by political actors‚ but has been criticized for the arbitrariness‚ lack of transparency‚ absence of formal criteria and lack of institutional accountability of its appointment procedures.[78] Thus‚ while the collegium method has succeeded in insulating appointments from political influence‚ it does so at the cost of transparency and public accountability․

The United Kingdom has a commission-based appointment system‚ administered by the Judicial Appointments Commission.[79] This provides the institutionalized mechanism for selection by an independent body‚ which is charged with finding the best candidate through a process of open advertisement and competition․ The executive is not the only body that matters‚ its power is limited and is organized according to a commission‚ which is supposed to provide independence and accountability․ This means decision-making powers are constrained through an institutional framework‚ rather than through the courts or the executive.[80]

At the state level‚ the United States uses partisan elections‚ non-partisan elections‚ gubernatorial appointment‚ legislative appointment‚ and selection by merit․ The states also have different understandings of the meaning of the constitutional purpose of selection․ Other methods of judicial selection‚ such as gubernatorial and legislative appointments‚ place political decision-making in judicial selection‚ thus running the risk of allowing politicization of the judiciary‚ lack of independence‚ or political horse-trading for ideological reasons․[81] Gubernatorial and legislative appointment methods introduce political oversight but may lead to ideological influence or political bargaining.[82] The merit selection method, such as the Missouri Plan, attempts to combine professional evaluation with limited public accountability, but even this hybrid approach is not entirely free from political considerations.[83] The American experience has shown that the problems created by this political process can be seen as serving a protective function‚ and hybrid systems that fall somewhere between the two extremes-a merit selection process (such as the Missouri Plan) combining some professionalism plus a limited amount of public accountability by means of a public vote․ Even merit selection is not free of politics․

The French model of court appointment is thus a hybrid institutional structure‚ centered on the professional and controlling functions of the Conseil Supérieur de la Magistrature‚[84] avoiding the purely professional judicial control as per the Indian model‚ the political contestation of the American model‚ and the purely extra-constitutional nature of the UK model․ The CSM’s binding function in court appointments allows for professional evaluation and some accountability‚ while respecting independence due to its mixed nature.[85]

The main difference concerns where the power to invalidate laws was placed‚ with the Indian method concentrating it in the judiciary‚ the American methods dividing it among the political and electoral branches‚ the UK system giving it to an independent commission and the French methods allocating it to an institutional authority whose composition is defined in the constitution.[86] Each method is an attempt to overcome the problems of politicization‚ opacity‚ and institutional bias․

Another difference is in terms of the level of institutionalization‚ where the UK and French systems are based on set procedures and institutionally-designed decision-making processes‚ whilst the Indian collegium is less formalized‚ and many of the American systems are based on political or electoral processes rather than assessments of candidates.[87]  This shows the extent of impact that institutionalization has on judicial appointments‚ through creating greater transparency and consistency․

The comparison of the different methods shows that systems based on a single authority‚ judicial or political‚ are opaque‚ and they can be susceptible to politicization․ In contrast‚ hybrid and institutional models‚ with distributed decision-making and formalized procedures‚ may do a better job of balancing competing constitutional values․

  1. Conclusion

The comparative study on the methods of appointment of judges in India‚ the United Kingdom‚ the United States and in France based on objective parameters makes it clear that the success of a regime depends on the method of judicial appointment․ Each state has adopted some or the other method of judicial control‚ commission selection‚ political or electoral mode or institutional infusion of hybrid systems․

The Indian collegium system of judicial appointment is a strong commitment to judicial independence‚ as it takes the politics out of the appointment process‚ although it has been criticized for lack of transparency and institutional accountability․ This shows the weaknesses behind a system of judicial appointment which gives the judiciary the sole discretion over making the appointment․ The commission-based system in the United Kingdom‚ while more structured and transparent is ultimately statutory-based and less democratic‚ suggesting that it is still in a stage of development․

The United States exemplifies this tradeoff between democratization and politicization through its varied state-level practices of appointing judges through political or electoral processes․ Democratization increases participation‚ while politicization threatens the impartiality and perceived legitimacy of the judiciary‚ a tradeoff that is played out in judicial appointments worldwide․

In contrast‚ the French system of appointment of judges by merit to a collegium of judges‚ the Conseil Supérieur de la Magistrature‚ with constitutional controls and limited-role of the executive‚ is a more balanced and coherent system that does not push the extremes of isolation from politics or of government intervention․ It does not have the shortcomings of the collegium appointment‚ since it has rules and accountability‚ not the shortcomings of electoral and political appointment‚ since it is not partisan‚ and not the shortcomings of statutory appointment‚ since it is constitutional․

Ultimately‚ no system is perfect‚ but the French model offers a more advanced and less vulnerable model for judicial appointments․ Distribution-structured models that diffuse the locus of power‚ without a single body controlling all the levers‚ offer a means of achieving independence while ensuring a degree of accountability and protection from abuse․ Thus the French model can be seen as a marginally superior method of appointment in comparative terms‚ and also provides lessons from which other jurisdictions may seek to reform․

 

 

Bibliography

Table of Cases

  • R (Katie Thomas) v. Lord Chancellor, [2015] EWCA Civ 912
  • Re Special Reference No. 1 of 1998, (1998) 7 SCC 739
  • S.P. Gupta v. Union of India, 1981 Supp SCC 87
  • Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441
  • Supreme Court Advocates-on-Record Association v. Union of India, (2015) 5 SCC 1

 

Table of Legislation

  • The Constitution of India
  • The Constitution of France, 1958
  • The Constitution of the United States
  • The Constitutional Reform Act, 2005 (UK)
  • The National Judicial Appointments Commission Act, 2014

 

Books

  • Austin, Granville, Working a Democratic Constitution (Oxford University Press, 1999)
  • Baum, Lawrence, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton University Press, 2006)
  • Bell, John, French Legal Cultures (Butterworths, 2001)
  • Bell, John, Judiciaries within Europe: A Comparative Review (Cambridge University Press, 2006)
  • Chemerinsky, Erwin, The Case Against the Supreme Court (Viking, 2014)
  • Dworkin, Ronald, Law’s Empire (Harvard University Press, 1986)
  • Fuller, Lon L., The Morality of Law (Yale University Press, 1964)
  • Gee, Graham, et.al., The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge University Press, 2015)
  • Geyh, Charles, Courts and Congress (University of Michigan Press, 2006)
  • Hodgson, Jacqueline, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Hart Publishing, 2005)
  • Jain, M.P., Indian Constitutional Law (LexisNexis, 8th edn., 2018)
  • Malleson, Kate, The New Judiciary: The Effects of Expansion and Activism (Ashgate, 1999)
  • Malleson, Kate and Russell, Peter H., Appointing Judges in an Age of Judicial Power (Cambridge University Press, 2006)
  • Rackley, Erika, Women, Judging and the Judiciary: From Difference to Diversity (Routledge, 2013)
  • Seervai, H.M., Constitutional Law of India (Universal Law Publishing, 4th edn., 1996)
  • Shetreet, Shimon, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges (Martinus Nijhoff, 1985)
  • Shetreet, Shimon and Forsyth, Christopher, The Culture of Judicial Independence (Brill, 2011)
  • Tushnet, Mark, Weak Courts, Strong Rights (Princeton University Press, 2008)

Journal Articles

  • Baxi, Upendra, “The Indian Supreme Court and Politics” 8 International Journal of the Sociology of Law 107 (1980)
  • Fitzpatrick, Brian, “The Politics of Merit Selection” 74 Missouri Law Review 675 (2009)
  • Malleson, Kate, “Judicial Appointments and the Problem of Legitimacy” 56 University of Toronto Law Journal 367 (2006)
  • Malleson, Kate, “The New Judicial Appointments Commission in England and Wales” 16 Legal Studies 35 (2006)
  • Mehta, Pratap Bhanu, “The Rise of Judicial Sovereignty” 18 Journal of Democracy 70 (2007)
  • Robinson, Nick, “India’s Judicial Collegium System” 1 NUJS Law Review 99 (2013)
  • Shepherd, Joanna, “Money, Politics, and Impartial Justice” 58 Duke Law Journal 623 (2009)

Reports and Other Sources

  • Council of Europe, “European Judicial Systems Report” (CEPEJ, 2020)
  • UK House of Lords Constitution Committee, “Judicial Appointments” (2012)

[1] Aileen Kavanagh, Constitutional Review under the UK Human Rights Act 23 (Cambridge University Press, 2009).

[2] Kate Malleson and Peter H. Russell, Appointing Judges in an Age of Judicial Power 5 (Cambridge University Press, 2006).

[3] S.P. Gupta v. Union of India, 1981 Supp SCC 87.

[4] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.

[5] Supreme Court Advocates-on-Record Association v. Union of India, (2015) 5 SCC 1.

[6] The Constitutional Reform Act, 2005 (UK).

[7] Kate Malleson, “The New Judicial Appointments Commission in England and Wales” 16 Legal Studies 35 (2006).

[8] The Constitution of the United States, art. II, s. 2.

[9] Erwin Chemerinsky, The Case Against the Supreme Court 112 (Viking, 2014).

[10] The Constitution of France, 1958, art. 64.

[11] Kate Malleson and Peter H. Russell, Appointing Judges in an Age of Judicial Power 12 (Cambridge University Press, 2006).

[12] Joseph Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 LQR 195.

[13] Lon Fuller, The Morality of Law 33 (Yale University Press, 1964).

[14] Alexander Hamilton, The Federalist No. 78 (1788).

[15] Ronald Dworkin, Law’s Empire 1 (Harvard University Press, 1986).

[16] Mark Tushnet, Weak Courts, Strong Rights 21 (Princeton University Press, 2008).

[17] The Constitution of the United States, art. II, s. 2.

[18] Erwin Chemerinsky, The Case Against the Supreme Court 115 (Viking, 2014).

[19] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.

[20] Upendra Baxi, “The Indian Supreme Court and Politics” 8 International Journal of the Sociology of Law 107 (1980).

[21] The Constitutional Reform Act, 2005 (UK).

[22] Methods of Appointment of Judges in France.

[23] Shimon Shetreet and Christopher Forsyth, The Culture of Judicial Independence 45 (Brill, 2011).

[24] Kate Malleson, “Judicial Appointments and the Problem of Legitimacy” 56 University of Toronto Law Journal 367 (2006).

[25] Graham Gee, et.al., The Politics of Judicial Independence in the UK 89 (Cambridge University Press, 2015).

[26] Erika Rackley, Women, Judging and the Judiciary 67 (Routledge, 2013).

[27] The Constitution of India, arts. 124(2), 217(1).

[28] H.M. Seervai, Constitutional Law of India 2987 (Universal, 4th edn., 1996).

[29] S.P. Gupta v. Union of India, 1981 Supp SCC 87.

[30] Granville Austin, Working a Democratic Constitution 215 (Oxford University Press, 1999).

[31] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.

[32] Ibid.

[33] Re Special Reference No. 1 of 1998, (1998) 7 SCC 739.

[34] National Judicial Appointments Commission Act 2014.

[35] Supreme Court Advocates-on-Record Association v Union of India (2015) 5 SCC 1.

[36] Ibid.

[37] Shimon Shetreet, Judicial Independence 102 (Martinus Nijhoff, 1985).

[38] Nick Robinson, “India’s Judicial Collegium System” 1 NUJS Law Review 99 (2013).

[39] Pratap Bhanu Mehta, “The Rise of Judicial Sovereignty” 18 Journal of Democracy 70 (2007).

[40] M.P. Jain, Indian Constitutional Law 1950 (LexisNexis, 8th edn., 2018).

[41] Kate Malleson, The New Judiciary 45 (Ashgate, 1999).

[42] Graham Gee, et.al., The Politics of Judicial Independence in the UK 67 (Cambridge University Press, 2015).

[43] Ibid.

[44] The Constitutional Reform Act, 2005 (UK).

[45] Kate Malleson, The New Judiciary 89 (Ashgate, 1999).

[46] The Constitutional Reform Act, 2005 (UK), ss. 63–66.

[47] Ibid.

[48] Ibid., ss. 25–31.

[49] R (Katie Thomas) v. Lord Chancellor, [2015] EWCA Civ 912.

[50] Ibid.

[51] Kate Malleson, “The New Judicial Appointments Commission” 16 Legal Studies 35 (2006).

[52] UK House of Lords Constitution Committee, “Judicial Appointments” (2012).

[53] Graham Gee, et.al., The Politics of Judicial Independence in the UK 102 (Cambridge University Press, 2015).

[54] John Bell, French Legal Cultures 110 (Butterworths, 2001).

[55] The Constitution of France, 1958, art. 64.

[56] Ibid.

[57] John Bell, Judiciaries within Europe: A Comparative Review 140 (Cambridge University Press, 2006).

[58] Jacqueline Hodgson, French Criminal Justice 35 (Hart, 2005).

[59] Ibid.

[60] John Bell, Judiciaries within Europe: A Comparative Review 145 (Cambridge University Press, 2006).

[61] Jacqueline Hodgson, French Criminal Justice 78 (Hart, 2005).

[62] Ibid.

[63] Council of Europe, “Report on European Judicial Systems” (CEPEJ, 2020).

[64] Jacqueline Hodgson, French Criminal Justice 80 (Hart, 2005).

[65] Ibid., 81.

[66] John Bell, Judiciaries within Europe: A Comparative Review 148 (Cambridge University Press, 2006).

[67] Jacqueline Hodgson, French Criminal Justice 81 (Hart, 2005).

[68] Joanna Shepherd, “Money, Politics, and Impartial Justice” 58 Duke Law Journal 623 (2009).

[69] Lawrence Baum, Judges and Their Audiences 78 (Princeton University Press, 2006).

[70] Charles Geyh, Courts and Congress 134 (University of Michigan Press, 2006).

[71] Brian Fitzpatrick, “The Politics of Merit Selection” 74 Missouri Law Review 675 (2009).

[72] The Constitution of the United States, art. II, s. 2.

[73] Joanna Shepherd, “Money, Politics, and Impartial Justice” 58 Duke Law Journal 623 (2009).

 

[74] Charles Geyh, Courts and Congress (University of Michigan Press 2006) 134.

[75] Brian Fitzpatrick, ‘The Politics of Merit Selection’ (2009) 74 Missouri L Rev 675.

[76] Charles Geyh, Courts and Congress 140 (University of Michigan Press, 2006).

[77] Kate Malleson and Peter H. Russell, Appointing Judges in an Age of Judicial Power 12 (Cambridge University Press, 2006).

[78] Nick Robinson, “India’s Judicial Collegium System” 1 NUJS Law Review 99 (2013).

[79] The Constitutional Reform Act, 2005 (UK).

[80] Kate Malleson, “The New Judicial Appointments Commission” 16 Legal Studies 35 (2006).

[81] Joanna Shepherd, “Money, Politics, and Impartial Justice” 58 Duke Law Journal 623 (2009).

[82] Charles Geyh, Courts and Congress 134 (University of Michigan Press, 2006).

[83] Brian Fitzpatrick, “The Politics of Merit Selection” 74 Missouri Law Review 675 (2009).

[84] The Constitution of France, 1958, art. 64.

[85] John Bell, Judiciaries within Europe 145 (Cambridge University Press, 2006).

[86] Ibid.

[87] Graham Gee, et.al., The Politics of Judicial Independence in the UK 102 (Cambridge University Press, 2015).

3d logo journal

Three Decades of India’s Journey Towards Local Self Governance

3d logo journal

JOINT JURIST

AUTHOR: ANUSHKA DEY /STUDENT (5TH YEAR), ICFAI UNIVERSITY TRIPURA

CO.AUTHOR  :  JHUMA KHATUN | STUDENT (5TH YEAR), ICFAI UNIVERSITY TRIPURA

 

Abstract

This research paper critically examines the three-decade journey of local self-governance in India since the enactment of the 73rd and 74th constitutional Amendments in 1992. These landmark amendments provided a constitutional status to Panchayati Raj Institutions (PRIs) and urban Local Bodies (ULBs), aiming to deepen democracy through decentralization and empower local communities to participate in governance and development. The study explores the legal and institutional frameworks that shaped the evolution of local governance in India, highlighting the challenges in implementing the envisioned devolution of power, function, and finances (the 3Fs).

The paper delves into the – developmental role of local self-Government (LOG) institutions in critical sectors such as agriculture, healthcare, education and disaster management. It also analyses the extent of fiscal autonomy granted to LSGs, evaluating the role of state Finance Commissions and the persistent challenges in resource mobilization and financial planning at the grassroots level. Through a comparative lens, the paper juxtaposes Indias decentralization model with global experiences, drawing lessons from countries like Brazil and south Africa. Furthermore, the study brings to light several innovations and good governance practices initiated by local bodies across different Indian States, especially in leveraging digital tools and participatory mechanisms, despite significant progress, the research identifies persistent gaps in capacity building, legal enforcement, and political will, which hinder effective functioning of LSGs.

 

Introduction

Over the past three decades, local self-governance in India has undergone a significant transformation, primarily catalysed by the enactment of the 73rd and 74th Constitutional Amendments in 1992. These landmark reforms provided constitutional status to Panchayati Raj Institutions (PRIs) and Urban Local Bodies (ULBs), thereby laying a strong legal foundation for decentralized governance. This transformation was not merely administrative; it represented a paradigmatic shift towards participatory democracy and inclusive development. The institutionalization of local bodies sought to empower citizens at the grassroots level, enabling them to play a direct role in planning, implementation, and monitoring of local development initiatives. Local self-governance has since emerged as a vital component of India’s democratic fabric, offering a mechanism for enhancing administrative responsiveness, improving service delivery, and promoting equitable development across diverse regions.

The significance of this decentralized model extends beyond national boundaries, as the Indian experience has served as a case study for several developing countries striving to establish people-centric governance frameworks. In this light, the present research paper aims to critically analyse the legal and constitutional underpinnings of local self-governance in India, examine the extent to which these institutions have achieved their intended developmental objectives, and evaluate their evolution within a broader global context. The scope of the paper includes an in-depth study of institutional mechanisms, fiscal decentralization, state-local power dynamics, and the role of local bodies in addressing contemporary challenges such as disaster management, public health, climate change, and rural-urban integration.

 

To guide this inquiry, the paper raises pertinent research questions:

How have the constitutional and legal frameworks shaped the trajectory of local self-governance in India? What institutional and operational challenges continue to hinder the realization of true decentralization?

 In what ways can India’s local governance model be compared to international paradigms of decentralized administration?

The study adopts a doctrinal methodology supplemented by analytical insights from government reports, statutory provisions, judicial pronouncements, and academic literature. Through this comprehensive approach, the paper seeks to contribute to the discourse on democratic decentralization and its role in fostering sustainable and inclusive governance both in India and globally.

Historical Evolution of Local Self-Governance in India

Pre-73rd/74th Amendment Local Governance: Panchayats and Municipalities. The concept of local self-governance in India traces its roots to ancient times, particularly to the era of village republics, where gram sabhas (village assemblies)[1] functioned as decision-making bodies for local affairs. These bodies played a critical role in managing resources, resolving disputes, and overseeing social and economic activities within villages. The famous jurist Henry Maine noted that India’s village communities were “little republics” with considerable autonomy.

During British rule, however, the traditional systems of local governance suffered major setbacks. The colonial administration introduced centralized governance structures which significantly curtailed the autonomy of village communities. Nevertheless, the British did initiate some reforms toward local governance in urban and rural settings, largely for administrative convenience

Municipal governance was formally introduced through the Lord Ripon’s Resolution of 1882[2], often considered the Magna Carta of local self-government in India. This resolution recommended increased public participation in municipal administration through elected representatives.

 In rural India, district boards and local boards were created, but they largely remained under bureaucratic control, lacking genuine decentralization.

Post-independence, the Indian Constitution did not originally accord constitutional status to Panchayats and Municipalities. They were treated as matters under the State List (Entry 5, List II, Seventh Schedule of the Constitution)[3], and thus their structure and functioning varied widely across states.

Balwantrai Mehta and Ashok Mehta Committees

Balwantrai Mehta Committee (1957)

In response to the failure of community development programs, the Government of India set up the Balwantrai Mehta Committee in 1957[4] to examine the functioning of the Community Development Programme (1952) and the National Extension Service (1953). The Committee emphasized the need for democratic decentralization[5] and recommended a three-tier Panchayati Raj system:

 

  1. Village Panchayat (Gram Panchayat)
  2. Panchayat Samiti at the block level
  3. Zila Parishad at the district level

Key Recommendations:

 Transfer of planning and implementation of rural development programs to Panchayati Raj institutions. Regular elections and adequate powers to Panchayats. Emphasis on functional devolution and local participation. As a result, Rajasthan became the first state to implement Panchayati Raj in 1959, followed by Andhra Pradesh and others. However, the system’s success was uneven due to lack of political will, inadequate financial autonomy, and bureaucratic resistance.

Ashok Mehta Committee (1977)

In the post-emergency era, the Ashok Mehta Committee[6] was constituted by the Janata Government in 1977 to analyze the weaknesses of the existing Panchayati Raj system. Its key recommendations included:

 A two-tier system: Mandal Panchayat (covering 15,000–20,000 population) and Zila Parishad.  Political parties’ participation in Panchayat elections. Panchayati Raj institutions as units of planning and development. Establishment of a State Finance Commission[7]. Reservation of seats for Scheduled Castes, Scheduled Tribes, and women. This Committee was instrumental in reshaping discourse around decentralization, though its recommendations were not fully implemented due to the fall of the Janata Government.

Need for Constitutional Recognition

Despite various committees and state-led initiatives, Panchayati Raj and urban local bodies remained structurally weak and lacked uniformity. The local bodies were dependent on state discretion for powers, functions, and resources. Irregular in elections, often under bureaucratic dominance. Politically marginalized, with tokenistic representation and negligible influence in planning or policy-making. As a result, grassroots democracy remained stunted. Recognizing the need to provide local bodies with a stronger legal foundation[8], the 73rd and 74th Constitutional Amendments[9] were introduced in 1992 and came into effect in 1993.

These amendments:

Gave constitutional status to Panchayats and Municipalities. Mandated regular elections every five years. Introduced 11th and 12th Schedules listing 29 and 18 subjects respectively for local governance. Established the State Finance Commissions and State Election Commissions to ensure autonomy and accountability[10] The constitutional amendments were driven by a vision to institutionalize participatory democracy, ensure inclusive development, and promote responsive governance at the grassroots

 

Legal and Constitutional Framework

73rd Amendment Act (Panchayati Raj Institution)

The 73rd Constitutional Amendment Act, 1992, brought about a landmark transformation in the Indian federal structure by constitutionally recognizing the Panchayati Raj Institutions (PRIs) as the third tier of government. Enacted on 24 April 1993, it added Part IX (Articles 243 to 243-O)[11] to the Constitution and introduced the Eleventh Schedule, thereby formalizing the decentralization of governance at the rural level.

The objective was to democratize governance by empowering rural populations through elected bodies. This amendment was a response to the failure of earlier schemes of decentralization which were not constitutionally backed and were dependent on state government discretion. As per B.S. Bhalla (2010), “the 73rd Amendment symbolized a political will to devolve power and democratize administration at the grassroots”[12]

Structure of Panchayati Raj Institutions (PRIs)

The 73rd Constitutional Amendment Act, 1992[13], provided a constitutional framework for the establishment and operation of Panchayati Raj Institutions as units of self-government at the grassroots level. The structural features are:

  • Gram Sabha: A foundational body at the village level comprising all persons whose names are registered in the electoral rolls of the village within a Panchayat jurisdiction. It acts as a deliberative body to ensure democratic participation (Article 243(b)).
  • Three-Tier System: The Act mandates the creation of a three-tier system of Panchayats—at the village, intermediate, and district levels—in all States and Union Territories, except those with populations below 20 lakhs[14] (e.g., Goa, Sikkim, northeastern states, and some UTs), where the intermediate tier is optional.
  • Direct Elections: Members of the Panchayats at all levels must be directly elected from territorial constituencies. These constituencies must ensure uniform representation as far as practicable, based on population.
  • Chairpersons: While village Panchayat chairpersons may be chosen differently as per state legislation, those at the intermediate and district levels must be elected from among directly elected members.
  • Tenure and Elections: Panchayats have a fixed term of five years. If dissolved earlier, fresh elections must be held within six months, provided the remaining term is not less than six months.
  • Minimum Age: A person must be at least 21 years old to contest Panchayat elections.
  • Continuity and Transition: Existing Panchayats may continue until the expiry of their tenure or until new legislation is enacted within one year of the amendment coming into force.
  • Judicial Non-Interference: Courts are barred from intervening in matters related to delimitation of constituencies, seat allotments, and elections. However, election disputes may be adjudicated by state-specific election tribunals

Powers and Functions of Panchayati Raj Institutions

While the Amendment sets out several mandatory features, it also delegates the responsibility to the State Legislatures to define the scope of powers and functions of Panchayats. However, some key functional mandates include:

  • Reservation of Seats:

Scheduled Castes (SCs) and Scheduled Tribes (STs): Proportionate reservation based on their population within the Panchayat jurisdiction. Women: One-third of all seats (including those reserved for SCs/STs) and chairperson posts at each level are reserved for women, ensuring gender inclusivity and representation[15].

  • Finance Commission: Each state must establish a State Finance Commission every five years to evaluate the financial status of Panchayats and recommend principles for distribution of financial resources, including taxes, duties, and grants-in-aid from the Consolidated Fund of the State. The recommendations are to be presented before the state legislature.
  • Audit of Accounts: The accounts of all Panchayats are to be audited regularly to ensure financial accountability.
  • State Election Commission: A constitutionally empowered State Election Commission is to be established to oversee, direct, and control the preparation of electoral rolls and conduct of elections for Panchayats. The State Election Commissioner enjoys security of tenure and can only be removed in the same manner as a High Court judge.
  • Legislative Empowerment: States are authorized to legislate on a wide array of issues concerning Panchayats, such as defining their powers, responsibilities, taxation authority, governance procedures, and planning functions.
  • Exemptions and Modifications: The provisions of Part IX of the Constitution (which incorporates the Panchayati Raj framework) are not applicable to certain tribal and scheduled areas, unless specified. The President (for Union Territories) and the Governor (for Scheduled Areas) may make suitable modifications or exemptions.

74th Amendment (Urban Local Bodies)

The constitution 74th Amendment Act 1992, relating to Municipalities (Urban local Government) was passed by the parliament in 1992. It received the assent of the president of India on 20th April 1993. The Act seeks to provide a common framework for the structure and mandate of urban local bodies to enable them to function as effective democratic units of local Self Government.

Government of India notified 1st June 1993 as the date from which the 74th Amendment Act came into force. The Act provided for a period of one year from the date of its commencement, within which the then existing municipal laws (which were in force at that time In states/union territories) were required to be changed/amended/modified in order to bring them in conformity with the provisions of the constitution (74th Amendment) Act—1992.

Structure and Classification of Urban Local Bodies 

The 74th Constitutional Amendment Act, 1992, introduced Part IXA (Articles 243P to 243ZG) into the Constitution of India, recognizing Urban Local Bodies (ULBs) as the third tier of government in urban areas. The amendment aims to strengthen democratic decentralization, provide autonomy to urban governance institutions, and ensure participatory urban development. Article 243Q specifically mandates the classification of municipalities into three distinct categories based on population, urban characteristics, and governance needs.

Article 243Q

Article 243Q (1) mandates that every State shall constitute three types of municipalities in urban areas[16]: “There shall be constituted in every State, 
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part.”

The classification is primarily based on the demographic profile, economic activity, and the degree of urbanization of the region. The Governor is empowered to specify, by public notification, which areas shall be designated under each category based on objective criteria and recommendations.

  1. Municipal Corporations (Nagar Nigams)

Municipal Corporations are established for larger urban areas, generally with a high population density, large geographical extent, and significant economic, administrative, and infrastructural complexity. These corporations are the most powerful tier among ULBs and are entrusted with extensive functions such as public transportation, urban planning, environmental protection, solid waste management, water supply, public health, and education.

Key features:

  • Governed by a Council of elected representatives and an Executive Wing headed by a Municipal Commissioner (usually an IAS officer).
  • Presided over by a mayor, either directly elected or chosen by the elected council members.
  • Backed by substantial financial and administrative resources.
  • Operate under specific state municipal corporation laws (e.g., The Delhi Municipal Corporation Act, 1957)[17].

Examples:

  • Brihanmumbai Municipal Corporation (BMC) – the richest municipal corporation in India.
  • Municipal Corporation of Delhi (MCD)
  • Chennai Corporation

These corporations play a pivotal role in governance and service delivery in megacities.

  1. Municipal Councils (Nagar Palika)

Municipal Councils are formed for smaller urban areas, typically towns with a moderate population size and a developing urban character. These councils perform a wide range of civic functions, though on a smaller scale compared to Municipal Corporations[18].

Key features:

  • Comprise elected representatives, including a chairperson or President.
  • Administer essential services such as sanitation, water supply, local roads, markets, and town planning.
  • Operate under respective state municipal acts, e.g., The Rajasthan Municipalities Act, 2009.

Examples:

  • Panaji Municipal Council, Goa
  • Dharamshala Municipal Council, Himachal Pradesh

While they have less financial autonomy, Municipal Councils are often the first point of interaction between citizens and urban governance structures[19].

  1. Nagar Panchayats

Nagar Panchayats are established for transitional areas, i.e., regions in the process of urbanization, which do not yet fulfil the criteria of a municipality but require governance mechanisms distinct from rural panchayats[20].

Key features:

  • Serve as intermediary institutions to manage the transformation of rural areas into urban settlements.
  • Handle basic civic functions such as street lighting, waste collection, birth and death registration, and minor infrastructure development.
  • Typically face administrative challenges due to limited capacity, funds, and human resources.

Examples:

  • Chopda Nagar Panchayat, Maharashtra
  • Talcher Nagar Panchayat, Odisha

These bodies are essential for planned urban expansion and integration of peri-urban regions[21].

Legislative Empowerment of ULBs

Although the Constitution provides a classification framework, the real empowerment of Urban Local Bodies is contingent on State Legislatures. As per Article 243R and Article 243W, states are responsible for[22]:

  • Defining the composition, reservation of seats, and terms of office of municipal bodies.
  • Endowing municipalities with functional responsibilities listed in Schedule XII.
  • Delegating financial powers, taxation authority, and control over urban planning and land use.

This ensures that while the classification under Article 243Q is constitutionally mandated, operationalization is a state subject, leading to variation across states in implementation, structure, and effectiveness[23].

Twelfth Schedule (Article 243 W)[24]:

  1. Urban planning including town planning.
  2. Regulation of land use and construction of buildings.
  3. Planning for economic and social development.
  4. Roads and bridges.
  5. Water supply for domestic, industrial and commercial purposes.
  6. Public health sanitation, conservancy and solid waste management.
  7. Fire services.
  8. Urban forestry protection of the environment and promotion of ecological aspects.
  9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
  10. Slum improvement and upgradation.
  11. Urban poverty alleviation.
  12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
  13. Promotion of cultural, educational and aesthetic aspects.
  14. Burials and burial grounds, cremations, cremation grounds and electric crematoriums.
  15. Cattle pounds, prevention of cruelty to animals.
  16. Vital statistics including registration of births and deaths.
  17. Public amenities including street lighting, parking lots, bus slops and public conveniences.
  18. Regulation of slaughter houses and tanneries.

These functions are enabling, not mandatory—states may decide which functions to devolve, leading to significant inter-state variation in the functional autonomy of ULBs[25].

Role of State Election Commissions (SECs)

Under Article 243ZA, the State Election Commission (SEC) is entrusted with the superintendence, direction, and control of the preparation and conduct of elections to the municipalities. The SEC is an independent constitutional authority, akin to the Election Commission of India[26].

The State Election Commissioner is appointed by the Governor and enjoys protections against arbitrary removal, ensuring institutional independence. However, several states have witnessed executive interference in SEC functioning, which has led to judicial intervention.

Judicial Precedent:

 In Kishan Singh Tomar v. Municipal Corporation of Ahmedabad, (2006) 8 SCC 352, the Supreme Court held that the election to municipalities must be held before the expiry of their term, and delays cannot be condoned under administrative pretexts[27].

Role of State Finance Commissions (SFCs)

The State Finance Commission (SFC) is mandated under Article 243Y[28] to review the financial position of the municipalities and recommend the distribution of financial resources between the state and local bodies. Each SFC must be constituted every five years by the Governor and is expected to recommend:

The principles for distribution of taxes and grants-in-aid. Measures to improve financial performance of municipalities. Steps for augmenting resources of municipalities from the Consolidated Fund of the State.

Despite this constitutional mandate, implementation has been weak. Many states fail to constitute timely SFCs or act upon their recommendations, thereby hampering the fiscal autonomy of ULBs[29].

Critical Legal Analysis: Autonomy vs. Control by State Governments

Constitutional Promise of Decentralization

The 74th Amendment was intended to foster democratic decentralization, empower local institutions, and promote inclusive governance. It sought to institutionalize municipalities and grant them functional, financial, and administrative autonomy. However, the constitutional language is largely enabling rather than mandatory. For example:

Article 243W uses the phrase: “may, by law, endow the municipalities…” Schedule XII is not binding; states can pick and choose functions.

State Control: A Structural Inhibition

ULBs continue to function under state municipal laws, which often leave significant room for state interference, such as:

  • Dissolution of municipal bodies before their term.
  • Delays in holding elections
  • Appointment of administrators instead of elected representatives
  • Limited devolution of functions and funds
  • Inadequate follow-up on SFC recommendations

 

 

Judicial Recognition of Municipal Autonomy

Courts have affirmed the importance of municipal governance:

 In Municipal Corporation of Greater Mumbai v. Kohinoor CTNL Infrastructure, (2014) 4 SCC 538, the Supreme Court emphasized the importance of decentralization and local accountability in urban planning.

 In Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270, the Court emphasized the spirit of federalism and cautioned against centralizing tendencies.

Way Forward

For meaningful decentralization, states must:

  • Empower ULBs through functional devolution
  • Ensure fiscal transfers are timely and adequate
  • Enhance administrative capacity at local levels
  • Strengthen autonomy of SECs and SFCs

Decentralization and Democratic Deepening in India

Decentralization refers to the transfer of authority and responsibility from central and state governments to local government institutions. In India, this principle has been given constitutional recognition through the 73rd and 74th Constitutional Amendments, which sought to empower Panchayati Raj Institutions (PRIs) and Urban Local Bodies (ULBs) respectively. These amendments laid the foundation for democratic deepening at the grassroots level by ensuring participatory governance, transparency, and accountability. The effectiveness of decentralization, however, depends critically on the devolution of the 3Fs – Functions, Funds, and Functionaries – to the local bodies[30].

Devolution of Powers: The 3Fs – Functions, Funds, and Functionaries

The idea of democratic decentralization is operationalized through the effective devolution of Functions, Funds, and Functionaries (commonly referred to as the 3Fs)[31]:

  • Functions: The Eleventh and Twelfth Schedules of the Constitution list 29 subjects for Panchayats and 18 subjects for Municipalities. These include areas such as health, education, agriculture, sanitation, and urban planning. However, many states have not fully devolved these functions to local governments. Functional devolution requires clear-cut roles and responsibilities to avoid overlapping authority between state departments and local bodies.
  • Funds: Devolution without financial autonomy is ineffective. Despite the constitutional mandate, local bodies often remain financially dependent on state governments. Although State Finance Commissions (SFCs) are constitutionally required to recommend fiscal transfers, their reports are not always implemented effectively. Local bodies often lack adequate own-source revenues and depend on tied grants from the state or central government, limiting their autonomy and responsiveness.
  • Functionaries: Local governments need trained personnel to implement schemes and manage administrative functions. However, in many states, the control over functionaries still lies with state-level departments. The absence of dedicated, accountable functionaries at the Panchayat and municipal levels undermines the delivery of services and weakens grassroots governance.

This incomplete devolution of the 3Fs creates a “paper tiger” democracy, where powers are constitutionally mandated but not practically implemented. True empowerment of local governments necessitates the full and sincere implementation of the 3Fs in both letter and spirit.

Variations Across States in Implementing Devolution

One of the defining features of India’s federal structure is that decentralization has evolved differently across states. The Constitution provides a framework, but its implementation is left largely to the discretion of state governments. As a result, there are significant inter-state variations in the degree and quality of devolution.

According to the Ministry of Panchayati Raj’s Devolution Index Reports, states like Kerala, Karnataka, Maharashtra, and West Bengal have been frontrunners in empowering local bodies[32]. For instance, Kerala’s People’s Plan Campaign stands as a model for participatory planning and functional devolution. Karnataka has made significant progress in placing sectoral staff under the control of Panchayats.

On the other hand, many northern and central Indian states have been slow to implement devolution. Bureaucratic resistance, lack of political will, and entrenched departmental interests often prevent the transfer of functions and personnel to local governments. The result is a highly asymmetric decentralization landscape, which hampers inclusive development and uniform democratic deepening.

People’s Participation and Accountability

Democratic decentralization is not merely about transferring administrative powers; it is also about empowering citizens to actively participate in governance and hold public officials accountable. In this regard, people’s participation is both a means and an end of democratic deepening.

Mechanisms such as social audits, participatory planning, citizen charters, and grievance redressal forums enable direct public involvement in decision-making processes. The Right to Information Act, 2005[33] has further strengthened the ability of citizens to seek accountability from local officials.

However, participation often remains tokenistic due to lack of awareness, capacity, and empowerment among the citizenry, particularly women, Scheduled Castes, and Scheduled Tribes. Studies have shown that in many regions, Gram Sabhas are either not held regularly or their recommendations are not given due importance[34].

To ensure accountability, it is essential to:

  • Build capacity and awareness among citizens;
  • Strengthen transparency mechanisms;
  • Institutionalize grievance redress;
  • Promote inclusive participation, especially of marginalized groups.

Role of Gram Sabhas and Ward Committees

The Gram Sabha (in rural areas) and the Ward Committees (in urban areas) are constitutional instruments designed to institutionalize people’s participation and enhance democratic accountability at the local level.

Gram Sabha: Defined under Article 243(b) of the Constitution, the Gram Sabha consists of all registered voters in a village. It is the foundational democratic body under the Panchayati Raj system. The Gram Sabha has the authority to approve plans, programs, and budgets of the Panchayat and to hold its functionaries accountable. In states like Kerala and Chhattisgarh, the Gram Sabha has been empowered to a great extent and plays a critical role in local decision-making.

Ward Committees: Under Article 243S, Ward Committees are envisaged in municipalities with a population of over 3 lakhs. They are meant to bring urban governance closer to the people. However, unlike Gram Sabhas, Ward Committees are poorly institutionalized in many states. There is a lack of clarity regarding their composition, powers, and responsibilities. The success of Ward Committees largely depends on the will of the urban local body and state authorities to empower them[35].

Despite constitutional backing, both Gram Sabhas and Ward Committees suffer from lack of regular meetings, low participation, and inadequate follow-up on their recommendations. For these institutions to function effectively, they must be given not only legal authority but also functional space and administrative support.

Fiscal Autonomy and Resource Mobilization in India

Role of the State Finance Commissions (SFCs)

The 73rd and 74th Constitutional Amendments introduced a significant shift in India’s fiscal federalism by mandating the establishment of State Finance Commissions (SFCs) under Article 243-I[36]. These commissions are tasked with reviewing the financial position of Panchayats and Municipalities and recommending the principles governing the distribution of financial resources between the state and local governments.

As per Article 243-I of the Constitution of India:

“The Governor of a State shall, within one year from the commencement of the Constitution (Seventy-third Amendment) Act, 1992, and thereafter at the expiration of every fifth year, constitute a Finance Commission to review the financial position of the Panchayats and to make recommendations to the Governor.[37]The SFCs play a pivotal role in ensuring fiscal decentralization by recommending the devolution of funds to local bodies, thereby strengthening grassroots democracy and enhancing the efficiency of public service delivery[38].

Challenges in Fiscal Decentralization

Despite the constitutional mandate, several challenges impede effective fiscal decentralization in India:

Incomplete Devolution of Powers: Many states have not fully devolved financial powers to local bodies, leading to a mismatch between responsibilities and resources.

Irregular Constitution of SFCs: Several states have delayed the constitution of SFCs or have not implemented their recommendations effectively, undermining the fiscal autonomy of local governments[39].

Dependence on Higher Tiers: Local bodies often rely heavily on grants from state and central governments, limiting their ability to plan and execute local development initiatives independently[40].

A study highlights that “the key factor that ruined the fiscal autonomy to Panchayats in India is the incomplete and inequitable process of power devolution to Panchayats by different state governments in their respective states”[41]

Own-Source Revenue vs. Grants

Local governments in India have two primary sources of revenue: own-source revenues (OSR) and intergovernmental transfers (grants). Own-Source Revenues: These include property tax, user charges, fees, and other local taxes. However, the capacity to generate OSR varies significantly across states and is often limited due to administrative inefficiencies and lack of autonomy.

Grants: These are funds transferred from the central and state governments. While they provide essential financial support, over-reliance on grants can undermine the fiscal independence of local bodies. An analysis indicates that “the generation of own revenue of the Urban Local Bodies to total grants was very low and comparison of own revenue to total expenditure also showed a large gap. This shows that Urban Local Bodies were heavily dependent on grants from the Central and the State Government”[42]

Comparative Fiscal Analysis Across States

The fiscal capacity and performance of local bodies vary widely across Indian states. States like Kerala and Karnataka have made significant strides in empowering local governments through effective devolution of powers and resources. In contrast, states like Jharkhand and Odisha lag in this regard[43].

A comparative study notes that “State like Kerala, Karnataka, West Bengal, has devolved desired powers to Panchayats, at the same time, States like Jharkhand, Odisha legging behind in the process”[44]

Need for Capacity Building and Financial Planning

For local governments to effectively utilize devolved funds and generate their own revenues, capacity building is essential. This includes training personnel, improving financial management systems, and adopting modern planning and budgeting techniques.

The Planning Commission of India emphasizes that “strengthening urban local governments through capacity building and better financial management is identified as a key strategy for urban development”[45]

Developmental Role of Local Self-Government Institutions (LSGs)

The 73rd and 74th Constitutional Amendments, which institutionalized Panchayati Raj Institutions (PRIs) and Urban Local Bodies (ULBs) respectively, mark a paradigm shift towards participatory democracy and decentralized governance in India. Enacted in 1992, these amendments accord constitutional status to LSGs and recognize them as the third tier of governance, thereby empowering them to play a pivotal role in local development, including sectors such as agriculture, health, disaster management, education, and welfare. The Eleventh and Twelfth Schedules of the Constitution list 29 and 18 subjects respectively that fall within the domain of PRIs and ULBs.

Role of LSGs in Agriculture & Rural Development

Local Self-Governments are constitutionally mandated to promote agriculture and allied activities. Item 1 of the Eleventh Schedule lists “Agriculture, including agricultural extension” as a devolved function. LSGs facilitate the identification of local agricultural needs, dissemination of technology through Krishi Vigyan Kendras, and mobilization of community participation.

Watershed Management & Irrigation:

LSGs are actively involved in watershed development programs like the Integrated Watershed Management Programme (IWMP), now subsumed under the Pradhan Mantri Krishi Sinchayee Yojana (PMKSY). They plan, implement, and monitor micro-watershed projects and minor irrigation schemes, promoting sustainable agriculture. This aligns with Items 3 and 4 of the Eleventh Schedule, which include “Minor irrigation, water management and watershed development”.

Rural Employment:

Under Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA), Gram Panchayats are the principal authorities for planning and executing employment generation projects. They ensure wage employment while creating durable assets like check dams, rural roads, and ponds, hence enhancing rural infrastructure and resilience.

Role in Health & Sanitation

The role of LSGs in health is enshrined in Items 23 and 24 of the Eleventh Schedule—”Health and sanitation, including hospitals, primary health centres and dispensaries”. They ensure primary healthcare delivery, especially through coordination with the National Health Mission (NHM).

National Health Mission Implementation:

PRIs and ULBs are key stakeholders in the planning, monitoring, and implementation of NHM at the village and ward levels. Village Health Sanitation and Nutrition Committees (VHSNCs) under Gram Panchayats prepare local health plans, monitor Anganwadi Centres and Accredited Social Health Activists (ASHAs), and facilitate community-based maternal and child health interventions.

Role of Local Self-Government Institutions (LSGs) During COVID-19 Pandemic

During the unprecedented crisis of the COVID-19 pandemic, Local Self-Government Institutions (LSGs) in India emerged as crucial actors in the public health and administrative response, particularly at the grassroots level. Their constitutionally mandated role under Article 243G (for Panchayats) and 243W (for Municipalities), combined with powers enumerated under Schedules XI and XII of the Indian Constitution, allowed LSGs to tailor interventions to local needs[46]. Their proximity to communities, existing social infrastructure, and intimate understanding of local dynamics positioned them as first responders across rural and semi-urban India [47]

A critical component of the LSGs’ pandemic response was the tracking and management of migrant workers. With the announcement of a national lockdown in March 2020, millions of migrant workers returned to their home states. In response, many Panchayats, particularly in Kerala, Odisha, and Bihar, collaborated with district administrations to register returning migrants, enforce mandatory quarantine procedures, and provide basic care facilities. Community-level quarantine centers, often housed in school buildings and public halls, were operated by Panchayats with support from local volunteers and health workers[48] (Kerala State Planning Board, 2021).

In the area of healthcare delivery, LSGs took a leading role in implementing testing, contact tracing, and vaccination drives. Coordination between Primary Health Centres (PHCs), Accredited Social Health Activists (ASHAs), and Panchayat representatives ensured that public health messaging reached remote villages. Panchayats initiated door-to-door awareness campaigns, addressed vaccine hesitancy, and deployed mobile health units, particularly for elderly and immunocompromised individuals. The active role of LSGs in identifying vulnerable households—including persons with disabilities and those living in poverty—enabled a targeted health and welfare strategy[49]

Further, LSGs managed relief operations and social protection schemes. They ensured the timely distribution of food grains under the Pradhan Mantri Garib Kalyan Anna Yojana (PMGKAY) and facilitated direct benefit transfers (DBT) to economically distressed families. Panchayats and municipalities also operated community kitchens, providing cooked meals to migrant workers, senior citizens, and daily-wage earners. Village-level task forces, often constituted under Panchayat leadership, were responsible for monitoring compliance with containment rules, reporting suspected COVID-19 cases, and enforcing local lockdowns[50].

The state of Kerala demonstrated a model decentralized response through its robust Panchayati Raj framework. Drawing upon lessons from previous public health emergencies such as the Nipah virus outbreak in 2018, Kerala’s LSGs set up Rapid Response Teams, maintained real-time community surveillance, and coordinated with the state’s Kudumbashree network (a large women-led self-help group system) to manage logistics, produce face masks, and run kitchens. Kerala’s success in managing the first wave of the pandemic was widely acknowledged, with accolades from the World Health Organization (WHO) and international observers for its community-centric and decentralized governance model[51].

In conclusion, the COVID-19 crisis served as a litmus test for India’s decentralized governance structure. The capacity of LSGs to mobilize local resources, coordinate with health agencies, and ensure participatory governance affirmed their relevance in disaster and health crisis management. Their effective response also highlighted the importance of strengthening institutional autonomy, funding mechanisms, and capacity building at the local level to better equip them for future emergencies.

Role in Disaster Management

Although disaster management is primarily a state subject, LSGs play an indispensable role in local preparedness, risk reduction, and resilience-building.

Local-Level Preparedness

Panchayats and Municipalities are the first responders to disasters such as floods, cyclones, and droughts. Under the Disaster Management Act, 2005, LSGs are part of District Disaster Management Authorities (DDMAs), assisting in preparation of Village Disaster Management Plans (VDMPs), coordinating relief logistics, and community mobilization.

Building Resilience

Through convergence with schemes like Faster Adoption and Manufacturing of Hybrid and Electric Vehicles (FAME), MGNREGA, PMKSY, and local housing schemes, LSGs build infrastructure that reduces vulnerability to climate-induced disasters.

Role in Education, Women & Child Welfare

Education and welfare services are key areas of development, with LSGs playing a vital operational role in local implementation and monitoring.

Mid-Day Meal Scheme

Implemented primarily through schools under the supervision of Gram Panchayats and School Management Committees (SMCs), this scheme ensures nutritional security and increased school attendance. Panchayats supervise quality, procurement, and grievance redressal.

Anganwadis & Child Welfare

Under Integrated Child Development Services (ICDS), PRIs coordinate with Anganwadi workers, monitor child nutrition, and ensure convergence with health and education services. Items 24 and 25 of the Eleventh Schedule include “Women and child development” and “Social welfare”.

Local Schools and Monitoring

LSGs often establish and manage local schools, allocate funds for infrastructure, and ensure teacher accountability. Community participation is ensured through School Development and Monitoring Committees (SDMCs) and Gram Sabhas.

Constitutional Framework & Devolution

The constitutional foundation for LSGs’ developmental roles lies in:

  • Article 243G: Empowers Panchayats to prepare and implement plans for economic development and social justice concerning the subjects in the Eleventh Schedule.
  • Article 243W: Similarly empowers Municipalities in relation to the Twelfth Schedule.
  • State Finance Commissions (Article 243I & Y): Recommend devolution of financial resources to LSGs, essential for developmental functions.

Innovations and Good Practices in Local Governance

Local Self-Government (LSG) institutions in India have undergone remarkable transformation since the enactment of the 73rd and 74th Constitutional Amendments. Despite structural limitations, several states and districts have developed innovative models and best practices that serve as blueprints for effective decentralization and participatory governance. These innovations can be categorized into administrative excellence, digital governance, and community engagement.

Best-Performing States and Districts in Local Governance

Some Indian states have established robust institutional frameworks and devolved significant administrative, fiscal, and planning powers to Panchayats and Municipalities. This has led to better delivery of services, increased transparency, and people-centric governance.

Kerala stands out as a pioneer in grassroots planning. Its People’s Plan Campaign launched in 1996 institutionalized participatory planning through Gram Sabhas, enabling communities to identify development priorities. Kerala also introduced Gender Budgeting at the Panchayat level and empowered Standing Committees to oversee sectoral responsibilities.

Karnataka has demonstrated strong devolution in planning and fiscal transfers, especially through the Karnataka Panchayat Raj Act, 1993, which ensures the Gram Panchayats have control over sanitation, water supply, and primary education.

Sikkim has successfully integrated environmental concerns into Panchayat-level governance. Through community forest management and eco-tourism programs, local bodies have become agents of sustainable development.

Odisha’s experiment with self-help groups (SHGs) like Mission Shakti in convergence with Gram Panchayats has led to improved outcomes in women’s empowerment and financial inclusion.

Digital Initiatives: e-Panchayat and Smart Cities Mission

The rise of digital governance has had a transformative impact on the functioning of LSGs. Through centralized platforms and locally adapted ICT tools, digital initiatives have enabled efficient service delivery, reduced corruption, and enhanced citizen participation.

  1. e-Panchayat Mission Mode Project (MMP)

The e-Panchayat MMP, launched under the National e-Governance Plan (NeGP), provides Panchayats with software applications for planning, accounting, monitoring, and documentation. Notable components include:

PRIASoft: An accounting software facilitating financial transparency in Panchayats.

PlanPlus: Helps local bodies prepare participatory and need-based development plans.

ActionSoft and AuditOnline: Aid in monitoring physical progress and conducting real-time audits.

These tools improve inter-departmental coordination and allow stakeholders, including citizens, to access data on funds utilization and project completion.

  1. Smart Cities Mission

Introduced in 2015, the Smart Cities Mission aims to enhance urban governance through data integration, e-services, and sustainable infrastructure. Urban Local Bodies (ULBs) have established Integrated Command and Control Centres (ICCCs) to manage utilities like waste, water, traffic, and surveillance in real-time. Cities like Pune, Bhubaneswar, and Surat are leading examples where digital ecosystems have improved urban living conditions.

Role of Civil Society and NGOs in Strengthening LSGs

Civil society organizations and non-governmental organizations (NGOs) have become instrumental in reinforcing democratic governance and promoting inclusiveness in the functioning of LSGs. Their contribution ranges from capacity-building and social audits to advocacy and service delivery.

PRIA (Participatory Research in Asia) has facilitated training programs for elected representatives in Rajasthan, Madhya Pradesh, and Chhattisgarh, particularly focusing on women and marginalized communities.

SEWA (Self Employed Women’s Association) has empowered informal workers to participate in municipal decision-making processes in Gujarat and Delhi.

In states like Jharkhand and Odisha, NGOs have conducted social audits of MGNREGA, uncovering irregularities and demanding corrective actions. These activities enhance public accountability and democratize developmental planning.

Moreover, civil society networks have played a critical role in climate governance, child rights, and public health awareness at the Panchayat level.

Global Perspectives and Comparative Insights on Decentralization

Comparative Study: India vs Brazil, South Africa, and Sweden

Decentralization—the process by which central governments delegate powers to lower levels of government—varies significantly across democracies. India’s model, primarily shaped by the 73rd and 74th Constitutional Amendments, created a formalized three-tier structure for rural and urban governance. However, when we examine this in comparison with countries like Brazil, South Africa, and Sweden, both strengths and shortcomings emerge.

India vs Brazil

Brazil operates under a federal structure with a high degree of autonomy granted to municipalities by its 1988 Constitution. Brazilian municipalities are constitutionally recognized as part of the federation, with financial and administrative independence. In contrast, Indian Panchayats and Municipalities, though constitutionally empowered, still face dependence on state governments for finances, functions, and functionaries[52].

India vs South Africa

South Africa follows a cooperative governance model, where local governments are seen as equal spheres (not tiers) of governance alongside provincial and national governments. The South African Constitution (1996) ensures local governments are not subordinate but collaborate within the framework of intergovernmental relations[53]. Indian local bodies, while constitutionally recognized, are often treated as subordinate extensions of state governments, especially in terms of fiscal and administrative autonomy.

India vs Sweden

Sweden’s model is based on strong local autonomy. Municipalities (Kommuner) in Sweden enjoy legislative authority, independent tax powers, and responsibility for essential services such as education, health care, and infrastructure. These powers are protected by constitutional provisions and democratic traditions that prioritize local self-governance[54]. Compared to Sweden, Indian local bodies have limited functional jurisdiction and often lack capacity, financial control, and infrastructure to deliver services independently.

Lessons India Can Draw from Global Best Practices

Based on the comparative models:

Constitutional Clarity and Fiscal Autonomy: Like Brazil and Sweden, India must strengthen the fiscal independence of local governments. Although Schedules XI and XII assign functions to PRIs and ULBs, actual control over resources is minimal[55].

Institutional Respect and Devolution of Authority: Drawing from South Africa’s concept of “equal spheres of government,” India can move towards making local governance bodies more autonomous and participatory rather than subordinate to the state executive.

Capacity Building and Digital Integration: From Sweden, India can learn the importance of investing in the administrative and digital capacities of local bodies. A tech-enabled governance mechanism at the grassroots level can reduce inefficiencies and enhance citizen participation.

Citizen Participation: Brazil’s participatory budgeting and inclusive decision-making processes offer valuable insight into deepening democratic engagement at the local level, a process which remains limited and tokenistic in many Indian states.

Data-Driven Governance: Sweden’s use of data analytics and local statistical systems helps shape policy in a responsive manner. India could replicate this model by enabling Panchayats and Municipalities to maintain local datasets for planning and implementation.

India’s Position in Global Decentralization Indices

India’s position in global decentralization rankings reflects a mixed performance:

The Local Autonomy Index (LAI) ranks India below developed countries like Sweden, Germany, and Canada, primarily due to weak fiscal autonomy and state-level control over local bodies[56]. According to the Global Empowerment Index developed by the United Cities and Local Governments (UCLG), India’s local governments score moderately in terms of political participation but low on financial independence and legal authority[57].

The OECD’s Fiscal Decentralization Database indicates that while India has made constitutional provisions for decentralization, actual spending by sub-national governments remains heavily skewed toward state rather than local governments[58].

Challenges and the Road Ahead in Strengthening Decentralization in India

Capacity Constraints and Lack of Trained Manpower

One of the foremost challenges in India’s decentralization framework is the limited administrative capacity at the grassroots level. Most Panchayats and Urban Local Bodies (ULBs) lack professionally trained personnel to handle functions delegated under Schedules XI and XII of the Constitution. The absence of full-time technical staff such as engineers, planners, accountants, and e-governance specialists seriously hampers the execution of schemes and service delivery.

The Ministry of Panchayati Raj has acknowledged in several reports that many Gram Panchayats function with minimal technical support, often relying on part-time or deputed state government staff who are neither accountable to the local body nor adequately trained[59]. In contrast, the success of decentralization models in countries like Sweden and Brazil is partially attributed to well-trained and adequately resourced local governance structures[60].

 Political Interference and Bureaucratic Hurdles

Despite constitutional mandates, state governments and bureaucracies retain disproportionate control over local governments, limiting their autonomy. This often results in political interference in decision-making and implementation processes. Bureaucratic oversight—through District Collectors or state-appointed CEOs—frequently overrides elected representatives, reducing local governance to a formality.

 

The dominance of the state executive, especially in fund allocation, project approval, and appointment of officials, has led to what scholars’ term “administrative centralism under constitutional decentralization”[61]. Moreover, elections to local bodies are often delayed, and State Election Commissions lack independence, further undermining democratic processes at the grassroots.

Need for Constitutional Reforms or Stronger Implementation Mechanisms

Although the 73rd and 74th Amendments provided constitutional status to local bodies, their implementation remains inconsistent across states. The lack of binding timelines and mechanisms for devolution of the 3Fs—functions, funds, and functionaries—leads to fragmented decentralization.

There is a growing academic and policy consensus on the need for second-generation reforms. Suggestions include:

  • Making the State Finance Commissions (SFCs) more effective and accountable.
  • Creating a statutory mechanism to monitor devolution.
  • Granting constitutional backing to the recommendations of SFCs and District Planning Committees (DPCs).
  • Codifying minimum service delivery standards for local governments.

Such reforms would require both constitutional amendments and stronger policy commitments at the Union and State levels[62]

Strengthening Participatory Democracy and Fiscal Autonomy

India’s local democracy has yet to achieve full participatory potential. Gram Sabhas and Ward Committees, intended as platforms for citizen engagement, are often underutilized or manipulated by local elites. The lack of awareness, low digital penetration, and social barriers further hinder community participation, especially among marginalized groups.

To strengthen participatory democracy, India must:

  • Institutionalize social audits and participatory planning.
  • Digitize Gram Sabha proceedings and budgets.
  • Mandate citizen charters for local service delivery.
  • Promote civic education and community monitoring tools.

On the fiscal front, local bodies continue to suffer from acute dependency on state grants, with limited authority to raise their own revenue through taxes or fees. According to the Reserve Bank of India, own-source revenue of rural and urban local bodies is less than 1% of GDP[63]. Empowering local bodies with financial autonomy is critical for decentralized planning, independent project execution, and accountability.

Conclusion

Local Self-Governments (LSGs) have emerged as the cornerstone of participatory democracy in India, particularly after the landmark 73rd and 74th Constitutional Amendments, which institutionalized the Panchayati Raj Institutions (PRIs) and Urban Local Bodies (ULBs). The analysis undertaken reveals that while the constitutional framework has laid a robust foundation for decentralization, the practical realization of grassroots governance continues to face considerable challenges, including inadequate devolution of powers, financial constraints, bureaucratic dominance, and limited administrative autonomy. Despite the constitutional mandate under Articles 243G and 243W,[64] which entrust PRIs and ULBs with powers and responsibilities to prepare and implement plans for economic development and social justice, the actual transfer of functions under Schedule XI and XII has remained incomplete or superficial in many states[65].

One of the key findings is the wide variance in the functioning and effectiveness of LSGs across states, primarily due to the discretionary nature of devolution granted to State Legislatures under Article 246 read with Schedule VII. Moreover, State Finance Commissions (SFCs), envisaged under Article 243-I, have not been able to consistently ensure fiscal empowerment of LSGs. Likewise, State Election Commissions (SECs) under Article 243K often lack the institutional strength to conduct free, fair, and regular elections at the local level. These shortcomings have hindered LSGs from becoming fully functional democratic units, despite their constitutional status.

Policy Suggestions for Enhancing Effectiveness of LSGs

To address these gaps, several policy recommendations can be proposed. Firstly, a uniform and binding framework for the devolution of functions, functionaries, and finances—the ‘3Fs’—should be enacted through either central guidelines or model state laws. While the Constitution grants states flexibility, this flexibility must not translate into indifference or centralization. There must be a time-bound roadmap for transferring all 29 subjects listed in Schedule XI and the 18 functions under Schedule XII to the respective rural and urban local bodies, tailored to local needs but with central oversight.

Secondly, the functioning of State Finance Commissions must be institutionalized and professionalized. The recommendations of SFCs should be made binding in nature, or at least require mandatory discussion and justification in State Legislatures if not accepted. This would mirror the binding nature of the Central Finance Commission’s recommendations under Article 280, thereby ensuring a level playing field for local governments[66].

Thirdly, capacity building and human resource development must be prioritized. Local bodies require not just elected representatives but also trained personnel to carry out development plans effectively. Establishing dedicated training institutes and incorporating mandatory training for elected officials can bridge the governance and execution gaps. Furthermore, leveraging digital governance and technology-driven platforms can enhance transparency, accountability, and service delivery in both PRIs and ULBs.

Finally, civil society and community-based organizations must be encouraged to participate in local governance. Social audits, participatory budgeting, and citizen feedback mechanisms should be institutionalized within the functioning of local bodies to ensure genuine grassroots involvement and responsive governance.

Vision for the Future: Local Governments as Engines of Inclusive and Sustainable Development

Looking forward, the vision must be to empower local governments not merely as administrative units but as democratic institutions of self-government, as originally envisaged by Article 243[67]. In a country as diverse and vast as India, centralized governance models are inherently limited in their responsiveness and adaptability. LSGs, if empowered and respected, can bridge this gap by acting as localized engines of inclusive growth, tailored to the unique socio-economic and cultural realities of different regions.

The role of local governments should extend beyond delivery of basic services to active involvement in areas like environmental conservation, sustainable agriculture, primary healthcare, disaster preparedness, urban planning, and digital innovation. They must become facilitators of the Sustainable Development Goals (SDGs) at the grassroots, in partnership with state and central governments. This requires redefining the relationship between various tiers of government—not in hierarchical terms, but through cooperative federalism and subsidiarity, as implicit in the Preamble’s vision of Justice, Liberty, Equality, and Fraternity.

Ultimately, the success of decentralization depends not just on formal structures but also on the democratic culture that surrounds them. Regular elections, financial independence, functional autonomy, and institutional capacity are essential, but so are political will and civic engagement. By truly implementing the spirit of the 73rd and 74th Amendments and respecting the autonomy of LSGs, India can unlock a model of governance that is not only democratic and inclusive but also sustainable and future-ready[68].

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[1] (Maheshwari, 2003)

[2] (Bhargava, 1980)

[3] (Pattabhiram, 1969)

[4] (Committee, 1957)

[5] (R. B. Jain, Vol. 47, No. 4 (1986))

[6] (Report, 1978)

[7] (Mathew, Status of Panchayati Raj in the States of India, 1994)

[8] (Raghunandan, 2012)

[9] (The Constitutional (73rd & 74th Amendment) Acts, n.d.)

[10] (Social Scientist, Vol. 23, No. 4/6 (1995))

[11] (The Constitution of India, Part IX)

[12] (Bhalla)

[13] (Raj, Government of India. Reports and Guidelines on Panchayati Raj Institutions, n.d.)

[14] (Data, n.d.)

[15] (Panchayats, The Constitution of India, Part IX, 1992.)

[16] (Constitution of India)

[17] (Jain, (2021), p. 1145)

[18] (Constitution of India, Article 243Q(1)(b),)

[19] (Arora, 2012,)

[20] (Constitution of India)

[21] (Dutta, 2019)

[22] (Constitution of India, Article 243W)

[23] (Yojana)

[24] (INDIA CONST. )

[25] (Mathur, 2000.)

[26] (Constitution of India, 1950)

[27] (Kishan Singh Tomar v. Municipal Corporation of Ahmedabad, (2006))

[28] (Constitution of India)

 

[29] (Rao, 2002)

[30] (Ministry of Panchayati Raj)

[31] (Governance, Sixth Report)

[32] (Rajesh Tandon & Ranjita Mohanty)

[33] (Research)

[34] (Planning)

[35] (Aayog)

[36] (Constitution of India,Article 243-I)

[37] (Journal of Positive School Psychology., 2 July 2022)

[38] (Elucidate the role of State Finance Commissions in fiscal decentralisation and local government empowerment., 3 May 2024 )

[39] (State Finance Commissions in ‘poor’ shape, affecting decentralisation process, 2023)

[40] (Financial Resources of Urban Local Bodies , n.d.)

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[42] (Comproller and Auditor General of India , 2022)

[43] (sexena, n.d.)

[44] (Sexena, 2022)

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[53] (Steytler, (2005))

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3d logo journal

ENERGY PROJECTS AND ENVIRONMENTAL IMPACT ASSESSMENT(EIA)

3d logo journal

JOINT JURIST

AUTHOR: GARIMA SHREE | STUDENT (5TH YEAR), KIIT SCHOOL OF LAW, BHUBANESWAR

INTRODUCTION:

Energy production is an indispensable aspect to economic development, industrial expansion, technological advancement, and the improvement of living standards. However, the construction and operation of energy projects frequently have significant negative effects on the environment, such as habitat loss, air and water pollution, deforestation, ecological imbalance, and local community relocation. Modern legal and regulatory systems have the task of not only facilitating growth but also ensuring that it stays within ecologically acceptable bounds as energy needs continue to rise. In this regard, the Environmental Impact Assessment (EIA) has become an important regulatory tool for analyzing the potential environmental effects of proposed projects prior to approval.

The scope, intricacy, and long-term consequences of energy projects has made EIA even more crucial. Thermal power plants, hydropower projects, mining-related energy infrastructure, and renewable energy installations all pose unique environmental concerns that need to be carefully identified and assessed. With a focus on its role as a tool for striking a balance between developmental goals and environmental protection, sustainability, and responsible decision-making, this article explores the role of EIA in the governance of energy projects.

Keywords: Environmental Impact Assessment (EIA), Energy Projects, Sustainable Development, Public Participation, Environmental Governance, Renewable Energy, Ecological Risk, Regulatory Compliance.

REVIEW OF LITERATURE:

 It was examined that the quality of environmental management programmes contained in Indian EIA reports and finds that these programmes are often weak in terms of monitoring, compliance, and implementation. The study is significant because it shows that the effectiveness of Environmental Impact Assessment cannot be evaluated only at the stage of environmental clearance. Rather, the real strength of the EIA process also depends on the quality of post-clearance environmental management and follow-up mechanisms. This contribution is particularly relevant to energy projects, where environmental impacts are often long-term and require continuous monitoring and regulatory oversight (Rathi, 2019).

The Indian EIA framework in the context of developmental activities and highlights that public participation in India frequently remains procedural rather than substantive. The paper suggests that although public consultation is formally recognised as an important part of the EIA process, its practical impact on decision-making is often limited. This is important because it demonstrates that the gap between legal procedure and actual implementation continues to weaken the role of EIA as a tool of environmental governance, especially in large infrastructure and energy-related projects (Rathoure, 2021).

The treatment of climate concerns in renewable energy projects within the EIA process and finds that such projects are often assessed mainly in terms of their climate-related benefits, while their indirect or adverse environmental consequences receive less attention. The paper is important because it challenges the assumption that renewable energy projects are inherently sustainable. Its central contribution lies in emphasising the need for balanced environmental scrutiny of all forms of energy infrastructure, including those associated with climate mitigation goals (Larsen, 2014).

OBJECTIVE OF THE STUDY: 

Through this paper I aim to analyse the role and effectiveness of Environmental Impact Assessment in regulating energy projects while also studying the following:

  • To examine the environmental risks associated with different categories of energy

  • To study the legal and procedural framework governing EIA in relation to such

  • To assess whether the existing EIA mechanism adequately balances developmental and environmental concerns.

  • To identify major shortcomings in the present framework and suggest

RESEARCH METHODOLOGY:

 This research is doctrinal in nature and is based on secondary sources such as books, journal articles, research papers, case laws, statutes, government reports and official websites. The study uses a descriptive and analytical approach to understand the role of Environmental

Impact Assessment in energy projects. It also examines the legal framework and key issues to evaluate how far EIA helps in balancing development and environmental protection.

CONCEPT AND SIGNIFICANCE OF ENVIRONMENTAL IMPACT ASSESSMENT:

Environmental impact assessment or EIA has been defined by the International Association for Impact Assessment (IAIA) as “the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposals prior to major decisions being taken and commitments made.”

EIA is the process of assessing a project’s or development’s anticipated environmental effects while accounting for interconnected socioeconomic, cultural, and human health effects, both positive and negative. Environmental assessment offers several advantages, including environmental preservation, efficient use of resources, and time and cost savings, by taking into account the project’s environmental consequences and their mitigation early in the project planning cycle. By encouraging community involvement, educating decision-makers, and laying the groundwork for ecologically sustainable initiatives, a properly executed EIA also reduces disputes. All phases of a project, from planning and exploration to building, operations, decommissioning, and beyond site closure, have shown benefits from incorporating EIA.

HISTORICAL DEVELOPMENT OF EIA IN INDIA:

Environmental Impact Assessment in India began as an administrative practice rather than a fully developed statutory requirement. Its early foundation is generally traced to 1976-77, when the Planning Commission asked the then Department of Science and Technology to examine river valley projects from an environmental perspective. This approach was later extended to other projects requiring approval from the Public Investment Board. At that stage, environmental clearance existed mainly as an executive and policy-based process, without a strong legislative framework.

With the enactment of the Environment (Protection) Act, 1986, which gave the Central Government the authority to regulate environmental activities and take action to safeguard the environment, a clearer legal foundation was created. On January 27, 1994, the government used this statutory authority to issue the EIA Notification, which required prior environmental approval for some types of development projects. This signaled a significant change from an administrative procedure to a clearance system with legal framework.

The EIA Notification, 2006, which introduced the current system of project classification into Category A and Category B, decentralized appraisal to the state level for some projects, and formalized stages like screening, scoping, public consultation, and appraisal, significantly altered the framework. Thus, the history of EIA in India shows a gradual movement from limited project review to a broader legal mechanism for environmental decision-making.

LEGAL FRAMEWORK OF EIA IN INDIA: 

The Environment Protection Act of 1986 governs EIA laws in India, which are operationalized through the EIA Notification 2006 (with modifications until March 2025). These regulations guarantee sustainable development while safeguarding India’s natural heritage. It offers the main legislative framework, outlining project classifications, clearance processes, and environmental assessment criteria.

The 2006 Environment Impact Assessment Notification has established two project categories which allow environmental clearance projects to operate in different regions. The system consists of two project categories which require different evaluation processes. Projects that require national level assessment fall under Category A whereas Category B projects need state level assessment.

  • Category A projects are those projects that, owing to their scale, nature, or potential environmental impact, are subjected to central level appraisal in the EIA These projects are examined by the Expert Appraisal Committee, and environmental clearance is provided by the Ministry of Environment, Forest, and Climate Change. As such, they are deemed to be projects that may have a significant impact on the environment, and thus they require prior environmental clearance. As a result, they do not undergo a screening stage. Instead, they are subjected to central level scrutiny through techniques such as scoping, public consultation, and expert evaluation.

  • Category B projects include the ones that are considered to have relatively more localised environmental impacts and hence are appraised at the state level. In the appraisal of such projects, the State Expert Appraisal Committee (SEAC) is involved, while the State Environment Impact Assessment Authority (SEIAA) is involved in the

environmental clearance of the project. Unlike the case with Category A projects, in the case of Category B projects, screening is conducted first. In the screening process, the project is further classified as either B1 or B2. While B1 projects involve the conduct of a detailed EIA study, B2 projects are exempted from the requirement of a detailed EIA report.

The State Environment Impact Assessment Authority (SEIAA) handles Category B projects at the state level based on the State Expert Appraisal Committee’s (SEAC) recommendations. In contrast to Category A projects, they undergo screening before being further categorized into Category B1 and Category B2. While Category B2 projects are often excluded from this requirement, Category B1 projects must provide a thorough EIA report. Nonetheless, the Category B proposal is taken into consideration at the central level even while it still maintains its status as a Category B project in cases where a State or Union Territory lacks a properly established SEIAA or SEAC.

This distinction is important because it determines the depth of environmental scrutiny that a project will undergo. Screening, however, applies only to Category B projects. Category A projects do not go through screening because they automatically require appraisal at the central level.

Key regulatory bodies include:

·       Ministry of Environment, Forest and Climate Change (MoEFCC):

The MoEFCC is the central authority in charge of India’s overall comprehensive environmental management and policy. According to the EIA framework, it deals with some Category B projects where general conditions apply and brings them under central evaluation in addition to giving environmental clearance to Category A projects. In addition to issuing notices, modifications, and policy directives, it oversees the environmental clearance system’s overall operation and is crucial in ensuring that projects with larger environmental consequences are reviewed at the national level.

·    State Environment Impact Assessment Authority (SEIAA):

The SEIAA is the state-level authority responsible for granting environmental clearance to Category B projects. It serves as the state’s decision-making body and implements the State Expert Appraisal Committee’s recommendations. Because it enables projects with more localized impacts to be evaluated closer to the ground while still adhering to the larger legal framework of the EIA Notification, 2006, it plays a crucial role in decentralizing the clearance process.

·       Expert Appraisal Committee (EAC) and State Expert Appraisal Committee (SEAC):

The professional bodies conduct technical assessments for their projects. The SEAC evaluates Category B projects while the EAC evaluates Category A projects. Their job description includes project documentation and Terms of Reference and EIA reports and Environmental Management Plans and public consultation results. They propose three options for environmental clearance which include approval and rejection and change of existing conditions. The committees serve an essential function because they assess scientific and technological aspects of research into environmental impacts.

·     State Pollution Control Boards (SPCBs):

The SPCBs perform an important operational role within the EIA process, especially during public consultation. They are responsible for organising and conducting public hearings, receiving responses from affected persons and local stakeholders, and forwarding the proceedings to the concerned appraisal authority. In addition, they also contribute to environmental monitoring and compliance at the state level, particularly where pollution control and local implementation are concerned.

·     Central Pollution Control Board (CPCB):

Although it does not issue environmental clearance, the CPCB is an essential component of the environmental regulatory system. It establishes national standards for pollution control, offers technical advice on environmental quality and monitoring, and encourages the creation of pollution control procedures that are pertinent to project evaluation and compliance. Its work is crucial since the CPCB develops baseline standards and pollution-related benchmarks that are frequently used in EIA appraisals.

ENVIRONMENTAL    IMPACT   OF    DIFFERENT    CATEGORIES    OF                 ENERGY PROJECTS:

Although the technology and goals of energy projects vary, nearly all of them have a substantial impact on the environment during the phases of site acquisition, building, operation, and waste disposal. Because of this, talking about “energy projects” as a single category is insufficient. The particular hazards associated with each type of energy infrastructure as well as the potentialcumulative impact these projects may have on ecosystems and populations must be examined in a rigorous environmental impact assessment. The EIA guiding framework in India itself acknowledges that sector-specific evaluation is required for nuclear, thermal, and river valley projects, demonstrating that environmental risk differs depending on the kind of project.

Thermal power projects: These are linked to some of the most obvious types of environmental harm. High water consumption, ash production, thermal pollution, air pollution from particulate matter and gaseous emissions, and strain on nearby land and settlements are some of their main effects. Additionally, if coal transportation, ash disposal, and related industrial activity exacerbate local environmental deterioration, these initiatives may result in cumulative impacts. Before receiving environmental clearance, thermal projects must carefully consider the implications for the air, water, waste, and public health because their impacts go beyond the plant site.

Hydropower and river valley projects: They can result in land submersion, habitat fragmentation, deforestation, altered river flow, sediment disturbance, and downstream biological impacts, even though they are frequently seen as a cleaner source of electricity. They could also cause local communities to be uprooted and have an impact on livelihoods that rely on river systems. The environmental impact of hydropower cannot always be comprehended project by project in isolation since several dams within a single basin may cumulatively alter the ecology of the entire region, according to official research on cumulative impact on river basins.

Nuclear energy projects: Because of their possible radiological effects, the requirement for stringent safety measures, and the long-term problem of managing radioactive waste, they create unique problems. Because site selection, water consumption, emergency readiness, waste management, and long-term environmental monitoring are all critical to the project’s acceptability, environmental evaluation is crucial even in situations when ordinary operations are under control. Accordingly, environmental evaluation in nuclear programs is treated by International Atomic Energy Agency guidelines as an ongoing, systematic process rather than a one-time procedural necessity.

Renewable energy projects, particularly solar and wind installations: Although they are frequently thought of as more ecologically friendly, they do have some impact. While wind projects may have an impact on birds, bats, and landscapes, large solar parks may need significant land conversion and disrupt delicate ecosystems. Furthermore, the broader renewable transition relies on minerals and commodities whose exploitation may result in pollution and biodiversity loss. Because of this, even if renewable projects have significant climatic benefits, EIAs should evaluate them with the same rigor as conventional projects.

 

ROLE OF EIA IN THE APPROVAL AND REGULATION OF ENERGY PROJECTS:

In India, environmental impact assessments are crucial to the licensing and regulation of energy projects. Prior environmental approval is required before projects like thermal plants, hydropower projects, mining-based energy infrastructure, and other significant energy operations are carried out since they have the potential to seriously impact the environment. By mandating that the project’s anticipated environmental effects be assessed before approval is given, EIA serves as a preventative measure. The following phases can be used to comprehend the function of EIA in the approval and regulation of energy projects:

1.     Screening and Scoping

The EIA Notification 2006 establishes two categories for project classification through Category A and Category B. The project evaluation process determines which government level will conduct the assessment based on the project’s assigned category. The authority in charge of EIA studies establishes Terms of Reference during scoping to define all project-related matters that need to be studied.

2.     Preparation of the EIA Report

The environmental effects of the proposed energy project are examined in detail. The report assesses how the project affects land and air and water and biodiversity and local communities. The report includes an Environmental Management Plan together with mitigation strategies. The EIA report functions as the main reference document which shows how the project will impact the environment.

3.     Public Consultation

Public consultation is an important part of the approval process, especially for Category A and B1 projects. The process enables affected individuals and other stakeholders to express their environmental and social impact concerns about the project. The EIA process achieves participatory development through local input which helps decision makers understand actual community conditions.

4.     Appraisal and Grant of Clearance

The Expert Appraisal Committee or the State Expert Appraisal Committee evaluates the project following the completion of the EIA report and public consultation. After that, the authority determines if environmental clearance should be given and, if so, under what circumstances. Therefore, by influencing the regulatory authority’s ultimate choice, EIA directly impacts the approval of energy projects.

5.     Post-Clearance Monitoring and Regulation

The role of EIA does not end once clearance is granted. The project proponent must comply with the conditions attached to the clearance and submit periodic compliance reports. Making EIA a continuous regulatory mechanism, as it helps ensure that the project remains environmentally accountable even during construction and operation. Thus, EIA is not merely a procedural requirement for obtaining approval. It serves as an important legal and regulatory tool that guides decision-making, encourages public participation, imposes environmental safeguards and monitors compliance in energy projects.

 

CHALLENGES IN THE IMPLEMENTATION OF EIA FOR ENERGY PROJECTS: 

Environmental Impact Assessments are intended to be preventive tools, however there are often significant practical challenges when implementing them in energy projects. In India, screening, scoping, public consultation, assessment, and post-clearance compliance are all explicitly covered under the EIA Notification, 2006. Nevertheless, successful environmental protection is not always guaranteed by the presence of a method. Because energy projects are large-scale, technically complicated, and have the potential to create long-term ecological harm, the discrepancy between the legislation on paper and its actual execution becomes particularly apparent.

1.     Poor Quality of EIA Reports:

The low quality of many EIA reports is one of the biggest issues with EIA implementation. In a number of instances, the studies fail to give a clear picture of the true environmental dangers associated with the proposed project and instead remain descriptive rather than analytical. Frequently, mitigation strategies are offered in a general way without adequately addressing the particulars of the project. Weak reports reduce the process’s overall efficacy since environmental clearance decisions are heavily influenced by the contents of the EIA report.

2.     Data Gaps and Weak Baseline Information: 

Accurate baseline data on the air, water, land, biodiversity, and local communities are essential for a thorough EIA. The lack of accurate and comprehensive data, however, is a frequent problem. The impact evaluation loses credibility when baseline data is inadequate or out of date. This is especially troublesome for energy projects, because the effects on the environment might last for years and impact a wide geographic region.

3.     Limited Public Participation and Stakeholder Engagement:

Public consultation was designed to give local communities and impacted individuals a formal way to express their concerns and objections before a project is approved. Because it aims to include public interest and local expertise into the clearance process, the EIA Notification views this as an important step in environmental decision-making. However, in reality, formal hearings, the technical intricacy of EIA papers, low knowledge, and restricted access to pertinent information frequently restrict participation. Weak stakeholder participation diminishes the process’s fairness, credibility, and general legitimacy in energy projects where locals may experience relocation, pollution, forest loss, or interruption of livelihood.

When issues with land acquisition, relocation, ecological degradation, and local resistance are not adequately addressed, environmental clearance procedures may become hotly contested, as seen by the controversy surrounding the Posco project in Odisha. The project’s continual examination and reassessment demonstrated the limitations of formal clearance procedures in resolving more significant environmental and social disputes. The case is still pertinent because it illustrates how EIA-related decision-making can encounter legitimacy issues in large-scale industrial and infrastructural development, even if it is not a traditional energy project.

4.     Inadequate Assessment of Cumulative Impacts:

Even when there are several identical projects in the same area, energy initiatives are frequently evaluated separately. Because the aggregate impact of several projects may be far higher than the impact of a single project, this causes a significant gap. Cumulative effects on forests, rivers, biodiversity, and air quality are frequently substantial in industries including thermal power, hydropower, and mining-related energy development. Environmental decision-making is weakened when these cumulative consequences are not evaluated.

5.     Weak Post-Clearance Compliance and Monitoring:

The EIA should proceed after receiving environmental clearance. The Indian framework, which sees them as part of post-clearance monitoring, requires half-yearly

 

compliance reports. However, one of the persistent shortcomings in practice is whether or not such regulations are successfully enforced. Since many environmental issues arise during construction, expansion, and operation, inadequate follow-up can greatly diminish the efficacy of the original review for energy projects.

6.     Institutional and Administrative Capacity Constraints:

The EIA system depends on several authorities, including the MoEFCC, EACs, SEIAAs, SEACs and Pollution Control Boards. Effective implementation therefore requires technical expertise, time, coordination and careful scrutiny of documents. In practice, large numbers of proposals, limited capacity, and the technical complexity of energy infrastructure can place pressure on these institutions. This may reduce the depth of review and make the process more dependent on the material submitted by project proponents themselves

7.     Lack of Early Integration into Project Planning:

The fact that EIA is frequently viewed as a step to be finished after a project has been largely defined rather than as a tool that should influence the project from the start presents another difficulty. Changing the location, design, or scale becomes more difficult when environmental issues are taken into account too late. This is a significant issue in energy projects as decisions about transmission arrangement, water supply, land usage, and siting are frequently environmentally critical.

8.     Inadequate Consideration of Social and Livelihood Impacts:

Energy projects often affect more than the physical environment. They may also alter access to land, forests, water resources and traditional means of livelihood. Yet social impacts are not always examined with the same seriousness as technical environmental parameters. This weakens the broader purpose of EIA, especially where local communities bear the long-term burden of development.

9.     Limited Integration of Climate Concerns:

In the energy sector, EIA must increasingly account not only for local environmental effects but also for climate-related concerns. This includes both the climate implications of conventional energy projects and the site-specific ecological impacts of renewable energy projects. Where climate concerns are treated narrowly or selectively, the assessment may fail to capture the full environmental context of energy development.

Thus, the challenges in implementing EIA for energy projects are not limited to the wording of the law itself. They arise mainly from weak report quality, inadequate data, limited

 

participation, poor cumulative assessment, weak monitoring, institutional constraints and insufficient integration of social and climate concerns. These problems reduce the ability of EIA to function as a meaningful safeguard and raise doubts about whether environmental clearance is always operating as a serious regulatory filter rather than a procedural formality.

 

EFFECTIVENESS OF EIA IN REGULATING ENERGY PROJECTS: 

The existence of a formal approach alone cannot be used to evaluate the efficacy of Environmental Impact Assessment in controlling energy projects. It must be evaluated by determining if the procedure genuinely affects project design, enhances decision-making, lessens environmental damage, and guarantees responsibility following approval. A formal framework for prior environmental clearance through screening, scoping, public engagement, and evaluation is provided in India under the EIA Notification, 2006. Compliance duties follow approval. This demonstrates that EIA is meant to function as an ongoing regulatory mechanism in addition to a pre-approval procedure.

1.     Effectiveness as a preventive legal tool

One of the strongest aspects of EIA is its preventive character. It requires environmental consequences to be assessed before a project begins, which is especially important in the energy sector where environmental harm may be large-scale and difficult to reverse. The Supreme Court’s decision in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati is important in this respect because it rejected ex post facto environmental clearance as being contrary to the basic logic of the EIA framework. This supports the view that EIA is effective, at least in principle, because it brings environmental scrutiny into the decision-making process before irreversible project activity takes place.

2.     Effectiveness in structuring project approval

Another way the EIA works is by establishing a structure that is required for project approval. Many energy projects require evaluation of the environmental effects, consideration of mitigation strategies, and assessment by the relevant expert body in order to be approved. This guarantees that environmental concerns are included in the official decision record and lessens the likelihood of simply administrative or economically motivated approval. Because it forces authorities and project proponents to address environmental issues prior to approval, EIA has actual regulatory significance.

 

3.     Effectiveness in identifying impacts and mitigation measures

EIA’s capacity to anticipate potential effects and provide mitigation strategies through the Environmental Management Plan is another significant capability. Because it asks not only if a project may progress but also under what environmental circumstances it may do so, this offers the procedure real relevance. The case study by A.K.A. Rathi demonstrates how the strength and calibre of environmental management initiatives have a significant impact on the usefulness of EIA. To put it another way, EIA can only effectively regulate energy projects if mitigation and monitoring are planned carefully and are not considered standard project documents.

4.     Effectiveness in promoting public participation

EIA is further effective to the extent that it opens a formal space for public participation. Affected communities and other stakeholders can voice environmental and social concerns about the project through public consultation. This is particularly crucial in the energy industry, as people may experience ecological damage, pollution, loss of livelihood, or migration. The scholarly literature does, however, also demonstrate that its efficacy is restricted in real-world situations. According to Rathoure’s analysis of the Indian EIA process, public involvement frequently stays more procedural than substantive. This implies that although the framework acknowledges consultation, its impact on actual results may be minimal.

5.     Effectiveness in post-clearance regulation

The approval stage is not where EIA’s efficacy ends. The Indian system incorporates post-clearance monitoring within the regulatory framework and mandates six-monthly compliance reporting. This demonstrates that during building and operation, when numerous environmental hazards really occur, EIA is meant to stay relevant. However, this is also the point at which efficacy becomes inconsistent. The legal framework is in place, but whether or not compliance requirements are really observed and upheld will determine how well it works in practice. Rathi’s work highlights the shortcomings of environmental management and follow-up procedures in projects that have been cleared, demonstrating that post-clearance regulation is still one of the less effective elements of EIA in actuality.

6.     Effectiveness in different categories of energy projects

The type of energy project in question also affects how successful an EIA is. EIA is crucial for traditional projects like hydropower and thermal generation because of obvious concerns including pollution, forest loss, changed river systems, and

 

relocation. Effectiveness is more complicated with renewable energy initiatives. According to Larsen’s research, renewable energy EIAs frequently highlight climatic advantages while possibly paying less attention to indirect or negative environmental repercussions. This means that EIA remains necessary even for projects that are promoted as environmentally beneficial, and its effectiveness depends on whether the assessment remains balanced rather than one-sided.

All things considered, EIA is a crucial and essential instrument for controlling energy projects, and it works well in a number of ways. It acknowledges public input, establishes a formal decision-making framework, allows for mitigation planning, and incorporates environmental considerations into project approval. It is still only partially successful, though. Its performance is nevertheless hampered by the disconnect between formal framework and real-world application, particularly when it comes to report quality, public involvement, and post-clearance enforcement. As a result, EIA may be characterized as a useful regulatory tool whose efficacy in the energy industry is genuine, but variable and contingent on how seriously it is applied.

 

SUGGESTIONS AND REFORMS: 

The flaws in EIA implementation for energy projects do not prove that the framework is unnecessary. Instead, they demonstrate that the framework has to be implemented with more institutional responsibility, technical depth, and seriousness. Reforms should concentrate on making the EIA process more dependable before to clearing and more enforceable following permission because energy projects frequently include significant ecological change, displacement, pollution, and long-term resource usage. The structure for such regulation is already provided by the legislative framework, but how well the system is implemented in reality will determine how successful it is.

1.     Improvement in the quality of EIA reports:

The quality of EIA reports itself is a key topic for reform. The project-specific analysis of baseline conditions, effects, mitigation, and monitoring is required by the official Terms of Reference, demonstrating that the law demands more than a standard descriptive document. Therefore, in practice, a closer examination of report quality is required to ensure that evaluations are grounded in trustworthy, scientifically supported information rather than generalizations or repetitions. This is particularly crucial for

 

energy projects since their consequences on the environment are sometimes complicated and long-lasting.

2.     Stronger baseline data and field-based assessment:

A reliable effect evaluation starts with baseline data. For air, water, land, and other vital components, the ToR architecture specifically calls for environmental baseline data. Inadequate data can skew effect predictions from the start. Therefore, reform is required in the form of improved field research, updated data, and more thorough site condition verification prior to project evaluation.

3.     More meaningful public consultation:

Public input need to be considered more than just a formality in the decision-making process. Affected parties and other stakeholders are formally included in the process through the EIA Notification, and issues brought up during consultation are anticipated to be addressed in the final EIA. However, the scholarly material you submitted demonstrates that public participation in India is frequently delayed, constrained, and has little practical impact. Therefore, improved project information availability, early consultation, and more open handling of community complaints should be the goals of reform.

4.     Greater use of cumulative impact assessment:

Energy projects shouldn’t always be evaluated separately. The MoEFCC-sponsored hydropower basin studies show that several projects in the same biological region might have compounded impacts that a project-by-project evaluation would overlook, and the official ToR itself acknowledges cumulative effects. Reform should therefore shift toward more robust cumulative and regional evaluation, particularly in river-valley, thermal, and mining-related energy development.

5.     Stronger post-clearance monitoring and compliance:

The approval should not be the end of the EIA procedure. Six-monthly compliance reporting is incorporated into the regime, according to official documents and the Parivesh compliance system. This indicates that environmental regulation is intended to continue throughout the project’s operational period. Stricter evaluation of compliance reports, improved public access to those reports, and more robust enforcement in cases when clearance requirements are disregarded are all necessary reforms to increase the credibility of this follow-up.

6.     Better technical capacity and consultant accountability: 

The system depends heavily on the technical quality of consultants and appraisal bodies. The QCI/NABET certification program demonstrates that formal quality standards must be met by EIA consultants; nevertheless, accreditation by itself cannot guarantee accurate evaluation unless appraisal authority have adequate technical resources and review time. Therefore, reform should concentrate on both sides: boosting the institutional capacity of the authorities that assess consultant organizations’ work and enhancing their competence and responsibility.

7.     Earlier environmental scrutiny in project planning:

An essential reform element is highlighted by the Supreme Court’s rejection of regular ex post facto environmental clearance: environmental review must precede final project decisions. Early integration of EIA is more beneficial than treating it as a later approval barrier in the energy industry, where site selection, water use, transmission layout, and resource extraction patterns are frequently ecologically critical.

8.     Better integration of climate and social concerns:

Concerns of livelihood and climate change must also be addressed in a contemporary EIA framework for energy projects. A.K.A. Rathi’s Indian case study is especially relevant here because it shows that the practical value of EIA depends heavily on the quality and robustness of environmental management programmes. In addition, Indian EIA literature emphasizes the importance of paying more attention to stakeholder concerns and societal ramifications. Therefore, reforms should promote a more comprehensive evaluation that takes into account long-term socioeconomic impacts on impacted populations, indirect ecological effects, and climate resilience. In sum, the reform of EIA for energy projects should not be understood as the replacement of the current framework, but as its strengthening through better evidence, stronger participation, cumulative assessment, post-clearance enforcement and higher institutional capacity. If these areas are improved, EIA can operate more effectively as a serious regulatory tool rather than merely as a formal stage in project approval.

 

CONCLUSION: 

In conclusion, environmental impact assessments continue to be a crucial legal instrument in the regulation of energy projects since they allow for public input, bring environmental scrutiny prior to project approval, and establish a foundation for mitigation and post-clearance compliance. However, the study also demonstrates that its efficacy varies among energy projects and is frequently undermined in reality by subpar reporting, inadequate baseline data, low public engagement, insufficient cumulative evaluation, and inadequate post-clearance monitoring. Therefore, even though the Indian EIA framework may theoretically balance environmental protection with energy development, its actual performance is still inconsistent and incomplete. As a result, the research finds that while EIA is essential, it is not entirely successful in its current form. Its worth is found in making sure that decisions are transparent, responsible, and well-informed rather than just in giving clearance. Stronger compliance procedures, institutional capability, meaningful engagement, and scientific rigor must all be prioritized if EIA is to regulate energy projects more successfully.

 

REFERENCES: 

%2C%20and%20heat%2Dtrapping%20emissions

IN CONTEXT WITH EIA 2020. In Octa Journal of Environmental Research. https://www.sciencebeingjournal.com/sites/default/files/03_0901_EIA.pdf

  • Satpathy, (2017). “Environmental Clearance Process and the Posco Controversy: An Analysis.” Journal of Political Science & Public Affairs, 5(4), 1–4.

Understanding EIA. (n.d.). https://www.cseindia.org/understanding-eia-383

  • Tandon, (2025, November 20). Supreme Court rolls back order banning post-facto environmental clearance. Mongabay-India.

https://india.mongabay.com/2025/11/supreme-court-rolls-back-order-banning-post-factoenvironmentalclearance/#:~:text=Share%20this%20article,for%20at%20least%2 0150%20more

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In Re: Amarnath Shrine(2013) 3 SCC 247 Supreme Court of India

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JOINT JURIST

AUTHOR: SHRADDHA BHARGAVA | STUDENT (3RD YEAR), SYMBIOSIS LAW SCHOOL, NOIDA

 

ABSTRACT

This case commentary discusses the Supreme Court of India’s suo motu action in In Re: Amarnath Shrine, (2013) 3 SCC 247 and how the Court contributed to the evolving jurisprudence relating to public interest matters. The Court undertook an inquiry into the reasons for the large number of deaths of pilgrims during the 2012 Amarnath Yatra and asked if the State had fulfilled its constitutional duty to safeguard the right to life with dignity under Article 21, right to movement under Article 19(1)(d) and right to freedom to practice religion under Article 25. The Court constituted a Special High-Powered Committee (SHPC), accepted the findings of experts and converted their recommendations into directions relating to health infrastructure, environmental sanitation, animal track safety measures, registration and security arrangements for the Yatris. The Court’s intervention in order to save lives of pilgrims is praiseworthy as it was an effective step to fill the void created by executive inaction. However, the real test for the Court would be to ensure compliance of its directions on an ongoing basis. The case raises fundamental questions that are germane to the environmental jurisprudence as well as to the rights jurisprudence. It questions whether courts can direct Parliament to legislate in ecologically sensitive areas where unregulated religious tourism is taking a mounting toll on Himalayan ecosystems.

INTRODUCTION

The Supreme Court of India made a major judicial decision when it dealt with three key issues relating to public safety, environmental protection, and the safeguarding of fundamental rights during religious events in the Amarnath Shrine case. The annual Amarnath Yatra is a Hindu pilgrimage during which hundreds of thousands of devotees visit the Amarnath cave shrine located in the Himalayan region of Jammu and Kashmir. The pilgrimage is not merely a private religious undertaking; it is, in significant measure, a state-managed public event, with the Shri Amarnath Shrine Board (SASB) constituted under a statute of the State Legislature.

The Supreme Court took suo motu cognizance of the matter in 2012 when a series of news reports highlighted the pilgrims’ suffering due to inadequate infrastructure, limited medical facilities, poor sanitation, and the lack of proper crowd management at the pilgrimage routes. The devotees have to cover the tough mountainous terrain on foot mainly through the Baltal and Pahalgam routes even in the harshest weather conditions. Many pilgrims died as they fell ill due to the extreme weather and the hospital could not provide assistance on time. The increasing number of pilgrims also led to environmental degradation as the area is ecologically sensitive, and there were very few means of waste disposal, and tourists were allowed to roam freely. The Court not only summoned the Union of India and the State of Jammu and Kashmir for answers but also the Shri Amarnath Shrine Board while simultaneously issuing the formation order.

ISSUES

  1. Whether the State has met its constitutional duty to protect pilgrims’ fundamental rights of the right to life with dignity, safety, and free movement (Articles 21, 19(1)(d), and 25 of the Constitution of India)?
  2. What are the concrete measures for safety, health, amenities, and environment?
  3. The scope of courts in giving directions where law or policy is missing, impacting fundamental rights and public interest?
  4. How to reconcile religious freedom and right to pilgrimage with environmental protection in a climatically sensitive area?

RULE

  • Article 21 of the Constitution of India has been changed from a strict prohibition against the deprivation of life and personal liberty to a wider right to life in a dignified manner, understanding the latter to mean among other things the right to health care, safe conditions of movement, and a clean and healthy environment. Therefore, the protection of the environment is very much a part of the protection of life, especially in situations where human life and human well, being are endangered by the deterioration of the environment.
  • Article 19(1)(d) grants citizens the liberty to move without any restrictions throughout the territory of India however this basic right can be curtailed reasonably as per Article 19(5) for the sake of the general public.
  • Likewise, Article 25 guarantees the freedom to follow one’s religion and to change it, but these liberties are subject to the limitations imposed by considerations of public order, morality, and health.
  • The Directive Principles of State Policy contained in Articles 47, 48 A and 49 besides the fundamental duty under Article 51A(g) stress the obligation of both the State and citizens to protect public health, conserve the environment, and preserve natural and cultural heritage.
  • These principles are frequently read in conjunction with Article 21 in order to advocate for concepts such as sustainable development and inter-generational equity.
  • Articles 32 and 142 authorize the Supreme Court to give directions for the purpose of ensuring the effective enforcement of fundamental rights, especially in cases where there are legislative gaps.
  • Key environmental doctrines that have been used by courts to guide their interpretation of laws include:
  • sustainable development which tries to integrate development with nature protection to a certain extent,
  • the precautionary principle that advocates for taking precautionary measures even if scientific evidence is not fully conclusive[1], and
  • the public trust doctrine which states that natural resources are the property of the State but the State is simply a trustee for the public.[2]
  • The Universal Declaration of Human Rights, 1948 (UDHR), especially Article 1 (dignity, freedom and equality) and Article 25(2) (right to a standard of living adequate for health and wellbeing), were cited as a basis for the enlarged interpretation of Article 21 and the State’s mandate.
  • Environment (Protection) Act 1986 was regarded as an expression of the constitutional duty of the government to take proper steps for the protection of the environment.

APPLICATION

The Supreme Court’s suo motu intervention on July 13, 2012 marked a monumental example of judicial activism when the Apex Court took note of the disturbing press reports from The Times of India and The Hindustan Times about the deaths in the 2012 Amarnath Yatra, 67 in 17 days, going by 105 in 45 days the previous year. The reports revealed a series of cardiac arrests falls hypoxia, and stampedes on the dangerous routes from Baltal and Pahalgam base camps to Panchtarni and the holy cave, which have to be walked along with narrow and unprotected paths, lack of medical facilities, poor sanitation, and improper waste management. Conceiving the breach of rights guaranteed by Articles 21 (life with dignity), 19(1)(d) (free movement), and 25 (religious freedom), the Court opted to serve a notice to the Union of India, Jammu & Kashmir (J&K) State, and Amarnath Shrine Board (ASB/SASB)[3], seeking the clarifications regarding the yatra which the court noticed is not only an expression of religious fervour but also a state function.[4]

By July 20th, with the death toll rising (from 84 to 97 over just three days), the Court set up a Special High-Powered Committee (SHPC) composed of representative from the Union Ministry, the J&K Chief Secretary, and the Director Generals of BSF/ITBP. The committee was given the main task of carrying out a site inspection. Their report dated September 6, 2012 covered eight main areas: health environment registration, access control security track conditions, and amenities. All the parties agreed to it, subject to obtaining clearances, which led the Court to accept it in its entirety, while also giving it mandatory and binding directions classified as short, and long, term by a Sub, Committee (Chief Secretary, Home Secretary J&K, CEO SASB).[5] The Chief Secretary, Health Secretary, and CEO were to be held personally accountable for the work up to the level of compliance. They were given powers to request for clarifications or even point out the instances of non-compliance.

Health Measures

Each pilgrim must have a health certificate checked by an Expert Medical Committee (Union Health Ministry, J&K specialists through State Health Secretary) with a standardized checklist. This is done by authorized government doctors or listed private institutions (publicized by CEO SASB). This will ensure the pre-screening of the pilgrims.[6] Medical aid camps (MACs) should rationalize the location of their facilities, they should be increased in number, well-equipped/spacious, especially at Sangam, Holy Camp Lower, Kalimata Top Railpathri Nagakoti Wavbal Sheshnag, and lower Holy Cave (those led by the ITBP are already included in this list). Increasing the number of Indian Systems of Medicine camps along the routes. Union Health Ministry supplies specialists/GDMOs from the most, pilgrim states, train J&K staff on high, altitude sickness, and provide portable Hyperbaric Chambers. Tents/Huts kept warm (25, 26C) at Holy Cave Sangam Panchtarni Sheshnag Poshpatri. A committee (CEO SASB, a high, altitude expert) is developing junk, food, free menus; the public is informed through documentaries, AIR/Door darshan, pamphlets in local languages on dos/don’ts.

Environmental and Sanitation Directives

Bio-digester toilets upgraded through the professionals; STPs at Baltal/Nunwan upgraded to treat garbage, including the langar grease/ biology waste. The State Public Health Engineering manages the provision of water in sanitation contracts, the growth of facilities along langar routes. Blandishment vigilantly imposed; SASB places filters over water where camps/langars, pilots place schemes and also erect pictorial signs. Segregation of waste into compost pits is done in Langars; there is no clearance without facilities. Garbage trucks are multiplying; solid waste disposal follows yoga. Ranga Moth-Domail Road is widened/upgraded with Ranga Moth-Domail state road protection against dust/ mud. State Pollution Control Board (SPCB) does annual studies of water of Lidder/Sindh River, modernizes laboratories. SHPC puts emphasis on routine environmental impact assessments (EIA when statutory), separation of water bodies to low-temperature curb contamination.

Track and Infrastructure Improvements

Tracks broadened up to 12 ft and with rough surfaces, iron grills/retaining walls/railing through realignment; no metalled roads. One-way traffic of palkis/horses vs. pedestrians close to Shrine, prefabricated matting/rough cement tiles on track Baltal, tracks Panchtarni, Chandanvadi. Shelters every now and then; tentative ones at Shrine. The iron grill of holy cave has been swapped with transparent fibre (or 12-inch holes through which people see).

Registration, Access, and Security

SASB restricts number of annual pilgrims per weather/track/infrastructure; colour-coded/date/route-specific permits are required on gates. Pre-registration of the home-state advanced and the on-spots (Srinagar/base camps), and releases were done in batches and reports so as to decongest. Additional mountain rescue teams (MRTs) J&K Police deployed in 3 years; CAPFs upgrade personnel equipment. Principal Secretary Home holds SOPs evacuation (air ambulances); CEO seeks NGO/red cross assistance.

According to the Court, which invoked Article 32, the motive of this legislature-coloured intervention to substitute inaction-induced rights abuses was well bearing because of its widespread implication.[7] Directions are aligned to the principles of sustainable development and precautionary policies, which are based on the input of experts, and do not place any impracticality. A Sub-Committee is supervising, and reports to Court. This plan will gut reform in yatra management, I would argue that enforcement is the acid test- judicial fiat should be coupled with responsible implementation of such fiat to stop repeat tragedies (in ecologically vulnerable areas).

CRITICAL ASSESSMENT

The judgment gets several things right. It does not treat preventable pilgrim deaths as just an administrative issue. It turns constitutional principles into clear, practical steps. It also creates an accountability system that, at least in theory, could be effective. Finally, it expands on the idea of inter-generational equity in environmental rights, giving future courts something to build on. However, there are important problems that need to be mentioned. The biggest issue is how hard it is to enforce these directions. Indian courts have made important rulings on the environment and safety before, but they are not always put into practice. Holding the Chief Secretary and CEO personally responsible sounds good, but officials change, governments shift, and people forget about old court orders. The Sub-Committee approach only works if someone keeps making sure the rules are followed, and courts are not set up to do that over the long term. There is also the issue of democratic legitimacy. The SHPC’s suggestions about limits on pilgrims, route planning, environmental rules, and how langars operate are all policy decisions. These are choices about balancing different interests in a specific place and religious setting. Parliament, or at least the State Legislature, would be better suited to make these decisions in an open and transparent way. The Court stepped in because the executive failed, but just because the intervention was justified does not mean it was the best way to handle things.

Another issue is that the judgment does not look at why the number of pilgrims has increased so quickly or what it would take to keep those numbers sustainable in the long run. The directions do not address the social, religious, and economic reasons behind the growth of the Yatra. Setting limits on pilgrims can control numbers for a year, but it does not solve whether those limits can last for decades when both religious feelings and the local economy push for more visitors.

Finally, the Court is working in a very complex area that involves things like high-altitude medicine, environmental limits, mountain engineering, and waste management. The Court’s main tools are legal, not technical. The SHPC model was a good way to bring in expert advice, but how well it works depends on the skills and independence of the committee members. That is something the Court cannot control.

CONCLUSION

In Re: Amarnath Shrine was an important case when it was decided and it still matters today. It showed that courts can enforce positive duties under Article 21, even if the legislature has not made specific laws. The case also added meaning to the environmental side of the right to life, especially in the context of high-altitude pilgrimage tourism, which the Court had not dealt with before. It created a model where judicial directions are guided by experts and supervision, which, despite its flaws, is more thoughtful than doing nothing or making laws from the bench.

Whether the judgment actually worked is a different question, and it takes more than legal analysis to answer. If pilgrim safety and environmental conditions at the Amarnath Yatra improved for the long term after 2013, then the judgment deserves its good reputation. But if the directions were ignored, like many other court orders, it would just be remembered as an important principle without much real impact. The deeper issue is whether India needs legislation that properly governs ecologically sensitive pilgrimage sites, with enforceable environmental limits and long-term management frameworks, was not resolved by this case and could not have been. That is a job for Parliament, and until Parliament does it, courts will keep being asked to fill the gap one crisis at a time.

 

BIBLIOGRAPHY

  • In Re: Amarnath Shrine, (2013) 3 SCC 247 (Supreme Court of India).
  • Constitution of India (1950).
  • Environment (Protection) Act, 1986.
  • Universal Declaration of Human Rights, 1948, Arts 1, 25(2).
  • Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
  • CESC Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441.
  • Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
  • Him Singh v. Union of India, (2010) 5 SCC 538.
  • C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
  • C. Mehta v. Union of India, (1987) 1 SCC 395.
  • Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
  • Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.
  • Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
  • Sharma A, ‘Analysing the Socio-Economic Impact of Amarnath Yatra on Local Communities in Kashmir’ (2025) International Journal of Creative Research Thoughts.

REFERENCES 

[1] Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647.

[2] M.C. Mehta v. Kamal Nath (1997) 1 SCC 388.

[3] Nilabeti Behera v. State of Orissa (1993) 2 SCC 746

[4] Him Singh v. Union of India (2010)

[5] Vishaka v. State of Rajasthan (1997) 6 SCC 241

[6] Consumer Education and Research Centre v. Union of India (1995) & CESC Ltd. V. Subhash Chandra Bose (1992) 1 SCC441

[7] Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 & M.C. Mehta v. Union of India (1987) 1 SCC 395

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“INDIA’S ONLINE GAMING BILL 2025: DATA PROTECTION, VPN CIRCUMVENTION AND GLOBAL COMPLIANCE UNDER THE DPDP ACT AND GDPR”

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JOINT JURIST

AUTHOR:  SUBHASREE BOSE | STUDENT  (2ND  YEAR), AMITY UNIVERSITY, NOIDA

ABTRACT

Global Online Gaming companies under scrutiny:The impact of India’s Online Gaming Bill, 2025 on Data Protection, VPN Circumvention, and compliance with the DPDP Act and GDPR. The Global Growth of online Gaming has triggered complex debates on regulatory actions and data protection. India’s Online Gaming Bill, 2025[1], provides a legal platform that blanket bans all forms of online money gaming on licensing as a necessity and provides blocking measures (Blocking rules) in compliance with these provisions. At the same h time, the strong enforcement of the DPDP Act (Digital Personal and Data Protection Act, 2023)[2] provides provisions, including children ‘s data, data processing, data retention policies, and restrictions on cross-border data flows. such provisions which remain the international data protection Regulations which remain the international data protection compliance standard. These regulatory Systems put the Global online gaming Platforms companies under different levels of scrutiny.

The widespread use of VPN (Virtual Private Networks), which allows Indian users to evade geo-blocking and access unlicensed on unregulated gaming, provides a formidable enforcement challenge. This scenario gives rise to unanswered accusations concerning the jurisdictions appointment of liability among platforms. Also, questioning the effectiveness of regulatory constraints in a borderless world, the VPN circumvention is explored as a distinctive element subverting both data governance and regulatory enforcement. the legal research work wants to approach a practical reality encountered by the international gaming business, all the while safeguarding users’ privacy in an increasingly decentralized and vpn based online world.

INTRODUCTION AND BACKGROUND

One of the most rapidly expanding industries of the digital economy has been the internet games business with hundreds of web sites boasting of millions of gamers worldwide. It has also come with massive concerns on the regulatory, moral and data protection concerns on its growth. The world governments are faced with the Herculean task of ensuring that the economic potential of the online games is realized and protection against financial exploitation, misuse of information and addictive interfaces are provided. India has also seen a change in favour of Promotion and Regulation of Online Gaming Bill, 2025 (“Online Gaming Bill”), which is a proposed bill to introduce licensing requirements, prohibit games of chance, and give the authorities the right to access and block non-licensed sites. The Bill is a tectonic shift of the previous self-regulation model designed with the 2023 IT Rules, and it is also a move that testifies to the Indian intention to have more control over the gaming sector.

The connotations of regulation with regard to this Bill cannot be uncoupled. The Bill overlaps with the Digital Personal Data Protection Act, 2023 (DPDP Act), which is the first national data protection legislature in India. The DPDP Act stipulates on consent, data minimization, handling of data of children, and cross-border transfer of data, which play a significant role in online gambling websites, which traditionally handle sensitive personal and financial information of players. Meanwhile, foreign online gambling enterprises with European customers are covered by the General Data Protection Regulation (GDPR), the most powerful and significant data protection legislation globally. This point of regulatory intersection presents a complicated compliance challenge, where the questions of consistency, enforcement, and extraterritorial law are in play. The use of Virtual Private Networks (VPNs) by India is some of the causes of some of the issues of enforcement. Through a VPN an end-user can conceal their physical location and, thus, connect to a game platform that may be in a class that is prohibited or licensed under the Online Gaming Bill. This form of avoidance nullifies the effectiveness of geo-blocking strategies, confounds the distribution of liability between platform and user, and also presents major problems to the degree to which a state in an online borderless world can regulate.

The other field, which directs the State regulatory approach in India, is the parents patriae doctrine of the State, commonly known as the doctrine of the State as parent or father. This principle of judicial gives to the State a paternal, custodial role in respect of its citizenry–particularly weaker groups like children, orphans, and persons incapable of self-protection. Providing itself as a guardian to their safety, the State can step in even beyond natural guardianship in order to protect interests standing vulnerable to exploitation. Applied to online gambling, the doctrine defends the government in its argument of strict licensing, real-money gaming prohibition and the additional protection of children data and web usage which can be seen as a defense of the State as a protector and not a regulator.

Nonetheless, even though parens patriae further increases consumer protection, the State is subjected to colossal risks in an internet economy. Too much augmentation of the paternal position of the State may smother agency of individual, constrain rightful online behavior, and enable unproportional surveillance in the name of security. Overindulgence in paternalism may also put a freeze on creativity and the freedom of choice by adults in legal entertainment. Without open checks and judicial oversight, the doctrine can serve as a convenient shroud around an over-accumulation of data, censorship and over-governance, and it also thwarts the privacy and freedom that it claims to defend.

The constitutional basis on which the data protection regime in India is founded is in the identification of the fundamental right to privacy as enunciated in K.S. Puttaswamy v. Union of India (2017). In the landmark case, the Supreme Court decided that informational privacy is an accessory and complement of the right to life and liberty under Article 21. Then, the DPDP Act, as well as personal regulation, e.g., the Online Gaming Bill, will have to be reviewed within the prism of such constitutional guarantee. The privacy rights engagement, regulatory authority, and global compliance regimes such as the GDPR are sensitive as they show the delicate tug-and-pull between personal freedom and government control within cyberspace. This thesis places the Online Gaming Bill in the broader scope of data protection laws, and examines its impacts on online gaming platforms across borders. The relationship between the Bill, DPDP Act, and the GDPR is discussed in a bid to evaluate the shifting of the compliance obligations in response to the claims of sovereignty, borderless transfer of data, and technological evasive mechanisms like VPNs. Moreover, it raises a question of whether the regulatory policy of India is addressing legitimate problems of user protection and data sovereignty appropriately or it may create disjointed burdens that may hamper global interoperability. Lastly, the research will be able to add insight into better understanding how borderless states can regulate digital markets without infringing on fundamental privacy rights

.SCOPE AND OBJECTIVES

The purpose of the study in particular is to examine the impact of Online Gaming Bill, 2025 on the foreign online gaming websites, particularly in the sphere of data protection, circumvention via VPN and its compliance with the international regulations such as the Digital Personal Data Protection Act, 2023 (DPDP Act) and the General Data Protection Regulation of the European Union (GDPR). It looks at the interlocking of the Bill blocking and licensing regime with these data protection regimes, such as consents, data minimization, children data regulation and cross-border data transfer, and evaluates the costs of compliance to global gaming companies. The study also reviews the issue of the widespread use of Virtual Private Networks (VPNs) that bypass geo-blocking and licensing requirements and are hard to enforce. Moreover, it examines the tension between the regulative power and the constitutional right to privacy in Article 21 of the Indian Constitution as set out in K.S. Puttaswamy v. Union of India (2017) and whether the policy in India is sufficient in balancing the protection of the users with the creation of innovations or poses a threat of breaking the international interoperability. Finally, the study will provide pragmatic regulatory or self-regulatory suggestions to balance out data protection standards, seal enforcement loopholes, and maintain user privacy in an open-digitized world.

[3]India’s online gaming sector has developed very quickly, with famous firms such as Nazara Technologies, Dream11, MPL, Games24x7, and Paytm First Games drawing millions of gamers. The platforms deal with a great deal of personal and money-related information, so they have to abide by strict guidelines. The upcoming Online Gaming Bill, 2025 requires all real-money games to be licensed and enables the government to block non-licensed sites. Meanwhile, the Digital Personal Data Protection Act, 2023 (DPDP Act) enforces norms on consent, child data protection, restricting data collection, and cross-boundary data transmission, as in the case of global standards such as GDPR.

The new legislation has posed significant issues for Indian online gaming businesses. Several businesses, such as Dream11, MPL, and WinZO, have shut down real-money gaming and are revising their business models. Venture capitalists, who invested around $2 billion in Indian online gaming startups worth around $15 billion, now worry about the returns. To add to that, most of the users make use of VPNs to circumvent geo-blocking and play unauthorized games, which makes it all the more challenging for corporations and regulators to comply with the law.

Due to such issues, Indian gaming businesses need to tread the fine line between ensuring regulatory compliance, maintaining user privacy, and keeping their finances afloat. With this, the following research questions are concerned with how the Online Gaming Bill, 2025, affects Indian online gaming companies in terms of data protection, VPNs, privacy, and compliance.

How does India’s Online Gaming Bill, 2025, interact with the Digital Personal Data Protection Act, 2023 (DPDP Act), and to what compliance issues does this pose for Indian online gaming businesses such as Nazara, MPL, and Dream11?

India’s Online Gaming Act, 2025, which came into effect on October 1, puts a straight ban on real-money gaming, including skill-based game money participation. The act criminalizes the providing, arranging, promoting, or sponsorship of such games, with imprisonment for up to three years and a fine of up to ₹1 crore. Indian gaming firms like MPL, Dream11, and Nazara have thus been compelled to suspend their real-money operations. MPL, for instance, intended to lay off some 60% of its employees in India, or about 300 employees, as a consequence of shutting down paid gaming services. Nazara Technologies too suffered heavily, with its share price plummeting by 6.73%, indicative of market uncertainty and investor apprehension regarding changes in regulations.

Concurrently, the Digital Personal Data Protection Act, 2023 (DPDP Act) places stringent data protection responsibilities, labeling gaming platforms as ‘Data Fiduciaries’ and liable for the privacy and security of users’ data. Data processing requires direct consent from users, having strong data protection systems, careful cross-border data transfers, reporting data breaches within 72 hours, and ensuring the data of young users through verifiable parental consent mechanisms. The conflict between the DPDP Act and the Gaming Bill generates a twin regulatory burden: whereas the Gaming Bill limits money transactions, the DPDP Act regulates the collection and usage of financial and personal information, so that companies have to juggle criminal risk and data protection duties. Breach of either statute can lead to draconian sanctions, such as fines, imprisonment, or reputation loss, which make operational adjustment both illegally and economically burdensome.

Together, the legislations have compelled Indian gaming firms to restructure their business models into gaming experiences that are not monetary with emphasis on alternative sources of income like sponsorship and advertisement. Dream11, for example, leverages its 10 million daily active consumers to generate revenues through brand collaborations such as Swiggy, Astrotalk, and Tata Neu targeting a predominantly youthful population of approximately 70% aged between 18 and 35 years.. But the shift brings in challenges like reduced profitability, increased operation costs to manage data, and rebuilding user interaction in a competitive landscape. In general, the regulatory landscape requires Indian gaming companies to walk along the thin line of compliance and innovation so that they are at par with the law and yet sustain their operations and growth. For more details, see “Dream11 eyes advertising revenue with 10 million daily active users after RMG ban” and “Legal experts weigh in on DPDP Act’s impact on online gaming sector”

To what extent is the extensive popularity of VPNs in India weakening the enforcement of the Online Gaming Bill, 2025, and how should liability be divided between users and platforms in a borderless digital world?

The widespread use of Virtual Private Networks (VPNs) across India has a significant impact on the implementation of the Online Gaming Bill, 2025, particularly regarding the prohibition of real-money gaming. VPNs enable users to mask their geographical location so that they may access and participate in online gaming platforms that otherwise would be prohibited within the country.. Such bypassing of geo-blocking technology negates the success of the law since users can readily evade national firewalls and access foreign gambling websitesVenturThe problem of enforcement from the excessive application of Virtual Private Networks (VPNs) in India is critical, particularly from the view of the Online Gaming Bill, 2025. While the Indian government has attempted to regulate the application of VPNs, for example, by requiring providers to keep users’ data for extended periods, such controls are largely targeting service providers and not end-users. Therefore, users will still be able to access censored content, like web-based gaming sites, with VPNs without being legally confronted immediately.

India’s cyber regulator, the Indian Computer Emergency Response Team (CERT-In), issued new guidelines in April 2022 that require VPN service providers, cloud service providers, and data center, to store users’ data for at least five years. This includes names, e-mail addresses, contact information, and IP addresses. The goal of the regulations is to improve cybersecurity and fight cybercrime. Obligations like this apply directly to service providers only and not users.. Therefore, users are free to use VPNs to conceal their location and access online gaming websites that otherwise remain banned in India.

The applicability of the Online Gaming Bill, 2025, is also made tougher by the technological advancement of VPN services. Although the government has made VPN operators keep records of users, the operators are not bound to censor or block users’ actions. Users are still able to access VPN servers in nations where online gaming is not prohibited, thus avoiding national prohibitions. This puts the enforcement of the Online Gaming Bill provisions in a difficult situation, as it is hard to differentiate between legal users and those seeking to evade legal prohibition.

In this global free zone, liability is elusive. Although users who deliberately circumvent national restrictions through VPNs can be said to go against the intent of the law, they are not directly violating its letter. On the flip side, platforms that enable access to their services from jurisdictions where they are banned could be argued to be complicit in promoting illegal activity. However, enforcement of Indian laws against foreign platforms is problematic on issues of jurisdiction and enforceability.

To address such issues, there must be a balanced response to liability. Users need to be educated about the legal implications and the risks of avoiding national controls, including the risk of fraud and addiction. Websites, especially those which are licensed in other jurisdictions than India, should be endowed with robust geo-blocking mechanisms and adhere to international norms of responsible gaming to prevent their services from being accessed in prohibited zones. Secondly, international cooperation between regulators is essential in formulating an overarching framework that can address the challenges posed by the application of VPNs and provide proper enforcement of online gambling laws. In such a context, establishing responsibility in an extraterritorial cyber world is complicated. Those users who purposefully circumvent national bans through the use of VPNs can be held to have broken the spirit of the law, although not necessarily its letter. Conversely, sites that enable access to their websites from jurisdictions under which they are banned can be said to be complicit in facilitating illicit activity. Yet, the application of Indian laws outside India to foreign websites creates concerns regarding jurisdiction and enforceability.

For these purposes, a balanced approach to liability is called for. Users should be made aware of the legal implications and risks entailed in avoiding national controls, including exposure to fraud and addiction. Sites, especially those operating in jurisdictions outside India, will need to implement efficient geo-blocking technology and global norms of responsible gaming to prevent their services from being accessed within areas banned. There also needs to be international cooperation between regulators to develop an integrated framework for dealing with the difficulties presented by VPN use and enforcing online gaming regulations.

Is the Online Gaming Bill, 2025, when construed with the DPDP Act, sufficient to safeguard users’ constitutional right to privacy under Article 21 of the Indian Constitution (K.S. Puttaswamy v. Union of India), or is it in danger of overreach and regulatory fragmentation?

The K.S. Puttaswamy v. Union of India (2017) Supreme Court judgment sanctioned that the right to privacy is a constitutional right under Article 21 of the Constitution. The court held that any such state action infringing upon such a right must pass three tests: legality, necessity, and proportionality. Thus, while examining the Online Gaming Bill, 2025 and the DPDP Act, one has to ascertain whether their provisions satisfy such tests or unreasonably intrude into privacy.

DPDP Act establishes a statutory regime for data protection in India. It prescribes obligations for data fiduciaries — such as gaming platforms — to procure consent, provides notice, provides rights of access, rectification, and erasure of personal data, and governs cross-border transfers. These are substantial legislative protections to safeguard informational privacy under Article 21

[4]The DPDP Act requires processing of personal data to be for a particular lawful purpose and notice to be given. These elements conform with the proportionality requirement of Puttaswamy. The Act also offers procedural safeguards and outlines categories of processing and risk, thus planning to curb excesses.

[5]The Online Gaming Bill’s prohibition on real-money gaming, through prohibitions and sanctions, can be argued to be directed towards legitimate state aims: averting financial exploitation, safeguarding vulnerable groups (particularly children), avoiding fraud and gambling-addiction. State control in such areas has been sustained in the past as permissible under Article 21 (albeit subject to challenge). The Madras High Court in recent times upheld gambling restrictions such as the minors’ ban and time bans, saying the right to privacy is not absolute and public health/public order considerations justify regulation.

The The DPDP Act establishes a statutory paradigm for data protection in India. It enunciates duties for data fiduciaries — such as gaming platforms — to seek consent, guarantees notice, provides rights of access, correction, and erasure of personal data, and controls cross-border transfers. These are substantial legislative protections aimed at safeguarding informational privacy under Article 21.

The DPDP Act imposes that processing of personal data shall be for a predefined lawful purpose and notice shall be given. These are adopted in the proportionality requirement of Puttaswamy. The Act also prescribes procedural means and determines types of processing and risk, thus aiming to curb overreach.

The Online Gaming Bill’s real-money gaming restrictions, such as its prohibitions and fines, may be viewed to be directed at proper state purposes: avoiding financial exploitation, safeguarding vulnerable groups (particularly children), avoiding fraud and gambling-addiction. State control in these areas has been accepted in the past to be within Article 21 (albeit subject to judicial review). The Madras High Court in a recent judgment upheld gaming prohibitions such as minors’ prohibition and time prohibitions, holding the right of privacy is not absolute and public health/public order grounds vindicate regulation. In spite of these positives, there are various material risks and gaps that endanger proper protection for privacy and pose risks for regulatory overreach or fragmentation.

The DPDP Act provides broad exemptions under Section 17 to state instrumentalities on grounds like national security, friendly foreign relations, public order etc. These are extremely wide, and critics have raised that they could breach the proportionality test: permitting excessive government access to personal data in the absence of stringent safeguards.

The Rules of the Act (DPDP Rules) have been faulted by the civil society (e.g., Internet Freedom Foundation) as being imprecise: words such as “reasonable safeguards”, “appropriate measures”, or “necessary purposes” are employed but not precisely defined. Such imprecision could enable arbitrary exercise of power, which is in tension with Puttaswamy’s calls for narrowly drawn constraints.

The structural framework for enforcement (Data Protection Board, etc.) has been faulted as too dependent or ineffective. For instance, worries have been expressed regarding executive control over appointments, absence of judicial oversight over some data access or processing operations, and lack of effective or timely redress and review mechanisms.

The Bill prohibits all real-money gaming (even skill games) instead of making a distinction between games of skill versus chance. It has the potential to infringe upon the right to livelihood (part of Article 21 / Article 19(1)(g)) of professional gamers, and could be perceived as disproportionate if there are less prohibitory alternatives available (licenses, regulation instead of outright ban). Such a blanket ban can be argued by critics as potentially failing the proportionality test under Puttaswamy.

[6]Since the Gaming Bill governs economic activity, financial bets, and licenses, and the DPDP Act governs data, there is possibility of duplication and ambiguity. For example, stringent blocking / licensing under the Gaming Bill could encourage companies to gather more user information or impose stricter identification checks, which is a privacy risk. Conversely, loose data protection laws could enable state access in most situations under exemptions, compromising user trust.

Overall, while the DPDP Act and Online Gaming Bill do contain provisions aimed at safeguarding privacy and do tackle some of Puttaswamy’s tests of legality, necessity, and proportionality, there is very real risk of overregulation and regulatory dispersal. Some of the main issues are sweeping government exemptions, imprecise statutory/regulatory language, inadequate supervision, and disproportionate regulation (e.g., blanket prohibitions rather than finessed regulation).

Therefore, as drafted today, the laws partially safeguard privacy but fail to completely meet what Puttaswamy requires. There is a requirement for greater design in control, clearer definitions, judicial checks, and adherence to the least restrictive means to prevent privacy violations and facilitate constitutional validity.

What law and policy frameworks could India implement to align its online gaming regulation with global data protection norms, simplify compliance requirements, and enhance interoperability across borders while protecting the users?

India should take two major steps first will be ,  reform and harmonize domestic rules so they conform to global standards, and establish useful, cooperative mechanisms to facilitate compliant cross-border activity by gaming platforms.

[7]First, on domestic law and rulemaking: India needs more lucid, precise DPDP implementing rules and guidance that reflect internationally accepted safeguards. The DPDP Act presently establishes fundamental principles (consent, purpose limitation, rights of data subjects) but there are lacunae on cross-border adequacy, operational specificity, and wide exemptions that leave uncertainty for businesses and foreign partners. Tightening DPIA rules(  Data Protection Impact Assessment), making technical and organisational measures precise, and confining state exemptions would eliminate legal risk and make India a more reliable partner for the EU and other regulators The Data Protection Board and every gaming regulator should be endowed with clear powers, transparent rulemaking, and robust appeals/judicial review. Avoiding duplicative enforcement (multiple regulators with conflicting powers) reduces fragmentation that increases compliance cost and litigation risk. India should publish authoritative guidance (FAQ, DPIA templates, parental-consent process) specifically for gaming businesses to address particular issues such as children’s data, behavioural profiling for monetisation within the game, and anti-fraud .India can manage VPN usage and rule-violation intelligently and equitably. Extremely rigorous measures such as prohibiting VPNs outright or compelling all VPNs to retain detailed user information can damage individuals’ privacy and prompt them to lose faith in the system. Rather, the government can:

(a) Request game platforms to employ simple instruments to bar players from regions where the games are prohibited and verify the location genuinely.

(b) Establish clear guidelines on how to warn off or block unlicensed gaming services.

(c) Collaborate with other nations’ authorities to take down illicit games, exchange blacklists, and act against recidivists.

Meanwhile, VPNs and encryption must continue to be permitted for secure and legitimate applications. Regulations cannot become so broad as to jeopardize individuals’ right to privacy.

The industry itself must also establish some good-practice guidelines. These can range from age verification, safer play elements, equitable adverts, and obtaining as little personal data as possible. Independent audits or monitoring can help ensure companies do live up to these undertakings, and sanctions should be used if they do not. Public education through government-private business cooperation can also help with educating people about secure gaming, creating better parental controls, and running secure-gaming labs for reducing harms and the need for stringent regulation.

Lastly, the transition to new rules must be gradual and planned. The government should provide explicit timelines, user-friendly guides, and even tax or research incentives to assist gaming platforms in changing their systems (e.g., shifting to esports, skill-based tournaments, or advertising models). This gradual process prevents shock that chases away investors or leads to job losses. It also enables companies to plan more effectively and regain trust.

CRITICAL ANALYSIS

The recent prohibition of real-money gaming under India’s Online Gaming Bill, 2025 has set a hotly debated issue ablaze. It has nothing to do with games of skill or gambling. It is about controlling the fast-growing digital economy without damaging privacy, innovation, or international competitiveness. Three key tensions define the argument: privacy against enforcement, innovation against restriction, and domestic versus international norms. The government’s agenda is clear: stem gambling addiction, protect children, and eliminate money laundering. In order to that, the Bill and attendant rules require blocking unlicensed apps, strict geolocation verification, and Know-Your-Customer (KYC) authentication. These same measures, however, imply gathering sensitive information—IDs, addresses, financial information, device locations—and storing it for years in many cases. This goes against India’s Digital Personal Data Protection Act (DPDP), 2023, that mandates purpose limitation and data minimisation. Practically speaking, sites now over-collect data to play safe from fines. This expands state surveillance powers and increases the potential for breaches. As legal academic Vrinda Bhandari has pointed out in the Indian Express (2024), “broad exemptions without oversight” leave privacy rights vulnerable. The question is whether such intrusive surveillance is actually necessary in order to get enforcement, or if less intensive privacy-respecting solutions would be as effective.India created a successful skill-gaming and fantasy sports ecosystem between 2015 and 2023. Makers of these games like MPL, Dream11, Nazara and Head Digital Works received investment from Sequoia, Tiger Global, and international gaming companies. As per the ban, MPL has let go of around 300 of its 500 Indian employees (India Today, Aug 2025), Head Digital Works has dismissed approximately 500 employees (Moneycontrol, Sept 2025), and Gameskraft has let go of approximately 120 employees (Business Standard, Sept 2025). In total, that works out to around 1,300–1,400 employees laid off in a span of a few months. Flutter, the owner of Junglee, has threatened to lose USD 200 million in revenue from India (Reuters, Aug 2025). This illustrates the economic price of a blanket ban. More permissive models—licensing, age-restriction, stakes limits—might have safeguarded users while keeping companies and jobs intact. And it poses the broader question of whether we are protecting citizens from harm or merely shoving them onto unregulated offshore platforms that provide zero protection.India’s strategy will also need to sit within the international privacy and gambling regulatory framework. Under the EU’s General Data Protection Regulation (GDPR), data minimisation and severe retention restrictions are applicable even to gambling operators, and state exemptions are strictly limited. The UK Gambling Commission demands age and affordability checks but restricts intrusive profiling and demands encryption. Singapore’s Remote Gambling Act denies access to unlicensed operators but is consistent with its Personal Data Protection Act, having transparent data-handling provisions and cross-border transfer channels. India, by contrast, has broad government exemptions under the DPDP Act and no adequacy frameworks for data flows. This raises compliance costs and deters global firms, which must adapt to conflicting requirements.Two key assumptions underpin the current approach. First, that banning real-money gaming will protect users. Yet evidence from Europe and the US shows that strict bans tend to push users to black markets (Reuters, Aug 2025). Second, that KYC duties do not compromise privacy. In practice, KYC may be extremely invasive, particularly if operators hold entire documents rather than minimal tokens or hashes. Privacy threats increase where such sensitive information are kept for extended durations or insecurely stored. KYC may also discourage involvement in legitimate non-monetary games or ban users lacking common identity documents. VPN infiltration provides an easy indicator of enforcement boundaries. Reports put the use of VPNs by Indians at 43% or an estimated 600 million people, perhaps reaching 700 million by 2026 (Grab On, 2025). This defeats geo-blocking and indicates how simple it is for users to circumvent bans. Loss of jobs, as mentioned earlier, amounts to 1,300–1,400 redundancies. Investment flight comes in the shape of Flutter and other companies reducing their India budgets. These statistics indicate that the price tag on a blanket ban is tangible and quantifiable.Many gaps exist. The first is broad state exemptions under the DPDP Act, which can be triggered without judicial oversight or independent review. The second is a weakened Data Protection Board, which is inadequately staffed and less independent than EU regulators. The third is ambiguous liability for VPN circumvention: it is not clear whether it is the user’s or platform’s liability if a blocked game is accessed using a VPN. The fourth is not providing any transition support to impacted workers or new businesses. A more balanced solution is available. Rather than a total ban, India might establish phased licensing of real-money games with rigorous age checks, spending limits and harm tracking. Current platforms might be allowed six to twelve months to comply, which would keep tax revenues and jobs in place while improving consumer protection. State exemptions under the DPDP Act may be restricted through independent or judicial approval and transparency reporting every time an exemption is applied. KYC may be re-designed as privacy-preserving, for instance through the use of age-verification tokens or hashes rather than the storage of full IDs, and through pseudonymous play in non-monetary games. Transparent rules of liability could be made regarding VPN evasion, defining good-faith geo-blocking by platforms and what notice needs to be provided to users, and safe Harbor where applicable if platforms abide. The Data Protection Board could be beefed up with additional staff, technical expertise and independent appointments.

India too should establish a cross-border data transfer framework—like Standard Contractual Clauses—and negotiate an EU adequacy decision. These would reduce compliance hurdles for Indian companies and facilitate easier foreign investment attraction. Transparency can be enhanced by mandating large gaming platforms to disclose yearly reports on blocking measures, data requests and data protection impact assessments, with independent audits to promote trust. Government assistance could lastly be provided to laid-off workers, through tax credits, retraining grants and startup support. This would moderate the impact of the regulatory change and demonstrate that the state assumes responsibility for transition costs.

CONCLUSION AND SUGGESTIONS

Internet gaming web sites celebrity endorsements (particularly real-money or high-stakes games) should be eliminated. Popular personalities have massive power over vulnerable groups such as children and can become a source of normalisation or glorification of harmful gaming behaviour. India has the potential to borrow a code such as the Advertising Standards Council of India (ASCI) guidelines to gambling and betting advertisements with the help of legislation. This should:Ban Celebrities should not advertise real-money or probability games, particularly where money changes are involved, or loot boxes are involved.

Paste demand warnings and risk warnings on all gaming advertisements, stating that loss of finances and data gathering are pitfalls of using it.

The regulators, civil society and gaming platforms should embark on a sustained awareness campaigns to educate the users about their rights and responsibilities. Terms and Conditions (T&Cs), privacy policies, and consent forms should be highly encouraged to be read and understood by the users before signing up and transacting financial transactions. In order to do this possible:

Obtain key-facts or privacy nutrition labels that give an overview of the important aspects of T&Cs in simple terms. Give automatic in-app notifications or dashboard warning of permission, budget constraints, and data-sharing practices. Introduce cooling-off periods and convenient self-exclusion options allowing users to exit/quit games safely. Financial penalties on misleading or non-compliant advertising and endorsers ought to be held jointly and severally liable to misrepresentative or exaggerating statements. Platforms must be encouraged to adopt privacy enhancing technology -age-verification tokens, low-KYC data, encryption and anonymisation, to advance regulatory objectives without excessive gathering of sensitive information. The government can offer compliance sandboxes to test out such initiatives. Laws and regulations should unmistakably outline the respective roles of platforms and users. Good faith sites that have effective geo-blocking and age-checking in place should enjoy safe-harbour protection; users who deliberately circumvent local restrictions must be made aware of the legal consequences in plain English. Any gambling regulator and the Data Protection Board must be adequately funded and independent, including with clear appointments and judicial review of their power. India must also conclude international data-transfer accords and mutually beneficial takedown processes with other governments to reduce compliance hassle and increase enforcement consistency.India should not have outright prohibitions, but should implement gradual licensings, spending caps, and harm-tracing. This allows firms a time to make the transition, protects jobs and creates a continuous investment. The government can facilitate this by offering re-training or by the tax rebate on innovation to the affected workers.

REFERENCES

https://prsindia.org/files/bills_acts/bills_parliament/2025/Bill_Text-Online_Gaming_Bill_2025.pdf

https://www.meity.gov.in/static/uploads/2024/06/2bf1f0e9f04e6fb4f8fef35e82c42aa5.pdf

https://link.springer.com/article/10.1007/s42979-025-04269-7?utm_

https://www.scconline.com/blog/post/2025/09/25/rethinking-online-gaming-regulation-india/amp/?utm_source

https://www.mondaq.com/india/gaming/1650648/the-state-reasonably-controls-the-apps-madras-hc-upholds-real-money-gaming-restriction?utm_source

https://timesofindia.indiatimes.com/business/india-business/online-gaming-bill-2025-gaming-regulation-shake-up-puts-billions-in-vc-investment-at-risk-investors-to-figure-out-what-can-be-done-next/articleshow/123500416.cms?utm_source

[1] https://prsindia.org/files/bills_acts/bills_parliament/2025/Bill_Text-Online_Gaming_Bill_2025.pdf

[2] https://www.meity.gov.in/static/uploads/2024/06/2bf1f0e9f04e6fb4f8fef35e82c42aa5.pdf

[3] https://timesofindia.indiatimes.com/business/india-business/online-gaming-bill-2025-gaming-regulation-shake-up-puts-billions-in-vc-investment-at-risk-investors-to-figure-out-what-can-be-done-next/articleshow/123500416.cms?utm_source

[4] https://www.juwiss.de/32-2025/?utm

[5] https://www.mondaq.com/india/gaming/1650648/the-state-reasonably-controls-the-apps-madras-hc-upholds-real-money-gaming-restriction?utm_source

[6] https://www.scconline.com/blog/post/2025/09/25/rethinking-online-gaming-regulation-india/amp/?utm_source

[7] https://link.springer.com/article/10.1007/s42979-025-04269-7?utm_

3d logo journal

CHALLENGES AND OPPORTUNITIES: HARMONIZING THE COMMERCIAL COURTS ACT AND MEDIATION ACT, 2023

AUTHOR : Vineet Seervin / Law Student / BA LLB(Hons.)/ Third Year/ SVKM’s Narsee Monjee Institute of Management Studies, School of Law, Bengaluru

 

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JOINT JURIST JOURNAL

ABSTRACT

Understanding the intersection of mandatory pre-litigation mediation through Section 12A of the Commercial Courts Act, 2015, and the philosophical underpinnings of agreement in the Mediation Act, 2023, creates one of the most stimulating intellectual tensions in modern Indian Law surrounding dispute resolution. In 2018, when the Indian Parliament introduced pre-institutional mediation, which was implemented, requiring parties to mediate before filing a commercial suit, there was a significant shift in court procedures. The purpose of this necessitating mediation was to reduce the backlog of cases in the courts and to promote settlement between the parties. In 2023, with the passage of the Mediation Act, a legislative framework for mediation was established. The foundation of this legislation is the inherent position that mediation is and should remain a voluntary process.

These two varying frameworks create a conflict with several critical issues. Does mandatory mediation pre-litigation create a conflict with the voluntary basis for mediation in the Mediation Act of 2023? What statutory interpretation have the courts given to Section 12A? What are the unique structural challenges that continue to hinder the effectiveness of MPIM? How do we bring the two frameworks together? Using a doctrinal analysis of primary legislation, cases from the Supreme Court, and comparative law, this article will attempt to answer each of these questions. Ultimately, we conclude that under the legal rationale for the statutory provisions, the two statutes are able to co-exist with the caveat that there are both procedural and institutional reforms necessary to allow those statutes to exist in a complementary manner.

Keywords: Pre-litigation mediation, Commercial Courts Act, Mediation Act 2023, Section 12A, Voluntary mediation, Mandatory mediation, Party autonomy, Dispute resolution.

I. INTRODUCTION

The way disputes are resolved in India is changing. There has been such an increase in the number of cases in court (over 50 million cases pending) that parties are being pushed by legislators and courts to stop looking for ways to resolve their disputes through adversarial litigation (going to court) and to consider ways of resolving their disputes through consensual resolution (e.g., mediation). For many years, mediation has been a very little-used way of resolving disputes, but in recent times it has become a way in which many parties are resolving their disputes.

The introduction of the Commercial Courts Act in 2015 (amended 2018) required parties to use a mediation process before filing a lawsuit in a Commercial Court, as set out in Section 12A. Parties must use mediation before they can go to the Commercial Court unless they are seeking to have the Court order interim relief. The Commercial Courts Act is a creative way to divert parties that have a Commercial dispute into mediation prior to them going to the Commercial Court to resolve their dispute.

In addition to the Commercial Courts Act, the Mediation Act, 2023, is the first stand-alone legislation addressing mediation in India. Section 6 of the Mediation Act has a provision where, if a party wishes to engage in Mediation they may withdraw from the Mediation process at any time without affecting their legal rights. This is the philosophical basis of the Act and one that has been adopted by many other countries when developing their mediation laws. Mediation is a party-centred process.

This paper explores the conflict created by the contrasting statutory frameworks of mandatory participation under s. 12A [1] and voluntary participation under the Mediation Act. [2] To assist with this, four separate research objectives were used to answer the above questions and are addressed in each section of the paper.

II. STATEMENT OF PROBLEM

Statutory interpretation, process design, and constitutional values intersect to produce research gaps within this study area. While the Commercial Courts Act’s section 12A mandates that parties must first attempt to mediate before commencing litigation, the Mediation Act of 2023 establishes that voluntary consent is the basis upon which mediation can take place. Consequently, Indian courts now struggle with the inconsistency between section 12A and the 2023 mediation act; for example, the Supreme Court’s decision in Patil Automation Pvt Ltd v. Rakheja Engineers Pvt Ltd deemed section 12A to be a jurisdictional restriction on a party’s ability to file a lawsuit without first having attempted mediation. [3]

However, the Mediation Act of 2023 provides definitions regarding the mediation process itself, such as confidentiality, mediator behaviour, and enforcement of settlement agreements.[4], and reiterates the importance of parties’ voluntary participation in mediation. Thus, several practical dilemmas arise from the tension produced by these two statutes: can a legal requirement that a party participate in mediation solely as a condition precedent to being able to commence a legal proceeding be considered true mediation, given that the party would not otherwise voluntarily do so?, what do courts’ interpretations of section 12A demonstrate about how MPIM will operate in practice?, what with respect to systemic deficiencies exist that may impede MPIMS effectiveness?. And will both statutes operate together without compromising the fundamental purpose of each?

Legal scholars and courts have failed to properly answer these questions. This paper will provide this doctrinal analysis in an organised manner applied to each of the four research questions presented below.

III. LITERATURE REVIEW

The relationship between the mandatory pre-institution mediation (PIM) process outlined in Section 12A of the Commercial Courts Act, 2015, and the voluntary ethos established under the Mediation Act, 2023, is a major subject of inquiry within the Indian dispute resolution literature. This review of existing literature combines doctrinal, empirical, and comparative research to identify methods for harmonising these statutory frameworks without compromising procedural justice, as well as to ascertain whether compelling parties to mediate is contrary to the nature of mediation itself.[5]

Individuals and scholars refer to the “Voluntariness Paradox” as a key area of contention, which is demonstrated through scholars’ arguments that distinguish between “mandatory attendance” and “voluntary settlement.” Some scholars argue that the procedural requirements of Section 12A to compel parties to attend mediation do not compromise the integrity of the mediation process if the parties have complete autonomy as to the outcome of the process. Others argue that obligations of participation in the process jeopardise the voluntary, consensual nature of mediation. For example, Laila Ollapally concludes that the term “mandatory mediation” is inappropriate and that “mandatory pre-litigation information sessions” should be used instead of “mandatory mediation” to ensure that the virtues of voluntariness are maintained when introducing parties to mediation as a dispute resolution method. [6] Furthermore, corporate law scholars such as Umakanth Varottil have expressed concerns that, without no strong and specialized infrastructure, the requirement for PIM will create a “procedural gatekeeper” for mediation by creating additional delays to obtain substantive justice and by creating shifted costs to the parties to the litigation, who will incur increased costs in obtaining mediation ultimately create an increased burden on litigants.[7]

Jurisprudential Evolution

The Supreme Court’s decision in Patil Automation Pvt Ltd v Rakheja Engineers Pvt Ltd (2022) has covered its status as the lead case when discussing the mandatory jurisdictional requirement of complying with section 12A. For many commentators, this ruling satisfied the intent of the original legislation to reduce congestion in the commercial courts and provided effective steps for affected parties to recover damages from defendants who were infringing their IP rights without having to go through mediation. The subsequent line of case law has, however, drawn considerable criticism from commentators, as, for instance, the Delhi High Court’s decision in Aditya Birla Fashion v Saroj Tandon (2024) mandated that the parties would have to go through mediation even though they did so under duress.[8]

The literature also examines the different approaches taken by the High Courts to determining whether an urgent interim relief application can be justified under the exception for ‘emergency relief’, with commentary pointing to conflicting methodologies from a simple “Pleadings-Based” approach to a more elaborate “Justifying-Based” approach. [9] The current discourse has focused on a ruling of the Supreme Court affecting the Novenco Building decision in relation to the Supreme Court ruling, which clarified that ongoing damage due to IP infringement creates ongoing damages, which justifies the need for urgent relief, such that the relief can be granted outside of the mandatory PIM requirement.[10]

Empirical Realities: The “Non-Starter” Epidemic

Research has shown numerous real-world examples of how statutory laws do not match their intended purpose. According to data compiled by the Ministry of Law and Justice (2025), there is an alarming level of “non-starter” issues relating to the implementation of the law throughout the country.

According to data from the Ministry of Law & Justice 2022–2023 reporting period indicates that there was a gradual increase in total applications & non-starters, whilst at the same time there was also a gradual decrease in the number of settlements achieved. In financial year 2022-23, there were 46,412 applications, of which 41,898 were not started & only 1,449 were settled. Then in financial year 2023-24, total applications increased again to 51,019; there were also more non-starters to 47,185; however, there was another decrease in settled to just 1,139. Lastly, the financial year 2024-25 had the highest level of activity with 59,568 total applications, of which 52,730 were not started, but there was again another large decrease in achieving settlement at just 877.

Much of the literature regarding these problems points to a large functional disparity between the institutions responsible for administering Section 12A mediation (i.e., the District Legal Services Authorities [DLSAs]) and the unique, specialised experience and knowledge necessary to successfully manage complex corporate disputes.[11]

Harmonisation and Comparative Insights

To align both of these institutional frameworks, legal scholars are advocating a composite interpretation of the statutory provisions, which employs the use of Section 4(2) of the 2023 Mediation Act as a savings provision for both the Commercial Courts Act, which requires parties to refer their cases to mediation; and the Mediation Act, which provides the ethical standards of conduct during the mediation process and provides for enforcement of the parties’ final resolution. In addition to this, scholars are exploring the potential for using comparative law to support reform efforts. The 2023 United Kingdom decision in Churchill v Merthyr Tydfil has been cited by a growing number of legal scholars in support of the compulsory mediation framework existing in India. [12] Additionally, scholars have recently begun to advocate for allowing Indian courts to implement the “carrots and sticks” method of imposing strict monetary penalties for those who engage in bad-faith participation in mandatory mediation proceedings, to deter frivolous participation while still ensuring that the parties meaningfully cooperate to resolve their differences.[13]

Judicial Consideration of CPC Section 89 and Traditional Mediation Methods

Justice Indu Malhotra’s book, O.P. Malhotra on Law and the Practice of Arbitration and Conciliation (3rd ed., Thomson Reuters, 2014), provides an authoritative overview of how Indian courts have evolved in their approach to referring disputes to alternative dispute resolution (ADR). This work also discusses the Supreme Court’s landmark decision in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. [14]Regarding how the referral process under CPC Section 89 has been streamlined, how parties should be given autonomy when they are referred to ADR by the court, and how these principles apply to the second question of the research paper regarding the judiciary’s interpretation of mandatory mediation provisions. As such, the interpretive benchmark established through Afcons must be used to evaluate jurisprudence relating to CPC Section 12A. Malhotra provides a reliable mixture of Supreme Court case law and comparative materials from within the Commonwealth.

Law Commission of India’s Report on Section 89 of the CPC 

In a 2011 law commission report (LCR 238), there were many recommendations to improve upon section 89 of the Code of Civil Procedure (CPC). [15] These included enhancing clarity around judicial powers relative to Alternative Dispute Resolution (ADR) methods, as well as instating pre-litigation mediation. The law commission has identified various conceptual defects with the then-current framework, whereby mediation, conciliation, and judicial settlement are being confused with one another. This report serves to provide critical information regarding two of four distinct research questions, i.e., judicial interpretation and harmonisation, and it indicates to parliament what was originally intended with respect to pre-litigation mediation requirements and warns against provisions that would violate the concept of voluntariness. The Commission compiled both quantitative and qualitative data from High and subordinate courts across the jurisdiction to validate its conclusions as to the reliability of the report.

IV. RESEARCH QUESTIONS

The objective of this study is to examine the following four questions:

  1. Does Section 12A of the Commercial Courts Act, 2015 require mandatory pre-litigation mediation for all commercial disputes and if not, why?
  2. What have Indian Courts interpreted to be the meaning of mandatory pre-litigation mediation under Section 12A, and how does this understanding inform how parties will use mediation to settle their disputes?
  3. What systemic issues delay the successful implementation of pre-litigation mediation under Indian law?
  4. How can the pre-litigation mediation statutory scheme established by the Commercial Courts Act be harmonised with the provisions of the Mediations Act, 2023, to enhance the effectiveness of both laws?

V. RESEARCH METHODOLOGY

The study will take a doctrinal approach towards the four research questions with an analysis of the primary sources of law (e.g., statutes, constitutions, and case law) and the secondary sources of law (e.g., academic commentaries, law commission reports, and international literature).

Primary sources of law analysed include The Commercial Courts Act (2015) (as amended 2018), The Mediation Act (2023), The Code of Civil Procedure (1908), notably s. 89 & O. 10, and relevant precedential Supreme and High Court case law. Secondary materials that were used included articles published in peer-reviewed journals, law commission reports, policy documents, and case comparative literature from the UK, Singapore and the EU, which have established systems of compulsory mediation.

A doctrinal methodology is appropriate for this enquiry because the ultimate objective is a normative legal question concerning how to interpret and reconcile two statutes rather than conducting empirical analyses of what litigants do. Therefore, this research does not include surveying or interviewing; rather, the research builds an interpretive argument based upon legal texts, judicial reasoning and academic commentary. Each section in the main body of the paper addresses one of the four research questions, and each section contains a statement of findings at the conclusion of that section.

VI. ANALYSIS

6.1 Research Question 1: Is Section 12A Consistent with the Voluntary Ethos of the Mediation Act, 2023?

6.1.1 The Architecture of Section 12A

Section 12A (Mandatory Pre-Institution Mediation) stipulates that a plaintiff must exhaust all pre-institution mediation avenues before commencing an action for a commercial suit with a value equal to or greater than the amount specified on the court’s approved list, unless an immediate interim remedy is sought. [16] This provision is absolute and has a jurisdictional basis; a suit filed in violation of Section 12A is subject to being returned or dismissed at the threshold.

In contrast, at the initial level, it appears that the requirement for mandatory attendance at mediation creates a conflict with the Mediation Act 2023, in that the foundation upon which the Mediation Act stands is based on the concept of voluntary participation. As stated in Section 5 of the Mediation Act, the process of mediation is a voluntary process, while Section 6 of the Mediation Act provides that parties have the right to withdraw from the mediation process at any time without being prejudiced with respect to their legal rights.

6.1.2 Mandatory Referral, Voluntary Outcome – Reconciling the Discrepancy

The apparent conflict between the two pieces of legislation is ultimately resolved by properly identifying the level at which the concept of voluntariness applies. Section 12A requires attendance at mediation, not agreement through mediation; and the Mediation Act, 2023, safeguards the concept of voluntariness of outcome, not of referral. Although they both relate to mediation, they apply to different aspects of the process and are not, in principle, inconsistent.

Section 4(2) of the Mediation Act preserves the applicability of other legislation providing for mediation as such; it is clear that the statute was meant to include current mediation statutes. [17]including s.12A, while enacting it. Review those statutes together and determine how they interact with one another: Commercial Court’s Statute mandates the MPIM process, which will govern the way this referral occurs, while the Mediation Act governs parties when they get to the table in terms of quality, conduct and enforceability of that process.

The Mediation Directive (2008/52/EC) from the European Union and the Mediation Framework established in Singapore both create statutory authority for making referrals to mediation mandatory, but keep settlement voluntary. In both instances, there is a clear recognition of the difference between a mandatory process with a voluntary outcome, and therefore, there is clarity in comparing what has been proposed here with the other two models.

Thus, even though the MPIM is a mandatory process, it does not violate the voluntary principles of the Mediation Act, 2023, because it is understood as requiring attendance (not acquiescing to agreement). Furthermore, a party is fully free to leave the pre-litigation mediation having settled nothing whatsoever after obtaining its non-settlement report and pursuing litigation.

Finding relating to Research Question 1: The requirement for mandatory attendance under Section 12A does not conflict with the voluntary nature of mediation established by the Mediation Act, 2023. Two acts are in place; one sets out the requirement for a mediation process to begin, and the other provides for the process’s resultant outcome being voluntary. Thus, the two acts can be worked together positively and in a way that is permitted by Section 4(2) of the Mediation Act.

6.2 Research Question 2: How Have Indian Courts Interpreted Section 12A, and What Does This Jurisprudence Reveal?

6.2.1 The Mandatory Character: Patil Automation

The Supreme Court’s judgment in Patil Automation Pvt Ltd v Rakheja Engineers Pvt Ltd. held that Section 12A of the Code is mandatory. If a plaint does not comply with this requirement, then it will not be maintainable. This section was given prospective effect and thus will apply to all commercial suits (other than those with interim relief) filed on or after 20th August 2022 if they are preceded by documentation showing that there has been an attempt to mediate the dispute in question before engaging the litigation process.

The court also reasoned that legislative intent was the basis for this ruling, as Section 12A was added to reduce the burden on commercial courts through the diversion of disputes to mediation rather than using the court system to resolve these disputes. If Section 12A were treated as directory rather than mandatory, then the purpose of this amendment would be defeated.

6.2.2 The Reach of the Jurisdictional Bar

Several subsequent decisions from high courts have scrutinised how far they can go from the criteria established in the Patil Automation ruling. The earlier decision of the Supreme Court in M.R. Krishna Murthi v. The New India Assurance Company Limited [18]distinguished situations where plaintiffs were able to prove that the opposing party had rejected participation in a micro-mediate, or where trying mediation was not an option due to the absence of appropriate facilities. In other words, the bar will not be applied strictly if a plaintiff has demonstrated that the other party acted unreasonably regarding their offer to micro-mediate, or has participated in a similar unreasonable manner.

In Yamini Jippu and Arun Shankar Jippu (1930) 5 M.L.J. 167, the Madras High Court, on appeal, held that a Mediation(PIM) should be done under section 12A of the Mediation Act 2023 as per its spirit. They conclude that if a plaintiff has made extensive efforts to start a mediation and has met with resistance from the other party, the court cannot use non-compliance to deny the plaintiff their recovery as a remedy.

6.2.3 What the Jurisprudence Reveals

In the case of Vikram Bakshi v Sonia Khosla, the current legal landscape has provided a large degree of judicial flexibility while simultaneously requiring that litigants comply with MPIM requirements (in terms of the disputes) once an opportunity to participate has been presented.[19]

Recent decisions by Indian courts have seen them view the MPIM process as an important substantive means of resolving disputes between parties rather than viewing it merely as an opportunity for “procedural gaming.” However, there are instances where courts have refused to allow the MPIM process to serve as a vehicle for litigants to ambush each other procedurally.

As discussed above, an important gap exists in the current system because Legal Services Authorities (which administer MPIM) are often slow, under-resourced, and not sufficiently familiar with commercial disputes. Consequently, mandatory MPIM processes often occur in name only; if a party engages in a referral to MPIM, they are frequently issued a non-settlement certificate by the Authority after engaging in very limited dialogue with each other before filing their suit.

Conclusion on Research Question 2 – Indian courts treat Section 12A as a mandatorily-imposed condition precedent that carries a jurisdictional component to it, but they also apply the Section purposively to prevent procedural injustice. While the underlying legal framework regarding MPIM is good, the overall institutional framework in place to administer MPIM is inadequate to achieve the MPIM’s goals for resolving disputes between parties.

6.3 Research Question 3: What Are the Structural Challenges Limiting Pre-Litigation Mediation’s Effectiveness?

6.3.1 Bad Faith and Nominal Participation

A significant weakness in the MPIM is the prevalence of simply nominal participation. Section 12A only requires mediation to be “attempted”, which means that a party has no intention to settle, could attend the mediation for a very short time, then wait for the Authority not to produce a report stating that they will not settle, and thereafter commence suit with the appearance of complying with the statute while completely undermining the statute’s purpose. Bad-faith participants operate in this way because neither the Commercial Courts Act nor the Mediation Act currently has any meaningful consequences for bad-faith participation during the MPIM stage.

While there is a provision in Section 26 of the Mediation Act 2023 that enables a mediator to terminate mediation where the parties are not participating in good faith, [20] That power is seldom exercised in the MPIM environment, where the presiding Authority is the Authority under the Legal Services Authorities Act, not a trained commercial mediator. Consequently, there is no mechanism for the commercial court to infer adversely or impose costs based upon a finding of a bad faith MPIM participant.

6.3.2 Institutional Mismatch

The MPIM process is routed through the Legal Service Authority. These agencies were created to provide free legal services to those who cannot afford them; these agencies are not designed, capable or have any relevant resources to facilitate professional commercial mediation. [21] In contrast to the MPIM process through the LSA, the 2023 Mediation Act envisions a specially constructed institutional infrastructure for mediation, i.e., the Mediation Council of India, accredited mediation service providers, and a directory of accredited mediators with speciality skills for various subjects. The current vehicle for MPIM vs. the process envisioned by the 2023 Mediation Act is incompatible.

The fallout of this incompatibility is real. LSA-administered mediation sessions are typically short, routine and predictable. Mediators generally lack any reasonable level of training in commercial disputes, negotiation of business term sheets or the laws of contract, intellectual property, or banking, the three major classes of types of commercial litigation. Therefore, people appearing at an MPIM mediation often have little to no confidence that an MPIM will create a beneficial outcome; therefore, they are disincentivised and will likely not participate in good faith.

6.3.3 Absence of a Robust Enforcement Culture

Although there can be uncertainty surrounding enforceability by parties about settlements produced by the MPIM under the established history and precedents of the open mediations process, the Mediation Act of 2023 goes a little way towards addressing that issue through Section 31’s express provisions for mediated settlement agreements to be enforced as decreed by the courts[22], as well as the fact that India’s involvement with the Singapore Convention on Mediation assists with respect to international commercial agreements[23]; however, the level of awareness by parties and their representatives regarding these provisions is still low, thus undermining any incentive that parties may have to genuinely invest in the MPIM process.

6.3.4 Limitations of time and location

The MPIM must take place within no longer than three months, and with the agreement of the parties, can be extended to five months. [24]Although this avoids MPIM being a potential barrier to accessing the courts indefinitely, it also puts pressure on the parties not to explore all possible settlement options through mediation because the parties will want to settle the dispute before they go to court. In addition to this, the infrastructure for mediation is disproportionately weighted towards the metropolitan centre, making it difficult for parties outside of the larger Tier II and Tier III cities to access the infrastructure necessary to commence an MPIM process.

Finding on the research question 3: The challenges faced by the MPIM process in pre-litigation mediation are fourfold, being.,  i) No deterrence mechanism for bad faith and nominal participation; ii) There is no institutional compatibility between the MPIM framework administered by the LSA and the commercially based mediation framework developed by the Mediation Act; iii) The parties do not know about the enforcement component of the Mediation Act; and iv) There are limitations imposed on time and location by the presence of only a limited number of mediation facilities.

6.4 Research Question 4: How Can the Two Frameworks Be Harmonised Without Undermining Either Statute?

6.4.1 A Composite Statutory Reading

The composite statutory method is the first step in harmonising: Section 12A of the Commercial Courts Act provides the mandatory trigger for referral, while the provisions of the Mediation Act (2023) on how mediation is conducted through the requirements governing the conduct of mediators (including confidentiality, good faith, and enforceability of settlements). The composite statutory reading provides for the intended operation of both statutes without either statute cannibalising the operation of the other statute. This composite statutory reading is made available textually by the savings clause in s 4(2) of the Mediation Act, but it is up to the courts and the executive to consistently apply the composite statutory reading.

6.4.2 Harmonised Reading: Constitutional Compatibility

The harmonised reading of the Commercial Courts Act and the Mediation Act also addresses the constitutional dimension. In Salem Advocate Bar Assn v Union of India[25]The Supreme Court held the constitutional validity of pre-litigation ADR mandates, stating that the right to access to the courts under Article 21 is not absolute and can be subject to proportionate procedural conditions. The MPIM circuit scheme (a time-limited, urgent relief carve-out scheme with guaranteed access to litigation for failure) satisfies the proportionality test. The addition of the prerequisite of voluntarily choosing mediation as a prerequisite for obtaining the right to mediation, as opposed to requiring that the outcome of mediation be mandatory (only the process of mediation is mandatory, not the outcome of mediation), supports, not detracts from, the constitutional validity of the MPIM scheme.

6.4.3 Courts should interpret legislation based on its purpose, which would help facilitate better cooperation between courts. When the court is faced with a procedural issue, the court could adopt a purposive interpretation as demonstrated in cases like Yamini Jippu by viewing s 12A not as a procedural hurdle, but rather seeing s 12A as being intended to give parties a genuine opportunity to resolve their disputes, and further, the Mediation Act creates a good faith standard, which should apply in all proceedings under the MPIM Act as well. Courts’ exercise of their inherent jurisdiction to impose costs where parties have bad faith participation would serve to indicate to parties that MPIM is not just a procedural exercise that can be carried out and then forgotten about.

6.4.4 The Way Forward: Institutional and Legislative Reform

While doctrinal harmonisation is definitely useful, it will not be sufficient to close the structural gap. Institutional and legislative reform also have to be made in order to close that gap completely. Functionally integrating the two statutes rather than merely coexisting can be accomplished through the following suggestions, which also form the basis for the recommendations made in this paper:

VII. CONCLUSION AND SUGGESTIONS

In this paper, we examined through four specific research questions the relationship between the mandatory pre-institutional mediation (PIM) regime established by Section 12A of the Commercial Courts Act, 2015 (CCA) and the voluntary mediation principles enshrined in the Mediation Act, 2023 (MA).

This paper demonstrates four findings. Firstly, the mandatory attendance required by Section 12A is not fundamentally incompatible with the voluntary ethos of the mediation process contained within the Mediation Act, because these two statutes operate at two different places in the mediation process; Section 12A is a precondition to initiating mediation, while the Mediation Act governs the outcomes of mediation. Secondly, the Indian courts have interpreted Section 12A as a mandatory condition precedent while still applying that requirement in a flexible purposive manner, demonstrating that while the legal framework is sound, the institutional mechanisms designed to implement it are not. Thirdly, there are four structural impediments to pre-litigation mediation in place today: bad faith participation, institutional mismatch, limited enforcement awareness, and geographic concentration. Fourthly, a composite statutory interpretation, purposive constitutional analysis, and the institutional reforms outlined below will create the necessary harmonisation of both statutes.

The suggestions listed below are a response to the structural issues related to the Research Questions 2, 3 and 4. They are structured around how to implement the harmonisation outlined by Research Question 1. Here are those suggestions:

  1. Firstly, Transfer of jurisdiction(Sec 12A) to Mediation Service Providers, it is suggested that the MPIM process out of Legal Services Authority(s) to accredited mediation service providers that fall under the Mediation Act 2023; the function of MPIM will be more appropriately aligned to the quality and competency standards of institutional vehicular path identified in the mediation Act, as it relates to the adjudication of complex commercial matters.
  2. Secondly, that commercial courts adjudicating on subsequent matters will have expressed powers, through Practice Directions, to impose costs against any party that has been found, through a proper process, to have participated in bad faith. The prescriptive framework is intended to create a strong deterrent against such actions and will not add any delay for these parties in the procedural layers of the legal framework.
  3. Thirdly, to provide automatic authentication of MPIM settlements pursuant to section 31 of the Mediation Act 2023, by way of rule or notification, will allow for automatic registration of MPIM Settlement Agreements under the Mediation Act, making them enforceable as court decrees without the necessity of further proceedings.
  4. To promote a skilled workforce prepared to use meaningful ways with pre-litigated mediation, the Bar Council of India and Universities must add compulsion to the training on commercial mediation in their curricula for legal education; therefore, adding modules about Commercial Mediation. Commercial Mediation training will include the MPIM framework created by the Bar Council and the Mediation Act enacted in 2023.
  5. It is important that the Mediation Council of India develop an oversight of MPIM under the Commercial Courts Act so that the Mediation Council of India can supervise MPIM to establish standards for the quality of the mediator, the accreditation of the mediator, and collect data needed for periodic legislative review.

In conclusion, a framework for compulsory pre-litigation mediation and an optional framework outlined in the Mediation Act of 2023 can exist as a unit. With the proper interpretation and institutional support, both frameworks exist to establish two pillars of a modern commercial alternative dispute resolution system that meet the needs of the parties involved. India has significant potential for the creation of commercial mediation because the legal infrastructure is established; the remaining component necessary for the success of commercial mediation will be the institutional commitment to provide statutory interpretations for the effective implementation of the Act’s provisions.

REFERENCES:

[1]  The Commercial Courts Act, 1949, § 12A, No. 4, Acts of Parliament, 2016 (India).

[2]  The Mediation Act, 2023, § 6, No. 32, Acts of Parliament, 2023 (India).

[3] Patil Automation Pvt Ltd v. Rakheja Engineers Pvt Ltd, (2022) 10 SCC 1.

[4] The Mediation Act, 2023, § 5, No. 32, Acts of Parliament, 2023 (India).

[5] Shirin Khajuria, Reimagining Justice Through Mediation – An analysis of The Mediation Act, 2023, LAW SCH. POL’Y REV. (Aug. 8, 2025), https://lawschoolpolicyreview.com/2025/08/08/reimagining-justice-through-mediation-an-analysis-of-the-mediation-act-2023/.

[6] Laila Ollapally, Mandatory pre-litigation mediation: A missed opportunity in the Mediation Bill, 2023?, BAR & BENCH, https://www.barandbench.com/columns/mandatory-pre-litigation-mediation-a-missed-opportunity. (last visited April 4, 2026).

[7] Sanjeev Sanyal & Apurv Kumar Mishra, Why Commercial Mediation Should be Voluntary (Econ. Advisory Council to the P.M., Working Paper No. 25, 2023), https://eacpm.gov.in/wp-content/uploads/2023/10/EACPM-WP25-Why-Commercial-Mediation-Should-be-Voluntary.pdf. (last visited April 4, 2026).

[8] Ambar Bhushan & Divyam Sharma, Forced mediation for counterclaims counterproductive, INDIA BUS. L.J., https://law.asia/counterclaims-forced-mediation/. (last visited April 4, 2026).

[9] Aravind Sundar, Determining Urgency in Compulsory Pre-Litigation Commercial Mediation, 13 NLIU L. REV. 49 (2024).

[10] Supreme Court Interprets Urgent Interim Relief Under Section 12A in Novenco IP Infringement Case, SUNS LEGAL, https://sunslegal.com/2025/11/05/supreme-court-interprets-urgent-interim-relief-under-section-12a-in-novenco-ip-infringement-case/. (last visited April 4, 2026).

[11] Shubhi, PIMS After Six Years: Law Ministry Updates Parliament on Commercial Disputes Settled Through Pre-Institution Mediation, SCC TIMES https://www.scconline.com/blog/post/2026/02/01/law-ministry-informs-parliament-about-pre-institution-mediation-commercial-courts/. (last visited April 4, 2026).

[12] James Levy & Louise Duffy, Mandate to Mediate: Compelled Alternative Dispute Resolution in England, ASHURST, https://www.ashurst.com/en/insights/mandate-to-mediate-compelled-alternative-dispute-resolution-in-england/. (last visited April 4, 2026).

[13] Anandi Katiyar, Meditari, Meditatio, Mediation: Tackling Non-Starter Cases—Lessons from the Italian Model, NICKELED & DIMED, https://nickledanddimed.com/2025/03/17/meditari-meditatio-mediation-tackling-non-starter-cases-lessons-from-the-italian-model/. (last visited April 4, 2026).

[14] Afcons Infrastructure Ltd v Cherian Varkey Construction Co (P) Ltd, (2010) 8 SCC 24.

[15] Law Comm’n, Gov’t of Ind., Report No. 238, Amendment of Section 89 of The Code of Civil Procedure 1908 And Allied Provisions, 12–14 (2011).

[16] The Commercial Courts Act, 1949, § 12A (1), No. 4, Acts of Parliament, 2016 (India).

[17] The Mediation Act, 2023, § 4 (2), No. 32, Acts of Parliament, 2023 (India).

[18] M.R. Krishna Murthi v The New India Assurance Co Ltd, (2020) 15 SCC 493.

[19] Vikram Bakshi v Sonia Khosla, (2014) 15 SCC 80.

[20] United Nations Convention on International Settlement Agreements Resulting from Mediation, G.A. Res. 73/198 (Dec. 20, 2018).

[21] The Mediation Act, 2023, § 27-30, No. 32, Acts of Parliament, 2023 (India).

[22] The Mediation Act, 2023, § 31, No. 32, Acts of Parliament, 2023 (India).

[23] Singapore Convention, Supra note 20.

[24] The Commercial Courts Act, 1949, § 12A (3), No. 4, Acts of Parliament, 2016 (India).

[25] Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

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DIGITAL FRONTLINES: INTERNATIONAL HUMANITARIAN LAW IN CYBER CONFLICTS _ (Short Article )

 

AUTHOR: Kunwar Veer Vikram Pratap Singh /UGC NET QUALIFIED / LLM (Cyber Law and Cyber Crime Investigation) / /Uttar Pradesh State Institute of Forensic Science Affiliated to NFSU Gandhinagar.

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JOINT JURIST JOURNAL

Abstract

“As warfare transcends the physical battlefield, the application of International Humanitarian Law (IHL) to cyber operations presents a profound legal paradox. This paper presents the existence of critical protection gaps to civilian data and dual-use infrastructure as a result of digital warfare as it is concluded that the principles of International Humanitarian Law (IHL) still apply to these scenarios, despite the fact that the doctrine was developed in times of kinetic conflict.  By analyzing the threshold of ‘armed attack’ and the principle of distinction in digital environments, the study identifies critical ‘protection gaps’ regarding civilian data and dual-use infrastructure. It concludes that while IHL principles are resilient, a ‘Digital Geneva Convention’ or a specialized Protocol is necessary to prevent unchecked state-sponsored digital aggression.”

Introduction: The Invisible Frontline

The old pattern of seeing war as a symphony of muscular power, and as a spectacle of the tumbling artillery, and the actual passage of men over material boundaries, has been essentially broken by the coming of the digital era. We are now on the threshold of a new era characterized by the Invisible Frontline with the theatre of conflict being no longer quantified by hectares of territory but by architecture of silicon and the flow of binary code[1]. This shift in the traditional to the cyber warfare is not only a technological innovation but a major ontological change in the way the international community conceptualizes the meaning of force, aggression and sovereignty[2]. The weapons in this invisible realm are not ballistic but algorithmic and geared towards breaching the vital organs of any state; its power grids, financial clearinghouses, water treatment plants and communication systems without even a single shot. The strategic appeal of cyber operations is the asymmetry of the operations and anonymity that cyber operations offer. It takes only one rogue actor or an agency sponsored by a state to disable the administrative apparatus of a superpower thousands of miles away in nearly no physical footprint and with a degree of plausible deniability that a conventional military attack would not have allowed. This produces a gray area of continual tension which lies between peace and open conflict, a grey area where laws of war are in practice always neglected, and yet never actually applied.

 The ‘Attack’ Threshold and Article 49

The legal core of cyber-hostilities is whether the threshold of the attack as embodied in Article 49 of Additional Protocol I to the Geneva Conventions is met.[3]  Conventionally, the expressions used in definition of humanitarian law (IHL) in relation to an attack include the idea that any act of violence against the opponent is to be classified as an attack (either offense or defense)[4].  It is a definition created in the middle of the 20th century, which assumes that the expression of force will be kinetic or physical, in terms of bullets, bombs or blades. Nevertheless, in the modern setting of cross-border cyber activities, this “physicalist-understanding provides a significant protection gap[5]. The discussion revolves around, whether the definition of violence is the tools used (the employment of kinetic energy) or the effects created (the damage caused). According to a strict, traditionalist interpretation, a cyber attack that destroys the social security database of a country, or shuts down its central bank would not be an attack since it is not a matter of releasing physical force. This paper argues that this very limited interpretation is becoming more and more outdated and does not meet the humanitarian aims of the Geneva Conventions that aim to protect civilian populations against the devastating consequences of conflicts.

The most recent common ground among liberal legal theorists and those writing the Tallinn Manual is the functioning damage or consequentialist approach[6]. Within this framework an act of a cyber operation is deemed to be an attack when it causes persons injury or death, or the destruction or the loss of functionality of objects[7]. The difficulty is there in the case of a massive disruption that a given operation can cause, unless it is physically disrupted. As an example, when malicious software-induced outage of a city power supply in the middle of a freezing winter scenario leads to indirect deaths by the inability of heating and medical devices to operate, the act is digital, yet the violence is real. The existing legal contradiction is in the gray area where the cyber activities remain short of physical destruction but lead to system breakdown. By placing a high bar in defining an attack, IHL unwillingly encourages states to employ sub-threshold cyber warfare with the understanding that the actions they take will not result in the application of the armed conflict law and the right to self-defense pursuant to Article 51 of the UN Charter[8].

Moreover, the threshold of attack is indissolubly connected with the security of the so-called civilian objects in Articles 52. When a digital operation is not a legal attack, it is possible that the restrictive law of proportionality and military necessity do not apply strictly, and important civilian data can be altered or deleted. This paper proposes an evolutionary reading of Article 49 that admits to digital presence a privileged interest. As the need to use data emerges as a necessity to survive, as a society, be it at the hospital registers or the distribution of food, the definition of violence should change to the functional as opposed to the kinetic. The inability to modernize the concept of an attack under Article 49 will push IHL into a sense of irrelevance, where the most common and destructive types of modern war conflicts will have no regulation whatsoever by the treaties made to humanize war. As such, the suitability of IHL hinges on its capability to bridge the physical-digital divide and offer a reliable barrier against any operation disrupting the fundamental balance of civilian life, on the basis of its size and its impact.

 The Principle of Distinction in a Wired World

The Principle of Distinction, a principle of the International Humanitarian Law (IHL) spelled out in Article 48 in Additional Protocol I, is the so-called cardinal rule of the rule of distinction, which prescribes that parties to a conflict should at all times differentiate between the civil population and combatants, and non civilians and military targets[9]. The difference between theatrical and domestic space in a conventional physical theater is ensured with respect to the visual elements: uniforms, marked vehicles, and physical segregation of barracks and residential areas. But in the 21 st century wired world, it is the pillar on which the whole world rests, and which possesses an existential crisis. Internet architecture is by its nature unconcerned with the status of internet users. [10]The digital and the physical worlds differ in the fact that unlike the physical world where a hospital and a munitions factory might be at different geographical coordinates, the digital world needs to use shared infrastructure. Civilian banking information, emergency communications, and even personal communications are sometimes on the same fiber optic cable, router, and satellite links as are used by military command-and-control networks. This dual-use character of the digital backbone renders it virtually unattainable to concentrate on a military goal in cyberspace without unintentionally attacking or disrupting non-military networks as well.

What makes the situation even more complicated is the fact that the divide between combatants and civilians is indistinct. When the kinetic era was in force, a civilian was able to become a combatant by picking up a rifle; when the cyber era is in play, a civilian programmer sitting in a high rise office will do a line of code that will cause the air defense system of an enemy to shut down. This emergence of the civilian hacker or even patriotic cyber-collective questions the legal immunity otherwise given to non-combatants. Even in the case of IHL, the civilians are not deprived of protection except that they direct participation in hostilities (DPH) ousman[11]. But what constitutes the direct involvement in a cross-border cyber-op is hotly disputed in terms of the law. Is it DPH to have given technical assistance to any state-operated hacking outfit[12]? Is the very act of writing a malware and not deploying it a loss of a protection? By using the civilian population as a human shield to perpetrate digital aggression through person fronting the civilian as proxies, states are actively undermining the Principle of Distinction when they engage civilian proxies to retain plausible deniability.

Additionally, the topic of targetability of data is also controversial. Although IHL safeguards the objects, it is not globally agreed on whether intangible information, like social security records, land titles, medical history, or others, would be considered as such an object. When data is not an object, then destruction or manipulation of it may not be technically in violation of the Principle of Distinction. This article uses hyper-connected society as the basis of arguing that data is a functional equivalent of a physical asset. Destroying a vaccination database of a country is as detrimental to the civilian population as destroying a real-life medical warehouse. A systems-based view of the interpretation of the Principle of Distinction should be used to ensure the sufficiency of IHL. The law should examine the civilian use of network, instead of just doing the physical nature of the target. In the absence of a serious re-characterization of civilian data as a safeguarded interest the wired world turns into theater of complete war, in which the civilian population is no longer bystander, but primary though unseen target. Failure to impose the distinction strictly in cyberspace does not only pose any threat to digital assets but the whole humanitarian system may be on the point of collapse as indiscriminate warfare under the name of technological necessity will be acceptable.

The Attribution Gap and Plausible Deniability

Attribution is the one problem that has proven to be the biggest impediment to the successful application of the International Humanitarian Law (IHL) in the electronic space. The presence of an aggressor in the conventional armed conflict is normally defined by physical presence – marking an aircraft, the position of a naval ship, or the recognizability of uniform of a soldier. When it comes to cross-border cyber warfare, the internet digital architecture has been purposely created in such a way that it enables anonymity. A mix of spoofing IP addresses, routing attacks across several layers of zombie servers in neutral third-party states and encryption allows an aggressor to initiate a crippling attack akin to the trail of forensic breadcrumbs that leaves the finger print on a dozen different directions. This Attribution Gap provides a strategic space in which technical capability to detect an attacker is far behind that of the attacker to cause harm[13]. As a practitioner of law, this leaves an evidentiary loophole in that, without any clear connection between a malicious code line and to a state that could be deemed sovereign, the laws of state responsibility cannot be invoked, and the victim state has no clear legal avenue to pursue or any lawful response.

This technical anonymity is used as a weapon of the doctrine of Plausible Deniability. States are growing to depend on the use of proxies- privatized military contractors and criminal syndicates; but also on the services of the so-called patriotic hacktivists groups- to conduct their own cyber activities[14]. In keeping some distance between these actors, states are able to profess ignorance of the existence of the hostile activity or inability to control the hostile activity within the borders of the states. According to the contemporary principle in international law as developed by the International Court of Justice (ICJ) in the Nicaragua case, a state can only be able to bear responsibility of the actions of individuals belonging to a particular community only when it exercises effective control over the activity. The effective control is almost impervious to prove in the cyber world. A state may fund, provide intelligence or even the malware itself to a proxy group but unless they can prove that that particular command to press the button was issued by the state, then the legal connection has not been proven. This enables aggressors to circumvent the bans (the UN Charter and the Geneva Conventions) and allows them to wage a type of warfare that is in essence lawless, yet not yet on the level of formal armed conflict.

Moreover, the concept of deterrence based on which the world order is founded is placed in danger by the so-called Attribution Gap. The risk-to-reward ratio of cyber aggression is very positive when an actor is familiar with the fact that he can act behind a digital veil. The present system of IHL is based on the name and shame phenomenon and the possibility of being prosecuted in the International Criminal Court (ICC)[15]. The Rome Statute however by the ICC must identify certain persons to find criminal liability.  In an international cyber attack in which the attacker is a black hat group or a government agency that is faceless, the chances of a successful prosecution are small. In this article, it is argued that the international community should change towards a Due Diligence standard in order to bridge this gap[16]. According to such an evolution, a state would be accountable, not only to the cyber-attacks that it triggers, but also to its inability to ensure that the territory and infrastructure does not fall into the hands of third parties and is used to inflict damage on other states. It is only when the evidentiary bar is lowered, that it may no longer be effective control but rather a test of the so called sovereign due diligence that the law can start to close the attribution gap to deprive digital aggressors of their plausible deniability camouflage.

Conclusion: Toward a Digital Protocol

Cross-border cyber warfare is currently in evolutionary stages, and it comes across as one of the most sensitive issues to the stability of the international legal order ever. To elaborate on this aspect of digital operations, as this article has seen, the main conflict is that there is no fit between the kinetic based drafting of the Geneva Conventions and the virtual, borderless existence of digital activities.

To sum up, the sufficiency of the available IHL is at the moment of the brink. Although this is an excellent scholarly guidebook on how to take the long walk, the Tallinn Manual does not give the binding power needed to limit the behavior of states in the flare of geopolitical competition. What is needed is a two pronged solution: an extreme interpretation of the current treaties by international courts and eventual codification of a special tool – a so-called Digital Protocol – that tackles the specific issues of attribution and plausible deniability. We should shift towards a sort of Sovereign Due Diligence model wherein states are assigned some responsibility on the bad code that flies out of their borders. Digital age is not to be one of wanton lawlessness; it is supposed to be the time when IHL demonstrates its universality. This can be accomplished by recalibrating our legal definitions in ways that safeguard the so-called digital integrity of the human person, that is, the rule of law can be an effective check on power, notwithstanding when that power is exercised with a keyboard as opposed to a cannon.

Bibliography:

[1] Michael N. Schmitt, Cyber Operations and the Jus ad Bellum Revisited, 56 Vill. L. Rev. 569 (2011).

[2] Marco Roscini, Cyber Operations and the Use of Force in International Law 45–47 (2014)

[3] Protocol I, supra note 5, art. 49.

[4] Id

[5] Michael N. Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare 77–79 (2013).

[6] Id. At 78–80

[7] Id. At 79

[8] U.N. Charter art. 51.

[9] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 48, June 8, 1977, 1125 U.N.T.S. 3.

[10] Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict 82–84 (3d ed. 2016).

[11] Protocol I, supra note 1, art. 51(3)

[12] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International

Humanitarian Law 46–49 (ICRC 2009).

[13] Michael N. Schmitt, Cyber Operations and Accountability, 42 Yale J. Int’l L. 1, 15–17 (2017).

[14] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 115.

[15] Rome Statute of the International Criminal Court art. 25, July 17, 1998, 2187 U.N.T.S. 90.

[16] Michael N. Schmitt & Liis Vihul, Sovereignty in Cyberspace: Lex Lata and Lex Ferenda, 4 Tallinn Paper No. 2 (2014).