Advance Articles - Volume 19
The Right to Receive Information: Conceptual Problems
Shrutanjaya Bhardwaj
This article studies the “right to receive information” or the “right to know”, a judicially-recognised right under Article 19(1)(a) of the Constitution. It attempts to show, through an analysis of judgments of the Supreme Court and High Courts, that the right rests on a shaky philosophical foundation and that there are inconsistencies in how the right is judicially treated in terms of its structure and content.
First, the article questions the logic that the “right to know” is implicit in Article 19(1)(a) merely because it makes the exercise of free speech more meaningful. Such a logic was authoritatively rejected by the 7-judge bench in Maneka Gandhi (1978).
Second, the article discusses judgments which have effectively enforced the right to know horizontally, without adequate justifications. The recent pronouncement of the Constitution Bench in Kaushal Kishore (2023) adds to the confusion.
Third, the article discusses judgments that have either included or excluded information from the scope of this right. It is submitted that no coherent principle is discernible from a study of the inclusions and the exclusions, and no such principle is forthcoming from the courts themselves. Before concluding, the article briefly discusses
About the Author:
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Shrutanjaya Bhardwaj is an Advocate at the Supreme Court of India.
Antitrust Concerns vis-a-vis Disruptive Innovation – Takeaways for Competition Commission of India
Dr. Sudhanshu Kumar & Garima Gupta
In the era of innovation, market dynamics have evolved demanding a more nuanced analysis of market competition. Innovation in digital economy does promise new products and services but it can be an amiable reality only if it is directed towards ensuring consumer welfare and a free markets space for players. Since digital markets attract innovators and disruptors, it is important for antitrust regulators to differentiate between efforts directed towards value-creation and ones aimed at destroying or impeding the same. This paper aims at theorizing around the idea of ‘disruptive innovation’ and its implications for competition policy for India. The paper while acknowledging the pro-competitive benefits of disruptive innovation, elaborates on the fact that incumbents or potential players may in some situations clothe a business strategy as ‘disruptive’ in order to evade anti-trust scrutiny. Further, practices such as rent-seeking or killer acquisitions may be adopted in order to create barriers for new players or for driving out existing players which have a strong potential of disrupting the market by offering new products or services and thereby creating a new demand, altogether. Considering the fact that an antirust regulator in such situations needs to avoid false positives and false negatives while also ensuring continued innovation, the paper deliberates upon the need to evolve fundamental strategies for antitrust assessment. Reliance has been placed upon the developments in other jurisdictions such as the European Union and United States in order to identify certain key takeaways for the Competition Commission of India (‘CCI’). While CCI in the recent past has made tremendous efforts in evolving its assessment to better suit digital markets, certain fundamental understandings around which an assessment revolves also demand evolution. In this light, the paper intends to provide some level of guidance to assess complex situations demanding antitrust assessment in a manner that should not lead to chilling effects on innovation.
About the Author:
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Dr Sudhanshu Kumar is an associate professor at the National Law School of India University, Bangalore.
Garima Gupta is a Doctoral Fellow at NALSAR University of Law, Hyderabad.
Book Review - The Future of Money: How the Digital Revolution is Transforming Currencies and Finance
Sohini Banerjee & Pratik Datta
The book ‘The Future of Money: How the Digital Revolution is Transforming Currencies and Finance’, written by Eswar Prasad, and published in 2021 by the Belknap Press of Harvard University Press, is timely and thought-provoking. It provides a bird’s eye view of the noteworthy developments in finance in the past few decades, and predicts that we are on the verge of an even more dramatic transformation having significant economic, political, and social ramifications. For this reason, it is richly deserving of a review. This paper aims to critically analyse the same.
About the Author:
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The authors are Research Fellow and Senior Research Fellow at the Policy Research Group, Shardul Amarchand
Mangaldas & Co., New Delhi.
Conceptualising India's Safe Harbour in the era of Platform Governance
Vasudev Devadasan
The push for greater regulation of online platforms has led to calls to re-evaluate the statutory immunities granted to online intermediaries for hosting unlawful third-party content (i.e., safe harbour). This paper argues that greater accountability for online platforms need not interfere with existing (and indeed strengthened) safe harbour protections. However, to achieve this outcome, legislators must recognise the difference in enforcement approaches between secondary liability and platform governance regimes. This paper argues the types of obligations that can be imposed as pre-conditions to safe harbour are different from those that can be imposed as direct statutory obligations. This is because secondary liability is enforced through individual suits against individual pieces of content while direct statutory obligations are continual and apply to all content on and all procedures of a platform. Relying on the principles of secondary liability, this paper outlines the types of obligations that can be meaningfully enforced (and those that cannot) using the tool of secondary liability. Using India’s Intermediary Guidelines as a case study, this paper highlights the importance of matching their type of obligation to the appropriate enforcement mechanism (e.g., transparency mandates cannot be imposed as pre-conditions to safe harbour) and the risks to both free speech and platform accountability of failing to do so. Recognising the difference between how secondary liability and direct statutory duties operate should lead to a reassessment of arguments that call for a dilution of safe harbour in the name of greater platform accountability. The paper concludes that intelligent statutory design can distinguish between the obligations that can be imposed as pre-conditions to safe harbour and those that ought to be direct statutory duties, allowing legislators to achieve greater transparency and accountability from platforms while retaining (and even strengthening) existing safe harbour protections.
About the Author:
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Vasudev Devadasan is a Consultant at the Centre for Research and Planning, Supreme Court of India.
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Continuing Discrimination in the times of technology: Women, Work, Algorithms and Law in India
Sejal Chandak
Human societies are discriminatory. So, it has been an unrelenting effort to eliminate what divides us. While there have been leapfrog developments in this regard, we need to consider newer challenges now that technology is taking over public and private spaces. The author, in this article, discusses gender-based algorithmic discrimination in workplaces and argues that there is an urgent need to enforce laws for regulating algorithmic discrimination. India is in a precarious position. It has been consistently faring poorly when it comes to the gender gap in work. It lacks a comprehensive and codified anti-discriminatory law; and lacks laws to deal with algorithmic discrimination. The withdrawn Personal Data Protection Bill, 2019, the Draft Digital Data Protection Bill, 2022 and the Digital Personal
Data Protection Act, 2023, do not effectively deal with gender discrimination. The parliament is now considering introducing the Digital India Act to give a much-needed overhaul to the country’s antiquated technology laws. The article focuses on the current labour and technology laws, the withdrawn bills, the Digital Personal Data Protection Act, and the discussion around the Digital India Act to argue that there is a need to specifically consider algorithmic gender discrimination. Further, it culls out the lessons that India can learn from the global
developments in this field.
About the Author:
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Sejal Chandak is a PhD student and MSCA Cofund CITI-GENS Early Stage Researcher at School of Law, Queen’s University, Belfast.