Foreign LegislationLegislation Updates

On September 01, 2021, the House Bill (‘HB’) 3746 relating to certain notification required following a breach of security of computerised data entered into effect. The Act amends the state’s data breach notification laws under Texas Business and Commerce Code §521.053.

Key Highlights:

  • Provision has modified to include new notification requirement i.e. organisations are required  to include the number of affected residents that have been sent a disclosure of the breach by mail in their notifications;

Notification must include the following:

    1. a detailed description of the nature and circumstances of the breach or the use of sensitive personal information acquired as a result of the breach;
    2. number of residents of this state affected by the breach at the time of notification;
    3. number of affected residents that have been sent a disclosure of the breach by mail or other direct method of communication at the time of notification;
    4. measures taken by the person regarding the breach;
    5. measures the person intends to take regarding the breach after the notification under this subsection; and
    6. information regarding whether law enforcement is engaged in investigating the breach.

  • Provision inserted requiring the Attorney General (‘AG’) to post on their website a listing of the notifications received by their office, which must be updated no later than 30 days after the AG receives the notification of a new breach of system security; and
  • Provision inserted to require AG to remove the notification no later than one year after the AG first published if the person who provided the notification has not notified the AG of any additional breaches during that period.

You can read the bill here

Op EdsOP. ED.

The consent of the Attorney General to initiate criminal contempt proceedings against Kunal Kamra underlines a significant point – that the freedom of speech is subject to the law of contempt. Ubiquitous as it may seem, this fundamental norm appears to have been put into desuetude by the critics of the judiciary in recent times. This basic norm of Indian free speech jurisprudence may appear contrary to the American position where it was once believed that the law of contempt is limited by the first amendment.

Much has been said as to how the offence of scandalising the court is no longer relevant and should be done away with. Succour is sought from the unfair and not-so-lovely comments of the Privy Council in McLeod v.  St. Aubyn[1]:

…But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.

Coloured population we may be, but our Court in Perspective Publications[2]  has clearly held that it is not correct that committals for scandalising the court has become obsolete. Further, what the advocates of unqualified free speech undermine is what is pertinently said by our Court in Rama Dayal Markarha v. State of M.P.[3]:

“14 In this country justice at grass-root level is administered by courts set up in rural backward areas largely inhabitated by illiterate persons. It is they who bring their problems to the court for resolution and they are the litigants, or consumers of justice service. Their susceptibility is of a different type than the urban elite reading newspapers and exposed to wind of change or even wind of criticism. The people in rural backward areas unfortunately illiterate have different kinds of susceptibilities. A slight suspicion that the Judges pre-disposed or approaches the case with a closed mind or has no judicial disposition would immediately affect their susceptibilities and they would lose confidence in the administration of justice. There is no greater harm than infusing or instilling in the minds of such people a lack of confidence in the character and integrity of the Judge…”

True it may be that in that case the Court was concerned with a mofussil court, but it must not be lost sight of that the higher judiciary in our country, right up to the Supreme Court, is flooded with litigation emanating from rural areas. That includes a large number of criminal cases where the accused may be seeking bail or anticipatory bail. Proliferation of social media in rural India is well known. Unabated circulation of reckless comments is bound to create an impression in those susceptible minds, who unfortunately constitute the vast majority.

The Contempt of Courts Act has been enacted keeping in mind the developments and trends in other countries, without ignoring the ground realties and prevalent socio-economic conditions in India. (Arundhati Roy, In re[4]).

Critics of our courts have been vociferous as to how the power to punish for contempt is antithetical to the freedom of speech and expression and how the law of contempt has become anachronistic. Much has been said about how the law of contempt has been diluted even in a conservative country like the United Kingdom. Lord Templeman in the Daily Mirror case and the opinion of Lord Denning in the Blackburn case have been quoted ad nauseam.

It was generally believed that the approach of the American courts was that the contempt power of all courts is limited by the guarantee of the first amendment against interference with freedom of speech or of the press. This stems from the opinion of Justice Hugo Black in Bridges v.  California[5]. However, even in a country as liberal as the United States in terms of freedom of speech and expression, the necessity to have the power to punish for contempt and drawing lines distinguishing free-speech from interference with the course of justice has been recognised. In that very case of Bridges[6], Felix Frankfurter, J. penned his dissenting opinion which has gained currency in later times. He took the view that the summary power over contemptuous publications is deeply rooted in common law and that the power to punish for contempt is not a censorship in advance but a punishment for past conduct and, as such, like prosecution for criminal libel is not offensive either to first or to the fourteenth amendments. In Gentile v. State Bar of Nevada[7],  is an instance where  Rheinquist, C.J. took the view that “the substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the first amendment right of attorneys in pending cases and the State’s interest in fair trials.

Vilification of Judges is also bound to affect the psyche of Judges. Felix Frankfurter, J. in Pennekamp[8], rightly observed:

Judges, however stalwart, are human and the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.”

In Attorney General v. BBC[9], Lord Dilhorne, disagreeing with the opinion of Lord Denning who wrote from the Court of Appeals, held:

It is sometimes asserted that no Judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting……

                                                                                      (emphasis supplied)

Borrie and Lowe in their commentary[10] on contempt of court state that Lord Denning’s view is “more a statement of policy rather than literal truth”. Cardozo, in his “Nature of the Judicial Process” referring to the forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judges by”.

The bottom line, therefore, is fair criticism – for that is what is permissible in our law. A judgement can be criticised respectfully, and instances closer home are aplenty. Seervai has severely criticised the judgement of  Bhagawati, J.  in E.P. Royappa[11]. He says the judgment suffers from the logical fallacy of undistrbuted middle, but the criticism is benign and is a pleasure to read. Constructive criticism, without attacking any particular Judge or court, has also been held to be out of the ken of contempt. A contempt petition was filed against Chief Justice E.S. Venkataramaiah for his interview lamenting the state of the judiciary as such. The Court declined to proceed with contempt.[12]

Consent for criminal contempt has been granted. The speaker claims to be a comedian. But it is the Attorney General who is standing up for a free and fearless judiciary by exercising his discretion wisely.

Kunal Kamra claims to be a comedian, but it is the Attorney General who is standing up for a robust judiciary. Freedom of speech does not licence vilification of Judges and the judiciary. Irresponsible onslaught on Judges is bound to affect their psyche. ‘There can be no claim of judicial superiority over human frailty’ said Lord Dilhorne, disagreeing with Lord Denning. Benign humour/satire a la Daphtary is welcome; not calculated vituperation clothed as humour. The power of contempt is warranted to ensure the free and fair administration of justice-free speech jurisprudence under our Constitution.

* Advocate-on-Record, Supreme Court. Author can be contacted at

[1] McLeod  v. St. Aubyn, (1899) AC 549

[2] Perspective Publications (P) Ltd. v. State of Maharashtra, (1969) 2 SCR 779

[3] (1978) 2 SCC 630

[4] (2002) 3 SCC 343

[5] 314 US 252 (1941)

[6] Ibid.

[7] 501 US 1030 (1991)

[8] 328 US 331 (1946)

[9] 1981 AC 303 (HL)

[10] Borrie and Lowe, The Law of Contempt, (3rd Edn., 1996)

[11] E.P. Royappa v. State of T.N., (1974) 4 SCC 3

[12]Vishwanath v. E.S. Venkatramiah, 1990 SCC OnLine Bom 441

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Judge Bench of Priyantha Jayawardena, Vijith K. Malalgoda and Murdu N. B. Fernando, JJ., rejected a motion requesting the court to issue a Sinhala translation of the judgment delivered in the fundamental rights application which was filed alleging that the Proclamation issued by the former President, by Gazette No. 2096/70 as on 09-11-2018 dissolving the Parliament and calling for the election of the Members of Parliament, was contrary to Articles 10, 12(1), 12(2), 14(1)(a), 14(1)(c) and 14(1)(f) of the Constitution.

The instant application was filed against the Attorney-General in terms of Article 35 of the Constitution on the basis that the aforementioned Gazette was issued by the former President, the petitioner being Attorney-at-law had filed the application in the interest of public praying to suspend the operation of the Proclamation issued by the President dissolving the Parliament, to stay the holding of Parliamentary Elections, to declare that the respondent had violated the petitioner’s fundamental rights and to quash the said Proclamation dissolving Parliament.

The Court explained that the petition of the said fundamental rights application in which the judgment was delivered, was filed by Rajavarothiam Sampanthan citing the Attorney-General, the Chairman and the members of the Election Commission as respondents and the petitioner was neither a party nor an Attorney-at-Law who represented any of the parties in the said application. Thus, rejecting the motion the Court held that the petitioner was not entitled under Article 24(3) of the Constitution to obtain a translation of the judgment delivered in the said application.[Aruna Laksiri Unawatuna v. Maithripala Sirisena, SC (FR) Application No. 357 of 2018, decided on 14-10-2020]

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an application filed by the wife of the deceased, Rathnayake Tharanga Lakmali, on behalf of her husband Ranamukage Ajith Prasanna, pleading that the respondents and the State have infringed the Fundamental Rights of her husband guaranteed to him under Article 11 and 13(1) of the Constitution.

The petitioner submitted that on 16-09-2010, when she was at home with her husband and children, a team of police officers had come to their house, searched the house and had found nothing after which they had arrested the deceased and took him away in a vehicle stating that he was taken in order to record a statement. On the following day, the petitioner went to the police station where she was not allowed to meet the deceased and the next day she was told that the deceased had been taken to her house, when she reached her house she was informed by her mother that the deceased was brought home by the police team and shown to them, and the aunt of the petitioner was also present who stated that the police had not allowed the deceased to speak to them and that she had fed the deceased while he was handcuffed and the deceased had pleaded to the aunt to save him as he had the apprehension of being killed. On 19-9- 2010, the elder brother of the deceased had informed the petitioner that the deceased was shot and taken to the Embilipitiya Hospital. The Post-Mortem Examination (PME) was held on 21st September. The petitioner claimed that her statements were recorded prior to the PME and that she had not been allowed to be present at the time of the PME.

Respondents, on the other hand, claimed that live ammunitions were recovered at the house of the deceased at the time of the arrest further that facts were reported to the Magistrate of Embilipitiya through the Assistant Superintendent of Police (ASP) and a detention order was obtained hence,  the deceased was arrested and detained properly.

The aunt of the petitioner had described that the deceased had a pale and swollen face when he was brought home. Upon the conclusion of the inquest proceedings, before the Order was made, the petitioner had made an application before the learned Magistrate requesting that a JMO other than the JMO in Embilipitiya be directed to conduct the Post-Mortem Examination as she could not expect an accurate report from the latter. However, the Magistrate disallowed the application. Further, the Magistrate made an order and found that the deceased’s death was caused by the discharge of a bullet from a firearm and referred the matter to the Attorney-General. Supported from interim relief the Petitioner made an application to direct the learned Magistrate of Embilipitiya to exhume the body of the deceased and to conduct a fresh Post-Mortem Examination by a competent JMO of Colombo or Karapitiya Teaching Hospital, Galle. The Court, after hearing submissions of both parties directed the JMO of the Karapitiya Teaching Hospital, Galle to conduct a second Post-Mortem Report.

The Court while allowing the application stated that the right to life as implicitly recognised in Chapter III of the Constitution is reinforced by International Conventions ratified by Sri Lanka and expressed the view that Articles 11 and 13 have been violated by the respondents; further, the State has failed its responsibility and has violated the Fundamental Rights of the deceased. Accordingly, the Court directed the State to pay Rs 1 million to the petitioner. [Rathnayake Tharanga Lakmali v. Niroshan Abeykoon, 2019 SCC OnLine SL SC 14, decided on 17-12-2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ has sought assistance of Attorney General K K Venugopal in dealing with a plea seeking that minority communities be defined on the basis of state-wise population data instead of national data after taking note of the submissions of senior advocate Mukul Rohatgi that the law which allows declaration of minority community on the basis of national data was illegal.

The bench asked BJP leader and lawyer Ashwini Kumar Upadhyay, who has filed a PIL on the issue, to supply a copy of the petition to the office of the attorney general and listed it for hearing after four weeks. The plea has challenged the validity of the Centre’s 26-year-old notification declaring five communities, Muslims, Christians, Sikhs, Buddhists and Parsis, as minorities.

It has sought

  • to declare as unconstitutional Section 2 (c) of the National Commission for Minority Act, 1992, under which the notification was issued on October 23, 1993.
  • direction for laying down guidelines to define the term ‘minority’, based on state-wise population of a community instead of the national average.
  • minority status for Hindus in seven states and one Union Territory where the number of the community has fallen, according to the Census 2011.

It has also been contended that the notification was violative of fundamental rights to health, education, shelter and livelihood.

The advocate said he was filing the public interest litigation (PIL) on the issue as he did not receive any response on his representation from the Home Ministry, the Ministry of Law and Justice and the National Commission for Minorities.

It has also been contended that Hindus, who are a majority community as per national data, are a minority in several north-eastern states and in Jammu and Kashmir. However, the Hindu community is deprived of benefits which are available to the minority communities in these states, the plea has said, adding that NCM should reconsider the definition of minority in this context.

The definition of “minority” as per Article 29-30 has left leakages in the hands of state, which shall be misused and are being misused for political benefits, the petition said, adding that the minority status be granted to Hindus in states where the number of the community has decreased.

The plea has stated that

  • Christians are in majority in Mizoram, Meghalaya and Nagaland and there is significant population in Arunachal Pradesh, Goa, Kerala, Manipur, Tamil Nadu and West Bengal but they are treated as minority.
  • Sikhs are a majority in Punjab and there is a significant population in Delhi, Chandigarh and Haryana but they are treated as a minority, it has said.
  • Muslims are a majority in Lakshadweep (96.20 per cent), Jammu and Kashmir (68.30 per cent) and there is a significant population of the community in Assam (34.20 pc), West Bengal (27.5 pc), Kerala (26.60 pc), Uttar Pradesh (19.30 pc) and Bihar (18 pc).

However, they are enjoying ‘minority’ status, and communities, which are real minorities, are not getting their legitimate share, jeopardizing their basic rights guaranteed under the Articles 14, 15, 19 and 21 of the Constitution, the petition has said.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud JJ., received suggestions from the Attorney General KK Venugopal on the matter regarding the proposal of live streaming of court proceedings being the “need of the hour”.

Attorney General KK Venugopal stated that video recording and live streaming of judicial proceedings can be undertaken on a trial basis in constitutional matters being heard by the Chief Justice of India’s court. Live streaming can be undertaken on an experimental basis for one-three months to ascertain how it functions technologically.

Venugopal would further collate all the suggestions coming up for the said matter and present them to the Court.

Further, the bench of the Supreme Court listed the said matter for further hearing on 30-07-2018.

[Source: PTI]

Hot Off The PressNews

After hearing the submissions of the Counsels appearing for the petitioners for 19 days, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ began hearing the submissions of the Attorney General KK Venugopal on the 20th Day of the Aadhaar hearing.

Below are the highlights from the submissions of AG KK Venugopal on Day 20 of the Aadhaar hearing:

  • Various expert committees have examined Aadhaar, and other alternatives were also considered before Aadhaar was decided upon. Many countries have already implemented unique identity systems. Even World Bank approves of Aadhaar Scheme. (Cites “identifications for development” report of World Bank.)
  • CEO of Aadhaar has a PowerPoint presentation explaining all technical and security aspects of Aadhaar. He will be able to answer all questions related to Aadhaar.
  • CJI: We want to hear the legal contentions first, especially on Privacy and anonymity. We also want to hear about virtual mass surveillance.  In the name of security you can’t impose a stamping culture where everyone is stamped with an Aadhaar. Inspite of assurance of safety, your database is not entirely safe. I want the State to refute all these contentions made by the petitioners.
  • AG: After seeing the PowerPoint presentation, the State will be able to explain their legal contentions better. We also want to show a four minute video on security of Aadhaar. All doubts of duplication will be cleared through it.
  • Bench:  We will discuss if we want to see the PowerPoint presentation.
  • AG (continuing with his arguments):
    • Huge money has been saved by giving benefits and subsidies via Aadhaar. Gap between rich and poor will reduce with use of Aadhaar.
    • From 2009 to 2016 , Aadhaar was completely voluntary. But people still signed up for it. So question of coercion does not arise, at least until September 2016.
    • Article 21 encompasses right to employment, education, shelter etc. Aadhaar act is helping in achieve all these rights for the people.
  • Sikri, J: There’s a clash between right to life and right to privacy. People are getting excluded. There have been various affidavits filed proving the same.
  • AG: NGOs are filing these affidavits. Not a single person has come forward and said that they suffered due to Aadhaar.
  • Chandrachud, J: Economic and social guarantee is not antithesis to political guarantee. Can’t forgo of political liberty for the sake of economic and social justice. People died during Bengal famine due to lack of information. During the famine in Maharashtra in 1970s per capita income went lower than Sudan but people did not die because information was not cut off.
  • AG: Right of people to not die of hunger and have shelter prevails right to privacy.
  • Bhushan, J: All these rights do not trump right to privacy. They coexist.
  • AG: Nobody was coerced to get Aadhaar. It was voluntary between 2009-16.
  • Chandrachud, J: There were no safeguards during that time. It came only when the act was passed. People did not contemplate giving up their personal data for commercial purposes.
  • Sikri, J: People who enrolled that time (not for benefits or subsidies) say there was no informed consent that time.
  • AG: Aadhaar is facilitating Indian residents to get subsidies, benefits, scholarships etc. It’s an efficient, transparent delivery of services. It is in consonance with the directive principles of state policy. A handful of petitioners are challenging it.
  • AG: Aadhaar can help curb issues like money laundering, black money, etc.
  • Sikri, J: How is Employees pension scheme covered under Section 7? It is a person’s right to get pension.
  • AG: This was done to prevent fake Identity.
  • Chandrachud and Sikri, JJ: How does a pensioner who lives abroad with his children get pension since he will not be able to produce his Aadhaar card in person?
  • AG: Aadhaar is only required for residents. There must be some provision in the pension act to give pension to an NRI. Such a person will not be governed by Aadhaar act.
  • Chandrachud, J: Pension accounts are individual accounts. No question of impersonation. What if an old pensioner has dementia? His fingerprints might not work. He can’t keep running around banks for the purpose of authentication.
  • AG: There are exceptions for individuals whose fingerprints and Iris scans won’t work. For eg. People suffering from leprosy. Govt will not try to deprive someone of their rightful entitlement.
  • Chandrachud, J: Pension doesn’t come under “subsidies, benefits and services” under section 7. It is an entitlement.
  • AG: Pension is given out of the consolidated fund of India. Hence it’s covered.
  • Chandrachud, J:  We should acknowledge that there’s a problem of financial exclusion in our country. Cabinet secretary had agreed. To say that someone has not come to court therefore there’s no exclusion is wrong.
  • AG:
    • Mahatma Gandhi said that the world has enough for everyone’s needs but not everyone’s greed. Poverty is a huge problem and Aadhaar will be a step to solve it. There are 300 million poor people in India who deserve to live a life of dignity.  Please weigh the balance and see if these people want privacy or a life of dignity.
    • Aadhaar act also provides exceptions and backup authentication in various regulations during contingencies like power cut, Network connectivity, Biometrics not working etc.
    • Aadhaar’s results will show in a few years. We’ve already fixed problems like misappropriation, multiple identities. We are working towards making this project more effective.
    • Official identification is more than a convenience. It is a fundamental human right. It helps in economic development, participation in electoral process, and helps the govt in providing benefits to the people. It is a key enabler of other sustainable development goals.
    • Universal digital identity is becoming important around the world. The World Bank recently launched “identification for development” report.
  • Sikri, J: We agree that unique identification is important. But why not use a less intrusive means. Why is Aadhaar data stored in a centralized database over a long period of time? There’s a risk of metadata. Doctrine of proportionaliy is important here. In Singapore, people are supposed to have a unique identity. But that data is not stored with the government.
  • AG: Smart card was considered but it’ll not work in the Indian context. Duplication and aggregation of data is impossible with Aadhaar. Metadata is not stored by CIDR.
  • Chandrachud, J: But authentication records are stored.
  • AG: Let us give a power point presentation.
  • CJI: We’ll let you know.  We would like to have the presentation in word format.
  • Senior Advocate KV Vishwanathan (For petitioners): If there’s a presentation, then petitioners should be given a chance to cross examine.
  • Chandrachud, J: Questions can be given to the Bench.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU SIngh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.