national security.

competitive exam
Case BriefsHigh Courts

   

Delhi High Court: In a case where a Nepalese citizen moved the bail application in relation to FIR registered under Official Secrets Act, 1983 (Act) and Penal Code, 1860 (Code), the Single Judge Bench of Anu Malhotra, J. denied bail to him holding that he was accused of passing on sensitive information to the Chinese Intelligence and in of the view of the gravity of the offence affecting the national security, there was no ground for grant of bail.

Background

In the present case, the applicant seeks the grant of bail in relation to FIR registered under Sections 3, 4 and 5 of the Official Secrets Act, 1983 (Act) and Section 120-B of the Penal Code, 1860 (IPC). The applicant submitted that he was falsely implicated and was uneducated, illiterate and a citizen of Nepal, who was residing in India for a substantial period and worked as a taxi driver and later joined a company for the position of an office peon-cum-driver, where his role was limited to the instructions given by the management of the company. Moreover, he stated that he was not aware of the business of the company and to his understanding the company was involved in the pharmaceutical sector.

Further, he submitted that in January 2020, the managers of the company went to China for personal reasons and thereafter departure from and to China was suspended during COVID-19 and thus, the managers handled the business from China itself. Thereafter, the applicant was behind bars since September 2020 in relation to a conspiracy and was arrested on the lead provided by the co-accused during the interrogation, but he was not named in the FIR. He submitted that one of the main accused was released and two of his co-accused were also granted bail and in the absence of legal aid he could not avail the default bail before filing of the charge sheet as he could not afford to hire any advocate for his defense.

In a report submitted by the State, it was stated that a secret input from the Intelligence Agency was received that the applicant’s co-accused had links with a Foreign Intelligence Officer and had been receiving funds through illegal means. During search of the house of the applicant’s co-accused, sensitive documents related to Indian Defense Department were recovered and it was revealed that he was indulging in procurement of sensitive documents and conveying the same to his handlers based in China and was receiving funds through shell companies being operated through the Chinese people in India.

During further investigation, the applicant was arrested, and it was revealed that the director of the company, in which the applicant was working, was a Chinese national. Moreover, it was revealed that the applicant was the co-director and was operating this company on behalf of the managers of the company, who were in China.

The State submitted that the co-accused of the applicant were granted bail as they had applied for it. The provision for grant of default bail became applicable only if the accused person fell within the parameters of Section 167(2)(a)(ii), that, within the category of a person ‘who is prepared to and does furnish bail’. But the applicant had not chosen to seek grant of bail under Section 167(2) CrPC.

Analysis, Law, and Decision

The Court noted that the applicant did not seek the grant of default bail and was not sought because the applicant was not legally represented. On this point, the Court relied on Kavita v. State (NCT of Delhi), Bail Appln. 3062 of 2021, wherein the facts were similar to the facts in the present case, and the Court therein found it essential to rely on Arvind Kumar Saxena v. State, 2018 SCC OnLine Del 7769, in which it was observed that “the Registrar General of this Court was requested to explore the possibility of creation of a database and software for the District Courts of Delhi for updation of the date in relation to the pending remand applications during the course of investigation pending before the Trial Courts with the dates of arrest and dates by when the requisite charge-sheet was to be filed in terms of Section 167(2) CrPC and the date when the said charge-sheet had been filed which would assist the learned Trial Courts in preservation of the rights of personal liberties of the accused appearing before them by informing the accused on coming to know that an accused person before them was entitled to the indefeasible right of default bail and may thus exercise the same if he / she was willing to furnish bail”.

Therefore, the Court held that the applicant was not entitled to the grant of default bail or bail even in terms of Section 439 CrPC had not been made by the applicant prior to the impugned order declining bail. The Court after considering the allegations levelled against the applicant that he was involved as a co-director of one of the Chinese companies through whom the information falling within the ambit of sensitive documents was being conveyed by the applicant’s co-accused to Chinese Intelligence Officers, held that, in view of the gravity of the offence affecting the national security of the country, there was no ground for grant of bail. Thus, the applicant was denied bail.

[Sher Singh v. State (NCT of Delhi), 2022 SCC OnLine Del 3745, decided on 14-11-2022]

Advocates who appeared in this case:

For the Petitioner(s): Advocate Venamra Mahaseth;

Advocate Bhaskar Tripathi;

Advocate Abhishek Singh;

For the Respondent(s): Additional Public Prosecutor Shoaib Haider.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Surya Kant and J.B. Pardiwala*, JJ., contemplated important issues related to disinterment, exhumation and conditions feasible to allow such relief prayed for by appellant. The Court upheld the judgment passed by the High Court of J&K in Union Territory of J&K v. Mohammad Latief Magrey, 2022 SCC OnLine J&K 516 by which the Appeal Court modified the judgment passed by the Single Judge of the High Court in Mohammad Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, and thereby permitted the appellant herein and his family members to perform the Fatiha Khawani (religious rituals/prayers after burial) of the deceased at the graveyard while declining to grant permission to disinter/exhume and shift the body of the deceased for the purpose of religious rituals.

By virtue of Article 136 the appellant (father of the deceased) approached the Supreme Court after being dissatisfied with the order passed by the High Court and prayed for directing the respondents to disinter the body so as to enable the appellant as a father and other family members to perform the prayers/rituals to their satisfaction.

Facts to the extent necessary are that one Mohd Amir Margey, son of the appellant was killed in an encounter between the police and militant in Kashmir. The appellant was informed that his son was a militant and with other associates he was buried in Wadder Payeen graveyard.

Submissions:

The entire contention of the appellant is based on the fact that he has a fundamental right under Article 21 of the Constitution to perform the last rites of his dead son in accordance with the rituals prevailing in Islam. The appellant as a father could not have been deprived of such fundamental right. Hence the exhumation is required.

The respondent vehemently opposed the appeal and contended that authorities have performed the last rites of the deceased as per his religious beliefs and practices and buried the dead body as per the religious customs. It was further contended that it has been more than 8 months from the date of burial of the dead body and as of now the same would have decomposed hence, no purpose would suffice by exhuming the same as the same may lead to adverse public health issues.

Other important contention put forth was that, pursuant to the encounter of terrorist namely Burhan Wani, a disturbing trend of glorification of the deceased terrorists was witnessed in the valley wherein antinational emotions were stoked in the youth and they are instigated against the Indian Republic to join various terror groups hence, exhuming the remains of the deceased, such emotions may be flared and such activities shall be revived which may lead to a further threat to national security and glorification of terrorism.

Questions of law for consideration before the Supreme Court were:

a. Whether the appellant (father of the deceased) can pray for exhumation of the dead body of his son from the graveyard asserting that it is his fundamental right as enshrined under Article 21 of the Constitution to perform the last rites of his slained son?

b. Will it be in the fitness of the things, more particularly, having regard to the fact that the body is now buried past more than eight months to order, exhumation so as to enable the appellant and his family members to perform the rituals as followed in Islam?

c. Assuming for a moment that it is the fundamental right of the father under Article 21 of the Constitution to perform the last rites and rituals of his son with dignity before being buried in a graveyard, should this Court in exercise of its jurisdiction under Article 136(1) of the Constitution disturb the impugned order passed by the High Court at the risk & peril of public order, health etc. and grant the relief of exhumation after almost nine Months?

Analysis:

Exhumation of body: The Court observed that exhumation involves opening up a grave and removing the human remains already buried there. It is controversial even if the intent is usually to rebury the displaced remains elsewhere. Societies and cultures are often reluctant to practice because of public health as it could lead to transmission of disease and it offends the basic moral of ‘rest in peace’.

The Court further referred to Anandhi Simon v. State of Tamil Nadu, 2021 SCC OnLine Mad 1284 where it was stated that the law related to exhumation is only contained in Section 176(3) CrPC and unlike other countries, India has no law on exhumation.

It was held that, “in the instant case, after the deceased was killed in the Hyderpora encounter, the authorities performed the last rites of the deceased with all dignity with the aid of the Auqaf Committee as per the religious beliefs and practices.“

Possibility of exhumation and condition of body: It was noted that for exhumation the body should be in a deliverable state otherwise there will be a threat to public health and hygiene. An expert stated that the body start to decompose within 4 min of death and starts to liquify within a month, the putrefaction increases with passage of time. Hence it was observed that, “almost 9 months have passed post burial which is suggestive that the body may not be in a deliverable state. It will be too much at this stage to disinter the body. The dead should not be disturbed and some sanctity should be attached to the grave.“

Article 21 vis-a-vis Right to burial: The dead person has the right to dignity hence the dead body must be treated with utmost respect. These rights are not only for the deceased but his family members also have a right to perform the last rites in accordance with the religious traditions.

Scope of Article 25 and 26 of Constitution: Court while examining the right conferred upon the appellant to practice religious belief and managing religious affairs, referred to Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 SCC 725 where it was held that, “a just balance can always be made by holding that the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof must always be restricted and restrained.“

Hence, the Court concluded that religious rights are subject to public order, health and morality and cannot be absolute.

Power of Supreme Court under Article 136: The Court while deciding the extent of power to allow such relief claimed by the appellant observed that “principles of law discernible from the aforesaid are that unless, it is shown that exceptional and special circumstances exist; that substantial and grave injustice has been done and the case and question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136(1) of the Constitution.“

Decision: It was observed that it would have been appropriate and in fitness of things to hand over the dead body of the deceased to the family members, however, in such militant encounters the issue is also of national security and if the agency declines such request, the Court must not interfere unless grave injustice has been done. It was concluded that the body was buried with dignity and there is no reason to believe otherwise. The Court held that, “the law does not favour disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed.’

Appeal dismissed.

[Mohammad Latief Magrey v. Union Territory of Jammu and Kashmir, 2022 SCC OnLine SC 1203, decided on 12.09.2022]

Judgment by: Justice J.B. Pardiwala

Advocates who appeared in this case:

Anand Grover, Advocate, for the Appellant;

Ardhendumauli Kumar Prasad, Advocate, for the Respondent.

*Aastha Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: After the Technical Committee and the Overseeing Judge submitted their reports in the Pegasus Spyware case, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has listed the matter after four weeks for further hearing.

The Court had, on 27.10.2021, in Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985 appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

On 18th  July 2021, a consortium of nearly journalistic organizations from around the world, including   one Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus software on several private individuals. This investigative effort was based on a list of some   50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians’ devices were allegedly forensically   analyzed   to confirm the presence of the Pegasus software.

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, it eventually decided to step in after the subsequently filed petitions, as well as additional documents filed by others, brought on record certain materials that could not be brushed aside, such as the reports of reputed organizations like Citizen Lab and affidavits of experts.

Additionally, the sheer volume of cross-referenced and crossverified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised.

Pegasus| ‘National security cannot be the bugbear that the judiciary shies away from’. Here’s why the initially reluctant Supreme Court finally decided to interfere

[Manohar Lal Sharma v. Union of India, 2022 SCC OnLine SC 1085, order dated 25.08.2022]

For Petitioner(s): Mr. Kapil Sibal, Sr. Adv. Mr. C.U. Singh, Sr. Adv. Mr. Shadan Farasat, AOR Mr. Nizam Pasha, Adv. Ms. Vidusshi, Adv. Mr. Zubin, Adv. Mr. Shourya Dasgupta, Adv. Mr. Bharat Gupta, Adv. Ms. Tanvi Tuhina, Adv. Ms. Hrishika Jain, Adv. Mr. Dhruv Bhatnagar, Adv. Mr. Aman Naqvi, Adv. Mr. Arvind P. Datar, Sr. Adv. Mr. Prateek K Chadha, AOR Mr. Tanmay Singh, Adv. Ms. Anandita Mishra, Adv. Mr. Madhav Khurana, Adv. Ms. Natasha Maheshwari, Adv. Mr. Rahul Unnikrishnan, Adv. Ms. Radhika Dhanotia, Adv. Ms. Ayushi Rajput, Adv. Mr. Rakesh Dwivedi, Sr. Adv. Mr. Prateek K Chadha, AOR Ms. Vrinda Bhandari, Adv. Mr. Eklavya Dwivedi, Adv. Ms. Ayushi Rajput, Adv. Ms. Monika Dwivedi, Adv. Mr. Krishnesh Bapat, Adv. Ms. Radhika Dhanotia, Adv. Mr. Dinesh Dwivedi, Sr. Adv. Mr. Prateek Dwivedi, Adv. Mr. Nishant Singh, Adv. Mr. Prateek K Chadha, AOR Ms. Ayushi Rajput, Adv. Ms. Radhika Dhanotia, Adv. Ms. Vrinda Bhandari, Adv. Mr. Eklavya Dwivedi, Adv. Ms. Monika Dwivedi, Adv. Mr. Krishnesh Bapat, Adv. Mr. Tanmay Singh, Adv. Ms. Anandita Mishra, Adv. Mr. Madhav Khurana, Adv. Ms. Natasha Maheshwari, Adv. Mr. Rahul Unnikrishnan, Adv. Mr. Narendra Mishra, Adv. Mr. V.M. Eashwar, Adv. Mr. Abhimanyu Tewari, AOR Mr. Lzafeer Ahmad B. F., AOR Mr. Shyam Divan, Sr. Adv. Mr. Rahul Narayan, AOR Ms. Samiksha Godiyal, Adv. Ms. Ria Singh Sawney, Adv. Ms. Udayadita Banerjee, Adv. Mr. Govind Manoharan, Adv. Ms. Sugandha Yadav, Adv. Petitioner-in-person Ms. Resmitha R. Chandran, AOR Mr. Biju Joseph, Adv. Mr. Hardik Vashisht, Adv. Mr. Pramod P., Adv. Mr. Mishra Saurabh, AOR Mr. Colin Gonsalves, Sr.Adv. Mr. Sadiq Noor, Adv. Mr. Satya Mitra, AOR

For Respondent(s) Mr. Tushar Mehta, LD SG Mr. K.M. Nataraj, LD ASG Mr. Rajat Nair, Adv. Ms. Kanu Agrawal, Adv. Mr. Ankur Talwar, Adv. Ms. Deepabali Datta, Adv. Mr. Arvind Kumar Sharma, AOR Mr. M.K. Maroria, AOR Ms. Aishwarya Bhati, ASG Ms. Shagun Thakur, Adv. Ms. Poornima Singh, Adv. Mr. Manvendra Sing, Adv. Ms. Manisha Chava, Adv. Mr. Gurmeet Singh Makker, AOR Dr. Abhishek Manu Singhvi, Sr.Adv. Mr. Suhaan Mukerji, Adv. Mr. Amit Bhandari, Adv. Mr. Vishal Prasad, Adv. Mr. Abhishek Manchanda, Adv. Mr. Sayandeep Pahari, Adv. Mr. Tanmay Sinha, Adv. For M/S. Plr Chambers And Co., AOR Mr. Rakesh Dwivedi, Adv. Ms. Preetika Dwivedi, AOR Mr. Abhishek Mohanty, Adv. Mr. Milind Kumar, AOR Mr. Nishe Rajen Shonker, AOR Ms. Anu K.Joy, Adv. Mr. Alim Anvar, Adv. Mr. Rajiv Shankar Dvivedi, AOR Mr. Barun Sinha, Adv. Mr. Sushant Kumar Sarkar, Adv. Mr. Rishabh Jain, Adv. Ms. Arti Dwivedi, Adv. Mr. Ajay Pal, AOR Mr. Avijit Mani Tripathi, Adv. Mr. T.K. Nayak, Adv. Mr. Marbiang Khongwir, Adv.

Case BriefsSupreme Court

“This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights.”

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, here’s why it eventually decided to step in.

The Controversy

The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

On 18th  July 2021, a consortium of nearly journalistic organizations from around the world, including   one Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus software on several private individuals. This investigative effort was based on a list of some   50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians’ devices were allegedly forensically   analyzed   to confirm the presence of the Pegasus software.

Union of India’s Stand

Union of India, through the  Minister of Railways, Communications and Electronics and Information Technology, took the stand in Parliament on 18th  July 2021, when asked about the alleged cyberattack and spyware use, that the reports published had no factual basis. The Minister also stated that the Amnesty report itself indicated that the mere mention of a particular number in the list did not confirm whether the same was infected by Pegasus or not. Further, the Minister stated that NSO had itself factually contradicted many of the claims made in the Amnesty report. Finally, he stated that the Indian statutory and legal regime relating to surveillance and interception of communication is extremely rigorous, and no illegal surveillance could take place.

Supreme Court’s decision to interfere

Material on record

The Court, initially had reservations regarding the lack of material, various other petitions have been filed in Court, including by individuals who were purportedly victims of the alleged Pegasus spyware attack. These

However, the subsequently filed petitions, as well as additional documents filed by others, have brought on record certain materials that cannot be brushed aside, such as the reports of reputed organizations   like Citizen Lab and affidavits of experts.

Additionally, the sheer volume of cross-referenced and crossverified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised.

“Of course, the learned Solicitor General suggested that many of these reports are motivated and self-serving. However, such an omnibus oral allegation is not sufficient to desist from interference.”

National Security vis-à-vis Citizen’s Right to Privacy

Union of India was asked to clarify its stand regarding the allegations raised, and to provide information to assist the Court regarding the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack. It was made clear to the Solicitor General on many occasions that it would not push the Union of India to provide any information that may affect the national security concerns of the country.

However, despite the repeated assurances and opportunities given, ultimately the Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand.

“If the Respondent¬Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different. Such a course of action taken by the Respondent¬Union of India, especially in proceedings of the present nature which touches upon the fundamental rights of the citizens of the country, cannot  be accepted.”

Union of India has justified its non¬submission of a detailed counter affidavit by citing security concerns. However,

“It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.”

Of course, the Union of India may decline to provide   information   when   constitutional   considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court.

“The mere invocation of national security by the State does not render the Court a mute spectator.”

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]

Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Interviews

Gunjan Chawla is currently working as a Programme Head, Technology and National Security at the Centre of Communication Governance (CCG) at NLU Delhi. She has been interviewed by EBC/SCC Online Student Ambassador Nitya Bansal who is currently pursuing law from NLUD.

  1. Can you elaborate on your academic background? 

I was part of the first batch of students to graduate from National Law University Delhi (NLU Delhi) in 2013. The wide variety of elective seminar courses offered at NLU Delhi now permits students to find their own niche in the legal fraternity. However, at the time, the law school did not offer many international law-oriented seminar courses, so I chose to go down the path of criminal and constitutional law. I spent my first year out of law school in criminal litigation as a junior in the chambers of Ms Arundhati Katju and the second as a Legislative Assistant to a Member of Parliament (LAMP) fellow through PRS Legislative.

I was intent on gaining professional experience before starting a master’s degree – in hopes of improving my chances to win a scholarship for funding higher studies abroad. I applied for admission to LLM programs the year I was working as a LAMP fellow, and was awarded the Charpak Scholarship of Excellence in 2015 by the Embassy of France in India to pursue a Master in International Affairs/Master in Law (MIA/LLM) dual degree program – split between Institut d’Études Politiques de Paris (Sciences Po) and Georgetown University Law Center in Washington DC.

At Sciences Po, I pursued a specialisation in international security for the Master in International Affairs with a thematic concentration on Defense and Security Economics. At Georgetown, I chose the LLM program in national security law – which was quite an interesting mix of domestic criminal, constitutional and administrative law on the one hand, and international human rights, international humanitarian law/law of armed conflict and international politics on the other.

  1. What, according to you, is the importance of legal research?

Legal research is everything – for practitioners, policy researchers as well as academics – the profession demands that you spend anywhere between 50-80% of your time reading and researching. The method, breadth and depth may vary depending on your particular role in the organisation or office, but research will be at the very core of your job as a lawyer.

Unfortunately, this is a truth that disappoints many law students. This is especially true for those of us who are first generation lawyers and/or draw idealistic inspiration from movies and TV shows – where the best lawyers only swagger around swilling scotch and captivating courtrooms with eloquent speeches. We often tend to overlook the countless hours you need to spend at the library buried in books or hunched over your laptop screen to build a novel argument or legal strategy.

  1. How did you develop an interest in technology and law? Did your criminal law background have any role to play in this?

Quite frankly, working in technology law and policy was never really part of the original plan. The increasing importance of cyberspace governance as an issue in international relations at large had been quite apparent for some time, but I was always more attracted to the law of armed conflict/international humanitarian law (LOAC/IHL) branch of international law than organisational structures and governance. As a matter of fact, I happened to stumble into technology policy work at the Centre for Communication Governance (CCG) at National Law University Delhi (NLU Delhi) by way of international law rather than criminal law.

After my return to Delhi from The Hague in 2018, CCG invited me to deliver a series of guest lectures on international law and cyber conflict. It was a wonderful experience for me personally to return to the NLU Delhi classrooms, only this time I was on the other side of the benches. They happened to have a vacancy in the technology and national security team at the time, which I applied for, and it turned out to be a good fit.

The learning curve has been very steep over the past 2 years, and I have learnt a lot from my colleagues during this time. Of course, there was also a unique advantage to return to my alma mater in a different capacity – the luxury of having the home ground advantage at the workplace made navigating new and difficult situations a lot less stressful.

  1. You have studied at Sciences Po in France and Georgetown University. How was your experience at these highly reputed foreign universities?  

The first year at Sciences Po was very different to everything I had been prepared for. It was a challenge to depart from my practical legal training and switch to what was a combination of international relations theory, political science, economics and military strategy. But this also presented the opportunity to learn an entirely new method of writing – the French use the Hegelian model of “thesis-antithesis-synthesis” for organising the structure. It was fascinating to learn an alternative to IRAC (the issue rule analysis conclusion) structure to organise the same substantive content. I also took a basic course in public international law again – only this time, it was taught entirely in French. But the most “mind-opening” experience was to study sociophysics – a discipline of study I did not know even existed.

The second half at Georgetown too, was amazing in different ways. It was a strange relief to return to familiar tools of statutory interpretation, judicial precedent and common law traditions. Other than brilliant academics like Professor David Luban, many of the professors whom I learnt from had been part of the Obama administration in advisory or bureaucratic roles or were military veterans and former JAG (Judge Advocate General) officers. The professional experiences and insights of the faculty made for an exponentially enriching educational experience.

To be fair, this was the case at Sciences Po too, where former military officers, diplomats and bureaucrats also teach alongside “pure” academics. So I suppose when I say different, I mean my own approach to the subjects of study was a more theoretical in Paris and more practice oriented in DC. In the bigger picture, it was very useful to hear about the same or similar themes in international security from the European and American perspectives to inform and develop my own principled and/or political positions on a variety issues in the longer run.

  1. What do you think Indian universities can do to match their academic standards to these international universities? As in, what do you think is lacking in our universities?

I believe what we need is a lot more training in research and writing skills. While the substantive content of the branch of law you choose to study or practise may differ, research and writing skills will be overarching requirements wherever you work. The challenge in teaching these skills is that it requires individual attention, at least to a certain degree. On the other side, the challenge in learning these skills is want of practice. So we need to strike a better balance between quality and quantity of writing we demand from students for their academic evaluation in a way that maximises the student’s ability for original critical thinking, articulation of arguments and of course, persuasion.

  1. You have worked in the ICJ as a judicial fellow. For those interested in pursuing legal research, can you elaborate on the process for those applying for such a position?

Yes, I was a judicial fellow at the International Court of Justice in 2017-2018. The judicial fellowship programme at the Court is funded by nominating universities – in my case, it was through Georgetown.

Unfortunately, not all universities that teach international law necessarily nominate fellows for appointment to the Court – there is a very clear and visible majority of universities from North America and Europe. The cost of living in the Netherlands alone makes it very difficult for public universities in India specifically and the Global South generally to sponsor one student to spend a year in The Hague. So, for a scholar from a Global South country, the route to the Court necessarily goes through a handful of universities that nominate and sponsor fellows, so pick your school carefully after thorough research if this is a goal you would like to pursue. Each university has a different selection process for shortlisting nominees – some may have only paper application and some may have an interview round as well.

Given that the cost of living in The Hague for one year far exceeds even the total tuition fee paid by students for a five-year education at any national law school or law college in India, it appears unlikely to me that public universities in India would have sufficient funds available to sponsor judicial fellows in The Hague. I am hopeful that the UN General Assembly’s recent resolution requesting the UN Secretary General to set up a trust fund to support the judicial fellowship programme for scholars will enhance the diversity among applicants accepted to the programme, and open up new routes for students everywhere to work at the Court as judicial fellows.

Currently, the sponsoring universities send their list of nominees to the Court, where the judicial fellows are finally selected – no more than one from each nominating university. Other than demonstrating a certain level of competence in public international law, knowledge of French in addition to English is an important factor in selection. French was long regarded as the first language of diplomacy and the Court takes its bilingual functioning very seriously so, even if one ends up working with an anglophone team, being a francophone is far more likely to enhance the probability of selection.

  1. How was your experience in ICJ working as a judicial fellow?

Absolutely fantastic. It felt almost surreal walk to the Peace Palace everyday and live the dream of viewing proceedings in the Great Hall of Justice. Judicial fellows work closely with the teams of their respective supervising Judge, consisting of the Secretary and Associate Legal Officer assigned to the Judge. Each team functions differently, so the experiences of the judicial fellows often differ significantly.

I was assigned to assist H.E. Judge Patrick L. Robinson who gave me the opportunity to work on drafting dissenting and separate opinions in addition to research work. It was very interesting to follow a wide variety of cases through different stages of their lifecycle, including an application of provisional measures – it helped me develop a better informed, more nuanced perspective on the role of international politics in the formation and development of international law in the settlement of inter-State disputes.

  1. What kind of skills do you think students need to have to pursue legal research, especially at a level which is appreciated internationally? How do you think they can equip themselves with such skills?

Research is the easy part – the hard part is communicating the research you have done clearly, in a way that is easy to understand for your target audience. The writing is different if the target audience is your employer, your professor, a judge, a ministerial department or the academic community, law students or the general public at large. Knowing your audience and structuring presentation specific to its requirements is crucial to effectively present your research findings. As for how, there is no substitute to practise in up-skilling yourself. Write, edit, rewrite, repeat. The more you write, the more you will learn how to write better. Do not hesitate to open up your drafts to constructive criticism from teachers or colleagues whose writing skills you admire. Most importantly, do not be afraid of multiple drafts and critical reviews – it is a sign of your capacity for self-improvement, not weakness or evidence of bad writing.

  1. What would be your guidance for law students applying to foreign universities for their masters courses?

Think about why you want to pursue a master’s degree and only apply to universities that have faculty, curriculum or culture that is most conducive to your personal and professional growth. Do you want to pursue a field that is not taught as well in India? Do you want to work abroad or come back home? Do you want to enhance or secure employability in other job markets? Will you be able to progress in your chosen field without the master’s degree? Is it out of academic interest in a particular field?

Studying abroad is a huge investment, and to ensure that you get adequate returns, one needs to plan carefully, and be aware of one’s own strengths and weaknesses. Equipped with this self-awareness you will be able to better assess which universities are suitable for you, rather than the admissions evaluation being only one way.

  1. How did you end up working at CCG? What is the kind of research you are engaged in as part of CCG?

I was very clear about my intention to return to India after obtaining my master’s degree. When I signed up for a specialisation in national security law at Georgetown, I had a very specific goal in mind. In fact, the week before my LLM final exams I briefly came back to India solely for this purpose, to attempt recruitment into Indian Army’s JAG (Judge Advocate General) Department. I know it sounds absurd to do that, but it was the last year I could do so – if I waited another year, I would no longer have been eligible to join the army. Even though this attempt was unsuccessful, thankfully I did not really have the luxury to mourn my failure at the time – exams were just around the corner.

This setback was also softened by the fact that by this time I had already heard back from the ICJ about my selection and had some clarity on what my professional life would look like after graduation. The exposure then opened up other opportunities I would not have anticipated otherwise, like being invited by CCG to deliver guest lectures on international law and cyber conflict at NLU Delhi. A month or two later, I was inducted into CCG to lead the work of the technology and national security vertical. International law applicable to conflict in cyberspace or cyber warfare is a major focus area in our research, in addition to domestic law and policy on cyber security, cyber crime and related issues.

I view my role at CCG as a dual one – part academic and part public policy practitioner. The first is on the academic side, where the work largely involves research and writing on these issues. Additionally, I also teach the elective seminar course on technology and national security law and policy to fourth and fifth year students at NLU Delhi. The second is on the policy side, as we regularly participate in public consultations and provide inputs on issues in technology policy within our research mandate to various ministries at the Central level, as well as the National Security Council Secretariat – where our detailed comments and suggestions on the National Cyber Security Strategy for 2020-2025 were very well received.

  1. What are you currently working on, if you could tell something about your current research?

Currently, I am looking forward to the release of India’s National Cyber Security Strategy 2020-2025. The National Cyber Security Coordinator (NCSC) Lt Gen Rajesh Pant recently announced that the strategy document will espouse the principle of common but differentiated responsibility (CBDR) for the apportionment of responsibilities among various stakeholders in cybersecurity governance. My colleagues at CCG and I were thrilled to hear this announcement because this principle was one of the suggestions we submitted to his office in our comments. It is encouraging for policy enthusiasts like myself that the NCSC has taken a truly participatory approach to the process of formulating the strategy and including academia. We are looking forward to reading the Government’s interpretation of CBDR and of course, developing new independent scholarship on this and related issues.

The elective course “technology and national security law and policy” will continue to be offered at NLU Delhi as part of our capacity-building mandate in the following semester. If the lockdown-induced format of online teaching continues, we hope to expand our reach to other law schools as well.

 

  1. What are the changes you are aiming to bring about through your research? What kind of a future do you envisage for our national security in these times of increased global cyber surveillance?

The proliferation of global cyber surveillance is symptomatic of unprecedented shifts in power relations between the individual vis-à-vis institutions of the State across jurisdictions (vertical) as well as between States (horizontal) – owing to rapid advancement in information and communication technologies to a large extent. The specific how’s and why’s will vary from one case to another, but the general trend is evident.  As I have written elsewhere, I do not believe that the ideal of “national security” – very much like the ideal of universal human rights protections – whether considered as an aspiration, principle or goal can ever truly be “achieved”. At best, it can only be managed and at its worst, must be salvaged.

More often than not, it is an “ends and means” problem. With the emergence of cutting-edge technologies we are struggling as a society to absorb fully, the means are becoming increasingly expensive while the ends remain similar to what they were say, fifty years ago, if not the same. So the constant, unchanging requirement for Governments who want to “ensure” national security is to consistently strive for a balance between declared intent and actual capabilities in the face of unforeseen disruptions. Through my research and writing, I hope to bring this nuance and balance in academic discourse and public debate on issues at the intersection of technology and national security on the one hand, and domestic policy and international law on the other.

Case BriefsCOVID 19High Courts

Karnataka High Court: K.S. Mudagal, J., declined bail to a person accused of creating feeling of insecurity amongst people on religious basis through his social media platform and urging people to spread COVID-19.

Allegation were that the petitioner with an intention to promote disharmony and hatredness, to disturb the public tranquility and to create feeling of insecurity amongst the people on the religious basis, uploaded the following messages on his face book platform:

“i) Let’s Join hands, go out sneeze with open mouth in public place, spread the virus”

ii) “spread the word to end the world” and

iii) “my stun gun is ready-killing dogs”

For the above-stated, petitioner was arrested and has been in judicial custody since 29th March, 2020.

Petitioners counsel submitted that, petitioner is ready to cooperate for investigation and trial and he may be granted bail with suitable conditions.

HCGP while opposing the petition submitted that, from the investigation in the said matter it was found that, petitioner has links with unorganized terrorist groups and that has to be unearthed in the further investigation.

Decision

On perusal of Investigating Officer’s report along with the Case Diary, prima facie it appears that though the petitioner was well educated and well employed, yet uploaded the above stated messages which are likely to cause disharmony, hatredness and hostile to the humanity. They are likely to cause panic amongst the people when the entire world is undergoing a traumatic situation due to Covid-19 pandemic.

During the investigation following was discovered,

As per the CD records the petitioner was influenced by some elements preaching religious fanatism and antinational ideas, he even shared a Pak Whatsapp number for islamic information. The investigation records further show that the petitioner was having six bank accounts in various banks.

Thus, Investigating Officer seized the incriminating materials and even an Officer of National Investigation Agency participated in the investigation to examine the link of the petitioner in the national security issues. Investigation is still on.

Hence, in view of the circumstances of the matter, petitioner is refused to be granted bail. [Mohammed Mujeeb v. State, 2020 SCC OnLine Kar 542, decided on 21-05-2020]

Hot Off The PressNews

Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the Central government to file a comprehensive status report, giving details on the condition of Rohingya camps in Haryana, Jammu and Kashmir and Delhi-NCR after Senior advocate Colin Gonsalves submitted before the Court that the conditions at the Rohingya camps are “unhygienic and pathetic”.

Colin Gonsalves, appearing for one of the petitioners, told the Court that the refugees had no access to clean sanitation facilities such as toilets and clean drinking water, that was leading to their deaths and that  the Centre and the states, hosting these refugees, should be asked to provide better hygienic facilities at these camps.

The Rohingya immigrants, who fled to India after violence in the Rakhine state of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. More than 600,000 refugees are languishing in Bangladeshi refugee camps after fleeing a brutal Myanmar army campaign launched in August last year.

Source: ANI

Case BriefsSupreme Court

Supreme Court: In the case where 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ listed the matter for further hearing on 21.11.2017. The Court said:

“As the hearing is likely to take some time, we intend to devote certain clear days for the purpose of hearing.”

Though the order of the Court does not expressly say anything on the deportation of the Rohingya Muslims, the Central Government will not be able to deport them till the next date of hearing. Fali S. Nariman, appearing for petitioners had submitted before the Court that he will approach the Court in case of any contingency.

The Court had said during the hearing that the matter was of great magnitude and hence, it will have to strike a balance between National Security and the human rights of the women and children.

Earlier, Centre had argued before the Court that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels. [Mohammad Salimullah v. Union of India, Writ Petition (Civil) No.793/2017, order dated 13.10.2017]

[With inputs from ANI]

Hot Off The PressNews

Supreme Court: In the case where the Court had sought detailed response from Central Government after 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the Centre urged the Court to refuse to interfere in the matter and let the Government take a policy decision as there is serious threat to National security is the illegal immigrants from Mayanmar are allowed to stay in India.

It was Centre’s case that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels.

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ has listed the matter on 03.10.2017.

Source: ANI

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of United States: The US Supreme Court by a 2-1 majority granted a partial victory to the Executive as it lifted important elements of lower court orders blocking the Trump’s controversial travel ban targeting visa applicants from six Muslim-majority countries.

These cases involve challenges to Executive Order No. 13780, protecting the Nation from Foreign Terrorist Entry into the United States. The Court held that the 90 day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen, along with a 120 day suspension of the US refugee resettlement program, could be only enforced against those who lack a “credible claim of a bona fide relationship with a person or entity in the United States”.

This order is maintains the balance between the individual rights and the national security. The Court noted that “Denying entry to foreign nationals abroad who have no connection to the United States at all will not burden any American party” and therefore partial ban is justified in light of national security.

Also, the court agreed to hear arguments on the legality of Trump’s controversial order in the autumn, setting up a major test of Trump’s executive authority later in the year. [Trump v. International Refugee Assistance Project, 2017 SCC OnLine US SC 8 :  582 U.S ____ (2017), decided on 26.06. 2017]