Justice KM Joseph, while hearing the petition in Gautam Navlakha v. NIA, remarked “There’s a study of prisons. It’s one of the lowest priorities for any government. In Europe, there’s a concept of private responsibility. There is CSR in India. You can have jails built by corporates. It would ensure that the exchequer is not burnt”. These comments were elicited when Sr. Adv. Kapil Sibal raised the issue of overcrowding in prisons. While continental Europe does not have private prisons, they are the norm in countries like the US, and to an extent, in the UK. The issue that this essay seeks to address is whether the CSR-funded privatization of prisons is the reform that India needs. To start with, let us examine the proposal emanating from the bench’s obiter.

The proposal seemed to propose that overcrowding in prisons can be reduced by easing the monetary burden on the state to build prisons by encouraging private companies to do so under CSR. While making this proposal the bench referred to the concept of private prisons in the West, which is quite distinct: they are prisons which are designed, constructed, managed and financed by for-profit private companies. Thus, the criticisms against that system, which are aplenty, do not apply to Justice Joseph’s proposal. While made in all earnestness, this proposal of CSR-funded prisons is not only impractical but also makes light of the problem which needs deep-rooted reforms and not just interesting quick fixes.

First, Corporate Social Responsibility, which is inherently an additional tax on companies, has taken the form of a marketing exercise for most companies. Most corporates contribute their CSR funds to social activities which are closely linked to their businesses, can have exposure towards their target consumers, and can allow them to promote their brand. Examples include environmental rejuvenation, heritage protection efforts, vocational training, poverty alleviation, education, and healthcare.

Prisons neither fall within the sphere of any major business, nor do they make for a great marketing strategy. Prisons do not evoke much sentiment amongst the public, hence, they are not a political priority (as observed by Justice Joseph). If they are not good enough for politicians, how can they attract profit-centric enterprises?

Second, while overcrowding and lack of sufficient jails are a problem, they are not the central problem of India’s prison system. The central problem afflicting the prison system is the growing number of prisoners who should not be there. As per Prison Statistics 2021, 4,27,165 inmates were undertrials. At over 77% of the total number of prisoners, this was a sharp increase over 2019, when it was at 3,32,916 (69% of all prisoners). This is a consequence of the judiciary’s attitude towards what prisons are and how they should be used. Prisons are an instrument of the state to restrict individual liberty and must be seen as such by the judiciary. Any other proposal, however liberal and reform-oriented it might be, carries a certain amount of pretence.

A study of prisoners and staff, as to what they think of reforms, found that most reforms do not do much to alter the power relationships which exist within a prison system. A female inmate remarks this on her experience with reforms, “We all have only one aim: to get out of prison as soon as we can. All this business of songshodhan (reform) does not work with people who are under such pressure. For instance, the teacher comes every day and most of us here are illiterate, yet no one will go to her to learn. The welfare officer tries to push us but we just laugh it off. Thoughts of what will happen to our case, to our families outside, and what we will do when we are released, are gnawing at our insides. Unless we sort all that out, there cannot be any reform. You can see for yourself that the knitting machine is just lying there. When it was new, some prisoners were enthusiastic, but soon they lost interest.”

Our judiciary, however, has come to recognize prisons as a de facto destination for most accused and instead hopes that the executive would do something to reform the system. Bail, which is to be the rule, has become an exception and the process is the punishment (as recognized by former Chief Justice Ramana in the Teesta Setalvad case). Almost 30% of the undertrials (who comprise 77% of the jail population) remain in prison for over 1 year and over 16% remain in prison for more than 2 years. This lack of sensitization amongst the judges to not use the process as a punishment, and not the lack of buildings, is why our prisons remain overcrowded.

Third, while overcrowding is a problem, the collective apathy of the judiciary and the government towards the inmates is an even bigger problem. We may venture into some statistics to observe the state of our prisoners. The state spends approximately Rs. 56 per day[1] on an average prisoner towards their food expenses, barely enough to provide a nutritious meal. In total the state spends around Rs. 104 per prisoner per day on food, healthcare, education, sanitation, etc. Per capita consumption expenditure (or Private Final Consumption Expenditure) in India stands at Rs. 153 per day[2], which is much higher than what is spent by the state on the sustenance of prisoners. This pushes the life quality of prisoners down to those experienced by BPL families. It may be noted that the World Bank recommended Poverty Line is USD 2.15.

Going ahead, a lot needs to be done to improve the state of our prison, and to stop our prisons from being an institution which promotes, according to Justice Joseph, a “tendency to take revenge against the system”. Reform, however, must start at home and within the judiciary. The Constitutional Courts must impinge on the lower courts to ensure swift bail and reserve jail as an exception. Further, the judiciary must push the government towards raising per capita expenditure on prisoners to at least the national PFCE.

A blanket prohibition on online gaming has been attempted once again by an Indian state, despite multiple High Court judgements to the contrary. On 1^st October 2022, Tamil Nadu Governor RN Ravi approved the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Ordinance, 2022. Much like the earlier law, which was struck down by the Madras High Court as unconstitutional, this ordinance bans online poker and rummy. The legal position on online gaming and gambling has been made clear and unambiguous through Supreme Court jurisprudence. As per this jurisprudence, first laid down in the two RMD Chamarbaugwallacases, a distinction is to be drawn between games of skill and games of chance. Games where success depends on a substantial extent of skill would not constitute gambling and thus would be protected under Art. 19(1)(g) of the Constitution. Games of chance, on the other hand, constitute gambling which is res extra commercium and is not protected under Art. 19(1)(g). Subsequent cases further consolidated this jurisprudence by applying it in the context of horse-racing and rummy, identifying both as games of skill, thus protected under Art. 19(1)(g).

The Supreme Court has clarified that all games involve some element of chance and that there are no games which consist purely of skill. Thus, the apex court has held that: “….a game of chance is one in which the element of chance predominates over the element of skill, the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element – “skill” or “chance” – which determines the character of the game.” Recent High Court cases, which have upheld the legality of the fantasy sport Dream XI, have further strengthened this distinction.

Despite this jurisprudence, the recent past has witnessed multiple attempts by state governments to ban games of skill such as poker, rummy and fantasy sports. Andhra Pradesh and Telangana have promulgated overbroad bans on online gaming, which extend to games of skill. In September 2021, a Kerala government notification identifying online rummy as a game of chance and banning the same was struck down by the High Court. Similarly, in February 2022, the Karnataka High Court struck down a blanket prohibition on online games. The Karnataka High Court’s judgement went a step further than other High Courts in that it held the ban to be violative of not just Art. 19(1)(g) but also the right to freedom of speech and expression under Art. 19(1)(a). Tamil Nadu’s recent ordinance must be contextualized against these previous failed attempts. Given the judiciary’s unambiguous opposition to a blanket prohibition on online gaming, what explains the government’s desperate attempts to ban the same? There are legitimate policy concerns behind these failed attempts. Regulation of the online gaming industry becomes necessary in light of multiple suicides linked to online gambling in recent months.

In Tamil Nadu alone, there have been 17 incidents suicide in the last few years due to monetary losses over online gambling. The socio-economic and mental health impacts of online gaming/gambling cannot be brushed aside lightly. The grave harms of online gaming are typified by the World Health Organization’s inclusion of ‘gaming disorder’ in its International Classification of Diseases, highlighting that it causes “significant impairment in personal, family, social, educational, occupational or other important areas of functioning”.

The problems posed by online gaming are only likely to grow with the industry expected to grow at an exponential rate in a country where smartphone penetration has been increasing rapidly. Therefore, there is dire need for regulation of the online gaming industry. The jurisprudence highlighted above demonstrates however that a blanket prohibition, as attempted by Tamil Nadu in its ordinance, is unlikely to withstand judicial scrutiny. It will most likely be struck down as unconstitutional for being overbroad and disproportionate in its attempt to regulate online gaming. What is needed instead is tailored regulation – which restricts the amount of time users spend on gaming platforms, lays down age restrictions and the amount of money that can be wagered on such platforms. Repeated attempts at blanket prohibitions reveal the flawed nature of policy-making in India, which despite its best intentions, fails to achieve what it seeks to.

On 22 September 2022, the Department of Telecommunications published the Draft Telecommunications Bill, 2022 for public consultation. While the purpose of the legislation is to replace the older Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wire (Unlawful Possession) Act, 1950 – it raises troubling questions on the issues of regulation of OTT (Over-the-Top) platforms, access to end-to-end encrypted data, internet shutdowns, and the expansion of surveillance and interception powers of the State. The mandatory licensing requirement, coupled with the above issues – raises the broader concern of yet another violation of the Right to Privacy in India and entrenches the monopoly of a handful of private companies over the telecom sector.

Section 2 (21) under Chapter 2 of the Bill expands the definition of ‘Telecommunication Services’ to cover OTT platforms like WhatsApp, Signal, Telegram, etc. which would require them to acquire licences to operate in India. While this may appear to be reasonable, by classifying any communication that happens over the Internet as a telecommunication service, the wording of the provision leaves it open to bring services ranging from Amazon Prime, Netflix or even a local food delivery service within the definition of OTT services. This raises an inherent issue – telecom services either transmit voice through physical wires (in the case of traditional telecom service providers) or all data including voice, images (in the case of video calls) is transmitted over the internet in the form of data packets that are reassembled at the receiving end.

The provision in question attempts to conflate these two modes of transmission of voice and other data, and involves questions of the types and function of data— which is clearly an attempt to go well beyond the scope of the Bill and the regulatory powers of the Department of Telecommunication (DoT). The attempt to bring all internet services under the umbrella of ‘OTT services’ is therefore an attempt to grant the DoT powers it is not vested and regulate internet services that cannot be functionally classified as “telecommunication services.”

This provision broadly appears to be in response to the massive increase in volume of voice calls conducted over these, and the consequent complaints by telecom complaints alleging an unfair advantage to these platforms since they do not have to incur additional costs associated with physical infrastructure, maintenance, etc. This argument fails to take into consideration the current state of the telecom industry – where a handful of private companies like Airtel and Reliance Jio have cornered a majority share of the market and for all intents and purposes enjoy monopoly power. As a consequence, any service that uses the internet for transmission of data would either have to obtain a license under the statute as an OTT service or register for the services of one of the few telecom service providers. In the latter scenario, these small-scale services will be forced to forfeit a significant share of their revenue to these monopolies, thereby restricting their growth, choking innovation, and furthering the existing monopolistic structures.

The Supreme Court, in its landmark judgement in Justice K.S.Puttaswamy (Retd) vs Union Of India, held that the right to privacy is a fundamental right guaranteed to citizens of India and that any infringement of this right must satisfy the three pronged test – it must be in accordance with the law, it must aim to satisfy a legitimate purpose and must be proportionate to the goal it seeks to achieve. The Court’s observations limiting the surveillance and interception powers of the government seem to have been overlooked by Chapter 6 of the Bill which empowers the State to intercept and decrypt any message that is communicated over a telecommunication service in the interest of national security or a public emergency.

The question of whether national security is valid grounds to constitute a reasonable restriction on the right to privacy of individuals has not been conclusively answered by courts, and remains an open question. Section 4(7) of the Bill also mandates that licensed operators “unequivocally identify the person to whom it provides services” and 4(8) requires the identity of the sender of a message to be made visible to the receiver of the message. These two provisions, in essence, would no longer allow end-to-end encryption of messages that is provided on WhatsApp and Telegram, thus flagrantly violating the Right to privacy of individuals in the online sphere. It must be noted that Rule 4(2) of the IT Rules, 2021 provide for a similar attempt to “trace” the origin of a message on these platforms. While specific provisions of the IT Rules are under challenge in various High Courts, the Rules themselves have not been stayed by a judicial order. Since both legislations contain non-obstante cluses, the question of which of these provisions takes precedence is left unanswered, notwithstanding the legality of the provisions themselves.

Along similar lines, Section 24(2) of the Draft Bill explicitly vests the Centre and the State governments with the power to suspend/shut down the functioning of a communication service. This provision essentially legitimises the already widespread practice of shutting down internet service on grounds of maintaining public order or in the interest of national security. The economics cost aside, this again raises the same question of the executive exercising powers beyond what it is vested with, violating the right to privacy of individuals across various spheres. The lack of a dedicated data protection framework compounds the problem as there is no specific legislation governing the usage and protection of data that is gathered by the State. The draft Telecom Bill cannot be a shortcut to bypass the myriad issues plaguing the regulation of data and telecom industry at large.