The best works of fiction often contain a sentence that captures the essence of what the work is about regardless of how thick the full book is. So too with legal judgments, even when over 500 pages. They often have a sentence that captures its philosophical and political kernel. In Justice K.S. Puttaswamy (Retd) v. Union of India this can be found in para 121 of the judgment where Justice D.Y. Chandrachud writes, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.” The sentence precedes a critique of judicial embarrassments from the U.S. and India, respectively (Buck v. Bell where the courts supported state-sponsored eugenic sterilisation and the infamous ADM Jabalpur v. Shivkant Shukla which held that there was no remedy against illegal detentions).
While there is much that will be written about the Supreme Court’s decision holding that right to privacy is a fundamental right under the Indian Constitution, I want to focus on the temporal dimension of Justice Chandrachud’s statement. What notions of time do judges call upon when deciding cases they believe will impact liberties in the future? In particular, how do we understand the nature and dilemmas of judicial innovation which — Janus-faced — is bound to the past (by the binding nature of precedent) even as it responds to unfolding and uncertain futures brought about by technological transformations of life?
Let’s begin with understanding a structural problem that served as the backdrop against which a reference was made to the nine-judge Bench about whether the right to privacy is a fundamental right in India. Like in other instances such as free speech, the Supreme Court has often found itself bound by decisions of larger Benches (constituted at a much earlier time when the court’s rosters had not been as stretched as they are today). The central dilemma is, what are courts to do when they find themselves curtailed by judgments given by larger Benches which are binding by virtue of the Bench strength but otherwise wholly inadequate in terms of their jurisprudential grounding as well as their political consequences? In the present case this was manifested in the form of two judgments (M.P. Sharma, a 1954 decision of an eight-judge Bench, and Kharak Singh, a 1962 six-judge Bench decision) — both of which had held that there is no fundamental right to privacy.
Kharak Singh was an ambiguous judgment, with the first half of the judgment seemingly making a case for privacy and the second half undoing itself on formal grounds. In his opinion (written on behalf of Justices J.S. Khehar, R.K. Agrawal, and S. Abdul Nazeer), Justice Chandrachud provides us with a fascinating history of the doctrinal evolution of the right to privacy to India. While M.P. Sharma and Kharak Singh had held that the right to privacy was not a fundamental right in India, the subsequent history of the doctrine as it emerged in future cases decided by smaller Benches is a story of adaptation, mutation and often fortuitous misinterpretation.
The turning point was in Gobind v. State of Madhya Pradesh (1975) where a three-judge Bench, while staying shy of declaring a right to privacy, nonetheless proceeded with the assumption that fundamental rights have a penumbral zone and the right to privacy could be seen to emerge from precisely such a zone, and they argued that if it were considered a right, it would then be restricted only by compelling public interest. In an erudite paragraph that leaps out of the judgment, Justice K. Matthew observed, “Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.” This prescient observation and its reference to the temporal dimension of problems reiterate the difficulties that courts face when yoked to dated principles and yet compelled to respond to contemporary problems. It is also equally applicable to Gobind itself, which benefitted philosophically from Griswold v. Connecticut that was decided after M.P. Sharma and Kharak Singh.
How then do courts adapt and innovate within a set of formal constraints? It would be helpful to use an analogy from urban studies. Solomon Benjamin and R. Bhuvaneswari in their work on urban poverty argue that in contrast to visible strategies of democratic politics such as protests, the urban poor also engage in ‘politics by stealth’ — a form of participation which relies on a porous and fluid approach that responds to stubborn structures such as the bureaucracy by sneaking up inside them, adapting and slowly transforming the structure itself. Might we think of the history of privacy jurisprudence as a form of ‘doctrine by stealth’ in the best sense of the term? The judgments of the court post the trilogy of Sharma-Kharak Singh-Gobind are simultaneously a story of such adaptations even as they serve as an inventory of new technologies of power and control. Thus in PUCL v. Union of India (1996) the court said privacy is not a fundamental right, but telephone conversations are such an integral part of modern life that unauthorised telephone tapping would surely violate the right to privacy. In the Canara Bank case (2004), responding to the expectation of privacy for voluntarily given information, the court transformed the legal fiction that the Gobind decision was based on (“assuming privacy is right”) into putative reality by attributing to Gobind the holding that privacy is indeed an implied right.
Critics of the Supreme Court may argue that this haphazard development of doctrine can have disastrous consequences in terms of a theory of precedents and some aspects of the court’s track record (where it often ignores its own precedents) would certainly support such a critique. Yet at the same time, looking at the diverse contexts in which the question of privacy has been adjudicated (validity of narco analysis, intrusions by media, sexuality as identity, safeguards of personal data, etc.), one cannot but appreciate the necessary distinction between a hierarchical command structure-bound approach to judicial innovation versus an evolutionary perspective that is able to accommodate contingencies by adapting.
Senior advocate Arvind P. Datar describes the judgment as articulating a right for the future — an apt characterisation to which I would add a further question: what kind of (present) futures will such a right speak to? The numerous historical references to media, urbanisation and technology in the judgment intimate a judicial intuition of the transformed landscape of personhood that the language of rights has to negotiate and a recognition of the challenge of living in what French philosopher Gilles Deleuze terms control society, where surveillance is not about the eavesdropping constable but self-submission to mandatory ID cards and corporate-owned computer servers.
The judgment might then be the first instance of the articulation of a human right in a post-human world (where the human as a natural subject finds herself inseparably enmeshed within techno-social networks). In that sense the location of the right to privacy within a natural rights tradition by the court seems a little archaic and romantic. For a judgment that is refreshingly unapologetic about its philosophical and jurisprudential ambitions, one hopes that in addition to the regulars of the liberal canon (John Locke, John Stuart Mill, Ronald Dworkin) one will start seeing the slow appearance of philosophers from science and technology studies if we are to truly articulate a jurisprudence for the future. But for now, let’s celebrate the first steps which this judgment takes.
RTIs can be filed locally in J&K, Ladakh even after October 31: Jitendra Singh
Union minister Jitendra Singh on Monday rejected rumours that people in Jammu and Kashmir, and Ladakh will have to travel to Delhi to file RTIs once the two union territories come into existence on October 31 and said they can still be filed locally.
Singh, who is also the minister of state incharge of the Department of Personnel and Training (DoPT) — which is the nodal department for Central Information Commission (CIC) dealing with the Right to Information (RTI) appeals — met Central Information Commissioner Sudhir Bhargava.
Following a detailed discussion on the issue with Bhargava, Singh said that “certain vested elements which are uncomfortable with the abrogation of Article 370 and reorganisation of Jammu and Kashmir and Ladakh, continue to instigate different kinds of misgivings in the society, in a vain bid to disrupt the courageous initiative by the Modi government”.
The minister said that RTIs can be filed locally in the Union territories of Jammu and Kashmir, and Ladakh even after the new arrangement comes into existence after the October 31. He denounced the rumours that because Jammu and Kashmir will become a Union territory, the applicant will have to travel to Delhi to file an RTI.
Singh claimed that during the last five years, “the procedures to file an RTI appeal have been immensely simplified and definite timelines have been laid down”. This will apply equally to Jammu and Kashmir and Ladakh after they become Union territories, he said.
Divulging details, Singh said that the first RTI application is made to the Public Information Officer (PIO) locally and in matters involving “life and liberty”, the time limit for the PIO to provide the information is 48 hours. “For the PIO to reply to the application, a timeline of 30 days has been laid down from the date of receipt of the application. “For applicant to make first appeal after the receipt of PIO’s reply, the first appellate authority in the form of the designated officer will also be available locally, whether it is the State or Union territory,” he said.
Only in case of second appeal, Singh said the application has to be submitted to the Information Commission and even if the Information Commissioner is not available locally, in case of Union territory, the second appeal can be sent to the CIC online within 90 days from the receipt of the first appeal orders or from the date the orders were to be received. “To make the procedure simpler, we made use of modern technology and in a major breakthrough, during the Modi government, provided the facility of making second appeal before the CIC through portal/WhatsApp, which, in other words, means that an RTI applicant does not have to wait for office hours and can file his appeal even from his mobile phone anytime, at his convenience,” the minister said.
After the reorganisation or Jammu and Kashmir and Ladakh, Singh said that the citizens’ participation will increase manifold and various provisions in public administration will become far more citizen-centric with the extension of uniformed central laws, as applicable in the rest of the country.
Union Minister R K Singh to visit Kashmir to review development work in power sector
New Delhi: Union Power and New and Renewable Energy Minister R K Singh will visit Kashmir tomorrow to review different development projects in the power sector in Jammu and Kashmir.
After the abrogation of Article 370, this will be the first visit of R K Singh to Kashmir.
Singh in an exclusive interview to ANI said that NHPC will provide jobs to 150 local skilled people. Powergrid Corporation is going for campus selection from different technical institution in Valley. Powergrid Corporation also takes up school smart learning programme.
“From this year, people in Kashmir will not face a power crisis in the winter season. The ministry is working towards providing 24×7 power supply to the Valley.
Secretary of power and Jammu and Kashmir administration will call a meeting of all contractors and ensure that works under various central government scheme progresses fast and are completed within the given timeline.
The government of India is spending more than 300 crores to provide uninterrupted power supply during the winter season in Valley,” he told ANI.
He further said that the Power Finance Corporation and Rural Electrification corporation will spend 20 crores on skill development in Kashmir.
The minister also said that 100 MW rooftop solar plant in Ladakh region and Leh district will be lighting with green energy.
Singh has given instructions to officials that a comprehensive power plan should be prepared within a time frame so that entire J-K and Ladakh doesn’t suffer power shortage.
After the abrogation of Article 370 that accorded special status to Jammu and Kashmir, 10 central government ministeries have made massive and speedy development plans for J-K and Ladakh. The power ministry is one of those 10 central ministries which has made mega development plan for entire region.
Expansion of Election Department: SAC approves creation of 127 posts
SRINAGAR, SEPTEMBER 16: The State Administrative Council (SAC) which met under the chairmanship of Governor, Satya Pal Malik approved creation of 127 posts of Election Assistants in the Office of the Chief Electoral Officer.
The posts include 50 posts of Election Assistant (Senior Scale) in Level 4 (Rs 25500-81100) and 77 posts of Election Assistant (Junior Scale) in Level 2 (Rs 19900-63200).
Creation of posts will help to implement the various initiatives of the Election Commission of India like ERONET, BLONET, District Contact Centre and other new initiatives, besides, addressing the promotion issues of the departmental candidates.
With the positioning of incumbents against these posts, the Election Department will be better equipped to provide efficient and timely services to the electors of J&K to complete time bound assignments like updation of electoral rolls, enrolment of new voters, weeding out bogus/duplicate voters, providing of EPIC cards etc.