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A right for the future

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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.


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Life comes to standstill for the cross-LoC trade workers

Firdous Hassan

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Srinagar, May 19:  Tragedy befell 50-year-old labourer, Noor-ul-Amin three years ago when he was grievously injured while unloading the goods from the cross-LoC truck at the Salamabad Trade Facilitation Centre in Uri.

Unable to work, Amin has been bed-ridden at his home nursing the injury. With no money left to bear the medical expenses, it was his fellow Cross-LoC trade workers who joined in to help Amin in meeting the medical expenses.

Enter the government decision to suspend the Cross LoC trade, the workers, who were not only eking out their living but also helping workers like Amin, were left jobless.  With no money coming, Amin accompanied by his family members can be seen in mosques seeking alms from the people.

 

“For the last one month we couldn’t pool money for Khan. He is now seeking donations from the people at mosques in order to meet his daily expenses of medicines. These labourers would meet expenses of five ill workers who earlier were injured at the facilitation centre”,  said Mohammad Yusuf, a labourer who used to work at Salamabad Trade Facilitation Centre.

Last month, Centre suspended cross LoC trade from both routes –Salamabad (Uri) and Chakan-da-Bagh  (Poonch)– citing its ‘misuse’ by Pakistan.

Started in October 2008, Cross-LoC trade was considered as mother of all confidence building measures (CBMs) between India and Pakistan. However, the trade could not grow beyond barter system. Lack of proper banking and communication facilities added to the woes of the traders.

More than 600 traders are registered for the cross LoC trade and 21 items are on the approved export and import list from both routes. Some of items to be traded include Rice, Carpets, Precious Stones Wall Hangings, Gabbas Shawls and Stoles, Namdas, Peshwari Leather Chappals, Medicinal Herbs Embroidered Items, Honey, dry and fresh fruits etc.

Official figures reveal that goods worth 1274.43 crore traded out and Rs 1093.39 crore were traded in from 2014-15 to 2016-17 from Uri-Salamabad cross LoC route. Similarly  goods worth Rs 402.34 crore were traded out and Rs 662.78 were traded in from Chakan da Bagh crossing in Poonch from 2014-15 to 2016-17.

Haneef, a 28 year old postgraduate working as a labourer for the last eight years is equally worried with the suspension of the trade. Like him, many educated youth were working as labourers to earn their livilhood.

“This was the only means to earn bread for our families, which too has been snatched now. There are no good avenues of employment in Uri and we fear our families will have to starve ahead,” he said.

Data reveal that there are at least 100 labourer whose livelihood have got impacted due to the closure of cross LoC trade in Jammu and Kashmir. “The trade was a source of hope to earn livelihood for many families. We have no other option than to look for other sources, which is becoming harder now” Haneef said.

Scores of labourers have now moved to the other districts for work as hopes fade for the early resumption of cross LoC trade. “Earlier our work station was near to our homes. But now we have to travel to other towns in search of work. Majority of the labourers here have moved to Srinagar, Baramulla or either in Uri town. Our livelihood has been affected as all of us have been rendered jobless,” said Shabir Ahmad another labourer

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Bhaderwah man’s killing: Magisterial probe ordered, curfew continues for 4th day

Press Trust of India

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DODA, MAY 19: Authorities Sunday ordered a time-bound magisterial probe into the killing of a man in firing and subsequent violence here, which prompted imposition of curfew in the communally-sensitive town.

The curfew continued to remain in force without any relaxation for the fourth day on Sunday even as a total of seven persons involved in incidents of stone-pelting were arrested. The Army, which was called out following the violence, was withdrawn, officials said.

The Doda district administration had earlier refuted reports that “cow vigilantism” was the reason behind the killing of Nayeem Shah and said some people were trying to give a communal colour to the incident to flare up the situation.

 

“A magisterial inquiry has been ordered into the killing of Shah and subsequent stone-pelting episode. Sub-divisional Magistrate, Thathri, Mohammad Anwar Banday will conduct the inquiry and was asked to submit his report within seven days,” Deputy Commissioner, Doda, Sagar Doifode said.

He said the officer is supposed to give a detailed report on the killing of Shah, reasons thereof and probable causes, besides the reason for stone-throwing and the perpetrators because the administration is of the idea that the stone throwing was well collaborated and needs a thorough investigation.

Doifode said the situation in the curfew-bound areas is well under control and there was no report of any untoward incident from anywhere.

“We are monitoring the situation and considering to relax curfew in a phased manner for a few hours later in the day,” he said, adding that the mobile internet services, however, will remain suspended in the town till further orders though the services have been restored in the rest of the district.

The official said the Army was withdrawn from the curfew-bound areas of the town, but the CRPF and police remained deployed in strength especially in the sensitive localities to maintain law and order.

On Saturday, police constituted a five-member special investigation team (SIT) headed by Superintendent of Police, Bhaderwah, Raj Singh Gouria to probe the killing of Shah at village Kachi Nalthi on Thursday.

The SIT visited the site of the incident and also seized a 12-bore gun which is believed to have been used in the killing and sent it to FSL Jammu for examination.

Eight persons have been arrested in connection with the killing so far and are being questioned, Gouria said, adding that seven more persons were arrested for their involvement in violent protests.

The relatives of the deceased alleged that he was victim of cow vigilantism and was targeted as he was involved in cattle trade.

However, the residents of Kachi Nalthi village told police that two to three persons were found moving under suspicious circumstances in the area which led to the firing.

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PDP worker shot dead in Kulgam

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Kulgam, May 19  : Suspected militants on Sunday evening shot at a civilian in Zangalpora area of South Kashmir’s Kulgam district 

Reports said a PDP worker namely Mohammed Jamal resident of Zangalpora Kulgam was shot at his home. 

He was shifted to district hospital Kulgam for treatment where doctors him dead. 

 

An official confirmed  that PDP worker has been shot dead in Zangalpora.. 

“Whole area has been cordoned off and search operation has been launched to nab the attackers,” the official said.

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