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A right for the future

Monitor News Bureau

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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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Treated worse than bonded laborers: No country for Safai Karamcharis

Bisma Bhat

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Srinagar, Feb 19: It has been two months since Riyaz Ahmad, a sanitation worker at Srinagar Municipal Corporation (SMC), has taken a day off. His work starts at the break of dawn when he holds long-handled broom to clean the streets.

 “I was directed to send my son, who is still studying, to work then I can take a day off to visit hospital. I was suffering from severe chest infection,” Ahmad said.

Another sanitation worker said he was instructed to take day off only if his wife would stand-in for him at his workplace. “We have to work in two shifts to clean Srinagar. If someone is sick, he cannot take a day off because there is dearth of sanitation workers in SMC,” he said.

 

The current manpower is not able to cater to whole Srinagar despite double shifts. Against the need of 7000 Safai Karamcharis, there are less than 3000 workers who have to cover 246 sq km area of Srinagar.

Chairman, Safai Karamchari Union, Ghulam Mohamad Solina said that they never stop cleaning city no matter what conditions they face.

“More than 40 years have passed since 1600 men were recruited as Safai Karamcharis’. At that time  city had 17 wards only. Around 1000 people have been taken as daily wagers in recent years. Now, Srinagar has extended to more than 35 wards but the manpower is same.   We need at least 7000 people to cover whole Srinagar,” he added. 

An official at SMC said Srinagar has expanded to 74 electoral wards, 35 administrative wards with population of more than 15 lakh and three lakh households.

The official noted that apart from human resource shortage, they don’t even have sanitation equipment and proper safety gear for Safai Karamcharis. “We only have 40% of transport available for carrying garbage,” he said.

Chief Sanitary Officer, SMC, Syed Nissar admitted that they need at least 6000 Safai Karamcharis to cover entire Srinagar.

“New rules have to be framed. According to 1970 rules only 500 budgetary posts are available. Recruitment of Safai Karamcharis is under consideration for which new rules are being framed,” he added.

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Hundreds of candidates singled out: Baramulla Medical College tweaks rules for nursing posts

Hirra Azmat

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Srinagar:  Career of hundreds of trained nurses is at stake after Government Medical College, Baramulla, arbitrarily tweaked eligibility rules and sought applications from M.Sc (Nursing) pass-outs to fill up the vacancies of 10 staff nurses.

Under Indian Nursing Council (INC) rules, the eligibility for staff nurse is B.Sc in Nursing, while M.Sc is the preferred qualification for academic posts like tutor, assistant professor, associate professor and professor.

However, an advertisement by Government Medical College, Baramulla, has left out candidates with B.Sc nursing and diploma holders in nursing..

 

According to the advertisement, there are 10 vacancies for staff nurse with eligibility criteria as “MSc Nursing from recognized institute in relevant subject along with experience”.

Wasim Ahmad, a nursing graduate said eligibility criterion is clear violation of the norms set by the Indian Nursing Council.

“As per the rules, those with three-year and six-month diploma programme in General Nursing and Midwifery or GNM and B.Sc in Nursing are the ideal candidates for the job,” he said.

He noted that though the people with M.Sc degree can apply for it, singling out B.Sc and diploma holders is a sheer injustice with other candidates having lower qualification.  

Another female nursing graduate said this advertisement came as a jolt.

“I am desperately in need of a job. I have the basic qualification for the post, but they are taking candidates with M.Sc degree. This is totally unacceptable,” she said.

Principal, Government Medical College, Baramulla, Dr Abdul Hamid Kathoo said the advertised posts are temporary. “This is not a permanent post and is specifically a need-based appointment,” Dr Hamid said.

Medical Superintendent, District Hospital, Baramulla, Dr Syed Masood said the recently advertised posts are not for the “routine staff nurses”.

“The posts demand specialized nurses. This is the reason why we have created only 10 posts. Also, the candidates are nobody to determine the criterion of the particular post. The posts have been created after much deliberation,” Dr Masood said.

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All party meeting: NC, PDP, Cong say no to Panchayat polls till leaders are released

Firdous Hassan

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Srinagar, Feb 18:  Efforts to convince political parties to participate in the Panchayat polls suffered a major setback on Tuesday when Peoples Democratic Party (PDP) National Conference (NC) and Congress reiterated their decision to stay away from the election citing prolonged detention of its leaders.

Chief Election Officer (CEO) Shailendra Kumar held an all party meeting on Tuesday to discuss the upcoming election for vacant Panchayat seats in the Union Territory.

However, the representatives of National Conference, Congress and PDP told the CEO to release the mainstream leaders in order to their participation in the election.

 

PDP’s Surinder Chaudhary, who was flanked by Narinder Singh Raina, walked out of the meeting claiming that they are not allowed to conduct political activities freely in J&K.

“I walked out of the meeting, when we realized that Chief Election Officer was bereft of any agenda. I clearly told him that the meeting was called very late as two phases of Panchayat elections were already over. We demanded release of our president,” he said.

Chaudhary said they told the CEO that democracy is nowhere seen on the ground in Jammu and Kashmir. “Our leaders are detained under Public Safety Act. Only BJP is being allowed to carry out activities while security and vehicles of rest of the political leaders have been withdrawn,” he said.

National conference leader Ratan Lal Gupta said the party is of the view that the situation is not conducive for holding elections. “The meeting should have been called much earlier to know the view of political parties about holding the polls,” Gupta said.

Congress vice-president Ghulam Nabi Monga, who was accompanied by Party Chief Spokesperson Ravinder Sharma, said they raised issues of freeing detained leaders and allowing parties to conduct political activities.

“We asked CEO to ensure releasing detained leaders, their free movement and lifting of restrictions on political leaders, if they want us to participate. Otherwise the government should defer or postpone elections,” Monga said.

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