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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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GMC admits: Patients referred to Srinagar attended by juniors

Nisar Dharma

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Srinagar, Jan 21: The Government Medical College (GMC), Srinagar Monday acknowledged that the patients referred to its associated hospitals in Srinagar are being treated by junior doctors.

A circular by Principal GMC, Dr Samia Rashid said it had come to her notice that “patients referred from various district, sub-district hospitals and peripheries for specialised treatment in Associated hospitals of GMC Srinagar are being attended by Junior Residents without taking advice and consultation from their Registrars and Consultants on emergency duty.”

The circular asked the head of departments and units to ensure that referral patients are only seen by registrars or senior residents on emergency duty.

 

“The head of the departments and units are also impressed upon to ensure that Consultants on emergency duty…should make periodic rounds on their emergency day and take final evening round in emergency areas. Registrars and other resident staff on emergency duty should note down their advice in respect of patients admitted,” the circular reads.

The GMC Principal, as per the circular, asked the medical superintendents of the associated hospitals to monitor the work of Resident Medical Officers (RMOs) and Casualty Medical Officer (CMOs).

“…check whether they are discharging their duties as per their job profile…take necessary disciplinary action against the RMO/CMO who fails to discharge their assigned duties.”

The GMC circular follows the Thursday’s incident in which a pregnant woman, who was referred from Kupwara to Lal Ded hospital, was forced to deliver her baby on road when the doctor on duty refused to admit her.

The baby delivered in sub-zero temperatures died soon after.

Facing flak, the hospital ordered a probe immediately, which, eventually, concluded: “The doctor with her clinical assessment/USG findings did not anticipate the precipitate delivery in her, although unfortunately the doctor on duty went against the SOP for referrals by not admitting the patient.”

 

No negligence will be tolerated: Adv Kumar

Jammu, Jan 21: Taking a serious note of alleged mishandling of a pregnant lady from District Kupwara at L. D Hospital, Advisor to Governor, K Vijay Kumar Monday conveyed his sympathies with the affected family and assured a thorough enquiry into the unfortunate incident.

Chairing a high level meeting in this regard attended by Principal Secretary, Health & Medical Education, Atal Dullo; Principal, GMCs of Srinagar and Jammu; Directors of Health Services of Kashmir & Jammu besides Medical Superintendents of several hospitals the Advisor informed that the Governor has instructed that Hospital authorities across the State should strictly adhere to the Standard Operating Procedures (SoPs) in the case of referrals to tertiary care hospitals adding that no negligence in observing these SoPs would be tolerated in future.

He said maintaining high standards of health care delivery to the citizens of the State should be observed at all costs and that the Governor’s Administration is committed to fill in all the existing gaps of manpower, equipment and infrastructure to strengthen the primary healthcare system across the State.

The Advisor sought recommendations to identify the lapses and gaps so that such incidents do not take place in future. He directed the Principal GMC Srinagar and Jammu and Director Health Services Kashmir/ Jammu to identify Nodal Officers who shall solely be responsible for streamlining the referrals from primary and secondary health care institutions to tertiary care hospitals in the State.

He said that directions have been issued as part of the ‘Auditing Mechanism’ that doctor’s prescription shall be inscribed with seal/ stamp mentioning name and credentials of the prescribing and referring doctor so that responsibilities can be fixed in any eventuality.

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‘Bukhari tried to sell PDP for his personal gains’

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Srinagar, Jan 21: Refuting that Altaf Bukhari’s name was at any point suggested as an interim president of the party, Vice President Peoples Democratic Party (PDP) Abdul Rahman Veeri on Monday said that seeking “self-promotion through illicit, undemocratic and unethical measures” was Bukhari’s sole agenda in PDP.
Veeri, in a statement, said that across the state, party functionaries, workers and activists en-masse support Mehbooba Mufti in her every endeavour to get the state out of the present cycle of violence.
“Every person associated with the PDP has witnessed how amid the tumultuous times Mehbooba Mufti built the party brick by brick and made it a guiding force in Jammu and Kashmir’s political landscape,” Veeri said.
He added that in spite of taking over in very trying circumstances, PDP president ran the government with “integrity and caliber”.
“However, she was back-stabbed by some people especially Altaf Bukhari,” he said.
Veeri said that by giving out his desire to become PDP President, Bukhari had “exposed his real agenda which he initiated within days after Mufti saheb’s death.”
“For that he even made Nagpur Yatra in a bid to seek their blessings for forming the government at the cost of party and state interest. Ever since the death of Mufti Mohammad Sayeed, he tried to grab the party and sell it out for promotion of his personal ambitions,” said Veeri.
The PDP Vice President stated further that every person is now aware that when party President Mehbooba Mufti was standing firm before the government of India, Bukhari even went up to Nagpur to offer his services as an alternative. “Such action of his sabotaged the agenda of alliance and the negotiations Mehbooba Mufti was having with the government of India, demanding implementation of specific points in the agenda of alliance as a precondition for taking over as the Chief Minister of the state,” Veeri said.
The PDP veteran added that even when the government headed by Mehbooba Mufti was formed in April 2016, a clear signal was given to Bukhari as he was dropped from the cabinet. It was later, according to Veeri, on assurances of good conduct from Bukhari that his position was restored.
He said that the ousted leader had no problem with the party till the government was in place and he begun inventing issues soon after the dissolution of assembly.
“Till the dissolution, Bukhari had the hopes of getting the government back. Though, till then, he was behaving like a party man but his one foot was in PDP and his soul and spirit were with all other parties except PDP. He was in contact with the outlaws and even made hectic efforts to instigate rebellion within the party,” Veeri said, adding that soon after dissolution of assembly, Bukhari saw only one way of finishing the PDP and that was by taking over as president and he openly told some party leaders that he wants to take over as a prize for him to stay in the party.
“He had a one point agenda and that was to take over the party and sell it out for promoting his political and other interests. Now exposed, he is openly declaring his ambitions in public,” Veeri said.
He added that people of the state know Mehbooba Mufti as a person with “selfless courage and a desire to ensure betterment in peoples’ lives.”
“It is not Mehbooba Mufti who needs PDP. It is actually the PDP which needs the person of her stature. Her command and sincerity in work is already being praised by one and all, not only in JK but across the country. She has battled against various forces very bravely and the impression she has left on the minds of people is that she is actuated by high sense of fairness and impartiality. Every person associated with the PDP is proud of her leadership and is hopeful that she will lead the people of the state to their permanent prosperity,” said Veeri.

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Dy Mayor assaulted during SMC’s councilors session

Global News Service

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Srinagar, Jan 21: Deputy Mayor of Srinagar Municipal Corporation, Sheikh Imran was Monday injured when “two corporators” allegedly assaulted him during the councilor session of the corporation.

He was shifted to police hospital for immediate treatment.

A senior police official confirmed the incident and said that a case has been registered and further action taken up.

 

After being discharged from hospital, Imran addressed a presser alleging that he was attacked by two “RSS and BJP-backed corporators”.

He said assault on him was pre-planned by the “BJP-backed mayor” and hoped that police will take appropriate action in the case.

“I will not bow down by such tactics. I will continue to speak against corruption and injustice,” he said, adding that he was attacked for launching a “tirade against BJP and Hindutva campaigns.” Imran said that he was committed to “kicking out” the BJP from Kashmir.

“From the first day, I urged the administration to look into the issue of BJP, RSS sponsored Mayor but they turned deaf ears to my pleas,” he said.

 

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