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TODAY’S TALK ON EDITORIALS CIVILS360

AUGUST 29, 2017

A right for the future

  • 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.
  • 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.

Working around constraints

  • 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.

A future-ready right

  • 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).

Agreeing to disagree

  • The separate announcements by India and China that the Doklam military stand-off has ended are a welcome sign that diplomacy has prevailed over the harsh rhetoric of the past 10 weeks.
  • The measured tone of the statement from New Delhi, referring to the “expeditious disengagement of border personnel” as part of the understanding between the two countries, shows that the government’s policy of pursuing diplomatic measures in the face of China’s angry rhetoric was wise. In turn, China’s statement, which said that Indian troops had withdrawn from the disputed Doklam plateau while Chinese troops continue to patrol the area, gives Beijing the latitude it requires to end the stand-off peacefully.
  • In issuing statements that were inconsistent with each other, both sides seem to have agreed to disagree. To that end, the importance lies less in the detail but in the détente itself, in the decision by the leaderships of both countries to pull back from what some feared could escalate into a full-blown conflict. In this, it must be noted that New Delhi and Beijing have respected the wishes of the Bhutanese government, which wanted an early end to the crisis before the bitter winter set in.
  • One hopes the decision on Doklam, which comes a week before Prime Minister Narendra Modi is scheduled to go to China, will guide the bilateral spirit beyond the September 3-5 BRICS summit to be held in Xiamen. Once Mr. Modi and Chinese President Xi Jinping have met, diplomats must begin the heavy lifting required to repair the rupture in ties over the past few months, beginning with the cancellation of the Nathu La route for Kailash-Mansarovar pilgrims.
  • Statements from China during the stand-off indicate that it no longer recognises the gains made in the Special Representative talks in 2012. Nor does it regard the India-Bhutan-China tri-junction near Batang-La to have been settled. India has made it clear that it does not consider the Sikkim boundary settled either, and both sides will have to walk swiftly to come back to some semblance of an accord on such basic issues before they can move further.
  • India and China must revert to the spirit of the Border Defence Cooperation Agreement of 2013, which laid down specific guidelines on tackling future developments along the 3,488-km boundary the two countries share. The past two and a half months are also a lesson that India cannot be unprepared for “another Doklam”, as Chief of the Army Staff Bipin Rawat said on Sunday. India must necessarily “hope for the best, and prepare for the worst”, when it comes to tensions with its northern neighbour.