Saturday, August 19, 2017

The right to privacy as an inherent, natural, universal, and inviolable fundamental human right guaranteed by the Constitution of India - By Seema Sapra

The right to privacy is an inherent, natural, universal, and inviolable human right also recognized as such by international law. It is inherent in the very concept of a human right to life and liberty. It is a natural right inherent in the very fact of being human. Natural human rights are not bestowed by the State. They exist because of the intrinsic nature of the human spirit, of human person-hood, of human endeavor, and the human experience. Without these natural human rights, human beings would not be able to live as human beings live. The right to privacy is also part of the fundamental human right to life and liberty guaranteed under Article 21 of the Constitution of India. 

Human beings are independent and self-autonomous. They are autonomous physical and conscious beings. Being human means having the ability and the right to live your life according to the individuals’ choices, desires, needs and wants. A  human person has the right to choose the kind of life he wants. Being human means being free to live your life with liberty, dignity, and privacy. The right to free speech and the right to freedom of conscience and thought guaranteed as fundamental human rights under the Indian Constitution also point to the inviolability of an individual’s right to choose. 

Now of course, the State can restrict all rights of man but in democratic, liberal societies which are based upon respect for fundamental human rights, the State can encroach upon fundamental rights only to serve legitimate purposes and objectives of public interest and constitutional governance and additionally the State must do so in the least restrictive and most reasonable way possible. This principle narrowly limiting the power of the State to restrict the fundamental human rights of Indian citizens runs through all of Part III of the Indian Constitution containing the chapter on fundamental rights. 

Human persons have the right to live their own lives without intrusion or interference or restriction by the State unless such restrictions are imposed by reasonable laws and are necessary for legitimate public interest and governance objectives. Human persons have the right to personal space and to personal lives. Humans are not born to serve a preordained existence, like bees for instance. The essence of being human and of living the human existence is to be free. To be free to be different. To be free to be self-contained. To be free to pursue your own self-determined destiny. The very evolution of the human civilization is based upon human persons daring to be free, daring to dream of and then daring to achieve what was thought impossible, upon human persons breaking barriers, climbing obstacles, doing what no man has ever done before and going where no man has ever gone before. To live the human experience, human persons have always asserted their natural human right to their own spaces, whether it be personal, social, family, work-related, recreational, spiritual, mental or in any other aspect or endeavor of human life. This is the human right to privacy. The right to be let alone. The right against unwelcome forceful intrusion. Without this right, human persons can neither exercise their right to liberty nor their right to human dignity nor can they live out their self-determined destiny. 

Humans in modern, civilized and right based societies also normatively expect that the State will protect them from malicious and harmful interference, obstruction and intrusion into their lives by other individuals. Thus, modern States make laws to protect a person’s body, property, home, reputation, right to work, etc. Similarly, the State must also enact laws to protect a person’s human right to privacy. 

Obviously, there are spaces where the right to privacy can be enforced and where it cannot. A person can expect privacy in his home, his office, his private communications, in record-keeping by the State, etc. But a person cannot undress on a highway and then claim that passersby violated his privacy by seeing him naked. 

Just like the right to life, the right to privacy has no limit. The State cannot dictate to a man how a man should live his life, if the man breaks no law. The State also has no right to tell a man how private or public he should be in his actions. The State can only intrude on a person’s privacy under very strict conditions, i.e, for legitimate, constitutional objectives necessary for public interest and constitutional governance, and then too only through laws made by Parliament which are fair, reasonable and least restrictive.  

The right to privacy is a stand-alone natural human right right. It is also a part of the human right to life and the human right to liberty. And it is a part of all other fundamental rights guaranteed under the Indian Constitution. Indian citizens have the right to privacy in the practice of religion. They have the right to privacy in what they read, write, think, say, or do until they decide to make it public. The State cannot intrude unless the strict conditions that justify State intrusion exist. 

The Supreme Court of India in the expected nine-Judge Constitution Bench ruling on the right to privacy will need to spell out in the abstract the strict conditions which would justify State invasion into the right to privacy of Indian citizens. These conditions should be at least as stringent as those prescribed in Article 19(2) of the Constitution of India, if not more stringent. However, the contours of the right to privacy and its detailed multiple meanings can only be fleshed out on a case-by-case basis where the facts of each case will determine the nature of the right and whether the State has unconstitutionally and unlawfully restricted the right in the facts of that case. 

Wednesday, August 16, 2017

India is the aggressor in Doklam and has acted in violation of International law - By Seema Sapra

India is violating international law in the Doklam Standoff. The Indian Army has entered Chinese/Bhutanese territory without the invitation of either. Bhutan has not endorsed the Indian intervention nor said that it was on their invitation. The Bhutan Foreign Office in its Press Release has admitted that Doklam is disputed territory, China claims it as Chinese. Where is India involved? The Chinese Army already controls the territory. Bhutan has not claimed a Chinese invasion. The dispute about the extension of the Chinese road further from Doka La Pass is at best a bilateral dispute between China and Bhutan, which according to treaties between the two countries, is to be resolved peacefully. 

What if China were to enter Pakistan occupied Kashmir?  What if tomorrow Pakistan were to invite China or the US Army into Indian Kashmir because Pakistan claims it as disputed territory? Would India like that? India keeps insisting that Kashmir is a bilateral dispute with Pakistan and that the US and China should keep out. So, shouldn't India apply the same principle to Doklam? Chinese troops have never entered Kashmir, China has respected the bilateral nature of the Kashmir dispute. But after Doklam, they might not want to.

China has not violated international law or Indian sovereignty by "building up" or supporting Pakistan, so this is irrelevant to the Doklam issue. The US has built up Pakistan even more, so why doesn't India lash out toward its "ally" the US? Will this justify India invading US territory? Should India unilaterally intervene in US disputes with third countries because the US has supported Pakistan? So why apply this principle to China?

India is pushing China in Doklam to help the US contain China. But the Chinese will never back down under this Indian Army posturing. And Bhutan, that values happiness, does not want to end up as a war zone.

India is not threatened by China or any expansionism by China, India is being puppeteered by the US to contain China to further US interests. India is the aggressor here, egged on by the US. India needs to partner with China for economic growth, and not play US war games. There has been no Chinese aggression against India for several decades. Even in Kashmir, China has not entered Indian territory. 

India has entered territory that is admittedly disputed between China & Bhutan. So, the aggressor here even according to international law is India.

Thursday, August 10, 2017

Choose Comedy - A poem by Seema Sapra

Dead, in the long run,
turn that 
dirge 
into stand-up comedy. 

Try out some slap-stick.
fall, stand, fall, stand, fall ...

The job lost,
the money gone,
the heart hurt,
the love rejected, 
the ambition dead, 
the friend betrayed, 
the opportunity missed, 
the trust abused.
Exploit that 
divorce!
Treasure 
the endless inspiration. 

Balance on one leg, 
teeter,
then fall off the trapeze. 
Enjoy, 
as you fall, 
there is no after-party. 

Embarrass yourself,
provide comic relief. 
Your audience 
will love you 
for the schadenfreude, 
when the joke falls flat. 

Drop those skeletons.
expose. 
Then stand,
take a bow
and laugh center-stage. 

 © Seema Sapra 2009

My friend the lion - A poem by Seema Sapra

I wanted  
To kiss 
A lion on the mouth
But the lion 
Decided 
To travel down south. 

So I packed 
My bags 
And got on the train
For the lion
Was by then 
Sitting in a plane. 

I arrived 
At night 
In Chennai city 
Where the lights 
In the rain 
Looked very pretty. 

I followed 
His tracks 
And knocked on a door
But the lion 
Was tired, 
Sleeping on the floor. 

When I woke
The lion
I showed him my pout, 
But the lion
Ate me up 
Was hungry no doubt.

 © Seema Sapra 2009

This poem was inspired by a youtube video see http://www.youtube.com/watch?v=Wso13n4kHZ4&eurl=http%3A%2F%2Fwww%2Efacebook%2Ecom%2Fhome%2Ephp&feature=player_embedded

The world within - A poem by Seema Sapra

I look inside these days,
hunker down, 
calm the waters ,
embrace the fear, 
and carve the space. 
Will wander again, 
but for now, 
small worlds are enough.


 © Seema Sapra 2009

Sunday, July 30, 2017

Fundamental conceptual concerns regarding the Aadhaar number as a unique identity based upon biometric digital data and the associated risks for citizens of India

Fundamental conceptual concerns regarding the Aadhaar number as a unique identity based upon biometric digital data and the associated risks for citizens of India 

- by Seema Sapra 
ABSTRACT

Under the Aadhaar system, all Indian citizens are being allotted a unique twelve-digit identity number by the State upon obtaining biometric data including fingerprint and iris scans and upon submission and verification of certain demographic data including the name, date of birth and residential address. 

The new identity is different from all previous identity documents issued by the State. While a driving license or a passport were identity ‘documents’ that once issued were in the possession and under the control of the citizen as “original documents”, the Aadhaar number and associated demographic and biometric data is a data entry in a digital database in the possession and under the control of the State and any other entities who might gain access to this database whether with legal authority or otherwise. 

Further the nature of the information that the State uses to identify a person under the Aadhaar system is entirely different from that used under earlier systems of identification. Until now the State relied upon photo-identity cards to determine someone’s identity. Under the Aadhaar system, the markers for identity determination include fingerprints and iris scans. For the first time, biological data not visible to the human eye and inaccessible to and non-decipherable by a lay person or a non-expert, is being obtained from citizens and is being stored digitally in a central repository for all 1.3 billion Indians with the ostensible purpose of identifying them. 

Yes, the citizen is issued an Aadhar card with a number on it, but that card and the photograph on it and the face of the person presenting that card are no longer sufficient for the State to accept that the person is who he or she says they are. The biometric data must match. If the biometric data match fails, then the State will refuse to accept the identity of that person. 

Also, the Aadhaar based identity is ultimately a number in a digital database. That number can be deactivated or even deleted. The database is outside the possession and control of the citizen. If his Aadhaar number in the database ceases to exist, the citizen has no proof of his identity as a citizen. The citizen ceases to exist for the State. 

The Aadhaar related debates have focused on the right to privacy and on the apprehension of surveillance by the State and on issues of the security of Aadhaar databases. But there are more deep-seated concerns about the Aadhaar biometric identification system that I discuss here and which are important to understand how great a threat the Aadhaar biometric identification system poses to the privacy, liberty and security of Indian citizens. 

There are several scenarios in which this digital biometric identification database can fail, be stolen, be leaked, be misused or be manipulated by State or non-State interests to the detriment of citizens and their rights. I discuss how the centralized and digital nature of this database as well as its use of biometric markers of identity which by their very nature are not accessible to or verifiable by ordinary individuals, creates many such scenarios where citizens can lose control over their identity and their very person-hood and be left with no recourse in extremely harmful situations. The greatest threat posed by the Aadhaar system is that citizens will lose control over their identity, they will be unable to establish their identity under certain circumstances, and they will also be exposed to an exponentially higher risk of identity theft. 

The digital Aadhaar biometric identification system it is argued not only violates the right to privacy, but it creates significant risks that threaten the very right to identity and person-hood of Indian citizens and thus the right to citizenship itself. The Aadhaar system fundamentally alters the social contract underlying the Constitution of India by enabling a potentially malevolent State to deny the very identity of “inconvenient” citizens. A cost-benefit analysis of the Aadhaar system, even accepting its stated advantages, cannot justify such immense risks to citizens. 

Thursday, May 11, 2017

The unconstitutional saga of Justice Karnan

Tuesday, 9 May 2017
The unconstitutional saga of Justice Karnan
by Seema Sapra 

The Supreme Court of India has not handled the Justice Karnan contempt case in accordance with the Constitution and the law, including the Contempt of Courts Act. 

J. Karnan had written an open letter to the Prime Minister accusing 20 sitting and retired Judges of the Supreme Court of India and the Madras High Court of corruption. This letter was addressed to the executive and not to the Supreme Court. The Supreme Court ought to have ignored this letter. The writing of such a letter cannot ipso facto amount to contempt of court because the charges made therein could (hypothetically speaking) be true. 

Instead a seven Judge Bench of the Supreme Court issued a contempt of court notice to J. Karnan for the letter but without mentioning it. Ideally J. Karnan ought to have appeared before the Supreme Court and he should have argued the case for his defense and the Supreme Court ought to have heard him. But before any of this could happen, the seven-Judge Bench of the Supreme Court passed an ex-parte order against J. Karnan without notice to him, that directed that he was barred from performing any judicial or administrative functions as a Judge of the Calcutta High Court. This order violated natural justice as it was passed without hearing J. Karnan. This order was not within the parameters of possible orders or punishments under the Contempt of Courts Act. And most importantly, this order violated the Constitution of India.

A High Court Judge like Justice Karnan is appointed under a Presidential warrant and derives his judicial powers directly from the Constitution of India and not from the Supreme Court. A High Court Judge cannot be removed from his office by the Supreme Court. He can only be impeached by Parliament. The Supreme Court cannot do indirectly that which it is prohibited by the Constitution from doing directly. The Supreme Court cannot take away judicial power from a High Court Judge who remains a Judge under a valid Presidential warrant of appointment. The Supreme Court cannot take away judicial powers which it cannot confer. Therefore, the Supreme Court’s orders directing that J. Karnan could no longer function as a Judge of the High Court were illegal and unconstitutional. Note that even in the case of contempt proceedings against lawyers, the Court cannot at the ex-parte stage debar the lawyer from legal practice. 

J. Karnan ought to have appeared before the Supreme Court and ought to have argued why his letter to the Prime Minister could not or did not amount to contempt of court. He should also have argued before the Supreme Court that its orders purporting to take away his judicial powers were unconstitutional and invalid. 

Instead J. Karnan made the mistake of refusing to appear and defend himself before the Supreme Court. Was he being misguided by some lawyers? Was he being drugged? These things happen. 

J. Karnan elected to continue to exercise his judicial powers and passed retaliatory orders against the seven Supreme Court Judges hearing the suo-moto contempt case. While under the Constitution, J. Karnan was technically correct in his position that he was still a High Court Judge who derived his judicial powers from the Constitution, yet strategically these retaliatory orders were a mistake as the executive and the police ignored J. Karnan’s orders. No authority executed his orders. He was functioning without the assistance of the High Court registry. Justice Karnan of course also violated natural justice by purporting to pass orders in his own cause. 

From a purely technical constitutional law position, all of J. Karnan’s orders passed after the Supreme Court order barring him from judicial work, could only have been challenged in appeal. Any other position would defeat the independence guaranteed to High Court Judges under the Constitution. The Supreme Court has set a dangerous precedent in this case: that it can take away judicial powers from a High Court Judge. This position adopted by the Supreme Court of India violates the Constitution which provides that a High Court Judge can only be removed from his position by the Parliament. No doubt the orders that J. Karnan continued to “pass” were problematic, but J. Karnan’s basic understanding of the constitutional position was not incorrect. 

As stated before, the mistake J. Karnan made was in refusing or failing to defend himself before the Supreme Court. This made it possible for lawyers like Fali Nariman, Ram Jethmalani and K K Venugopal to call J. Karnan mentally unbalanced and a “lunatic”. This also led to the Supreme Court being encouraged by K K Venugopal to pass an order that J. Karnan be medically examined to ascertain his mental health. The Supreme Court went on to pass a completely unjustified order directing that J. Karnan be examined by a team of doctors and that the Police provide assistance for such examination. J. Karnan refused to submit to this examination and informed the team of doctors in writing that he was mentally stable. 

J. Karnan’s final mistake was in again failing to appear before the Supreme Court on 9 May 2017. In his absence, the Supreme Court has pronounced him guilty of contempt of court and has sentenced him to imprisonment for the maximum period of six months permitted under the Contempt of Courts Act. This order, it must be pointed out, has been passed without giving J. Karnan a proper hearing. This order appears to have been passed not only for the original letter that J. Karnan wrote but also for all his subsequent actions including his subsequent retaliatory “judicial” orders and his press statements. 

The Supreme Court order dated 9 May 2017 convicting J. Karnan of contempt of court can be read at https://drive.google.com/file/d/0BzXilfcxe7yuaTdwUVNORXQxc28/view
This order states that a detailed order will follow and it does not describe which actions or statements of J. Karnan were used to find him guilty of contempt and why. There is no reasoning in this order. Is it not improper for the Supreme Court to direct a man to be arrested and imprisoned forthwith even before it pronounces a detailed and reasoned order that includes both the facts and the legal analysis necessary to convict that man? 

Having initiated the contempt case, the Supreme Court Judges ought to have compelled J. Karnan’s presence before them using non-bailable warrants if necessary. The Supreme Court should have heard J. Karman and then passed final orders. The Supreme Court should at the very least have asked J. Karnan the question – why did he write the ‘offending’ letter that was the reason for the suo-moto contempt notice issued to him. 

I fear that J. Karnan will be drugged and maybe even poisoned in prison during these six months and he will not be himself when he is released. 

All in all, the entire affair is unfortunate. The Supreme Court has violated the Constitution. Its orders have damaged judicial independence. No Judge will ever dare to expose judicial corruption fearing the same fate as J. Karnan. The wrong precedent set by the Supreme Court could in the future be used by the executive to seek similar orders against an upright but inconvenient High Court or Supreme Court Judge. Judicial orders could be used in the future to take away judicial powers from any High Court or Supreme Court Judge for any number of possible reasons. 

Parliament’s exclusive powers have been infringed upon by the Supreme Court of India. What if Parliament were to approach the Supreme Court and claim that the Supreme Court had encroached upon Parliament’s territory and trespassed into the domain reserved exclusively for Parliament. The Supreme Court’s orders in J. Karnan’s case violate the principle of separation of powers under our Constitution. 

In the 1990s, the Supreme Court of India used judicial orders to create the extra-constitutional collegium system and it assumed to itself the power to appoint Judges. Now in 2017, the Supreme Court is creating new extra-constitutional powers for itself and is assuming to itself the power to indirectly remove High Court Judges by judicial orders that restrain such judges from exercising judicial powers. Note that this power could also be available against a Supreme Court Judge. Could seven Supreme Court Judges sitting together judicially restrain another Supreme Court Judge from exercising his judicial powers? A precedent has been created which is dangerous for judicial independence. 

The first instance of a sitting High Court Judge being jailed in India is not a case where the said Judge was accused of corruption or wrong-doing. Instead it is a case, where a Judge who accused other Judges of corruption and wrong-doing is being sent to jail, without any inquiry into his complaints of corruption and wrongdoing against these other judges. The system works to protect itself. 

The Supreme Court Judges have also preemptively restrained the media from publishing any further statement issued by J. Karnan. If J. Karnan were to say tomorrow that he was being harassed, drugged or poisoned, will the media not be allowed to report this. If J, Karnan were to issue a press statement tomorrow describing his reasons for writing the letter complaining of corruption or wrongdoing by those 20 Judges and producing evidence in support of his complaints, will the media not be allowed to report this statement involving the public interest. Has J. Karnan being sentenced to civil and social exile or death? And what about the free speech rights of J. Karnan and the rights of the press to report about his future circumstances and actions and the rights of the public to know the fate and thoughts of J. Karnan. The Supreme Court has gagged the Press to protect itself from scrutiny over the J. Karnan matter.