China is not India's enemy - by Seema Sapra

China is not India's enemy, and the Government of India under Narendra Modi should stop making China the enemy only to appease the United States. Both China and India have emerged from two great ancient civilizations with ancient ties. Both China and India have struggled through the present and the previous century to pull billions of people out of poverty, to seek a better life for their combined 2.7 billion people, and to recast the world order that emerged after World War II into a more just and equitable world order. The United States might feel threatened by China's rise, but why should India? Why should India begrudge the hard work and efforts of 1.4 billion Chinese seeking a better life when that is exactly what 1.3 billion Indians are also striving for. Why should India with its anti-colonial and non-aligned past team up with the United States to "contain" China so that US global imperial hegemony is not challenged? India should welcome the possibility of an Asian century and a multi-polar world. 

It is not in India's national interest to make an enemy out of China. We are neighbors. India's path to development and economic growth needs a peaceful and friendly neighborhood and friendly economic ties with China. India and China must work toward attaining a relationship like that shared between Canada and the United States. The entire country of Canada separates the United States from the State of Alaska, yet the mutual trust and friendship between Canada and the United States ensures that the United States does not worry that Canada might annex Alaska. 

India was in violation of international law in the Doklam Standoff, which has just ended with the withdrawal of Indian troops. The Indian Army had entered Chinese/Bhutanese territory without the invitation of either. Bhutan did not endorse the Indian intervention nor said that it was on their invitation. The Bhutan Foreign Office in its Press Release had admitted that Doklam is disputed territory, China claims it as Chinese. Where was the need for India to get 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 the Chinese 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 have applied 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 the United States' disputes with third countries because the US has supported Pakistan? So why apply this principle to China?

India is pushing China in Doklam and elsewhere 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 United States 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 had entered territory that is admittedly disputed between China & Bhutan. So, the aggressor here even according to international law was India. It is good that better sense has finally prevailed upon the Indian Government and they have withdrawn the Indian troops from possible Chinese territory. 

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. 

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.

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

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. 

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. 

Does the tax on sanitary pads in India amount to discrimination by the Indian State against women?

The following post is n response to the blog post by Gautam Bhatia titled "Does a tax on sanitary pads violate Article 15(1) of the Constitution?" at https://indconlawphil.wordpress.com/2017/04/22/does-a-tax-on-sanitary-pads-violated-article-151-of-the-constitution/comment-page-1/#comment-5111

I agree that taxing sanitary pads is discriminatory toward women. However, I would invoke Article 14, Article 15(1) and Article 21 to argue this point. 

Also, Gautam Bhatia's very well-intended discussion of this while very appreciable, labors a bit too much in my opinion, on countering objections that to my mind are objections which are not very convincing to begin with. 

I would put the case like this. Sanitary pads are essential items for menstruating girls and women and the majority of Indian girls and women need to use them for at least 40-45 years of their lives. These are not luxury items but are indispensable for a menstruating female to live with dignity and to participate in human activity and in family and social life. A housewife needs these as much as a schoolgirl as much as a woman who goes out to work and as much as a woman farmer, etc. 

In the 21st century, the right to access and use sanitary pads could well be considered a human right of all women. 

Sanitary pads are also an essential item for reproductive health and overall health and again this will invoke the Article 21 right to life argument. 

Now why does the State exempt goods from tax. If one looks at the list at http://allindiantaxes.com/pdf/23123da1.pdf and probably if one checks the relevant notifications etc., one of the reasons is to exempt those goods that are indispensable for the poor to survive. The State acts as a welfare State here and refuses to tax those goods that are essential for the poor to survive.

Also certain essential items related to human activity are exempt. 

Thus agricultural implements, handicapped aids, bread, charcoal, condoms and contraceptives, electricity, human blood, indigenous soap, newspaper, meat, grains, rakhi, salt, semen, sugar, seeds, textiles, tobacco, toddy, water, clay idols etc., are all exempt from tax. 

The intent behind notifying an item as tax free in such cases appears to be an intent to not burden the consumer with tax because of the nature of the item and its perceived indispensability/ significance to the user or because the State does not want to discourage its use by taxing the item. In these cases, the rationale is to keep the item cheaper for the consumer. 

In some other cases, the rationale is to not burden the manufacturer. 

Now I would argue that sanitary pads are essential for a woman's right to live with dignity and with freedom and also for her overall health, not just reproductive health. A sanitary pad is as essential as condoms and contraceptives. In fact a sanitary pad is more essential as there is no element of choice in the needs for sanitary pads. A man may or may not choose to have sex, but a menstruating woman has no control over her periods. 

I would argue that by failing to apply the same criteria to sanitary pads as to these other items listed above, the State is failing in its duty to treat women with equality and is discriminating against women. 

I would place data and facts before the Court, pointing out how the usage of sanitary pads in India is still very low as compared to other more developed countries. I would show how lack of access to sanitary pads is responsible for the deterioration in the quality of life for girls and women. How it adversely affects their dignity, their freedom, their physical and mental health, their confidence, their self-esteem, their participation in education and in the work force, their ability to travel and move freely, their ability to participate in physical activity, etc. I would use data to show that the high cost of sanitary pads is a factor for their low usage in India. 

I would in fact argue that the State needs to go further and subsidize sanitary pads in India. These should also be distributed free in schools and to other needy women. 

Every accused including Shahbuddin deserves a trial at which he is physically present

The Supreme Court Judgment on 15 February 2017 forcing a video trial on Shahbuddin by transferring him to Tihar jail appears to violate his fundamental right to a fair trial, and to a trial in which he can participate fully. Being physically present inside the court-room is very different from being linked by video conference. In the latter situation, the jail authorities can essentially control when the accused can speak up in Court. His physical condition might also not be fully apparent to the Court and to observers present in Court. The State can misuse a video trial to deprive an accused of his right of full participation. The accused also has the right to observe court proceedings. An accused who is not present in the court-room cannot observe the judge, the witnesses, the lawyers, and everything else that happens in the court-room. 

It is the job of the State to ensure a fair and open trial, and the accused ought not to be deprived of his defence rights because the State fails in its duty to provide a fair trial and to maintain law and order. 

The Supreme Court should also have transferred the trials to Delhi. 

The SC judgment cites the Subramanian Swamy defamation judgment and the balancing of rights doctrine which is a problematic doctrine and the way in which it is applied in Shahbuddin's case is also troubling. 

In its decision, the SC also claimed that it could restrict Shahbuddin's fundamental rights under its broad and inherent powers to do justice. This is another position that the Supreme Court is increasingly adopting and the legitimacy of this position of the Court needs more analysis. 

The judgment can be found at http://supremecourtofindia.nic.in/FileServer/2017-02-15_1487136730.pdf

Disturbing order from the Bombay High Court impugning a child sexual abuse victim

A woman judge of the Bombay High Court granted bail to an adoptive father accused by the adopted girl of prolonged child sexual abuse. The order dated 16th January 2017 disturbs and shocks in how it treats the complaint of child sexual abuse within an adoptive family and in how it labels the child victim as unnatural, as someone with deviant sexual instincts, and by implication as someone who cannot therefore be a victim of sexual abuse. 

I take no issue with the grant of bail to the accused father pending trial. But as I point out below, the Court has without evidence and before trial and without even hearing the victim both judged and condemned the child victim as a sexual deviant who cannot be believed and whose aberrant and dangerous sexuality needs to be policed by the State by housing her in a custodial shelter even as an adult. 

The facts that emerge from the order are as follows. The girl's mother was HIV positive and died in 2006 in a hospital. The girl who at that time was 9 years old or younger was abandoned in a Church compound and ended up in a Christian missionary institution in May 2006. 

The Court order reveals that after admission to this "protective home" the girl at the age of 9 described her life history in a hand written note as requested by the supervisor of the home. Apparently the note disclosed that the girl had been exposed to sexual activity and/or that the girl was sexually aware and/or sexually active even at the age of 9. 

The Bombay High Court Judge read this note written by the girl aged 9 (which is not reproduced in the order) and on that basis proceeded to condemn the child in these terms: 
"Perused the statement written in the handwriting of the prosecutrix. She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts rights from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother". 

Paragraph 3 of the bail order appears to reproduce some facts. The order does not disclose exactly where the Court gets these facts from. The order states that the supervisor of the protective home observed unnatural behavior in the 9 year old girl, she received "several complaints from other inmates about the girl, and after that the supervisor of the home spoke to the girl, and (again in the uncorroborated) words of the Court "found that she had an unwarranted and unnatural behaviour". Note that the Bombay High Court did not examine the supervisor of the protective home who interacted with the victim more than 10 years ago, when the girl was aged 9. 

Paragraph 3 also suggests that after interaction with the 9 year old girl, the protective home did not inform the Police of the likely sexual abuse and exploitation that the child appeared to have undergone, and neither did the protective home have the child examined by a psychiatrist or by an expert on child sexual abuse. 

Instead it appears as if the protective home washed its hands off a disturbed and probably sexually abused girl-child by hurriedly giving up the child in adoption to a woman who knew the girl's mother and to her husband. The adoptive parents were apparently made aware of the girl's "abnormal behaviour" and the order records that the wife was "hopeful" that the child would improve her behaviour after getting love and education. Once again the Court order does not disclose where it obtains these facts from. It is also unclear if this was a legal adoption or if the child was simply handed over to this couple. 

In her complaint made to an NGO when she was 17 years old, the girl disclosed that her adoptive father had begun to sexually abuse her when she was in class VI, i.e., from when she was around 12 or 13 years old; and that he continued to sexually abuse her until she was around 17, when she spoke out using a phone help-line for children run by the NGO.  

The Bombay High Court decision goes on to declare, without a trial, without examining the girl or other witnesses, and at the stage of hearing a bail application, that the statement of the girl does not appear to be truthful and "does not inspire confidence of this Court". The only basis for this conclusion is the Judge's finding that the child was "inherently abnormal and had sexual instincts rights from her childhood" and this is based solely upon the note written by the girl at age 9. The Bombay High Court then proceeds to grant bail to the father. Note below the reasons that the Court cites for granting bail. 
(i) The victim was 17 years old when she complained and there was a delay. i.e. a considerable lapse of time after she was allegedly first abused by her father. 
(ii) The victim did not complain to the supervisor of the protective home. 
(iii) The statement of the victim does not appear to be truthful. 
(iv) The accused is in jail for 15 months, the investigation is complete, the charge-sheet has been filed. 
(v) The victim is in the "protective custody" of the State in another protective home where she has been lodged because of her "abnormal behaviour" even though she is now an adult. 
(vi) The accused is entitled to bail because of the history of the victim. 

I reiterate that the objection is not to the Court granting bail to the father. An accused is entitled to bail especially after the investigation is complete and if the accused is not likely to obstruct the trial or destroy evidence or intimidate witnesses, etc. 

But the objection is to the "determination" by the Bombay High Court that the victim was a sexually abnormal child and is now a sexually abnormal woman, who cannot be believed and who cannot have been sexually abused. The Court refers to the investigation papers; to the note written by the girl aged 9; and to a statement by the supervisor of the protective home where the girl ended up at age 9 and which handed her over to the man, now accused of sexually abusing her over a period of 4-5 years when she was in his custody and living in his home. The Court did not speak to the victim who was probably not even produced before the Court. We never learn what kind of abnormal sexual behaviour the girl (and now the woman) exhibited. But the girl did live in this family for 8 years and possibly also attended school. How socially aberrant can her behaviour have been that requires her to be locked up in the State's protective custody even as an adult and even after the father is released on bail. And how aberrant is her sexual behaviour if she was aware of the fact of her sexual exploitation and sought the help of a child protection NGO to fight back. 

The Bombay High Court has grievously erred in this case. It ought to have sought the opinion of a psychiatrist specializing in child abuse. The girl seems to have spent her early years with her mother where she was exposed to sexual activity and very likely was also sexually abused herself or was groomed for sexual exploitation. Her mother's circumstances or occupation are unknown. There was no natural father in the picture. Abandoned, the 9 year old ended up in a missionary-run protective home, where the supervisor learnt about the signs pointing to previous sexual abuse of this child, but did not report the matter to the Police. The child did not get access to any specialized psychiatric care for abused children nor was she medically examined for sexual abuse. Instead, the protective home hurriedly got rid of a difficult child by handing her over to a family that was probably not vetted properly. In what capacity did the adoptive mother know the child's real mother? Were the adoptive parents aware of the circumstances of the child's likely sexual abuse before she arrived at the missionary-run protective home at age 9? Was the adoption a convenient solution by the protective home to a potentially disruptive situation involving the Police if the child had continued at the protective home? 

It was both insensitive and improper of the Bombay High Court to describe a 9 year old child's disclosure of sexual knowledge and/ or activity as "dirty things" or as abnormal behaviour. Sexual behaviour or sexual knowledge in such a child would suggest the likelihood that the child was either abused herself or was being groomed for abuse. Such a child would be even more susceptible to further sexual abuse because of her distorted sense of self and of appropriate adult-child relationships. She would therefore require specialized counselling, a safer environment. and protracted supervision of her environment to ensure that she is not exploited further. Instead, this 9 year old child was let down terribly by the protective home and by the State. 

One must ask what possible conduct in a 9 year old child in a protective home could be called "dirty"? Did the child talk about sex? Did she describe sexual activity? Did she physically expose herself? Did she masturbate? What possible sexual conduct of a 9 year old girl would render her liable to be labelled an inherently abnormal sexual deviant for life? Or labelled as a female with abnormal sexual instinct? The concerned Judge of the Bombay High Court who reached these conclusions should be directed to read some books on child abuse and to attend a course run by professionals who work with child abuse victims. 

This girl lived with her adoptive family for 8 years. There is nothing to show that the parents considered her behaviour abnormal during these 8 years. Did they ever seek counselling for her? Did she attend school? What was her behaviour like in school? If her behaviour was so abnormal, then surely the school would have raised the issue. 

Yet, after the girl speaks out at age 17 that her adoptive father has sexually abused her for the last 5-6 years, she suddenly becomes such a threat to society because of her "abnormal" sexual behaviour that she has to be confined in a protective home even as an adult.  

And why is the Judge surprised that a child victim of sexual abuse (within the family) that starts at age 12-13 waits until age 17 to speak out. Is this not common and entirely explicable? And how could and why would a 13 year old child living in the custody of her adoptive parents at their home approach the supervisor of the protective home that handed her over to the same parents at age 9? What reason would such a child have to trust or approach the supervisor? Why does the Judge not appreciate the difficulty such a child would have in speaking out especially if she had a distorted sense of self because of earlier sexual abuse and against a parent who exerted power over her and who allegedly exploited her distorted sense of self for his own sexual gratification? 

And why does the Judge not question the need for the adult victim to be housed in protective custody because of what the Judge assumes is her "abnormal behaviour". What kind of "abnormal behaviour" requires an adult woman to be locked up. The Bombay High Court sets the male accused free. He will get a trial and a hearing. But the female victim is locked up ostensibly for her own good and without recourse to any hearing or trial? Has the woman undergone any psychiatric examination? Why is she in custody? What has she done that makes her adult sexual behaviour abnormal? Given the recent news reports on the horrors of State run welfare and protective homes in India (see the Asha Kiran expose), is housing her in such a State-run protective home in her best interest.  

The Bombay High Court has not only violated well established principles of bail law, child protection law, and sexual offences law in its order, but it has also condemned the child sexual abuse victim as a liar and as sexually abnormal and it has done this without even hearing her. This Bombay High Court order destroys the life and reputation of this girl forever. Someone needs to challenge this order before the Supreme Court of India even if the State won't. The order should be challenged not on the issue of grant of bail to the accused, but because of the defamatory statements made by the Judge about the victim, which will not only prejudice the trial, but which wrongly label this young woman as sexually deviant and dangerous. 

The Bombay High Court order is yet another example of how the Law, Indian judges, the Indian police and the criminal justice system approach the issue of the sexual past of a victim of sexual crime; of how female victims are often painted as liars; of how the paternalistic State steps in to police female sexuality; and of how inconvenient women are simply removed from society and incarcerated in protective homes ostensibly for their own protection, but where they languish forgotten until they die.

The Bombay High Court order can be read at https://drive.google.com/file/d/0BzXilfcxe7yudGlDSHZ0djVydHM/view

The Supreme Court should have struck down restrictions on free speech during election campaigns

Several Supreme Court of India decisions from its early years need reconsideration. Some of these are on fundamental rights and on the constitutionality of restrictions on these rights. For instance the Supreme Court's 1980 ruling in Shri Krishna Singh versus Mathura Ahirthat that personal law is immune from challenges on the ground of violation of fundamental rights requires reconsideration and fortunately might be reconsidered in the pending triple talaq case. 

Similarly the ruling in Jamuna Prasad (1954) that Section 123(3) of the Representation of the People Act does not violate the right to free speech under Article 19(1) is also wrong in my opinion. The Abhiram Singh case which the Supreme Court decided on 2 January 2017 is a missed opportunity to reconsider and over-rule Jamuna Prasad on this very important issue of restricting free speech during election campaigning where unarguably there is the greatest need for freedom of speech. 

Section 123(3) prohibits the following kind of speech by defining it as a corrupt electoral practice: 

“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Both the Shri Krishna Singh and the Jamuna Prasad rulings were cursory and un-reasoned in their dismissal of these significant constitutional challenges. 

The Supreme Court stated in Jamuna Prasad regarding Section 123(3):

“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

In upholding the constitutional validity of Section 123(3) of the Representation of Peoples Act, the Supreme Court failed to apply the mandatory test of reasonable restrictions under Article 19(2) of the Constitution of India. This is the constitutionally mandated and the only test to ascertain the constitutional validity of a freedom of speech restriction. And for this reason alone, the decision in Jamuna Prasad is unsatisfactory and requires reconsideration.  

The problem with Abhiram Singh in 2017 seems to have been that the reference to the seven Judge Bench was on a very narrow question of the interpretation of Section 123(3) whose constitutional validity was presumed. The Court therefore had no reason to re-examine the issue of the constitutional validity of this section qua Article 19(1)(a). The fault lies with the lawyers engaged in this matter who ought to have attempted to re-open the issue of the constitutional validity of this provision. 

Justice Chandrachud in the minority dissenting judgment in Abhiram Singh attempts to preserve some aspects of the Article 19(1)(a) right by stating that:

"However, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language." 

Abhiram Singh in 2017 is not only a missed opportunity but it further entrenches the questionable legal position laid down in Jamuna Prasad in 1954. A single unsatisfactory paragraph in the 4 page judgment in Jamuna Prasad which fails to apply the mandated Article 19(2) test to Section 123(3) now stands unchallenged and hence affirmed by a seven Judge Bench of the Supreme Court of India. 

The end result is a very significant and I would argue unconstitutional restriction on free speech in the most important event in a democracy - elections. It also restricts the rights of citizens to influence and change the direction of the Indian Republic and the Constitutional text through peaceful means, i.e., by participating in the democratic process of elections. 

The Supreme Court's ban on electoral identity politics in India ignores the fact that mobilization as a group around identity is a political response necessary to counter historical hierarchies, discrimination, injustices and systemic inequalities which are based upon such identity. Access to resources and opportunities is often determined by religious, caste, ethnic, linguistic and gender identities in India. Political mobilization around caste identities in India has led to political, social and economic empowerment for the historically disenfranchised so-called lower castes. Mobilization around identity creates political voice for the marginalized and leads to healthy outcomes like affirmative action and progressive social change. The majority has an equal right to mobilize politically and our Constitution contains safeguards to protect the minorities from unconstitutional majoritarian demands. Identity based politics is also a necessary precondition for the realization of the universally accepted human right to self-determination. The Court will also find the Abhiram Singh decision impossible to implement. The decision will prove disruptive to election processes and outcomes and will result in more frequent legal challenges to election victories. 

As Prashant Jha points out in his excellent piece in the Hindustan Times, religious identity is an important component of public and social life in India and it cannot be simply dictated away by judicial pronouncement. The Supreme Court's decision is an unwelcome interference in electoral democracy. Hate speech laws already exist to tackle any gross invocation of religion that incites hatred. And political battles over identity in a pluralistic, multi-cultural country like India can only be resolved politically. Jha writes:

"Society’s cleavages will express itself in politics. ...Indian electoral democracy will evolve on its own. Not all its practices may be palatable to us - but imposing artificial bans will not address the impulses which lead to the use of certain categories in politics in the first place." 

It is unfortunate that none of these arguments in favor of identity politics find mention in the Supreme Court's majority ruling in Abhiram Singh. That the majority opinion of the seven Judge Bench penned by J. Lokur failed to even relook at the crucial unconstitutionality argument reflects negatively on the lawyers who argued the case. Why was this argument not pressed? Criticisms of the Supreme Court in failing to uphold fundamental rights and freedoms are now common. But what is still not being pointed out is the failure of the elite, insular and fenced-in Supreme Court Bar in fighting for these liberties and rights. The Supreme Court Bar with its multiple access restrictions, with all its senior advocate privileges, with its celebrity senior advocates, and its advocate-on-record restrictions has unfortunately (since the 1990s) not lived up to its role in advancing a more positive development of constitutional law and fundamental rights jurisprudence in India.