– Seema Sapra
On 14 October 2018, the Supreme Court Registry headed by the present Chief Justice of India J. Ranjan Gogoi issued a circular (merely a week after J. Gogoi assumed the Office of the CJI), notifying a complete change in how the Supreme Court will now deal with preliminary administrative scrutiny of fresh cases filed. Though the new filing and re-filing procedure escaped notice and comment from the Bar perhaps because it got labelled as a mere procedural change, in reality however, the new filing procedure for fresh cases in the Supreme Court is a drastic change from the earlier procedure and the new filing procedure itself violates the fundamental guaranteed right under Article 32 of the Constitution of India to approach the Supreme Court for violation of other fundamental rights.
Until 14 October 2018, a case was deemed to be lodged in the Supreme Court upon filing at the Registry filing counter whereupon a filing diary number was issued. Under the new procedure, a case will not be deemed to be lodged in the Supreme Court upon filing but will only be deemed to be lodged after any filing defects notified by the Supreme Court Registry have been removed and the case is re-filed with these defects removed. Until 14 October 2018, a case filed at the Supreme Court Registry filing counter as evidenced by the issuance of a filing diary number could only be disposed off by a judicial order passed by a Supreme Court Judge even if the Registry had pointed out filing defects. Under the new procedure, a case will not be placed before a Judge until the Petitioner rectifies all filing defects notified by the Registry and if the Petitioner fails to do this within the specified time period, the case will be treated as not having been filed and will not proceed further. Thus, under the new filing procedure, cases filed and in which the Registry notifies filing defects will never face scrutiny by a Judge unless the Petitioner removes the defects. Thus, these cases will be treated as not filed whereas earlier even such cases required a judicial order of dismissal for default passed by a Judge sitting in Chambers.
Why is this important? The right to approach the Supreme Court in case of violation of fundamental rights is itself a guaranteed fundamental right under Article 32 of the Constitution of India. The old Supreme Court procedure was that once filed, a case could only be dismissed by a judicial order even if the Registry had notified defects in the filing of the case. The Registry had no authority to dismiss a case. The old procedure contemplated that any matter filed, even if defective according to the Registry, would remain a case pending before the Supreme Court until it was dismissed by a Judge whether sitting in a Bench or alone as a Chamber Judge. Under the new procedure, if the Registry notifies defects upon filing of a case, the entire record including the original set with sworn affidavit and court fee will be returned to the Petitioner. Under the new procedure, if the case is not refiled after "curing" the defects within the stipulated time, the case will be treated as not filed and will no longer be a pending case. This will effectively end the case without a judicial order unlike in the old procedure. There will also be no court record of such cases in the Supreme Court.
Why is this important and how will the new procedure prejudice the right of a person to approach the Supreme Court for justice? Very often, petitioners-in-person are unable to understand the Registry's objections or to comply with them. Under the old procedure, despite such failure on the part of a petitioner, the petitioner's right to access justice was not defeated because the case remained pending until a judicial order disposing off the case. On any day when cases for such defaults were listed before a Chamber Judge in the Supreme Court, it was common to see petitioners-in-person appearing and telling the Court that they could not cure some defects and usually obtaining judicial orders granting time and even legal help to such petitioners. Very often, lawyers would also get additional opportunities and time to remove filing defects in cases filed through lawyers.
This layer of judicial scrutiny was important because it helped serve the cause of justice and to prevent a miscarriage of justice. There have been cases where the Registry has notified unreasonable or invalid filing defects and objections. There can be cases where a Registry Officer might be prevailed upon by lawyers or a powerful opponent to prevent a case from being heard by creating hurdles in the form of unreasonable or invalid filing objections by the Registry. There are cases where a litigant might for valid reasons be unable to comply with a Registry insistence on meeting a certain requirement. There might be cases of targeted persons or persons who are placed in circumstances where it becomes impossible or it is made impossible for them to rectify their petitions to satisfy the Registry. Imagine a whistle-blower fearing for his life who decides to approach the Supreme Court invoking the right to life under Article 21. He manages to file a petition bringing the evidence to the Court but powerful interests keeping a watch on his activities prevail upon a Registry Officer to create hurdles by notifying unnecessary and invalid defects. Imagine that the whistle-blower is then harmed or prevented from refiling his case and is eliminated. Under the new procedure this whistle-blower’s case will never go before a Judge and since the new procedure contemplates the return of all papers including the original signed petition, there will be no record of this whistle-blower’s petition before the Court.
The Supreme Court Registry is not a judicial body. It performs administrative functions which include scrutinizing new cases filed to verify that they comply with court requirements. The Supreme Court Registry can and does make mistakes. It can also be inefficient. Registry Officers can also be corrupted. Under the new filing procedure, the Supreme Court Registry can exclusively determine without any judicial scrutiny as to which cases comply with court requirements. The Supreme Court Registry can thus prevent a case from ever going before a Judge for judicial scrutiny.
In my view, the new filing procedure curtails the Article 32 fundamental right to approach the Supreme Court in cases alleging violations of fundamental rights. The new filing procedure will also result in injustice in other ordinary cases as the potential for misuse, mistakes, and subversion are enhanced. All petitioners who file petitions before the Supreme Court and especially those who claim their fundamental rights are being violated, deserve and are entitled to a judicial hearing. Under the old procedure, a preliminary hearing before a Chamber Judge was guaranteed. Only the “Court” had the right to dismiss a petition once it was filed and issued a diary number. The new procedure on the other hand empowers the Court Registry to prevent a case from even being filed or heard by a Supreme Court Judge. This amounts to a violation of the Constitutional mandate of Article 32 on the Supreme Court of India.
This is a very important issue with grave implications for access to justice. Article 32 is the bedrock of the Constitution of India. The new procedure flies in the face of Article 32 and therefore must be challenged by way of appropriate writ proceedings before the Supreme Court of India.
Saturday, January 26, 2019
Sunday, November 25, 2018
On this murky business of sealed covers in the Supreme Court of India
Am glad to see Gautam Bhatia focus on this business of sealed covers. Though it has been going on for a few years now and the present Chief Justice of India is not the first Supreme Court Judge to use this device of sealed covers without justification or cause.
A research project on all instances where sealed covers were used by Supreme Court Judges in the last twenty years would be very interesting. The use of sealed covers has certainly become more common though in more recent years.
If I remember correctly, sealed covers were used in the black-money case, in the case of high value debt defaulters, in the Radia-Tata case, and in the Sahara case among several other cases.
In fact, the Police tried to file a mischievous status report in sealed cover in my writ petition in the Delhi High Court as well, Writ Petition Civil No. 1280/2012. I asked for the report to be placed on the public record. This report was intended to be used to target me.
I would like to add the following to this debate.
A democratic system like the one our Constitution establishes and guarantees works on a system of checks and balances or in other words mechanisms of accountability. These checks and balances are required and mandated not just for the executive branch but equally also for the legislative and judicial branches of Government.
One method of providing checks and balances or accountability is by ensuring transparency, openness and public and media scrutiny of governmental action. This scrutiny works by providing for open decision making backed by publicly available reasoning.
Therefore our Parliament is an open institution where parliamentary proceedings are televised and recorded and made available for public scrutiny.
Our executive is also required to be transparent and to provide reasons for decision-making. Administrative and constitutional law serve to hold the executive branch accountable and transparent.
The Judiciary is equally required to be subject to checks and balances. We trust in our judiciary not because of some blind faith in the office of a Judge, or in the oath spoken by a Judge, or in the men who act as Judges; but because the judicial system works and is expected to work in accordance with natural justice, and with due process rules and procedure, and in accordance with the prescribed concept of ‘open justice’ where court proceedings, court decisions and judicial reasoning are all transparent, open to public scrutiny, and ultimately subject to public judgment.The legitimacy of the Judiciary as of other branches of Government ultimately rests on their accountability to the citizens.
Now this frequent and unjustified resort by the Supreme Court to sealed covers, i.e., to documents that are not placed on the public court record and remain secret, is troubling not just because it “infantilizes” the public as argued by Gautam Bhatia, but also because it removes the constitutionally mandated checks and balances imposed on the Judiciary. It transforms our open judicial system and Constitutional Court into a secret, unaccountable and unconstitutional court, where a man sitting as Judge places himself outside the realm of public and judicial accountability and pretends to dispense justice when the very basic requirement of justice that it be open and transparent has been negated.
Secrecy begets corruption and cover-ups. Secrecy allows for extraneous considerations and actors to influence decision making including judicial decision making.
Judges cannot in a democracy simply demand blind faith and trust from the citizen. They cannot demand that we allow them to take judicial decisions in secret and based upon secret reasoning simply because they are Supreme Court Judges, and because we must somehow profess blind faith in their integrity, honesty and competence. The Constitution of India did not create a Supreme Court of unaccountable (even if “benevolent”) dispensers of justice. The Constitution created a Supreme Court that is mandated to follow due process and to be accountable, open and transparent. The Supreme Court must therefore subject its proceedings, its decisions and its reasoning to public scrutiny. This requires that proceedings take place in open court, that court records be open and public, and that decisions be based upon publicly available reasoning, so that the ultimate consumers of justice - "We The People" - who gave ourselves the Constitution and who have created the Supreme Court. remain Supreme and are able to judge the Supreme Court.
Another plank on which this whole sealed covers issue needs to be discussed is from the perspective of the Articles 14, 20 and 21 fundamental rights of Alok Verma, Asthana and other involved CBI, RAW and PMO officials who are all now entangled in this web of intrigue.
Take the CBI Chief Alok Verma as an example: He stands accused of corruption and professional misconduct. He has constitutional and legal rights to due process and to defend himself.
The Supreme Court is denying him these rights by (i) acting as the investigating agency as well as the Court of last resort; (ii) denying him due process rights available under the law; and (iii) compelling him to defend himself in secret proceedings (which are sui generis and are investigative and original and final judicial proceedings all rolled into one), where the charges against him are secret, his response and defence is also to be kept secret, and where the rules of evidence and criminal trials do not apply.
What is really unfortunate is that the veteran lawyers lionized within the legal profession and the media continue to fail to stand up to the Supreme Court on this completely unconstitutional business of sealed covers among other things. This makes the critiques offered by young scholars like Gautam Bhatia even more admirable and brave.
A research project on all instances where sealed covers were used by Supreme Court Judges in the last twenty years would be very interesting. The use of sealed covers has certainly become more common though in more recent years.
If I remember correctly, sealed covers were used in the black-money case, in the case of high value debt defaulters, in the Radia-Tata case, and in the Sahara case among several other cases.
In fact, the Police tried to file a mischievous status report in sealed cover in my writ petition in the Delhi High Court as well, Writ Petition Civil No. 1280/2012. I asked for the report to be placed on the public record. This report was intended to be used to target me.
I would like to add the following to this debate.
A democratic system like the one our Constitution establishes and guarantees works on a system of checks and balances or in other words mechanisms of accountability. These checks and balances are required and mandated not just for the executive branch but equally also for the legislative and judicial branches of Government.
One method of providing checks and balances or accountability is by ensuring transparency, openness and public and media scrutiny of governmental action. This scrutiny works by providing for open decision making backed by publicly available reasoning.
Therefore our Parliament is an open institution where parliamentary proceedings are televised and recorded and made available for public scrutiny.
Our executive is also required to be transparent and to provide reasons for decision-making. Administrative and constitutional law serve to hold the executive branch accountable and transparent.
The Judiciary is equally required to be subject to checks and balances. We trust in our judiciary not because of some blind faith in the office of a Judge, or in the oath spoken by a Judge, or in the men who act as Judges; but because the judicial system works and is expected to work in accordance with natural justice, and with due process rules and procedure, and in accordance with the prescribed concept of ‘open justice’ where court proceedings, court decisions and judicial reasoning are all transparent, open to public scrutiny, and ultimately subject to public judgment.The legitimacy of the Judiciary as of other branches of Government ultimately rests on their accountability to the citizens.
Now this frequent and unjustified resort by the Supreme Court to sealed covers, i.e., to documents that are not placed on the public court record and remain secret, is troubling not just because it “infantilizes” the public as argued by Gautam Bhatia, but also because it removes the constitutionally mandated checks and balances imposed on the Judiciary. It transforms our open judicial system and Constitutional Court into a secret, unaccountable and unconstitutional court, where a man sitting as Judge places himself outside the realm of public and judicial accountability and pretends to dispense justice when the very basic requirement of justice that it be open and transparent has been negated.
Secrecy begets corruption and cover-ups. Secrecy allows for extraneous considerations and actors to influence decision making including judicial decision making.
Judges cannot in a democracy simply demand blind faith and trust from the citizen. They cannot demand that we allow them to take judicial decisions in secret and based upon secret reasoning simply because they are Supreme Court Judges, and because we must somehow profess blind faith in their integrity, honesty and competence. The Constitution of India did not create a Supreme Court of unaccountable (even if “benevolent”) dispensers of justice. The Constitution created a Supreme Court that is mandated to follow due process and to be accountable, open and transparent. The Supreme Court must therefore subject its proceedings, its decisions and its reasoning to public scrutiny. This requires that proceedings take place in open court, that court records be open and public, and that decisions be based upon publicly available reasoning, so that the ultimate consumers of justice - "We The People" - who gave ourselves the Constitution and who have created the Supreme Court. remain Supreme and are able to judge the Supreme Court.
Another plank on which this whole sealed covers issue needs to be discussed is from the perspective of the Articles 14, 20 and 21 fundamental rights of Alok Verma, Asthana and other involved CBI, RAW and PMO officials who are all now entangled in this web of intrigue.
Take the CBI Chief Alok Verma as an example: He stands accused of corruption and professional misconduct. He has constitutional and legal rights to due process and to defend himself.
The Supreme Court is denying him these rights by (i) acting as the investigating agency as well as the Court of last resort; (ii) denying him due process rights available under the law; and (iii) compelling him to defend himself in secret proceedings (which are sui generis and are investigative and original and final judicial proceedings all rolled into one), where the charges against him are secret, his response and defence is also to be kept secret, and where the rules of evidence and criminal trials do not apply.
What is really unfortunate is that the veteran lawyers lionized within the legal profession and the media continue to fail to stand up to the Supreme Court on this completely unconstitutional business of sealed covers among other things. This makes the critiques offered by young scholars like Gautam Bhatia even more admirable and brave.
Monday, August 28, 2017
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.
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.
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.
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.
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
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
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
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