📰 Plea for early Aadhaar hearing
With deadline for enrolment nearing, petitioners seek urgent resolution of case
•The petitioners in the Aadhaar case is expected to make an urgent mentioning before a Bench, headed by Chief Justice of India Dipak Misra, on August 29 for an early decision on the validity of the scheme.
•The urgency is due to the fact that September 30 is the deadline for the public to enrol themselves in the Aadhaar scheme for accessing welfare benefits.
•The Centre had earlier extended the June 30 deadline till September 30 for those who are availing themselves of the benefits of welfare schemes without Aadhaar.
•A five-judge Constitution Bench, led by J.S. Khehar who demitted office as Chief Justice of India on Monday, was considering the validity of the scheme. The hearing before this Bench came to a standstill after the court wanted to first know whether or not the right to privacy is a fundamental one.
A shot in the arm
•The question was referred to a nine-judge Bench that unanimously ruled on August 24 that privacy is a fundamental right inherent to life and personal liberty.
•Bolstered by this judgment, the petitioners, represented by senior advocate Shyam Divan and Vipin Nair who have argued that the biometric details collected under the Aadhaar scheme violated bodily and informational privacy, want an early resolution of their case. With the retirement of Justice Khehar, Chief Justice Misra will have to re-configure the Constitution Bench handling the Aadhaar case.
‘Constricts freedom’
•The petitioners have challenged the validity of over 17 government schemes that required Aadhaar. They said the mandatory requirement of Aadhaar for these schemes “constricts rights and freedoms which a citizen has long been enjoying unless and until they part with their personal biometric information to the government.”
•The petition termed the Aadhaar Act of 2016 unconstitutional and contrary to the concept of limited and accountable government.
•“Collection of biometric data, including fingerprints, and storing them in a central depository per se puts the state in an extremely dominant position in relation to the individual citizen,” the petition said. “Going by the stand of the UIDAI itself, the number of cases in which de-duplication resulted in the rejection of an application for an Aadhaar number is to the tune of nine crore out of around 100 crore enrolments. The number, nine crore, is just a little less than the population of Bihar and twice the population of Odisha as per the 2011 census,” it said.
📰 Doklam standoff ends as India, China step back
MEA says the process of disengagement by border personnel is almost complete; Beijing promises to make ‘necessary adjustments’
•After weeks of diplomatic negotiations, India and China agreed to disengage from the standoff on the Doklam plateau, disputed between China and Bhutan, with a formula that saw China promise to make “necessary adjustments” to their troop deployments, after Indian troops withdrew back to their posts in Sikkim on Monday.
•According to a statement issued by the Ministry of External Affairs, the process of disengagement by border personnel had been “almost completed under verification” from both sides by Monday evening, indicating that no more troops were expected on the face off point at Doklam, which reverted to status quo ante June 16.
Essential pre-requisite
•“Peace and tranquility in the border areas is an essential pre-requisite for further development of our bilateral relationship,” affirmed the MEA, which issued two statements on Monday.
•“The Indian side has pulled back all its personnel and equipment to the Indian side of the boundary. In the light of the changes of the situation, on the ground, China will make necessary adjustment and deployment,” Chinese foreign ministry spokesperson Hua Chunying also said at a briefing on Monday. The agreement comes a week before Prime Minister Narendra Modi’s visit to China to attend the BRICS summit from September 3 to 5. It also paves the way for a one-on- one meeting between Mr. Modi and Chinese President Xi Jinping on September 4, a senior government source confirmed to The Hindu .
•Sources, however, denied reports that Mr. Modi’s visit to China had “ever been in doubt”, pointing to the fact that Indian ministers had attended all BRICS preliminary meetings despite rising tensions on both sides.
•According to them, at the brief meeting between Mr. Modi and President Xi at the Hamburg G-20 summit, the leaders had taken a decision to give diplomacy a chance on the standoff.
•“What is clear is that neither side wanted this dispute to overtake the relationship. What won was diplomacy, and the desire to see the big picture, and those in Beijing predicting war have lost,” said an official speaking of the parleys over the past few weeks, led by Foreign Secretary S. Jaishankar and Indian Ambassador to Beijing Vijay Gokhale.
📰 Centre set to roll out new treatment for encephalitis
Acne drug seen to provide cure for Japanese encephalitis in limited trials
•Weeks after several children died of encephalitis-related complications at the Baba Raghav Das (BRD) Medical College, Gorakhpur, the Centre is looking to introduce a new drug, traditionally used for acne, to deal with the seasonal outbreaks of acute encephalitis.
•Last year the Indian Council of Medical Research (ICMR) said the drug did not appear potent enough to merit being immediately rolled out as a standard treatment for treating patients afflicted with the Japanese encephalitis (JE) virus.
•In 2008, researchers at the National Brain Research Centre (NBRC), Manesar found that minocycline — an antibiotic typically used to treat severe acne — surprisingly seemed to cure rats infected with the JE virus.
•Independent teams of doctors and researchers between 2008 and 2013 have conducted trials on patients and have concluded, that minocycline worked well on patients with AES symptoms, who survived the first day of hospitalisation. According to the studies the drug did not measurably protect patients beyond three months.
•The studies included a trial on 50 patients, time at the BRD Medical College, Gorakhpur itself on the use of minocycline, in specific cases of JE. The researchers found that using the medicine reduced hospital stay but didn’t significantly improve overall mortality.
•The ICMR said last year that the trials showed that the number of patients who seemed to benefit wasn’t “statistically significant” and a larger, more systematic trial at multiple locations was needed to establish the efficacy of the drug. “We’d been planning such a trial for many months…but there wasn’t an ethics committee in place and doctors at the BRD hospital couldn’t get their act together in time,” said Dr Soumya Swaminathan, Director-General, ICMR.
📰 A right for the future
The privacy judgment acknowledges the transformed landscape that the language of rights has to negotiate
•The best works of fiction often contain a sentence that captures the essence of what the work is about regardless of how thick the full book is. So too with legal judgments, even when over 500 pages. They often have a sentence that captures its philosophical and political kernel. In Justice K.S. Puttaswamy (Retd) v. Union of India this can be found in para 121 of the judgment where Justice D.Y. Chandrachud writes, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.” The sentence precedes a critique of judicial embarrassments from the U.S. and India, respectively ( Buck v. Bell where the courts supported state-sponsored eugenic sterilisation and the infamous ADM Jabalpur v. Shivkant Shukla which held that there was no remedy against illegal detentions).
Burden of precedents
•While there is much that will be written about the Supreme Court’s decision holding that right to privacy is a fundamental right under the Indian Constitution, I want to focus on the temporal dimension of Justice Chandrachud’s statement. What notions of time do judges call upon when deciding cases they believe will impact liberties in the future? In particular, how do we understand the nature and dilemmas of judicial innovation which — Janus-faced — is bound to the past (by the binding nature of precedent) even as it responds to unfolding and uncertain futures brought about by technological transformations of life?
•Let’s begin with understanding a structural problem that served as the backdrop against which a reference was made to the nine-judge Bench about whether the right to privacy is a fundamental right in India. Like in other instances such as free speech, the Supreme Court has often found itself bound by decisions of larger Benches (constituted at a much earlier time when the court’s rosters had not been as stretched as they are today). The central dilemma is, what are courts to do when they find themselves curtailed by judgments given by larger Benches which are binding by virtue of the Bench strength but otherwise wholly inadequate in terms of their jurisprudential grounding as well as their political consequences? In the present case this was manifested in the form of two judgments ( M.P. Sharma , a 1954 decision of an eight-judge Bench, and Kharak Singh , a 1962 six-judge Bench decision) — both of which had held that there is no fundamental right to privacy.
•Kharak Singh was an ambiguous judgment, with the first half of the judgment seemingly making a case for privacy and the second half undoing itself on formal grounds. In his opinion (written on behalf of Justices J.S. Khehar, R.K. Agrawal, and S. Abdul Nazeer), Justice Chandrachud provides us with a fascinating history of the doctrinal evolution of the right to privacy to India. While M.P. Sharma and Kharak Singh had held that the right to privacy was not a fundamental right in India, the subsequent history of the doctrine as it emerged in future cases decided by smaller Benches is a story of adaptation, mutation and often fortuitous misinterpretation.
•The turning point was in Gobind v. State of Madhya Pradesh (1975) where a three-judge Bench, while staying shy of declaring a right to privacy, nonetheless proceeded with the assumption that fundamental rights have a penumbral zone and the right to privacy could be seen to emerge from precisely such a zone, and they argued that if it were considered a right, it would then be restricted only by compelling public interest. In an erudite paragraph that leaps out of the judgment, Justice K. Matthew observed, “Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.” This prescient observation and its reference to the temporal dimension of problems reiterate the difficulties that courts face when yoked to dated principles and yet compelled to respond to contemporary problems. It is also equally applicable to Gobind itself, which benefitted philosophically from Griswold v. Connecticut that was decided after M.P. Sharmaand Kharak Singh.
Working around constraints
•How then do courts adapt and innovate within a set of formal constraints? It would be helpful to use an analogy from urban studies. Solomon Benjamin and R. Bhuvaneswari in their work on urban poverty argue that in contrast to visible strategies of democratic politics such as protests, the urban poor also engage in ‘politics by stealth’ — a form of participation which relies on a porous and fluid approach that responds to stubborn structures such as the bureaucracy by sneaking up inside them, adapting and slowly transforming the structure itself. Might we think of the history of privacy jurisprudence as a form of ‘doctrine by stealth’ in the best sense of the term? The judgments of the court post the trilogy of Sharma-Kharak Singh-Gobind are simultaneously a story of such adaptations even as they serve as an inventory of new technologies of power and control. Thus in PUCL v. Union of India (1996) the court said privacy is not a fundamental right, but telephone conversations are such an integral part of modern life that unauthorised telephone tapping would surely violate the right to privacy. In the Canara Bank case (2004), responding to the expectation of privacy for voluntarily given information, the court transformed the legal fiction that the Gobind decision was based on (“assuming privacy is right”) into putative reality by attributing to Gobind the holding that privacy is indeed an implied right.
•Critics of the Supreme Court may argue that this haphazard development of doctrine can have disastrous consequences in terms of a theory of precedents and some aspects of the court’s track record (where it often ignores its own precedents) would certainly support such a critique. Yet at the same time, looking at the diverse contexts in which the question of privacy has been adjudicated (validity of narco analysis, intrusions by media, sexuality as identity, safeguards of personal data, etc.), one cannot but appreciate the necessary distinction between a hierarchical command structure-bound approach to judicial innovation versus an evolutionary perspective that is able to accommodate contingencies by adapting.
A future-ready right
•Senior advocate Arvind P. Datar describes the judgment as articulating a right for the future — an apt characterisation to which I would add a further question: what kind of (present) futures will such a right speak to? The numerous historical references to media, urbanisation and technology in the judgment intimate a judicial intuition of the transformed landscape of personhood that the language of rights has to negotiate and a recognition of the challenge of living in what French philosopher Gilles Deleuze terms control society, where surveillance is not about the eavesdropping constable but self-submission to mandatory ID cards and corporate-owned computer servers.
•The judgment might then be the first instance of the articulation of a human right in a post-human world (where the human as a natural subject finds herself inseparably enmeshed within techno-social networks). In that sense the location of the right to privacy within a natural rights tradition by the court seems a little archaic and romantic. For a judgment that is refreshingly unapologetic about its philosophical and jurisprudential ambitions, one hopes that in addition to the regulars of the liberal canon (John Locke, John Stuart Mill, Ronald Dworkin) one will start seeing the slow appearance of philosophers from science and technology studies if we are to truly articulate a jurisprudence for the future. But for now, let’s celebrate the first steps which this judgment takes.
📰 Agreeing to disagree
Diplomacy has paid off in ending the Doklam stand-off, but India and China must repair ties
•The separate announcements by India and China that the Doklam military stand-off has ended are a welcome sign that diplomacy has prevailed over the harsh rhetoric of the past 10 weeks. The measured tone of the statement from New Delhi, referring to the “expeditious disengagement of border personnel” as part of the understanding between the two countries, shows that the government’s policy of pursuing diplomatic measures in the face of China’s angry rhetoric was wise. In turn, China’s statement, which said that Indian troops had withdrawn from the disputed Doklam plateau while Chinese troops continue to patrol the area, gives Beijing the latitude it requires to end the stand-off peacefully. The differing versions and the lack of further information leave several questions unanswered about the terms of the disengagement. But the very fact that both countries have been able to issue statements — even if they were designed to satisfy their domestic audiences — suggests that in diplomatic negotiations, each took into account the other’s constraints. In issuing statements that were inconsistent with each other, both sides seem to have agreed to disagree. To that end, the importance lies less in the detail but in the détente itself, in the decision by the leaderships of both countries to pull back from what some feared could escalate into a full-blown conflict. In this, it must be noted that New Delhi and Beijing have respected the wishes of the Bhutanese government, which wanted an early end to the crisis before the bitter winter set in.
•One hopes the decision on Doklam, which comes a week before Prime Minister Narendra Modi is scheduled to go to China, will guide the bilateral spirit beyond the September 3-5 BRICS summit to be held in Xiamen. Once Mr. Modi and Chinese President Xi Jinping have met, diplomats must begin the heavy lifting required to repair the rupture in ties over the past few months, beginning with the cancellation of the Nathu La route for Kailash-Mansarovar pilgrims. Statements from China during the stand-off indicate that it no longer recognises the gains made in the Special Representative talks in 2012. Nor does it regard the India-Bhutan-China tri-junction near Batang-La to have been settled. India has made it clear that it does not consider the Sikkim boundary settled either, and both sides will have to walk swiftly to come back to some semblance of an accord on such basic issues before they can move further. India and China must revert to the spirit of the Border Defence Cooperation Agreement of 2013, which laid down specific guidelines on tackling future developments along the 3,488-km boundary the two countries share. The past two and a half months are also a lesson that India cannot be unprepared for “another Doklam”, as Chief of the Army Staff Bipin Rawat said on Sunday. India must necessarily “hope for the best, and prepare for the worst”, when it comes to tensions with its northern neighbour.
📰 ‘Reform labour laws to ease compliance’
Norms are onerous: NITI Aayog survey
•The government should reform labour laws and make them more flexible to make it easier to do business in the country, the NITI Aayog said in an Ease of Doing Business report.
•The report, based on an enterprise survey of 3,276 manufacturing firms, was prepared jointly by NITI Aayog and IDFC Institute and released on Monday by Union Minister for Law Ravi Shankar Prasad and Minister of Commerce and Industry Nirmala Sitharaman.
•“According to our survey’s finding, firms in labour-intensive sectors find compliance with labour-related regulations particularly onerous. This fact translates into enterprises avoiding the labour-intensive sectors,” according to the report.
•The survey found that more enterprises in labour-intensive sectors reported that finding skilled workers, hiring contract labour and terminating employees was a major or a severe obstacle.
•Such sectors also reported a significantly higher average time taken for environmental approval and more days lost due to strikes and lockouts, it said.
