WHY THE PRIVACY RULING MAY BE THE FINEST IN SUPREME COURT'S HISTORY?

When momentous things happen, they usually take a while to sink in. As the nation absorbs the Supreme Court verdict declaring privacy as a fundamental right, its implications would be slow to manifest themselves. I will however venture out on the proverbial limb to say this is probably the finest judgment in the history of the Court. A singular bane of seven decades of governance (if it could be called that) has been the tendency of governments, to quote Ronald Reagan, to run people's lives. Brute parliamentary majorities muzzled their way through excesses of the worst kind, reaching a nadir with Indira Gandhi's Emergency, where even the Supreme Court was found to buckle courtesy its judgment in the Habeas Corpus case (ADM Jabalpur), upholding the suspension of fundamental rights, including the Right to Life. The Court's evolution of PIL Jurisprudence in subsequent decades helped neutralise the inequity somewhat, as did the compromised coalition governments that followed. However, the juggarnaut of the 2014 electoral victory led to misgivings about executive excess, borne out by President's Rule in Arunachal Pradesh and Uttarakhand, the National Judicial appointments Commission that sought to control judicial appointments and the money bill route to pass laws. With cow and JNU added to the mix, the governance picture was not a pretty one. The time was ripe for a churning. Who knew it would come from the offshoot of a petition challenging the Aadhaar project filed by a former High Court Judge?

There are several notable facts in the judgment now, referred to as Justice K.S. Puttaswamy v. Union of India, prominent among which is that it was unanimous, despite having nine minds attending to it. This itself is reassuring for the Court, that its fate is in the hands of those who have no compunction in declaring what is right. Consider also that the Chief Justice of India chose not to pen a piece of his own, leaving his colleagues to author judgments uninfluenced by his views. With six separate judgments, there was always a fear of ambiguity in determining what was actually said. There is no equivocation here. "Privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded", says Justice Chandrachud, with whom Justices Khehar, Agarwal and Nazeer concurred. "Fundamental Rights", says Justice Chelameswar, "are the only constitutional firewall to prevent State's interference with those core freedoms constituting liberty of a human being". Justice Bobde opines that "privacy is inextricably bound up with all exercises of human liberty", Justice Nariman declares that "the inalienable right to privacy resides in Article. 21 and other fundamental freedoms contained in Part. III of the Constitution", Justice Sapre believes that privacy is a right that "is inseparable and inalienable from the human being" and Justice Kaul extols it as an "important, natural, primordial right". There is no cleavage, no reservation, no doubt. Privacy is a core fundamental right. 

Not only was this the single largest Bench of the Supreme Court ever constituted to determine the existence of a fundamental right, but a composite reading shows the bonhomie and unity on the Bench in coming to a common conclusion. References to each other's verdicts are rare in large Bench decisions, but here, the Judges have clearly had the advantage of perusing each other's drafts well in advance, minimising the overlaps and offering an uncluttered view to the reader. One trusts that this healthy trend will continue. Distributed merrily across the 547 pages are several nuggets that would rival an Easter egg hunt. Interpreting the Right to Life and Liberty (Article. 21), the Court attended to two roadblocks (as Justice Nariman refers to it). By a near-unanimous decision, the Court at long last has overruled the dredful A D M Jabalpur decision of the Emergency, which would finally bring peace to the late brave Justice H.R. Khanna, the sole dissenting Judge.

What would come as deliverance for the LGBTQ community however is the express overruling by the majority of the offensive passages of the Naz Foundation case and a declaration that sexual orientation is an inextricable part of the fundamental right to privacy, thereby paving the path to restore the celebrated Delhi High Court judgment on Section. 377. The verdict is also remarkable for its wonderful prose, the myriad resources from across the globe, the illustrations and historical allusions - all of which have carved a clear path for coming generations in understanding and preserving our most basic rights. 

In his dystopian graphic novel V for Vendetta, the legendary Alan Moore puts the following in the mouth of his protagonist, V: "People shouldn't be afraid of their government. Governments should be afraid of their people". With this judgment, the people have been empowered again.

[Based on an article written by Gopal Sankarnarayanan, Supreme Court advocate, who appeared for Centre for Civil Liberties. The article was published in the Times of India dated 27th August, 2017 (Sunday)]. 

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SEX AND THE OFFICE: WHY IT'S COMPLICATED?

Twenty-four year-old Asha Jha (name changed to protect her identity) had just joined a BPO two months ago, much against the wishes of her parents. She wanted her own money and independence, and knew she had to work for it. It is an informal workplace. As the night progressed, jokes flew around, the language was casual. She was fine with all this, but not her boss's intense attention. He often checked her call sheet, listening in on her conversations. She was not sure if the accidental brush of the hand, the pressure on her shoulder as he leaned in, was deliberate. She chose to ignore it. He invited her to dinner and Jha refused. She made her disinterest clear, but the text messages and attention continued. She complained to her seniors, but nothing much came of it. As soon as she could, she sought a transfer.

Why does a woman like Asha Jha not find support and redress when she complains? The law on sexual harassment clearly states that any attention, verbal, physical or even non-verbal, that is 'un-welcome', constitutes harassment. He doesn't have to chase you around the desk Madmen-style or threaten to fire you if you don't sleep with him. It could simply be flirting at the office party, an inappropriate compliment or text message.

And yet, men faced with such allegations frequently say they assumed the woman had consented to the attention and was even enjoying it. In a patriarchal society, where pop culture glorifies male romantic pursuit and ignores the woman's choice in the matter, the crucial concept of consent is still hazy to too many people. In many cases, the person forcing their attention on a colleague is in a position of authority over her - which creates a hostile working environment. Sexual harassment, which was once ignored as a human tangle or the private business of people involved, is now rightly recognised as a closing off of opportunities for women. Now, institutions are legally bound to remedy the situation. The Supreme Court laid down the Vishakha guidelines for working women in 1997, after the gang-rape of social worker Bhanwari Devi in Rajasthan. In 1013, India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

And yet, even new -economy workplaces struggle to understand the seriousness of the matter - as the recent case of The Viral Fever (TVF) CEO Arunabh Kumar shows. They do not grasp the fact that when there is a power imbalance, a man's unwanted advances are straight-up predation. In India, women have had to normalise staring, risque jokes and sexual inuendos, says advocate Devika Singh of Cohere Consultants, who has advised companies in over 400 sexual harassments cases. "We have been taught to compromise, to adjust. It is only when the invitation to coffee turns out to be an invitation for something else, that some women muster the courage to say no", she says. 

An Ernst and Young 2015 survey of organisations found that sixty-nine percent had constituted an internal complaints committee, eighteen percent had not done so and thirteen percent were still in the process of setting them up. The survey indicated that over a quarter of the large companies and half the smaller ones were not compliant with the law, showing their indifference to the issue. In fact, a frequently heard criticism against the sexual harassment law is that it can be used as a weapon by opportunistic women. The EY report claims that companies noted a spike in harassment complaints after appraisals. Industry sources said that the number of such 'fake complaints' were as high as sixty percent. But such accusations effectively malign the woman speaking up for herself. "Bad appraisals could be the proverbial straw that breaks the camel's back. Women might ignore the harassment as long as they feel secure in their jobs, but if their performance is affected, they are motivated to complain", says Singh. Some complain that anonymous blogs, whether the Indian Fowler who took on the TVF head, or the intern who spoke against West Bengal Human Rights Commission Chief Justice Asok Ganguly, level allegations and sully the name of the accused before giving them a chance to legally challenge the allegations.

But a man's reputation, however lofty, cannot override the rights of women working alongside them. "There has to be a reason for those blogs naming and shaming. I think bloggers are well within their rights to speak their mind and the accused to prove their innocence. Do try lodging an FIR as an ordinary aggrieved citizen, you will realise why people use social media as a way to right wrongs", says Sharmila Kher of NGO Sneha.

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SUPREME COURT UPS PENALTY, GIVES MAN LIFE FOR KILLING DAUGHTER.

The Supreme Court awarded life imprisonment on Wednesday to a man, enhancing the ten-year jail term handed out to him earlier, for killing his pregnant daughter who had eloped and got married to her lover belonging to a lower caste. A Bench of Justices Kurian Joseph and A.M. Khanwilkar said the man deserved a severe punishment for the heinous crime as it enhanced the ten-year jail term awarded by the Karnataka High Court. "It would necessarily follow that the accused committed murder of his daughter Shilpa who was in the advanced stage of pregnancy and for which he was liable to be punished with either imprisonment for life or death under Section. 302 of the Indian Penal Code alone. In the peculiar factual background of this case, we do not find it a fit case to impose death penalty", the Bench said.

The man was acquitted by the trial Court, which said there was no sufficient evidence to prove his guilt and many of the witnesses had turned hostile. The trial Court refused  to rely on the testimony of the victim's mother-in-law, an eye witness in the case. The trial Court had said there were discrepancies in her statements. The Karnataka High Court, however, found her statements trustworthy and convicted the accused. 

Concluding that the quantum of punishment given by the High Court was not sufficient, the Apex Court sought his response on why it should not be increased. Sensing the mood of the Court, the convict pleaded that he be allowed to withdraw his appeal but it was rejected and he was awarded life imprisonment. "In the present case, the evidence of mother-in-law has been corroborated by other circumstances and prosecution evidence. That leaves no manner of doubt that the accused not only had strong motive to kill his daughter but was responsible for doing so and excludes the probability of someone else being responsible for her death", the Bench said.

The victim Shilpa, who belonged to the Lingayat community, eloped with Ravi Kumar from the Naik community and got married in Court in 2002. Shilpa then started living with her in-laws. On 03rd October 2003, her father came to her house and killed her.

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SEVEN-YEAR WAIT FOR 'DEATH' MUST.

The Hyderabad High Court has made it clear that expiry of the full period of seven years is essential to presume dead a person (who is a government servant) who has gone missing and has remained untraceable for this period, under the Evidence Act, 1872. A Division Bench comprising Justices V. Ramasubramaniam and G. Shyam Prasad was dismissing a petition by Union of India challenging an order of the Central Administrative Tribunal directing it to pay pensionary benefits and the family pension together with all consequential benefits to one P. Sarojini, wife of a gestener operator in the office of the assistant collector of Central Excise at Eluru, who has gone missing on 07th October, 1992.

While taking into consideration various judgments of High Courts and Supreme Court in similar cases and a circular issued by the Union of India in such a case, the Bench held that wife of the missing person was entitled to all pensionary benefits to her within four weeks. The Bench noted that the circular issued by the Centre on 03rd March, 1989 was in regard to genuine cases of disappearance under normal circumstances and not cases in which officials disappear after committing frauds.

According to Ms. Sarojini, she lodged a complaint on 04th September, 1994 with the police who issued a FIR. The police filed a final report on 06th December, 1997 declaring that her husband was not traceable. On the basis of the said report, and after the expiry of seven years from the date her husband went missing, Ms. Sarojini gave a representation dated on 16th December, 1999 for sanction of family pension.

The authority concerned rejected her application informing her that her husband was removed from service on 10th January, 1997 for unauthorised absence. The Bench, after perusing Section. 108 of the Evidence Act, 1872 which deals with cases of persons remaining untraceable for over seven years, and various judgments in this regard, pointed out that "if the husband of first respondent (Sarojini) is presumed dead from the date he went missing, then the penalty of removal from service would have no effect as it was passed against a dead person".

Meanwhile, a police officer of the city explained that police files a final report before the court after verifying bank transactions of the missing person and also if he had contacted any of his relatives or friends from date of his going missing.

Parameters to be followed while investigating a case of missing government servant:

1. Verification of the post held by the missing person. 
2. Whether any misappropriation or fraud cases are pending against him.
3. Whether he or she was distressed or was facing harassment at the workplace.
4. Publishing of pamphlet with photo of the missing employee.
5. Forwarding details of the missing person along with pamphlet to the Central Crime Records Bureau and State Crime Records Bureau.
6. Keeping vigil on phone numbers of his freinds and relatives, including the wife and children.
7. Verification of bank transactions.
8. Checking possibility for his hideouts.

After following the above parameters, if we find that he remains untraceable, we have to file report before the Court concerned. In some cases, we take more than 90 days if we suspect any foul play in the case. As the final report will bring some relief to the family depending on such missing employee, police personnel follow the procedure scrupulously. - A top Police Official. 

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SABARIMALA TEMPLE - OPEN UP FOR WOMEN.

Should the 1,500 year old Sabarimala Sri Ayyappa temple be opened up to women? The temple authority, Travancore Devaswom Board, cites tradition to say no to women between the ages of 10 to 50 for its sanctum sanctorum. The Supreme Court has rightly cited constitutional guarantees of equality to question why. "Unless you have a constitutional right to prohibit women entry", remarked Justice Dipak Misra, heading a three-member Apex Court Bench on the case, "you cannot prevent them from worshipping at the shrine".

The case is still being heard, but it has already re-ignited old debates about legal secularism, the state and its right to intervene in religion. From political parties to traditionists, a wide social coalition of those who oppose change is bandying around loaded accusations of 'judicial misadventure', charges of disrespect to age-old customs and warnings of adverse consequences if faith is trifled with. Temple representatives have fielded three major arguments in favour of keeping women out. First, they argue, the deity is a 'brahmacharya' and the Constitution mandates that citizen's beliefs should be protected. Second, they cite traditional notions of 'impurity' and 'purity' of menstruating women with the catch-all 'beliefs are beliefs' argument. "In our houses females will not enter the kitchen during those days", Prayar Gopalakrishnan, Head of the Travancore Devaswom  Board, has been quoted as saying.

Third, it is not safe for women to undertake the arduous trek to the shrine. "Why can't people imagine Ayyappan in their thoughts and aspirations and pray to him? Why are women insisting to come to the temple that is in the midst of a jungle?" questions Gopalakrishnan. Well, in that case, why can't men just imagine the deity in their minds too? The safety and impurity arguments are both reflective of an outdated patriarchal worldview where women were expected to play subordinate social roles to men. Shutting women out on grounds of safety signifies a mindset that is unable to come to terms with a new India where women have equal status as men, serve in the army and air force and do not conform to old stereotypes of only being the beti, bahu or grihini. The deity himself was born of a woman - Vishnu in his Mohini form. In a country where the mother goddess in its many forms is venerated across communities, to argue that mestruating women are in some way impure flies not only in the face of modernity and reason but also older traditions that antedate these beliefs. 

From Gargi, who challenged the Sage Yagnavalkya on questions of reason and was hailed as one of the greatest spiritual authorities of her age to Maitreyi, Lopamudra and Romasha, all of whom are said to have composed some of the hymns of the Rig Veda, women in ancient India did not have a subordinate place, nor were they excluded from any spiritual functions. The 'brahmacharya' argument hinges on the question of belief and the right of believers to practice it. Yet, this must pass the test of constitutionality and citizenship rights. Dalits were also excluded from temples, precisely on the belief that their entry was considered polluting, but temple doors were thrown open after the Constitution made caste discrimination illegal. How is discrimination against women different? Article. 15 of the Constitution guarantees that no person shall be discriminated against on the basis of religion, race, caste, sex or place of birth.

Unlike the American Constitution, the Indian Constitution combines Freedom of Religion clauses with a mandate to state to intervene in religious affairs. Article. 25 allows the state to restrict or regulate religious practices. It has done so ever since the Madras Hindu Religious and Charitable Endowments Act in 1951, the first state legislation to put in place an  elaborate regulatory mechanism for Hindu temples and maths.

Since the landmark Shirur Mutt Judgment in 1954, which validated much of that legislation, the Supreme Court over the years evolved a doctrine of 'essential practices' to decide which religious practices and rituals are eligible for constitutional protection and which weren't. It is equally true over the years, the courts have also been criticised for pushing for what scholar Ronojoy Sen calls a 'rationalised form of high Hinduism and de-legitimating usages of popular Hinduism as superestition'. As Rajeev Dhawan and Fali Nariman once argued: "With a power greater than that of a high priest, maulvi of dharmashastri, judges have virtually assumed the theological authority to determine which tenets of fatith  are 'essential' to any faith and emphatically underscored their constitutional power  to strike down those essential tenets of a faith that confilct with the dispensation of the Constitution. Few religious pontiffs possess this kind og power and authority".

While some of these concerns are valid, when constitutional guarantees for personal freedom and religious freedom are in conflict, there is no other agency but the Courts that can adjudicate. The Sabarimala case, along with the ban on Jallikattu and the question of RTE exemptions to minority educational institutions, has once again put a spotlight on the dichotomy between modern notions of justice and equality and older religious practices, across religious. In a country of religious vote banks and in the absence of any political consensus on religious reform, it is up to the courts to evolve a new framework.

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A TEST OF DIGNITY AND DEMOCRACY.

[Based on an article written by Gautham Bhan, writer and sexuality rights activist, published in The Hindu] In 2015, a student at the Indian Institute of Science (IISc) in Bengaluru was blackmailed and threatened with being publicly ousted for being gay. When he refused to pay extortion money, the private letters turned into notices pinned on noticeboards on campus. The words were sharp, relentless and inhumane: "I think it is completely shameful, bad, immoral and disgusting. You should go kill yourself. Why do you think it is illegal to be gay in India?"

Evading prejudice: For many queer people, this moment is familiar. It is one that many of us have faced or live in a constant fear of facing. In some ways, it is the latter that is worse. We live our lives anticipating prejudice. Even before it comes, we are constantly censoring, moving and shaping our lives to evade it or, if we can't, to survive it. Those of us who have the privilege of privacy scan rooms to find allies, weigh what to tell our doctors, measure out information in our offices, and seek safe spaces. Those without this privilege face a much more direct battle to be who they are: an unrelenting and legitimised public violence that falls on working class bodies in our streets, police stations and public spaces. The law is not the only force behind this violence, but it is an important one. "Why do you think", the blackmailer asks, "it's illegal to be gay in India?" When petitioners in the Naz Foundation case argued that Section. 377 of the Indian Penal Code  played an important part in shrouding our lives in criminality and of legitimising violence, this letter was one of many that we wrote against in our heads.

Yet, what happened next is also a story of what has changed since 2001 when the case was filed. The student, at some point, answered his blackmailer. He pinned a reply on the same noticeboard and spoke about not being ashamed of his sexuality. Even before the Delhi High Court judgment of 2009, the language of how we talked about homosexuality and gender identity had begun to - slowly, but surely - shift. When we spoke about our lives, we spoke of dignity, not obscenity; of persons, not acts; of friendship, the fixed and dichotomous; of a full human life. We fought our demons, we marched on streets, we made support groups, we sheltered people who ran away. We lost many along the way. Too many. We will lose more still. Yet slowly, even if still incompletely, queer peopel have begun to win the greatest battle of our lives: we have begun to believe that we have the right to have rights. We have begun to believe that we have the right to dignity, the right to our bodies, the right to be happy. Whether these rights come through law or through struggle, they will come. In a moment where there are so many that are made to believe that they are redundant and negligible, the value of this cannot be underestimated. The Delhi High Court judgment made us believe it that much more - perhaps another generation has inherited only some of our fears. You cannot blackmail someone, said the student who isn't ashamed.

Why a curative petition: So then why does the curative hearing against Section. 377 matter? The answer is the most basic principle of the quality and humanity of democracy: dignity shoul not be a test. It should not take acts of courage, of defiance. For every queer person like the IISc student who wrote back to his blackmailer, there are dozens who didn't, who can't. Professor Ramchandra Siras is not with us today. That law may not change our lives overnight, but neither can we undermine its oppressive force and what it takes to survive it. To be queer in India today requires an astonishing amount of economic, gender, and caste privilege. When dignity requires privilege, democracy has lost its way.

To make queer lives ordinary will take a number of different fights. The law is one such fight, and it is a critical one. In our lives, we feel the law not just as prosecution but as a moral register and ethical compass. It tells us how to think about ourselves and tells others how to think about ourselves and tells others how to think about us. It stands behind the gang rape in a police station, the forced convention therapy in the psychiatrist's office, in the drawing room of the family which disowns a gay child or forces a queer woman to marry.

It speaks not just to queer people but to the worlds we inhabit. From one of the most powerful paragraphs of the 2009 Delhi High Court judgment: "For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. While recognising the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely, and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times". 

The judges in Naz Foundation sought to use the law to build a space around our lives that would embrace, protect, nurture and even love queer people. They never spoke of tolerance. They imagined law at its best, its highest form, as a space that would not just protect difference but value it. When they asked us to embrace our constitutional morality, they gave us a way to be democratic - to separate our personal beliefs, our personal moralities, our faith, from our duties as citizens in a plural, open world. They urged us to breathe life into the spirit of our Constitution. They argued that the Supreme Court must, of all institutions, stand first and foremost to defence this spirit, to infuse the frozen letters of law with meaning and hope, to lead in a society scarred by layers of inequality and injustice. They argued that it should not need violence for us to want to ensure the dignity of our fellow citizens. They reminded us and themselves that they stand behind the rights inherent in us, and seek only to expand and protect them. 

If we lose Naz, it is not gay rights we lose. We lose this imagination of our Constitution, of our Court, of law and of the possibility of justice. We lose our ability to make dignity ordinary and injustice rare. We lose law at its most powerful and return it to its most penal.

Today, as the Court hears the curative petition, it has an opportunity. An opportunity to defend not a 'miniscule minority' but a democracy we all share. An opportunity to remember its promise to be the last resort of the bewildered and the oppressed, to remember that rights expand and grow and that they cannot be, must not be, take back and shrunk. An opportunity, more than anything, to write back to the blackmailer's letter and tell its author that they will not let dignity be the domain of the few and injustice the everyday of the many.

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