THE HINDU EDITORIAL – 28th AUGUST 2017

a) Agreeing to disagree

          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 In turn, China’s statement, which said that Indian troops had withdrawn from the disputed Doklam plateau while Chinese troops continue to patrol the area, gives Beijing the latitude it requires to end the stand-off peacefully.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.

b) A right for the future

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. Sharma and 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 SharmaKharak 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.

Words/ Vocabulary

1) Rhetoric

Meaning: The art of effective or persuasive speaking or writing, especially the exploitation of figures of speech and other compositional techniques.

Example: He is using a common figure of rhetoric, hyperbole.

Synonyms: Expression, Delivery

2) Expeditious

Meaning: Done with speed and efficiency.

Example: An expeditious investigation.

Synonyms: Speedy, Swift, Quick

Antonyms: Slow

3) Disengagement

Meaning: The process of separating or releasing something or of becoming separated or released.

Example: The mechanism prevents accidental disengagement.

Synonyms: Disconnection, Retirement

Antonyms: Attachment, Connection

4) Constraints

Meaning: Stiffness of manner and inhibition in relations between people.

Example: “They would be able to talk without constraint”

Synonyms: Inhibition, Uneasiness

Antonyms: Openness

5) Détente

Meaning: The easing of hostility or strained relations, especially between countries.

Example: His policy of arms control and detente with the Soviet Union.

6) Full-blown

Meaning: Fully developed.

Example: The onset of full-blown AIDS in persons infected with HIV.

Synonyms: Fully fledged, Complete

Antonyms: Partial

7) Bitter winter

Meaning: Difficult or unpleasant to accept or admit.

Example: Some of the worst fighting in World War II was here in the bitter winter of 1944-45.

8) Rupture

Meaning: Breach or disturb (a harmonious feeling or situation).

Example: Once trust and confidence has been ruptured it can be difficult to regain.

Synonyms: Sever, Break

9) Recognises

Meaning: Identify from knowledge of appearance or character.

Example: Pat is very good at recognizing wild flowers.

Synonyms: Identify, Know

Antonyms: Forget

10) Semblance

Meaning: The outward appearance or apparent form of something, especially when the reality is different.

Example: She tried to force her thoughts back into some semblance of order.

Synonyms: Appearance, Approximation

11) Essence

Meaning: The intrinsic nature or indispensable quality of something, especially something abstract, which determines its character.

Example: Conflict is the essence of drama.

Synonyms: Quintessence, Soul, Spirit

12) Critiqued

Meaning: Evaluate (a theory or practice) in a detailed and analytical way.

Example: The authors critique the methods and practices used in the research

13) Liberty

Meaning: The state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views.

Example: Compulsory retirement would interfere with individual liberty.

Synonyms: Independence, Freedom

Antonyms: Dependence, Subjugation

14) Consigned

Meaning: Deliver (something) to a person’s keeping.

Example: He consigned three paintings to Sotheby’s.

Synonyms: Assign, Allocate

15) Embarrassments

Meaning: A feeling of self-consciousness, shame, or awkwardness.

Example: I turned red with embarrassment.

Synonyms: Awkwardness, Self-consciousness

Antonyms: Confidence

16) Eugenic

Meaning: The science of improving a population by controlled breeding to increase the occurrence of desirable heritable characteristics.

Example: I wasn’t a proponent of eugenics until I became a teacher.

17) Detentions

Meaning: The action of detaining someone or the state of being detained in official custody.

Example: The fifteen people arrested were still in police detention.

Synonyms: Custody, Imprisonment, Confinement

18) Temporal

Meaning: Relating to worldly as opposed to spiritual affairs; secular.

Example: The Church did not imitate the secular rulers who thought only of temporal gain.
Synonyms: Secular, Non-spiritual

Antonyms: Spiritual

19) Dilemmas

Meaning: A situation in which a difficult choice has to be made between two or more alternatives, especially ones that are equally undesirable.

Example: He wants to make money, but he also disapproves of it: Den’s dilemma in a nutshell.

Synonyms: Predicament, Difficulty

20) Curtailed

Meaning: Reduce in extent or quantity; impose a restriction on.

Example: Civil liberties were further curtailed.

Synonyms: Reduce, Cut

Antonyms: Increase, Lengthen

21) Jurisprudential (adjective)

Meaning: The study of law and the principles on which law is based.

Example: Canada has a jurisprudential tradition of protecting human rights.

22) Consequences

Meaning: A result of a particular action or situation, often one that is bad or not convenient.

Example: Scientists think it is unlikely that any species will actually become extinct as a consequence of the oil spill.

Synonyms: Outcome, Result

Antonyms: Cause

23) Manifested

Meaning: Be evidence of; prove.

Example: Bad industrial relations are often manifested in strikes.

Synonyms: Evidence, Indicate

Antonyms: Mask, Deny

24) Ambiguous

Meaning: Not clear or decided.

Example: The election result was ambiguous.

Synonyms: Equivocal, Ambivalent

Antonyms: Unambiguous, Clear

25) Fascinating

Meaning: Extremely interesting.

Example: A fascinating book.

Synonyms: Captivating, Absorbing

Antonyms: Boring, Dull

26) Doctrinal

Meaning: Concerned with a doctrine or doctrines.

Example: Doctrinal disputes.

27) Fortuitous

Meaning: Happening by chance rather than intention.

Example: The similarity between the paintings may not be simply fortuitous.

Synonyms: Chance, Unexpected

Antonyms: Predictable

28) Nonetheless

Meaning: In spite of that; nevertheless.

Example: The rally, which the government had declared illegal, was nonetheless attended by some 6,000.

29) Penumbra

Meaning: The part of a shadow, especially one made by something blocking the sun, in which only part of the light is blocked.

Example: In a lunar eclipse, the outer shadow or penumbra is a zone where Earth blocks a portion of the sun’s rays.

30) Compelling

Meaning: Evoking interest, attention, or admiration in a powerfully irresistible way.

Example: His eyes were strangely compelling.

Synonyms: Enthralling, Captivating

Antonyms: Boring

31) Erudite

Meaning: Having or showing great knowledge or learning.

Example: Ken could turn any conversation into an erudite discussion.

Synonyms: Learned, Well educated

Antonyms: Ignorant

32) Subtler

Meaning: (of a mixture or effect) delicately complex and understated.

Example: Subtle lighting.

Synonyms: Understand, Muted

Antonyms: Lurid, Obvious

33) Whispered

Meaning: Speak very softly using one’s breath rather than one’s throat, especially for the sake of secrecy.

Example: Alison was whispering in his ear.

Synonyms: Murmur, Mutter

Antonyms: Shout

34) Yoked

Meaning: Something that connects two things or people, usually in a way that unfairly limits freedom.

Example: Both countries had thrown off the communist yoke.

Synonyms: Harness, Hitch

Antonyms: Unhitch

35) Contemporary

Meaning: Existing or happening now.

Example: Although the play was written hundreds of years ago, it still has a contemporary (= modern) feel to it.

Synonyms: Modern, Present

Antonyms: Old-fashioned, Out of date.

36) Porous

Meaning: (of a rock or other material) having minute interstices through which liquid or air may pass.

Example: Layers of porous limestone.

Synonyms: Permeable, Penetrable

Antonyms: Impermeable

37) Stubborn

Meaning: Difficult to move, remove, or cure.

Example: The removal of stubborn screws.

Synonyms: Indelible, Permanent

38) Sneaking Up

Meaning: To get very near someone before they notice you.

Example: Don’t sneak up on me like that!

Synonyms: To move

39) Jurisprudence (noun)

Meaning: The theory or philosophy of law; a legal system.

Example: American jurisprudence.

40) Trilogy

Meaning: (in ancient Greece) a series of three tragedies performed one after the other.

Example: The Aeschylean trilogy.

41) Putative

Meaning: Generally considered or reputed to be.

Example: The putative father of her children.

42) Haphazard

Meaning: Lacking any obvious principle of organization.

Example: The music business works in a haphazard fashion.

Synonyms: Random, Unplanned

Antonyms: Methodical, Systematic

43) Perspective

Meaning: A particular attitude towards or way of regarding something; a point of view.

Example: Most guidebook history is written from the editor’s perspective.

Synonyms: Outlook, Viewpoint

44) Accommodate

Meaning: Fit in with the wishes or needs of.

Example: Any language must accommodate new concepts.

Synonyms: Help, Serve

Antonyms: Hinder

45) Articulating

Meaning: Express (an idea or feeling) fluently and coherently.

Example: They were unable to articulate their emotions.

Synonyms: Express, Communicate

Antonyms: Bottle up

46) Intuition

Meaning: The ability to understand something instinctively, without the need for conscious reasoning.

Example: “We shall allow our intuition to guide us”

Synonyms: Instinct

Antonyms: Intellect

47) Eavesdropping

Meaning: Secretly listen to a conversation.

Example: My father eavesdropped on my phone calls.

Synonyms: Spy, Monitor

48) Enmeshed

Meaning: Cause to become entangled in something.

Example: Whales enmeshed in drift nets.

Synonyms: Entangle, Entrap

49) Unapologetic

Meaning: Not acknowledging or expressing regret.

Example: He remained unapologetic about his decision.

50) Personhood

Meaning: The quality or condition of being an individual person.

Example: His personhood is more important than his gayness.

---

Other Hindu Editorials:

Hindu Editorial 28 August

Hindu Editorial 26 August

Hindu Editorial 24 August