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Archives for : Law

India : The fight for gender equality in the Indian Navy

Image result for transgender  Indian Navy

By Madhavi Gopalakrishnan*

In August this year, proceedings were initiated to discharge Sabi Giri, a sailor with the Indian Navy, on grounds that she had undergone sex reassignment surgery in the previous year. Sabi, who had joined the Navy as an 18-year-old, had felt uncomfortable with her gender identity for some time; in October 2016, she took the decision to fully transition into and present as a female, paying for her surgery out of her own pocket while on leave. When Sabi returned to work twenty-two days later, she contracted a urinary tract infection, forcing her to visit a Navy doctor and to reveal her gender identity.

News reports stated that while her infection was soon cured, her status as a transgender woman quickly became common knowledge. Sabi noticed a marked change in how she was treated; ignored by her former friends, her only contact with other officers was marred by propositions for sex. Once higher authorities got wind of her transition, Sabi’s situation took a turn for the worse: she was placed in a male psychiatric ward for six months. When she was finally released in April this year, authorities continued to dither over what to do, only taking the decision to discharge her in August.

In a statement released by the Press Information Bureau of the Defence Ministry, Sabi’s transgender status became public, and she was continuously misgendered and referred to by her former name. The statement claimed that Sabi “wilfully altered his gender identity from the one he was recruited for at the time of his induction”. The statement offensively concludes that the termination of employment is due to Sabi’s “altered gender status [and] medical condition”, seemingly referring to her involuntary confinement in the psychiatric ward.

Protections for Transgender Persons in India

The judgment in NALSA v. UOI held that the failure of the State to recognize the gender identity of transgender persons would violate Articles 14 and 21 of the Constitution. In rendering its judgment, the Supreme Court observed that members of transgender communities face discrimination in access to housing, education, healthcare, and employment, and therefore the State was “bound to take affirmative action to give them due representation in public services”. In furtherance of this observation, the Court additionally held that Article 16, which prohibits discrimination on the basis of sex in public employment, would apply to the transgender community.

A Private Member’s Bill to give effect to the NALSA judgment was passed by the Rajya Sabha in 2015, and then introduced before the Lok Sabha in August last year. However, the Transgender Persons (Protection of Rights) Bill has been pending ever since, opposed by people across the ideological spectrum. The transgender community itself has objected to several provisions in the bill, which uses offensive and inaccurate language to describe transgender persons, and is widely seen as inadequate to address the unique socio-economic status of transgenders in India.

International Law and Policy on Transgender Rights

Possibly foreseeing that Parliament would put such a Bill on the backburner, the Court in NALSA had further held that, in absence of “suitable legislation protecting the rights of the members of the transgender community…[and without] a contrary legislation, municipal courts in India would respect the rules of international law”. The most comprehensive formulation of the protections available to LGBTQ persons under international law are the Yogyakarta Principles, which explicitly set out the right of such persons to access education, security of person, healthcare, and any such rights usually available to citizens of a nation. The United Nations Human Rights Council (UNHRC) has, in essence, ruled on several occasions that LGBTQ rights are human rights, and that the State cannot discriminate in their treatment of such persons versus other citizens.

NALSA draws from these principles, stating that discrimination against a person on the basis of their gender identity and expression is akin to discrimination on the basis of sex. At present, the rights available to transgender persons even in the international realm are not ‘special’, nor do they prescribe affirmative action programs, but they merely affirm that transgender persons must be treated on par with every other human. The Indian State fails even at this basic requirement of providing constitutionally-available rights to an oppressed minority community.

What about the Navy?

Article 21 states that no person can be deprived of their life and personal liberty, except through procedure established by law. In the instant case, there is no existing law that permits the Navy to confine its employees to a psychiatric ward without any reason, nor is there any reason to believe that such a law would be valid. Moreover, since Sabi has transitioned and identifies as a woman, placing her in the male psychiatric ward violates her right to have her gender identity recognized and validated by the State and is also violative of her right to privacy. While Sabi has not revealed whether she was referred to a military psychiatrist, which is standard protocol for confinement, it is shocking that the response to her transition was to brand her as mentally ill. The recent Mental Healthcare Act defines mental illness as a “substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life”. A transgender person is not mentally ill simply because of their transgender identity. Additionally, the Act has specifically stated that persons confined to psychiatric wards or mental hospitals have the right to information and confidentiality about their illness and treatment, both of which were breached in Sabi’s case.

The Navy Act specifically prohibits women from being employed in service of the Indian Navy, except in non-combatant roles, such as a legal officer or as naval architect. In fact, until recently, women were only permitted to be employed in the Short Service Commission (SSC), which would allow them to only serve for 14 years; it was only in 2011 that the Ministry of Defence permitted women to join the Permanent Commission, which allowed them to serve for a lifetime, and to avail benefits such as pension. However, this meant that the Permanent Commission was still only available to women in the branches of law, naval architecture, and education. However, a bench of the Delhi High Court accepted the contentions of several female officers belonging to the Navy, who were seeking equal rights with their counterparts in the Army and the Air Force, which allow women to serve as both SSC and Permanent Commission; the matter has been appealed and is pending before the Supreme Court.

Sabi herself has pointed out the irony of her situation: while recruited as a young man, she was deemed fit for service, despite not having any prior training. Seven years later, she has a considerable amount of experience in the Navy, but is deemed ineligible solely due to her gender. While the Navy has announced that they plan to formulate a policy for women to serve on warships, they are yet to explicitly engage with the transgender population of the country. However, it is clear that the Navy is open to changing its policy on women serving as active combatants, and hence its decision to discharge Sabi, without making arrangements for her to serve in another capacity, is disheartening. The armed forces have a lot of catching-up to do; their policies do not even recognize the existence of transgender persons, let alone being transgender-friendly.

The Way Forward

Sabi Giri wants to challenge her discharge, and is willing to take the fight for her rights to the Supreme Court. She must be encouraged to challenge the Navy’s treatment of her after her transition, especially her illegal confinement in the psychiatric ward. She should also challenge her discharge as violative of her basic right to equality and gender identity under Article 14. Transgender persons have been continuously recognized as one of the most stigmatized and marginalized communities, internationally and in India. The State must endeavour to promote, rather than restrict employment of this community, and its failure to do so violates the law set down by the Supreme Court of India. The collective number of personnel employed in the Indian armed forces is one of the largest in the world; the armed forces must institute policies that recognize, protect, and encourage transgender people to be part of them.

While we support Sabi in her endeavour for justice, it is also essential to remember that the fight is not over. Parliament continues to ignore the Bill to protect the rights of transgender persons, despite it being introduced more than two years ago. Transgender people continue to be ostracized, harassed, and violated simply for realizing their right to express their gender identity. The Transgender Persons Bill must be amended to include an accurate and sensitive definition of transgender persons, but it is equally important for the State to create a reservation for transgender candidates in the public sphere, as well as offering incentives to private actors who employ and train transgender persons. Finally, it is illogical and discriminatory for the Navy to continue to permit women to only serve in a limited capacity, and it is hoped that this case changes the narrative, and encourage the Navy to get rid of all its discriminatory policies and become a force for equality.

*Madhavi Gopalakrishnan is a remote intern with the Asian Human Rights Commission. She is a final year law student at the Jindal Global Law School, Sonipat.

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My Husband Killed Harshita: Haryanvi Singer’s Sister Comes Forward

Haryanvi singer Harshita Dahiya was shot dead by unidentified assailants at Chamrara village in Haryana‘s Panipat district on Tuesday, 17 October, police said. The Panipat police has launched a formal investigation into the matter.

Three bullets were recovered from Dahiya’s body during the post-mortem – two from the head and one from the chest, Dr Rajeev Maan said. The body was then handed over to the family.

On Wednesday, 18 October, Lata Dahiya, the sister of the deceased, alleged that her husband, Dinesh, had gotten Harshita killed. She told ANI:

She (Harshita) was killed by my husband (Dinesh) because she was a witness in my mother’s murder case

Lata Dahiya. <i>(Photo: ANI)</i>
Lata Dahiya. (Photo: ANI)

“Shot in the Head”

The 22-year-old singer was shot when she was on her way back home in a car at around 4 pm after a performance at a function in the village, police said. “When she was returning, a black car overtook her vehicle near Chamrara and forced it to stop,” Desh Raj, Panipat Deputy Superintendent of Police told reporters.

He said two unidentified men asked the singer’s assistants and driver to step out of the vehicle. The assailants then fired seven bullets, six of which hit Harshita on the forehead and neck, killing her on the spot, police said, adding that the accused fled the scene after the murder.

“They did not target anybody except Harshita. As of now, there is no clarity on the exact number of the assailants. We have got some clues and we are working on them,” the DSP was quoted as saying.

“A team has been formed and the investigation is underway… We will slowly get to the bottom of it,” the DSP said.

Haryana police denied any political or professional enmity behind Dahiya’s murder. The police is going through the deceased singer’s social media posts to examine other possible angles.

Three dance troop members, who left the venue with Dahiya, on Tuesday, are with the police and are cooperating in the investigation.

Haryana police said it has never received any threat complaints from the deceased, and it is now checking with the Delhi police.

When news of the murder came to light, The Indian Express quoted Panipat Superintendent of Police Rahul Sharma as saying that the police suspect Harshita’s brother-in-law, Dinesh, of having played a role in the murder.

Dinesh is currently lodged in Haryana’s Jhajjar jail. “Earlier, she had accused him of raping her. Dinesh is also accused in the murder of her mother. Harshita was a witness in that case. But we are not ruling out other theories,” Sharma told the daily.

Harshita’s cousin, Ravinder Kadyan, said Dinesh killed Dahiya’s mother because she witnessed Dinesh raping Harshita.

Dinesh abducted and raped Harshita in 2014. When her mother was about to appear as the prime eyewitness, she was killed inside the family’s house in Delhi.

Harshita Dahiya’s cousin Ravinder Kadyan. <i>(Photo: <b>The Quint</b>)</i>
Harshita Dahiya’s cousin Ravinder Kadyan. (Photo: The Quint)

When The Quint reached house number 352, in Gali number 10 of Swatantra Nagar locality of Narela in north-west Delhi, a dog was barking inside the locked house. After her mother Prem Devi’s murder in November 2014, Dahiya was living in this 50-yard, two floor house with only her dog for company.

Harshita Dahiya’s house in Narela was locked up.
Harshita Dahiya’s house in Narela was locked up.
(Photo: The Quint)

The singer’s neighbours said no one in the area used to interact with her much. According to one neighbour, Manish Rana, “her actual name was Gita. Harshita was her professional name.”

Harshita’s family in Panipat told the media that the dead body will be taken to her Narela house, but that wasn’t the case. Her sister, Lata, gave a mobile number to media persons in the mortuary.

A person picked up the phone after The Quint dialled the number. Claiming to be a ‘friend of Harshita’ he said Harshita would be cremated at Sanoli ghat in Panipat and won’t be taken to her house in Narela.

Harshita Claimed Her Life Was in Danger

The singer, from Sonipat’s Muhammadpur village, was living with her aunt in Delhi’s Narela. In a recent video on her social media profile, Harshita alleged that her life was in danger.

The 22-year-old’s Facebook timeline is replete with videos of her talking to her audience, many of them upwards of 30 minutes.

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India – Read how this man’s ITR, #Aadhaar and PAN card were misused to secure loans


Do you file ITR every year? Do you have an Aadhaar card? Do you possess PAN card? If the answers to these questions are yes, then this is one story which you can’t afford to miss.

By:  |
Big fraud. (Photos from PTI and stock pics)

Do you file ITR every year? Do you have an Aadhaar card? Do you possess PAN card? If the answers to these questions are yes, then this is one story which you can’t afford to miss. It is the story of a big fraud activity showcasing deep proof of how our identity-related documents – Income Tax Return, Aadhaar Card and PAN card were misused. Reportedly, one 33-year-old Rajesh Panchal, an officer, became a victim of such a big fraud. Panchal filed an FIR at Navrangpura police station in Gujarat’s Ahmedabad against three persons under IT Act for misusing his documents, according to a report in Ahmedabad Mirror. The report says that by misusing copies of the ITR, Aadhaar and PAN documents, the fraudsters tried to secure loans from various banks in the city in the name of Rajesh Panchal. Panchal’s documents were taken by hacking his email ID and password.

What actually happened?

This big incident of fraudulent activity came to light after an alert banker called up Rajesh Panchal to verify the ITR, Aadhaar and PAN documents. Panchal received a call on Oct 7 from Cosmos bank. The bank wanted to verify his role as guarantor for someone seeking a car loan. Panchal was shocked to know this. Panchal reacted that he did not stand as guarantor for anyone. Later, the bank manager called Panchal for meeting and showed him copies of his Aadhaar card, PAN card and ITRs of two years. A person identified Kaushik Shukla had applied for a car loan and showed Panchal as guarantor.

Not only this, it was nothing less than a huge shock when Panchal got to know that his documents were misused to secure loans from seven other banks too.

Taking up the matter, police registered an FIR against the persons named Mahendra Chopra, Rajeshkumar and Kaushik Shukla, adds the report.

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India – ‘Dalits, Muslims must unite to defeat BJP-RSS’

“By 2022, they plan to win majority in Lok Sabha and Rajya Sabha and then they will launch ‘New India‘ sans the present Constitution,” said Ambedkar, while addressing a public meeting organised by Rashtriya Bahujan Hit Rakshak Samiti.

By: Express News Service | Ahmedabad |

Prakash Ambedkar, Dalit leader Prakash Ambedkar, tribal people, tribal people strength, Indian Constitution, indian express newsPrakash Ambedkar said the RSSBJP combine has made Gujarat a laboratory where it wants to eliminate all opponents.

Muslims to join hands and work towards the defeat of BJP not only in elections, but also in its plans to “destroy the Constitution of India”.

“By 2022, they (BJP) plan to win majority in Lok Sabha and Rajya Sabha and then they will launch ‘New India’ sans the present Constitution,” said Ambedkar, while addressing a public meeting here on Bandharan Bachao (Save the Constitution), organised by Rashtriya Bahujan Hit Rakshak Samiti, to commemorate the 85th anniversary of Pune Pact.

He said the RSS-BJP combine has made Gujarat a laboratory where it wants to eliminate all opponents. “It is up to you to either fight them or go with them. The Constitution and Manuvad are two options before you, but your duty is to save the Constitution for the sake of the survival of your generation,” he said.

Ambedkar claimed that BJP governments in many states were outsourcing of jobs where there was no reservation. “Our sole target is to prevent at any cost the RSS-BJP from capturing power, which is the objective of this meeting,” he said. Ambedkar, a former MP, warned that change in the Constitution would mean end to the Dalits’ partnership in the system and governance. “You have to root out those who want to uproot you,” he said. \

He said PM Narendra Modi was pushing for general elections in 2018. “But be any year, he is going to lose, which should be our goal

‘Dalits, Muslims must unite to defeat BJP-RSS’

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Finding Najeeb Ahmad: Teacher says Budaun boy never shied of taking a stand

Najeeb Ahmad, an MSc Biotechnology student at the Jawaharlal Nehru University, went missing on October 15, 2016. A year on, there is no trace of the 28-year-old student. HT travels to Budaun, Najeeb’s hometown, to know more about him.

Nafees Ahmad, the father of Najeeb Ahmed, looks out of the door of his house in Vaidon Tola in Budaun. Najeeb Ahmad, an MSc Biotechnology student of JNU, had gone missing from his hostel on October 15, 2016.
Nafees Ahmad, the father of Najeeb Ahmed, looks out of the door of his house in Vaidon Tola in Budaun. Najeeb Ahmad, an MSc Biotechnology student of JNU, had gone missing from his hostel on October 15, 2016.(Vipin Kumar/HT Photo)

Outside the primary school in western Uttar Pradesh’s Budaun, a seven-hour drive from Delhi, Talat Jalalan elderly school principal recalls the verse from Milton’s Paradise Regained — The childhood shows the man, as morning shows the day.

In order to know the person behind Najeeb Ahmad, the JNU student who had disappeared from the university hostel a year to date (Sunday), HT went to the town where the 28-year-old MSc student had spent his childhood and went to school.

“He was different,” Jalal, the owner and principal of the Budaun Public School says, remembering Najeeb whom she taught when he was in the primary school.

“He never shied of taking a stand. If he felt strongly about an issue he would be ready to take risks. When some kids indulged in mischief and I asked students who did it, Najeeb came forward and named the troublemakers despite knowing that it would earn him the wrath of his classmates,” says Talat, remembering an incident when Najeeb was in Class 5. Najeeb studied at Talat’s school up to Class 8.

Talat Jalal, the principal of Budaun Public School, where Najeeb studies up to Class 8. (Vipin Kumar/HT PHOTO)

Mohammed Asim, who studied with Najeeb from lower kindergarten to the fifth standard, remembers Najeeb telling his friends that he would become a doctor.

Born to a carpenter and a homemaker, his classmates say that Najeeb had always wanted to be a doctor.

Maybe, it was also because he was born and lived in Vaidon Tola. The locality was once home to doctors and physicians in United Provinces, during the British rule. Hence, the name Vaidon, meaning a healer/doctor or a physician and Tola, which translates to a community or a home.

A month, before he went missing, another childhood friend Yasir had met Najeeb in the local market. “We were not in touch for many years. At the market, we recognized each other. He told me he had got admission in JNU. It was a short meeting but he seemed fine.”

Though HT was able to trace anecdotal memories of the young student, Najeeb’s life starts to become a blur once he leaves the village school. At Florence Public School, on the state highway leading to Budaun city, where Najeeb studied till Class 12, not one teacher remembers him. Everyone knew about Najeeb, the Budaun boy who went missing but nobody knew him as a student of the school.

Naveen Kumar Singh, who has been the school principal for past 12 years says, “We did not know he studied here.” Singh could not even recognize him, when we showed him Najeeb’s pictures.



After graduation in Bareilly, around 50 km from Budaun, Najeeb’s journey took him to the Jawaharlal Nehru University. But even in JNU, nobody knows man behind the name. He had only been in the university for less than three months before he disappeared at around noon on October 15, 2016. His classmates in the MSc Biotechnology programme, remember him as a quiet student who liked to keep to himself. His teachers say he was just one among the many faces they greet every year

The only person who remember Najeeb beyond the narrative of the “missing JNU student”, is Mohd Qasim, his roommate at Mahi-Mandvi Hostel. “I did not interacted with him much. We spent maybe just 10-15 days together,” recalls Qasim.

Qasim says Najeeb was an introvert. He spoke of how Najeeb adhered to a strict schedule, which included attending classes, studying after the classes and talking to his mother

“He had no political affiliations, or even expressed any interest in joining any party. I remember I was talking about something, I don’t remember exactly what now, but I had mentioned ‘AISA’ (the left wing All India Students Association) in passing. He asked me ‘Bhai, ye AISA kya hota hai?” recalls Qasim.

While Qasim still holds onto Najeeb’s place at the hostel, in the hope of his return, others on campus are not as sure.

A professor at the School of Biotechnology, where Najeeb had been pursuing his MSc programme, says they do not discuss the case anymore. “I think all of us (the faculty) at some level probably know he might not come back. So we do not discuss the case, even among ourselves,” he says.

Outside the school in Budaun, Najeeb’s childhood friends and locals gathered again. The sight of cameras and hopes that a journalist from Delhi may have news of Najeeb brought them together. The influx of reporters in this otherwise nondescript locality since the last one year also irks a few residents. “What is the use of giving interviews if you cannot find him?” a local tells HT.

Asim Khan, a friend of Najeeb, who studied with him from lower kindergarten to Class 5. He remembers Najeeb telling his friends that he wanted to become a doctor. (Vipin Kumar/HT PHOTO)

Inside the school, Najeeb’s younger brother Mujeeb is talking to another group of journalists from Delhi.

“Najeeb was the brightest among us all. He always ranked in the top five in his class. We had this firm belief that he would make it big some day. He was very excited when he got admission in the big and prestigious Jawaharlal Nehru University (JNU),” says Mujeeb.

One of Najeeb’s childhood friends comes to us. He looks at Mujeeb to make sure he won’t hear the conversation.

Then he asks carefully and softly, “Do you think Najeeb is dead?”

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Maharashtra: 2 officers shifted over Patanjali info #WTFnews

Priyanka Kakodkar

MUMBAIi: Two information officers who helped make public RTI documents on land allotment to Baba Ramdev’s Patanjali Ayurveda in March this year, were transferred less than a fortnight later, raising questions on whether the officials were penalised for their actions.

On March 8, TOI had reported on the shunting of IAS officer Bijay Kumar from the finance department shortly after he questioned the basis of a 75% discount for land awarded to Patanjali Ayurveda Ltd. The report detailing how the price was knocked down, was based on RTI documents. The land belongs to the Maharashtra Airport Development Company (MADC).

The RTI documents were received months after the application was filed and appeals were pursued all the way up to then chief information commissioner Ratnakar Gaikwad. He had summoned then MADC chief Vishwas Patil to appear in person for a hearing on March 3. However, just 12 days later, two public information officers (PIOs) involved in providing the documents were transferred, sources said. Both had attended the hearing.

MADC’s marketing manager Atul Thakare who was PIO of its Nagpur branch was moved to Mumbai. And marketing manager Sameer Gokhale who was a PIO in Mumbai was transferred to Nagpur, sources said.

While Thakare had served in his post for four years, Gokhale was transferred just four months after his appointment as marketing manager, sources said. When contacted, Thakare said, “The erstwhile MD had assured me of a promotion for my work but I got a sudden transfer instead.” Gokhale said, “The transfer may have been for administrative reasons.”

Then MADC chief Vishwas Patil, who has since retired, did not respond to phone calls or messages seeking a response on the transfers. Patil is currently facing scrutiny over his file clearances as chief of the Slum Redevelopment Authority. Chief minister Devendra Fadnavis is chairman of the MADC board.

An MADC official said the transfers may have been routine. “It’s possible the new entrant was sent to our field office in Nagpur and the experienced marketing manager was moved to our head office in Mumbai,” he said.

However, the timing of the transfers has raised concern. “It is a clear case of victimisation for following the law. It will discourage officials from providing information and set a bad precedent,” said Shailesh Gandhi, a former central information commissioner. “The timing…indicate they were deliberate. This goes against the spirit of the RTI Act,” agreed Bhaskar Prabhu, convenor of the Mahiti Adhikar Manch.

The two PIOs had little choice in providing the documents, Prabhu points out. The state information commission can impose a penalty of upto Rs 25,000 on PIOs for denying or obstructing information. It can also recommend disciplinary action. TOI ‘s report had revealed how Kumar had pointed out the lack of detailed calculations to back the 75% discount on land for a food park on MADC land.

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India wake up – Bank Aadhaar linking: RBI never issued any order, reveals RTI

Even as banks are on an overdrive to push customers to link their Aadhaar numbers to bank accounts on the threat of suspending accounts, the Reserve Bank of India (RBI) has told us that it has never issued any such directions. This was in response to a Right to Information (RTI) Act application filed by me. The RBI’s emphatic RTI response makes it clear that the decision is entirely that of the central government.
The RBI’s response says, “The Government has issued a Gazette Notification GSR 538(E) dated 1 June 2017 regarding Prevention of Money laundering (Maintenance of Records) Second Amendment Rules, 2017, inter-alia, making furnishing of Aadhaar (for those individuals who are eligible to be enrolled for Aadhaar) and permanent number (PAN) mandatory for opening a bank account. It may be noted that Reserve Bank has not yet issued instruction in this regard”.
Responding to a specific query on providing copy of the file along with file notings regarding mandatory linking of Aadhaar number with bank accounts, the Reserve Bank stated it “has not issued any instruction so far regarding mandatory liking of Aadhaar number with bank accounts.”
When explicitly asked if RBI had taken permission from the Supreme Court for mandatory linking of bank accounts with Aadhaar number, especially when the apex court had restricted its usage for six schemes, the Reserve Bank stated that is has not filed any petition before the SC.”
Replies from RBI clearly show that it is the Narendra Modi-led National Democratic Alliance (NDA) government, which is frightening and coercing people into linking bank accounts with Aadhaar, under the pretext of preventing money laundering. This reasoning is quite bizarre because it seems to treat every bank customer as money launderer and criminal involved in money laundering, unless they link their Aadhaar number with bank account.
Experts have questioned the legal validity of this action and even moved the Supreme Court alleging contempt of its orders. The SC has restricted usage of Aadhaar to six schemes, where the government is providing some benefits or subsidy to individuals.
The Gazette Notification (GSR 538(E)) is also in contravention with the orders passed by five-judge Bench of the Supreme Court as well as Aadhaar Act 2016. In its order on 15 October 2015, the apex court had said:
“After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11 August 2015, if we add, apart from the other two Schemes, namely, PDS Scheme and the LPG Distribution Scheme, the Schemes like the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11 August 2015. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23 September 2013. We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”
Earlier, the RBI itself had raised serious concerns on Aadhaar in terms of terror financing and money laundering before reluctantly agreeing to the use of the UID in 2011.
The Gazette Notification issued by Department of Revenue under the Ministry of Finance, for mandatory linking of bank accounts and Aadhaar number is in contravention of the Aadhaar Act. Especially, Section 7 of the Aadhaar Act states furnishing of Aadhaar to establish identity for receipt of subsidy, benefit or service for which expenditure is incurred from Consolidated Fund of India.
An individual bank customer, in most cases, uses own money to open or operate the account and not from the Consolidated Fund of India. Also there are a large number of taxpayers, who are not even eligible to receive any subsidy or benefits from any Central Ministry or State Government. Yet, they too are forced to link their self-financed bank account with Aadhaar number.
One circular (No 23111/Gen/2017/Legal-UIDAI dated 15 September 2016) issued by Ajay Bhushan Pandey, Chief Executive of UIDAI about Section 7 says the Central Ministries or State Governments, who wants to use Aadhaar should issue a notification stating the service, benefits or subsidies from the Consolidated Fund of India, which require the beneficiary’s Aadhaar authentication or furnishing proof of Aadhaar. (See image below).
Linking a bank account with an Aadhaar number has no advantage either to the bank or the customer. This is because the customer’s PAN number, which has been issued by the Income Tax Department, is already linked to majority bank accounts. The PAN number actually provides much more information than the Aadhaar number and is linked with all financial instruments of the banks’ customers.
In addition, banks are mandated to strictly follow know-your-customer (KYC) procedure for all its customers. For KYC, the RBI considers passport, driving licence, PAN card, Voter’s ID card issued by the Election Commission of India, job card issued by NREGA duly signed by an officer of the State Government, and letter issued by the Unique Identification Authority of India (UIDAI) containing details of name, address and Aadhaar number as six officially valid documents (OVDs). Explaining the OVDs, RBI says, customers, at their option, can submit one of the six OVDs for proof of identity and proof of address.
What is more serious in this mandatory linkage business is the Government thinking and treatment to every bank customer as money launderer without Aadhaar. That too when the Government machinery has several tools at their disposable to identify any bank account that is used for money laundering purpose.
One such tool used by the Income Tax Department is procuring statement of financial transaction or reportable account (FTRA), previously called as Annual Information Return (AIR). Under FTRA, banks had to furnish information on cash deposits or cash withdrawals (including through bearer’s cheque) aggregating to Rs50,000 or more in a financial year, in or from one or more current account of a person. Additionally, post offices, NBFCs, companies, mutual funds, registrars or sub-registrars, Regional Transport Officers (RTOs), District Collectors and stock exchanges also have to submit high value transactions to the I-T Department.
If the government has all tools and capability to identity money laundering taking place in bank accounts, why then it is forcing each and every account holder to link Aadhaar, which is illegal as it contravenes the Supreme Court orders.
One Dr Kalyani Menon Sen had already filed a petition in the Supreme Court against mandatory linking of Aadhaar with bank accounts and mobile numbers, says a report from The Hindu.
The petition challenges Rule 2(b) of the Prevention of Money-laundering (Maintenance of Records) Second Amendment Rules, 2017 for mandatory submission of Aadhaar number for individual clients, companies, partnership firms and trusts for opening of bank accounts, maintaining existing bank accounts, making financial transactions of and above Rs50,000 and crediting foreign remittance into ‘small accounts’.
The petition says the Government’s move to link bank accounts and mobile numbers with Aadhaar number violates fundamental Right to Privacy and equates citizens, including the elderly, women and students, with money launders.
The apex court is scheduled to hear several linked cases on Aadhaar in November. Hope it considers this forceful linking of bank account with Aadhaar number as well.

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India – ‘We are in kalyug where rakshasas rule’



‘The forces of good are on the run.’
‘But dark times also challenge people to fight.’
‘I believe Indians will rise against these dark times.’

Colin Gonsalves, distinguished lawyer, winner, Right Livelihood Award

Even as he was fighting against the deportation of Rohingya refugees in the Supreme Court came the announcement that Colin Gonsalves, founder of the Human Rights Law Network, had been named one of the four winners of this year’s Right Livelihood Award, often described as the Alternative Nobel Prize.

The distinguished lawyer spoke to Jyoti Punwani about his journey from IIT Bombay to fighting for the wretched of the earth in the apex court.

How did you switch from IIT to the law?

When I was in IIT, the situation was politically very turbulent.

The Jayaprakash Narayan movement was on as was the railway strike. This turbulence percolated down to students.

A Marxist Study Circle was formed in IIT. It was an academic group where a lot of reading took place.

For me, studying a dull and boring course, this was exciting, specially because we had some world class teachers in that study circle.

Why did you choose a ‘dull and boring course’ to study?

My father was an engineer and in those days there was no counseling.

A friend asked me to appear for the IIT entrance exam along with him. So I got into civil engineering. It was purely arbitrary.

But when you switched to law from engineering, surely your parents must have been upset.

My parents were very simple people.

When I got a first class in my ICSE school leaving exam, they were pleasantly surprised.

My father didn’t know what IIT was. Frankly, nor did I.

They just went along with my decision.

I didn’t become a lawyer immediately. I got involved in the housing rights movement. We used to have morchas against evictions, where I was arrested many times.

They (his parents) used to read about my arrest in the papers. And they must have guessed my finances weren’t great — I always took a bus, not an auto, my clothes were old…

I didn’t live at home, I was quite a nomad, living at different activists’ homes. But whenever I went home, they never asked what I was doing.

I was an engineering graduate, but could never send money home. They never said anything about it.

How did you become a lawyer?

After two years in the housing rights movement, I went to meet (trade unionist) Dr Datta Samant. At that time I was living in a textile worker’s chawl at Currey Road (south central Mumbai).

Dr Samant spoke to me very roughly, implying: You middle class people come here to work for some time and then run away.

When he came to know I was a BTech he told me: ‘Better go find a job, don’t fool around.’ But I was insistent, so finally he called his brother Dada Samant and said: ‘What can we do for him?’

I had noticed many workers coming to them with their problems regarding lockouts, strikes. I suggested I could write letters for them. That’s how I started.

I went on to participate in domestic inquiries (against workers) in at least 500 industrial establishments in Mumbai. It was a marvelous experience.

Then a judge in the industrial court told me that if I didn’t become a lawyer I would have no career.

Miltancy is the right approach because in this country there is no respect for the rule of law and for working class people.

Did Dr Samant pay you?

The princely sum of Rs 500 a month for working from 8 am till midnight. But those were the happiest days of my life.

You started off as a labour lawyer?

Yes, even today I do a lot of labour law.

I practised in the Thane industrial tribunal and then in the Bombay industrial tribunal, and then moved to the high court.

I stopped appearing exclusively for Dr Samant’s workers only after his death.

Could you earn much?

I had many cases of Dr Samant’s workers so I was able to lead a decent life.

Dr Samant started me off with Rs 500, but left me with a rich legacy both of experience and of clients. I’ll remain eternally grateful to him.

He was my true guru. He taught me to see the world through the eyes of the working class. Only if you do that, can you do labour law meaningfully.

Dr Samant was much vilified, but he was one of the greatest trade unionists we’ve had.

His definition of militancy was correct — that one should not believe in the law and the court while negotiating workers’ demands. One must be a militant.

I have seen salaries of workers under him go up from Rs 400 to ten times that much just through negotiations.

When I see the salary scales today, some at pre-1980 levels and some even below the minimum wage, I feel all the gains of his period have been wiped out.

Explain: ‘One must be a militant’.

Miltancy is the right approach because in this country there is no respect for the rule of law and for working class people.

The inherent culture of domination lays down that working class people be treated with indignity. They must rise in revolt.

This is a fundamentally evil and unjust system.

What Dr Babasaheb Ambedkar said in 1942 (in his speech at the All India Depressed Classes Conference): ‘Agitate, educate and organise’ is still valid.

Those who see the legal system close up, specially, see that it is all maya.

It is deeply inequitable and actually cruel for working class people. It needs such a radical overhaul that even the best of judges cannot think what kind of change is necessary.

So it will have to be changed only by people revolting against it.

Take a simple thing like a worker being terminated. He cannot approach the court directly, except in Maharashtra. He has to take permission from the labour commissioner before his case is sent to court.

So the labour commissioner’s office has become a cesspool of corruption, with companies ready to pay so that cases don’t go to court.

Now Modi is going to dismantle labour laws. I’m sure if that is done workers will rise in insurrection, just as we rose against the British.

There is little evidence of people rising in insurrection except maybe the Maoists.

There is lot of evidence in remote pockets where the media doesn’t go. There are latent forms of insurrection — you don’t see it because the State is so repressive.

There is so much bitterness, anger and resentment among people that is ground for insurrection.

Converting every social activist into an enemy of the State is the hallmark of this government.

If the legal system is maya, why do you continue with your practice?

Even if it is an illusion as a whole, there are very kind judges who want to change the world and the system, in significant positions in all courts.

Some judges make PILs (public interest litigation) their own cause. And the judgment by a Supreme Court judge covers the whole country, while that by a high court judge covers an entire state.

So, public-spirited lawyers can do good work. The law is an area no human rights organisation lawyer should abandon.

Some cynics say that by using the law you are strengthening belief in the capitalist system. But within capitalism there are areas of combat possible.

In the legal system, decent results are possible.

You get great judgments, but what about the implementation?

There are varying levels of implementation.

The Right to Food judgment was implemented 70%.

The midday meal and anganwadi schemes were about to close in 2000. Under IMF and World Bank pressure, the government had decided to close down the public distribution system.

Then came the PUCL case asking for legal enforcement of the Right to Food, and the Supreme Court’s orders were implemented.

PDS coverage went from 14% to 70%. And in 2013 the Food Security Act was passed.

A lot depends on judges and the media. I tell sceptics — and there is a breed of new law professors who are super sceptics — as long as people are coming to you, people who have no lawyers to defend them, you must defend them.

If someone comes to tell you the bulldozer is coming to my house, will you tell him to fight the bulldozer by himself or give him a lecture on corruption of the judiciary? You would just take up the case.

Why did you move to Delhi?

When I was in Mumbai, the Human rights Law Network had only three or four offices. It was only after I came to Delhi that I could coordinate things and it could grow to 20 offices.

In Mumbai, the labour law field was stagnating because of the closure of factories and textile mills.

In Delhi, I started taking on environmental law and PILs. I found it to be a vibrant city of activists from all over the country.

So you don’t subscribe to the view that young people today are no longer drawn to social causes like the previous generation?

No. A whole generation is coming up with different approaches, maybe not in the field of labour, but all branches: Environment, housing rights, minority rights, Dalit rights. I’m optimistic.

I believe we are in kalyug where rakshasas rule and the forces of good are on the run.

But dark times also challenge people to fight. I believe Indians will rise against these dark times.

As the Sikh activist Jaswant Singh Khalra said: ‘Today when darkness with all its strength thrusts itself over the truth, if nothing else, a proud and noble Punjab is the light that will challenge it.’

He was just a diya, but if all activists become diyas, what will be the result?

The NDA has raised the level of repression enormously.
The amount of surveillance, suspicion and anger against those involved in civil rights and Constitutionally protected work is very very high.
Fear among the people is also very high.

Do you see any difference in the way the UPA dealt with human rights and what the NDA is doing?

There is an element of continuity between the two. The UPA also suppressed civil rights groups and NGOs. Its levels of corruption were astronomical and this affected all its programmes.

But the NDA has raised the level of repression enormously.

The amount of surveillance, suspicion and anger against those involved in civil rights and Constitutionally protected work is very very high. Fear among the people is also very high.

Those who don’t see themselves as enemies of the State like me — I’m just trying by bits and pieces to correct the system; or the hundreds of NGOs and people working for reform in their specialised areas — we are all treated like enemies of the State.

Converting every social activist into an enemy of the State is the hallmark of this government.

Lynchings and hate speech, incitements to kill, are the hallmarks of this State.

Has all this affected the judiciary? The NJAC (National Judicial Appointments Commission) was shot down.

There is pressure to appoint judges of a particular political orientation. The NJAC would have fast-tracked the system of undermining the judiciary.

In two years the government would have appointed hundreds of judges. Now they have to do so in a decentralised fashion, go person by person.

You have recently taken up the Rohingya issue, before that you had taken on the AFSPA in Manipur. Do you get threats?

We get indirect threats.

Sometimes outside court someone walks up to me and says don’t do this. I just tell them that I’m doing my dharm. It is my duty.

They expect hostility and anger; I don’t have any.

I’ve found you have to listen to the other side and debate; people can then get logical answers to questions troubling them.

On the Rohingya issue, Subramanian Swamy in a debate with me on a TV channel raised security concerns. We have to take these concerns seriously, we can’t reply to them by just repeating, ‘Oh this government has an anti-Muslim stand’.

I pointed out that 7,000 Rohingyas live in Jammu. There has been not a single case filed against them. The CM of the state says there are no cases, the police say there are no signs of radicalisation.

So who are these terrorists we are worried about? Can’t you isolate and arrest them?

After the AFSPA judgment (the Supreme Court ruled last year that every death caused by the armed forces in a disturbed area should be thoroughly inquired into), I was accused by some army officers of supporting terrorists, and never condemning the killing of security forces by terrorists. Such judgments affect the morale of the forces, I was told.

I told the officers: If a terrorist tries to shoot you, and you shoot him dead, I’d be the first to pin a medal on you because you risked your life for the country. If a terrorist bombs a school he must be proceeded with within the boundaries of the law.

But to take someone on suspicion, torture him and then kill him in cold blood in a fake encounter… that cannot be supported.

Won’t your morale be higher if you catch rogue elements of the army and police, I asked the officers. Then you would not only be a fighting force, but a moral force too. I found that debating with them helped me clear my mind too.

What do you see as the biggest obstacle to human rights?

It is all to do with the kalyug we are facing.

Under globalisation, capitalism has moved to a cruel stage. Money is equal to god, GDP is everything, and might is right.

In these circumstances, common people are deprived of all their rights, most of all, the right to live with dignity.

The hallmark of cruel capitalism is the violent discrimination of the poor.

The only solution then becomes revolution by the people. That is not a radical thought, it is just the simple solution.

Maybe it won’t happen in my lifetime, but one day it will.

So many millions cannot live under such oppression for so long.

Jyoti Punwani

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India – #Aadhaar Act contravenes right to life and personal liberty

Aadhaar-related schemes and the Aadhaar Act exist on the assumption that Right to Privacy is not a Fundamental Right. The SC’s verdict has totally demolished this flawed assumption, says Dr Gopal Krishna.


Illustration: Uttam Ghosh/

Thomas Jefferson, the third President of the United States, had written in 1787 that ‘if once people become inattentive to the public affairs, you and I, Congress and assemblies, judges and governors shall become wolves’.

In the concluding paragraph of his 122-page-long order as part of the landmark verdict of the nine-judge Constitution Bench of the Supreme on Right to Privacy, Justice R F Nariman wrote, ‘This reference is answered by stating that the inalienable Fundamental Right to Privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India’.

In the opening paragraph of his order, Justice Nariman states, ‘A three-judge bench of this court was dealing with a scheme propounded by the government of India popularly known as the Aadhaar card scheme. Under the said scheme, the government of India collects and compiles both demographic and biometric data of the residents of this country to be used for various purposes.

‘One of the grounds of attack on the said scheme is that the very collection of such data is violative of the ‘Right to Privacy’. Aadhaar scheme refers to the 21st century version of Panopticon called Central Identities Data Repository of Unique Identification (UID)/Aadhaar numbers which is an automatic identification and surveillance project.’

Justice Nariman recalled the decision in the Peter Semayne v Richard Gresham (1604) in the United Kingdom to underline that ‘every man’s home is his castle and fortress for his defence against injury and violence, as well as for his repose’.

His cited decision of William Pitt, the Elder which reads: ‘The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter, all his force dare not cross the threshold of the ruined tenement.’

If they are not allowed by the Constitution to enter even the huts of Indians, how can they or their government be allowed to intrude into their body through biometric identification based on ‘biometric information’, meaning photograph, finger-prints, iris scan, or such other biological attributes’ as per Section 2 (g) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016?

All the concerned ‘individuals clothed with the powers of the State’ are accountable for their acts of omission and commission and in the court of present and future generations in their life time.

Justice Nariman records the argument of Attorney General K K Venugopal wherein he submitted that ‘between the right to life and the right to personal liberty, the former has primacy and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a Fundamental Right’.

Having done so, he observes, ‘We do not find any conflict between the Right to Life and the Right to Personal Liberty…The Right to Personal Liberty being an extension of the Right to Life.’

Justice Nariman wrote, ‘We see no antipathy whatsoever between the rich and the poor in this context. It seems to us that this argument is made through the prism of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, by which the Aadhaar card is the means to see that various beneficial schemes of the government filter down to persons for whom such schemes are intended.’

He rejects the attorney general’s argument, observing that ‘the Right to Privacy would be found, inter alia, in Article 21 in both ‘life’ and ‘personal liberty’ by rich and poor alike primarily against state action’.

The contentions of the state of Gujarat saying ‘if information is already in the public domain and has been parted with, there is no privacy right’ had also been debunked.

It is quite sad and unbecoming of the state government to have attempted to mislead the court by bringing an outdated test of ‘reasonable expectation of privacy’ from United States Supreme Court.

Justice Nariman’s order notes that this submission draws from the judgment in Katz v United States (1967) and Miller v United States (1976), which are outdated because US Congress enacted Right to Financial Privacy Act, 1978 to neutralise it, nipping an alarming tendency of attaching privacy in relation to property and not to the person.

The Gujarat government failed to inform the court that in Minnesota v Carter (1998), the US Supreme Court found the Katz test ‘notoriously unhelpful test’.

Justice Scalia criticised the application of this test saying, ‘In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz case) is that, unsurprisingly, those ‘actual (subjective) expectation[s] of privacy that society is prepared to recognise as reasonable’, bear an uncanny resemblance to those expectations of privacy that this court considers reasonable.’

‘This self-indulgent test provision does not guarantee some generalised ‘right of privacy’ and leave it to this court to determine which particular manifestations of the value of privacy ‘society is prepared to recognise as ‘reasonable’,’ he said.

Our Supreme Court has referred to criticism of the proposition that if there is voluntary parting of information there is no Right to Privacy in District Registrar & Collector, Hyderabad v Canara Bank (2005) with approval.

Justice Nariman recalls the significance of the dissenting judgment by Justice Louis Brandeis in Olmstead v United States (1928). Justice Brandeis held that ‘in the application of a constitution, our contemplation cannot be only of what has been but of what may be’.

The original Bench is now seized with the CIDR-related petitions and is likely to hear them in the first week of November… The court must step in before the neglected spark of biometric identification burns the house.

‘The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions,’ Justice Louis Brandeis had said.

His view was held as the correct view of the law in 1967.

Citing James Otis, a late 18th century jurist, Justice Brandeis cautioned against placing ‘the liberty of every man in the hands of every petty officer’ even in the face of much lesser intrusions than wiretapping. Such intrusions are ‘subversive of all the comforts of society’ in the words of Lord Camden, Chief Justice of the King’s Bench in early 18th century.

It emerges that the Right to Privacy which is part of the Right to Life and Liberty cannot be placed in the hands of officers of Unique Identification Authority of India, ministry of electronics and information technology and related ministries. It cannot be contended that the Indian Constitution does not afford protection against such invasions of individual security through CIDR based mass surveillance.

Justice Nariman’s order recalled the seminal judgment of Justice K K Mathew in Gobind v State of Madhya Pradesh (1975) wherein he 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.’

He added, ‘Of course, privacy primarily concerns the individuals. It therefore relates to and overlaps with the concept of liberty.’

In the context, of CIDR of Aadhaar numbers violation of privacy primarily concerns the personal sensitive information of the whole nation comprising of present and future generation of citizens including present and future soldiers, Presidents, prime ministers, national security advisors, chief ministers, legislators, security officials and judges. Therefore, it is deeply connected with national security.

The attorney general and additional solicitor general, in particular, argued that given the fact that ‘our statutes are replete with a recognition of the Right to Privacy’ there is no need to recognise it as a Fundamental Right.

Additional Solicitor General Tushar Mehta cited ‘provisions of the Right to Information Act, 2005, the Indian Easements Act, 1882, the Indian Penal Code, 1860, the Indian Telegraph Act, 1885, the Bankers’ Books Evidence Act, 1891, the Credit Information Companies (Regulation) Act, 2005, the Public Financial Institutions (Obligation as to Fidelity and Secrecy) Act, 1983, the Payment and Settlement Systems Act, 2007, the Income Tax Act, 1961, the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, the Census Act, 1948, the Collection of Statistics Act, 2008, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children from Sexual Offences Act, 2012 and the Information Technology Act, 2000’ to contend that since these statutes already protect the privacy rights of individuals, it is unnecessary to read a Fundamental Right of Privacy into Part III of the Constitution.

Justice Nariman rejected their argument saying, ‘Statutory law can be made and also unmade by a simple parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes mentioned hereinabove.

‘Fundamental Rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.’

The observations of Justice Nariman, Dr Ambekar and Jefferson assume great significance because Aadhaar Act 2016 imposes burdens on present and future generations and makes absolute the right to have Fundamental Rights subject to biometric identification.

He observed, ‘The recognition of such right in the Fundamental Rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments.’

According to him, in the Indian context, a Fundamental Right to Privacy would cover at least three aspects, namely: Privacy that involves the person, ie when there is some invasion by the state of a person’s rights relatable to his physical body, such as the right to move freely; Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore, recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.’

And, lastly, ‘the privacy of choice, which protects an individual’s autonomy over fundamental personal choices’.

He cites John Stuart Mill’s thesis On Liberty (1859) saying, ‘In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.’

Mill’s cited observation contends that the appropriate region of human liberty comprises, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.

Despite citing Mill’s thesis that underlines the existence of individuals’ ‘absolute freedom’ and ‘his independence is, of right, absolute’, Justice Nariman observes, ‘But this is not to say that such a right is absolute.’

He may have to revisit this proposition in the light of the authorities he has cited and his own decisions.

Justice Nariman overruled the majority judgment in Additional District Magistrate, Jabalpur v Shivkant Shukla (1976) — wherein a Constitution Bench of the Supreme Court ‘arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether’ —  citing previous verdict and Seervai’s Constitutional Law of India.

In the ADM Jabalpur case, the majority comprised of then Chief Justice A N Ray and Justices Hans Raj Beg, M Hameedullah, Y V Chandrachud and P N Bhagwati, while Justice H R Khanna wrote the minority verdict.

Justice Nariman records that ‘the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered’.

‘By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21,’ he said.

Taking cognisance of the constitutional amendment, he observes, ‘On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.’

In the ADM Jabalpur case, the majority held that: ‘Liberty is confined and controlled by law, whether common law or statute. It is in the words of (Edmund) Burke a regulated freedom. It is not an abstract or absolute freedom’ incorrectly assuming that Constitution was the sole repository of the right to life and liberty.

Given the fact that this verdict has been overruled, how can it be inferred that the Right to Privacy, as part of Right to Life and Personal Liberty, is not an absolute right?

Mill’s thesis and Justice Nariman’s observations reminds one of what Dr B R Ambedkar had said in his last address to India’s Constituent Assembly on November 25, 1949.

Dr Ambedkar said, “I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted.”

He recalled the words of Thomas Jefferson, saying, “We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”

Citing Jefferson, Ambedkar contended that the ‘State cannot make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living’.

It emerges that the Aadhaar case is deeply linked with the verdict in the ADM Jabalpur case and the Constitution’s 44th Amendment, because the CIDR entails linking Aadhaar number with essential services and citizens’ entitlements, benefits and services, making the right to have rights, including right to life and personal liberty, dependent on biometric data.

As per Section 2(R) of the Aadhaar Act 2016 ‘records of entitlement’ means records of benefits, subsidies or services provided to, or availed by, any individual under any programme.

As per Section 2(f) of the Act ‘benefit’ means any advantage, gift, reward, relief, or payment, in cash or kind, provided to an individual or a group of individuals.

As per its Section 2(w) ‘service’ means any provision, facility, utility or any other assistance provided in any form to an individual or a group of individuals. As per Section 2(x) ‘subsidy’ means any form of aid, support, grant, subvention, or appropriation, in cash or kind, to an individual or a group of individuals.

It emerges that the Right to Privacy which is part of the Right to Life and Liberty cannot be placed in the hands of officers of Unique Identification Authority of India, ministry of electronics and information technology and related ministries.

If these provisions are read with Section 23(2)(g), it is clear that powers and functions of Unique Identification Authority of India and ministry of electronics and information technology includes the power of ‘omitting and deactivating of an Aadhaar number and information relating thereto in such manner as may be specified by regulations’ through subordinate legislation as and when they deem it appropriate.

It means that the Aadhaar Act is worse than the overruled verdict in ADM Jabalpur case because it has empowered the central government to cause civil death of anyone it does not like and has deprived citizens the right to compliant as was done by ADM Jabalpur in pursuance of the Presidential Order dated June 27, 1975 under Article 359(1).

As per Section 47 (1) of the Aadhaar Act, ‘No court shall take cognisance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.’

This takes away the right of the ‘residents’ and citizens to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution.

Aadhaar Act turns every ‘resident’ and citizen of India into guinea pigs in the laboratory of foreign biometric technology companies by empowering the UIDAI for ‘promoting research and development for advancement in biometrics and related areas, including usage of Aadhaar numbers through appropriate mechanisms’.

Against such a backdrop, the observations of Justice Nariman, Dr Ambekar and Jefferson assume great significance because Aadhaar Act 2016 imposes burdens on present and future generations and makes absolute the right to have Fundamental Rights subject to biometric identification.

In fact, Aadhaar-related schemes and the Aadhaar Act exist on the assumption that Right to Privacy is not a Fundamental Right. The court’s verdict has totally demolished this flawed assumption.

Dr Ambekar cites Mill to caution ‘all who are interested in the maintenance of democracy’, not ‘to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions’.

It is an argument which is relevant because it is evident that gullible citizens are being made to ‘lay their liberties at the feet of’ the owners of a great database of Aadhaar numbers.

The court must step in before the neglected spark of biometric identification burns the house.

In his order Justice Nariman has recorded how the A-G ended up contending that ‘the Right to Privacy cannot be claimed when most of the aspects which are sought to be protected by such right are already in the public domain and the information in question has already been parted with by citizens’, for advancing the argument that collection of personal sensitive information like biometric data for the CIDR is a non-issue.

The order also records the uncivil act of Centre for Civil Society, an NGO, in contending that the Right to Privacy ‘ought not to be elevated in all its aspects to the level of a Fundamental Right’ for posterity.

Notably, Venugopal had represented this NGO in this very case on an earlier occasion before becoming the A-G.

He has also recorded that states of Kerala, Karnataka, West Bengal, Punjab and Puducherry broadly supported the petitioners who were seeking scrapping of Aadhaar because it violates Right to Privacy.

Justice Nariman concludes his order saying, ‘The later judgments of this court recognising privacy as a Fundamental Right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original bench of three honourable judges of this court in light of the judgment just delivered by us.’

The original Bench is now seized with the CIDR-related petitions and is likely to hear them in the first week of November. It must be remembered that the first petition against the CIDR project was filed on October 18, 2012, after almost two years of the launch of the project.

Subsequently, over two dozen cases are pending in the Supreme Court seeking scrapping of the Aadhaar Act and the CIDR scheme for the last five years.

Rarely does it happen that public institutions do not pretend to be surprised in situations where ‘Fundamental Rights’ of citizens go to the dogs ‘on account of some ill-conceived’ delay in judgments.

The verdict in the reference case of Right of Privacy in the CIDR matter reveals that our judges have not become wolves because at least some people and few lawyers remain attentive to the public affairs.

This decision follows the footprints of stalwarts like Justice Louis Brandeis, Justice Radhabinod Pal, Justice Fazl Ali, Justice Subba Rao, Justice Jagmohan Lal Sinha and Justice H R Khanna.

Academia and citizenry does not hold similar opinion about those who gave verdicts in Union Carbide Corporation v Union of India and in ADM Jabalpur v Shivkant Shukla cases.

When a list of good and not so good judges will be prepared, their names will feature prominently. Their own questionable verdicts have emerged as an exercise in self-indictment. Post retirement statements of self pity will be of no help.

All the concerned ‘individuals clothed with the powers of the State’ are accountable for their acts of omission and commission and in the court of present and future generations in their life time.

All the judges who adjudicate on issues of life and death remain judges only till the time they deliver their judgment. After their decision, it is they and their verdict which remains under scrutiny. They get the opportunity to adjudicate once but they and their decisions are judged forever.

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When Journalism leads to murder- Panama Papers journalist Daphne Caruana Galizia

Daphne Caruana Galizia

Murdered Panama Papers journalist’s son attacks Malta’s ‘crooks’

Daphne Caruana Galizia was killed because she ‘stood between rule of law and those who sought to violate it’, says son Matthew

The son of the murdered Maltese investigative journalist and blogger Daphne Caruana Galizia has described finding parts of his mother’s body around the blazing car in which she died and attacked the island as a “mafia state” run by “crooks”.

“My mother was assassinated because she stood between the rule of law and those who sought to violate it, like many strong journalists,” Matthew Caruana Galizia, who is also an investigative reporter, wrote in a moving and at times graphic Facebook post.

“But she was also targeted because she was the only person doing so. This is what happens when the institutions of the state are incapacitated: the last person left standing is often a journalist. Which makes her the first person left dead.”

Dutch forensic experts and a team from the FBI were due to arrive in Malta to help police in the EU’s smallest state investigate the killing of Caruana Galizia, who led the Panama Papers investigation into corruption on the island.

A woman holds a lantern with a picture of murdered journalist Daphne Caruana Galizia during a protest demanding justice.
 A woman holds a lantern with a picture of murdered journalist Daphne Caruana Galizia during a protest demanding justice. Photograph: Matthew Mirabelli/AFP/Getty Images

She died on Monday afternoon when her Peugeot was destroyed by an explosive device so powerful it blew the car into a nearby field. “I saw a small explosion coming from the car and I panicked,” said one witness, Frans Sant, who was driving in the opposite direction.

“A few seconds later, around three to four seconds, there was another, larger explosion. The car continued coming down the hill, skidding at high speed, full of fire. The car missed me by around 10 feet. I tried to help but the fire was too much and the car ended up in the field,” he said.

Several hundred people demonstrated outside the main law courts in the island’s fortress capital, Valletta, on Tuesday afternoon to demand justice for the 53-year-old journalist, described as a “one-woman WikiLeaks” whose blogs were as fiercely critical of the island’s politicians as they were of its organised crime gangs.

“The state did not defend Daphne,” said Andrew Borg-Cardona, a prominent lawyer who works with the journalist’s husband. Michael Briguglio, a leading member of the island’s Green party, said: “This is a political murder because it clearly has a political context and the state did not protect a journalist who was in danger.”

The European commission said it was horrified by the murder. Asked if it would open a procedure to check if Malta was meeting the EU’s rule of law standards, a spokesman, Margaritis Schinas, said an “outrageous act has happened and what matters now is that justice will be brought. This is what we need to see.” 

Matthew Caruana Galizia said he would never forget “running around the inferno in the field, trying to figure out a way to open the door, the horn of the car still blaring, screaming at two policemen who turned up with a single fire extinguisher to use it”.

One of the policemen said: “Sorry, there is nothing we can do,” he wrote. “I looked down and there were my mother’s body parts all around me. I realised they were right, it was hopeless. ‘Who is in the car?’ they asked me. ‘My mother is in the car. She is dead. She is dead because of your incompetence.’”

Caruana Galizia ran a hugely popular blog relentlessly highlighting cases of alleged high-level corruption among politicians across Malta’s party lines. “There are crooks everywhere you look now. The situation is desperate,” she wrote in a post published barely half an hour before the bomb exploded.

The scene of the car bomb that killed Daphne Caruana Galizia.
 The scene of the car bomb that killed Daphne Caruana Galizia. Photograph: Darrin Zammit Lupi/Reuters

Police said the journalist had just left her home and was on a road near the village of Bidnija in northern Malta when the bomb detonated. Local media said she had reported receiving threats two weeks ago, although police officials denied receiving any complaint.

Caruana Galizia’s most recent revelations pointed the finger at Malta’s prime minister, Joseph Muscat, and two of his closest aides, connecting offshore companies linked to the three men with the sale of Maltese passports and payments from the government of Azerbaijan.

Muscat denounced the journalist’s killing on Monday, calling it a “barbaric attack on press freedom”. Muscat, who sued the journalist and won a snap election in June called as a vote of confidence to counter her allegations, said he would “not rest until I see justice done in this case”.

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 ‘Her life was not for nothing’ – Vigil held for Panama Papers journalist killed by car bomb – video

While Caruana Galizia’s targets were mainly the ruling Labour party and its supporters, she had more recently turned her fire on Malta’s opposition whose leader, Adrian Delia, on Tuesday called on the prime minister to resign and the police chief and attorney general to be sacked.

“The political blame for her death lies squarely in [Muscat’s] lap and he should shoulder responsibility for it,” Delia said. “Everything in this country has a price now, but … You can be sure that someone will have to pay for this death.”

Caruana Galizia’s targets ranged from allegedly corrupt politicians to banks facilitating money laundering and the links between Malta’s online gaming industry and the mafia. Her recent work had focused particularly on revelations from the Panama Papers, a huge cache of leaked documents from the leading offshore law firm Mossack Fonseca.

Candles are lit at a vigil to protest against Caruana Galizia’s death.
 Candles are lit at a vigil to protest against Caruana Galizia’s death. Photograph: Darrin Zammit Lupi/Reuters

Matthew Caruana Galizia said in his Facebook post that his mother’s killing was “no ordinary murder and it was not tragic. Tragic is someone being run over by a bus. When there is blood and fire all around you, that’s war. We are a people at war against the state and organised crime, which have become indistinguishable.”

He criticised “that clown of a prime minister”, making statements to parliament “about a journalist he spent over a decade demonising and harassing”, and highlighted a Facebook post by a police sergeant who shortly after the murder wrote: “Everyone gets what they deserve, cow dung! Feeling happy :)”

Caruana Galizia concluded: “Yes, this is where we are: a mafia state … where you will be blown to pieces for exercising your basic freedoms, only for the people who are supposed to have protected you to instead be celebrating it.”

He said a “culture of impunity” had been allowed to flourish on the island after the prime minister “filled his office with crooks, then the police with crooks and imbeciles, then the courts with crooks and incompetents.

“If the institutions were already working, there would be no assassination to investigate – and my brothers and I would still have a mother.”

After an application by the dead journalist’s family, the investigating magistrate, Consuelo Scerri Herrera – who had come under criticism from Caruana Galizia in her blog and subsequently sued her – withdrew from the case on Tuesday.

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