A quick note on phone tapping. It is, unfortunately, something that is left to the arbitrary discretion of the government, and at the root of this situation (unsurprisingly) is a bad Supreme Court judgment:
In PUCL v Union (1997), it was argued that, given the serious privacy issues involved, phone tapping cannot take place without judicial authorisation. Unfortunately, the Court did not agree, and instead laid down some guidelines, for bureaucratic authorisation.
(2/n)
To be honest, given the way magistrates mechanically allow remand applications and higher courts deny bail where fundamental issues of liberty are involved, I'm no longer confident that that would have made any difference, but that's another debate.
(3/n)
When Srikrishna Committee on Data Protection was constituted a couple of years ago, people specifically made the point that data protection is pointless without surveillance reform, and that the Committee would end up indirectly legitimising surveillance through omission (4/n).
For reasons that I do not need to spell out, the Committee completely ignored these points, and that's one of the (many) reasons why the so-called Personal Data Protection Bill is an absolute eyewash. (5/n)
So what might genuine surveillance reform look like? An effort was made by a civil society initiative, culminating in the Indian Privacy Code, which set out detailed safeguards to prevent government from abusing surveillance powers:
I remember how, one of the very first instances of our indoctrination into the glories of US First Amendment law was the “vagueness doctrine” - that US courts would come down hard on attempts to restrict or penalise speech through vaguely worded laws. (1/n)
Along with that we studied the “over-breadth doctrine” - that US courts would strike down laws that were worded so broadly that, in their application, they could be applied to both protected and unprotected speech. (2/n)
So we read the ringing pronouncements in landmark cases like Grayned v Rockford, which linked anti-vagueness to the precepts of the rule of law, and we read the eloquent arguments of scholars like Vincent Blasi, with his “pathological perspective” on free speech. (3/n)
Pending longer analysis on the blog (not be me), a couple of quick clarifications about today’s sub-classification judgment.
1. SC hasn’t said that states *have* to sub-classify. It has said that they *can* sub-classify, based only on empirical data of relative marginalisation.
2. The only question before the SC in these proceedings was whether the previous judgment in EV Chinnaiah’s case - which said that sub-classification is *unconstitutional* - was correct or not. The SC said it wasn’t correct, based on the wording of Art 341 of the Constitution.
3. There was no other question before the Court, including “creamy layer.” Nor have the four judges who’ve (unnecessarily) talked about “creamy layer” issued any binding or enforceable directives to the State. At the highest I think these have no more legal force than advisories.
Just re-read the 2013 judgment of the Gauhati HC that declared the CBI to be unconstitutional, primarily on federalism grounds. So well-researched and reasoned.
No wonder it was immediately stayed by the SC, which hasn't touched it in the last 11 years:
Interestingly, the judgment of the Gauhati HC came exactly a month after the Bombay HC passed a diametrically opposite judgment upholding the validity of the NIA. The federalism arguments raised in both cases were almost identical (Entry 8 List I, etc).
The difference between the two judgments was that the Gauhati HC based its analysis on a close reading of history (including the CA Debates) to arrive at its interpretation of how the federal scheme deals with policing. The Bombay HC did not.
Reading this excellent book, which has a lot of resonance with present-day events.
Sharing some of the most striking paragraphs.
“Mau Mau had to be eliminated at all costs,” he later recalled, “something had to be done to remove these people from society.”
Thinking about where that kind of language has been used recently.
“He and his finance minister, Ernest Vasey, despaired that Mau Mau was not communist. Had it been, the British government would have given them a blank check to suppress the movement, as it had done with General Templar and the communist uprising in British colonial Malaya.”
In light of recent events with respect to the Election Commission, there is persistent confusion about the constitutionality of the current selection process, and the Supreme Court's 2023 judgment on the appointment of Election Commissioners.
A brief thread. (1/n)
Article 324(2) of the Constitution grants to the President the power to appoint the Election Commissioners, subject to Parliamentary law.
The intention of the framers of the Constitution was that the President's power would be transitional, until Parliament made a law.