English Vocab

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(the central or most

important part of something.) 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(having two sharply contrasting aspects or characteristics.) — 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(a list or plan showing turns of duty) had not been as stretched as they are today).The central dilemma(a difficult situation) 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(happening by chance rather than intention.) 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(An area in which something exists to a lesser or uncertain degree:) 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(having or showing great knowledge or learning.) 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.” Thisprescient (having or showing knowledge of events before they take place.) observation and its reference to the temporal dimension of problems reiterate the difficulties that courts face when yoked to dated principles and yet compelled to respond to contemporary problems. It is also equally applicable to Gobind itself, which benefitted philosophically from Griswold v. Connecticut that was decided after M.P. Sharmaand Kharak Singh.

Working around constraints

How then do courts adapt and innovate within a set of formal constraints? It would be helpful to use an analogy from urban studies. Solomon Benjamin and R. Bhuvaneswari in their work on urban poverty argue that in contrast to visible strategies of democratic politics such as protests, the urban poor also engage in ‘politics by stealth’ — a form of participation which relies on a porous and fluid approach that responds to stubborn structures such as the bureaucracy by sneaking up(to approach someone quietly) inside them, adapting and slowly transforming the structure itself. Might we think of the history of privacy jurisprudence as a form of ‘doctrine by stealth’ in the best sense of the term? The judgments of the court post the trilogy of Sharma-Kharak Singh-Gobind are simultaneously a story of such adaptations even as they serve as an inventory of new technologies of power and control. Thus in PUCL v. Union of India (1996) the court said privacy is not a fundamental right, but telephone conversations are such an integral part of modern life that unauthorised telephone tapping would surely violate the right to privacy. In the Canara Bank case (2004), responding to the expectation of privacy for voluntarily given information, the court transformed the legal fiction that the Gobind decision was based on (“assuming privacy is right”) into putative (generally considered or reputed to be.) 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(secretly listen to a conversation.)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 littlearchaic (very old or old-fashioned.) 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.

1. Janus-faced (adjective): (Having two sharply contrasting aspects or characteristics.) ( वैषम्य)

Synonyms: Two Faced, Duplicitous, Contrasting, Contradictory.

Antonyms: Similar, Unified.

Example: Right to privacy is a Janus-faced issue for judiciary as it has pros and cons of implementations.

2. Roster (noun): (A list or plan showing turns of duty) ( तालिका/सूची)

Synonyms: List, Schedule, Agenda, Calendar, Directory, Rota.

Example: Going through the roster of available workers, the HR director tried to pick the one she felt was most qualified for the job.

Origin: from Dutch rooster ‘list’.

3. Fortuitous (adjective): (Happening by chance rather than intention.)  (आकस्मिक/अप्रत्याशित)

Synonyms: Unexpected, Unanticipated, Unpredictable, Serendipitous, Fluky.

Antonyms: Deliberate, Designed, Intentional, Planned.

Example: It was a fortuitous coincidence that led the couple to meet at a football game twenty years ago.

Related words:

Fortuitously (adverb) - इत्तफ़ाक़ से

Origin: From Latin fors ‘chance, luck’.

4. Prescient (adjective): (Having or showing knowledge of events before they take place.) (पूर्वज्ञान रखनेवाला)

Synonyms: Prophetic, Predictive, Visionary, Clairvoyant, Far-Seeing, Far-Sighted.

Antonyms: Myopic, Nearsighted, Shortsighted.

Example: The struggling gambler wished he had prescience so he could choose winning teams.

Origin:  from Latin praescire, from prae ‘before’ + scire ‘know’.

5. Erudite (adjective): (Having or showing great knowledge or learning.) (विद्वत्तापूर्ण)

Synonyms: Learned, Savvy, Well Educated, Knowledgeable, Intellectual.

Antonyms: Uneducated, Ignorant, Uncultured.

Example: Because I am failing calculus, I am in search of the most erudite calculus tutor I can find.

Related words:

Eruditeness (noun) - विद्वत्ता

Origin:  From Latin eruditus, past participle of erudire ‘instruct, train’.

6. Putative (adjective): (Generally considered or reputed to be.) (कल्पित/तथाकथित)

Synonyms: Presumed, Presumptive, Supposed, Conjectural, Suppositional.

Antonyms: Proven, Real, True.

Example: Even though there has not been a DNA test, everyone accepts Jason as the girl’s putative father.

Origin:  From Latin putat- ‘thought’

7. Eavesdrop (verb): (Secretly listen to a conversation.) (छिपकर बातें सुनना)

Synonyms: Listen In, Overhear, Snoop, Ears Into.

Antonyms: Ignore, Neglect.

Example: Younger siblings often eavesdrop on their older siblings which causes them to be labeled as pests.

Verb forms: Eavesdrop, Eavesdropped, Eavesdropped.

8. Archaic (adjective): (very old or old-fashioned.) (पुराना/अप्रचलित)

Synonyms: Obsolete, Out of Date, Anachronistic, Old-Fashioned, Outmoded, Bygone.

Antonyms: Contemporary, Current, In Vogue, Modern, new, up-to-date.

Example: Because my archaic computer is no longer useful to me, I am giving it away for free.

Origin: from Greek arkhē ‘beginning’.

9. Sneak up (phrasal verb): (To approach someone quietly/ advance stealthily or unnoticed) (धीरे-धीरेबढ़ना)

Synonyms: Move Quietly, Forward Stealthily, Unnoticed Headway.

Antonyms: Be Ceased, Be Inactive.

Example:  The Burglar sneaked up towards the locker, hoping no one would see him. .

Verb forms: Sneak up, Sneaked up, Sneaked up.

10. Kernel (noun): (The central or most important part of something.)  (मुख्य बिंदु)

Synonyms: Essence, Core, Essential Part, Quintessence, Fundamental, crux.

Antonyms: Exterior, Surfacial

Example: One needs to get to the kernel of the problem, to solve it immediately.

Origin: Of Germanic origin Korn.