1.True test of SC ruling (The Indian Express)

2.And the war goes on (The Hindu)

3.A BIT of critique (The Hindu)

1.True test of SC ruling (The Indian Express)

Synoptic line: It throws light on the Supreme Court verdict on the ‘Right to Privacy’ and how the judgement acknowledges the importance of the right in the context of autonomy, dignity and liberty.(GS paper III)

Overview

  • The Supreme Court (SC) of India has held that ‘Right to Privacy’ is a Fundamental Right and it is protected under Article 21 of the Constitution of India, in a unanimous decision the Nine Judge Constitution bench which has overruled the Judgments in  M.P. Sharma v. Satish Chandra and Kharak Singh v. State of Punjab cases.
  • The Supreme Court ruling emerges from a batch of petitions challenging the ‘Aadhaar project‘, India’s contentious biometric identification scheme. The grounds for challenging Aadhaar was based on, its violation of physical privacy by capturing biometrics, and its surveillance potential by aggregation of independent data silos.
  • By reaffirming that privacy is an inherent aspect of dignity and liberty, and consequently deeply embedded within our Constitutional scheme, this judgment will ensure a more rigorous analysis of Aadhaar’s impact on individual rights. However True test of SC ruling on right to privacy will depend on its application.

Right to Privacy

  • Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights like privacy are inalienable because they are inseparable from the human personality. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21.
  • Privacy is link with dignity and the liberty. To live is to live with dignity. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity.

The verdict and the Government

  • The central government has argued that privacy is a common law right and privacy need not be made a constitutional right and can be protected through parliamentary statutes. It also mentioned that it is an “elitist construct”. Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights.
  • A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment.
  • Centre argued that the SC has no power to inject privacy as a “new fundamental right” in the Constitution, in the answer SC says, to recognise the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental right by a process of amendment through judicial fiat.
  • Judicial review certainly has the task before it of determining the nature and extent of the freedoms available to each person under the fabric of those constitutional guarantees which are protected.
  • The fact that a right may have been afforded protection at common law does not constitute a bar to the constitutional recognition of the right. Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law does not holds truth.

Beyond Aadhaar

  • The significance of the decision goes beyond its impact on Aadhaar. The approach of the Supreme Court had always been to develop the right on a case-by- case basis and it is heartening that the judgment acknowledges that changing time and technology can impact the right in unforeseen ways.
  • The impact of this judgment will be also on the pending petition challenging the Supreme Court’s earlier verdict in the Section 377 case judgment in 2014, the Court had upheld the validity of Section 377 of the Indian Penal Code, resulting in re-criminalisation of sex between consenting adults of the same sex.
  • Today’s judgment expresses strong contempt for the reasoning in this case and expressly holds that sexual orientation is a fundamental aspect of one’s identity, and is therefore closely related to dignity and privacy.
  • Besides an obligation, not to interfere with an individual’s privacy, the state also has a positive obligation to protect the right. In the absence of any legislation on privacy, it could be argued that such an obligation extends to protecting individuals against discriminatory data practices of corporations and other non-state actors

Way ahead

  • According to the one of judge, Privacy is nothing but a form of dignity, which itself is a subset of liberty, thus, from the one great tree, there are branches, and from these branches there are sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice. They are all equally important and of equal need in the great social order. They together form part of that ‘great brooding spirit’. Denial of one of them is the denial of the whole, for these rights, in manner of speaking, fertilise and nurture each other.
  • However it is right that the true test of the ruling will depend on its application. It is still possible for the Court to uphold the validity of Aadhaar if it feels that the scheme is a justifiable intrusion of privacy. However, an unequivocal recognition of the importance of the right is more than just an encouraging sign.

Question– Explain the Right to privacy as a fundamental right and the implication of recent Supreme Court judgement.

 

2.And the war goes on (The Hindu)

Synoptic line: It throws light on the issues of the recent US strategy announcement for Afghanistan.(GS paper II)

Overview

  • After more than 15 years of US troop’s presence in Afghanistan, the President of US unveiled a new strategy for the country and cleared the way to send thousands more US troops there. Currently, there are around 8,400 American soldiers, taking part in NATO’s operation in Afghanistan, which are charged with overseeing and training Afghan forces.
  • The U.S. deepen the military engagement in war-torn Afghanistan signals a significant shift in the position and also will include more involvement from India and Pakistan. US mentioned that India need to do more to help Afghanistan with its developmental needs and urged Pakistan to stop the terror attacks that originate from its territory.
  • India has welcomed United States President’s new policy on Afghanistan, it mentioned that the new strategy is an effort to overcome the challenges facing Afghanistan and confronting issues of safe havens and other forms of cross-border support enjoyed by terrorists.

Background

  • After the September 11 attacks in the United States, believed to be orchestrated by Osama bin Laden who was residing in Afghanistan under asylum at the time, the U.S.-led ‘Operation Enduring Freedom’ was launched.
  • This was major military operation which aim was at removing the Taliban government from power and to capture or kill Al-Qaeda members, including Osama bin Laden. Following the overthrow of the Taliban, the U.S. also supported government of Afghan President Hamid Karzai by maintaining a high level of troops to establish the authority of his government as well as combat Taliban insurgency.
  • The United States had taken the leading role in the overall reconstruction of Afghanistan by providing billions of dollars to the Afghan National Security Forces, building national roads, government and educational institutions.
  • In 2005, the United States and Afghanistan signed a strategic partnership agreement committing both nations to a long-term relationship. Although many American politicians have praised Afghan President Hamid Karzai’s leadership, he has come under fire in 2009 from the Obama administration for his unwillingness to crack down on government corruption. After winning the 2009 presidential election Karzai vowed to tackle the problem as he stated “individuals who are involved in corruption will have no place in the government.”
  • The United States Armed Forces had been gradually raising its troop level in Afghanistan since 2002; however they begin to leaving slowly between mid-2011 to the end of 2014. Afghan leaders accept long-term U.S. military presence since it benefits them, but neighbouring Iran and some of its allies are opposed to it, though this claim is disputable. It was mentioned that this policy will be open the door to Afghanistan’s military to have a greater capability and a broader kind of relationship with the United States and especially the United States military.

Way ahead

  • With the new strategy US says that it is ready for open-ended engagement, also the focus of the American mission should narrow down to fighting terrorists, not rebuilding Afghanistan “in our own image”.
  • However the U.S.’s objectives in building a stable Afghanistan and ending Pakistan’s sponsorship of terrorism are exactly in line with India’s own goals for the region. As India is also committed to supporting the government and the people of Afghanistan in their efforts to bring peace, security and stability and prosperity in their country. India has also steadfast in extending reconstruction and development assistance to Afghanistan in keeping with its traditional friendship with its people.

Question– Critically examine the US’s new Afghan strategy, how it could be a game changer for South Asia and also explain how India can utilise this opportunity?

 

3.A BIT of critique (The Hindu)

Synoptic line: It throws light on the recent report of the Justice B.N. Srikrishna committee, constituted to prepare a road map to make India a hub of international arbitration.(GS paper II)

Overview

  • The Justice Dispensing System in India has come under great stress for various reasons including huge pendency of cases in various courts; the injustice is particularly egregious in commercial disputes, where cases remain pending for years. In order to ensure speedy resolution of commercial disputes and to facilitate effective conduct of international and domestic arbitrations raised under various agreements, it has been considered necessary to go into various factors to accelerate arbitration mechanism and strengthen the arbitration ecosystem in the country.
  • Arbitration provides an effective and efficient alternative window for dispute resolution. The Government of India has laid emphasis on making Arbitration a preferred mode for settlement of commercial disputes.  For this a high powered committee has been set up in the directions of the Prime Minister of India to prepare a road map to turn India into an international hub of arbitration.
  • The recent report of the Justice B.N. Srikrishna committee, constituted to prepare a road map to make India a hub of international arbitration, has recommended many changes in Indian arbitration law and institutional mechanisms to promote arbitration in India. Its recommendations on bilateral investment treaty (BIT) arbitration assume importance as India is currently battling 20-odd BIT disputes.

Recent report recommendations on BIT

  • The most significant recommendation for the effective management of BIT disputes is the creation of the post of an ‘international law adviser’ (ILA) to advise the government on international legal disputes, particularly BIT disputes, and who will be responsible for the day-to-day management of BIT arbitration.
  • The committee has also suggested for the creation of an ‘Inter-ministerial committee (IMC)’, with officials from the Ministries of Finance, External Affairs and Law. It also recommends hiring external lawyers which have expertise in BITs to boost the government’s legal expertise; creating a designated fund to fight BIT disputes; appointing counsels qualified in BITs to defend India against BIT claims; and boosting the capacity of Central and State governments to better understand the implications of their policy decisions on India’s BIT obligations.
  • It has also suggested measures for resolving BIT disputes; the committee has made some useful interventions such as, the possibility of establishing a BIT appellate mechanism and a multilateral investment court. However, its conclusion that the investor-state dispute settlement (ISDS) mechanism, given in Article 15 of the Indian Model BIT, provides an effective mechanism for settling BIT disputes between an investor and state is problematic for the following reasons-
  • Firstly, Article 15 requires foreign investors to litigate in domestic courts at least for a period of five years. The proceedings end in five years, but if the investor is not happy with the outcome, the investor can initiate a BIT claim provided it is done within 12 months from conclusion of domestic proceedings. The strict limitation periods dilute the effectiveness of the ISDS mechanism.
  • Secondly there are many other jurisdictional limitations given in Article 13 that also limit the usefulness of ISDS.
  • Third, the ISDS mechanism in the Indian Model BIT extends from Articles 13 to article 30 covering issues such as appointment of arbitrators, transparency provisions, enforcement of awards, standard of review, which have a bearing on the efficiency of the ISDS mechanism.

Downward side

  • The recommendation to creation of the post of an ‘international law adviser’ (ILA) to advise the government on international legal disputes, will amount to duplicating the existing arrangement to offer advice on international law, including BITs, to the government, it will only intensify the turf wars between ministries, and would deepen the red tape.
  • The existing Legal and Treaties (L&T) division of the External Affairs Ministry is mandated to offer legal advice to the government on all international law matters including BIT arbitrations. So instead of creating a new office the L&T division should be strengthened. This division could be made the designated authority to deal with all BIT arbitrations and thus act as the coordinator of the proposed IMC.
  • The BIT arbitration has three aspects, they are jurisdictional (such as definition of investment), substantive (such as provision on expropriation) and procedural (ISDS mechanism). While the commission’s mandate was to focus on BIT arbitration, however it narrowed it down to just the procedural aspect.

Question– What is Arbitration Dispute Redressal (ADR)? How it can be beneficial for Indian judiciary. Explain the recommendations made by Justice BN Krishna committee.