The narrow and the transformative
Gautam Bhatia writes in his column for The Hindu that upon reopening in July after its annual summer break, the Supreme Court has immediately found itself back in the spotlight. If the first half of the year (occupied entirely by the Aadhaar hearings) raised critical questions about the relationship between the individual and the state, then the second half — involving the (concluded) challenge to Section 377 of the Indian Penal Code, the (ongoing) Sabarimala case, and the (scheduled) constitutional challenge to adultery — has placed the court at the heart of the culture wars.
When a constitutional challenge pits individuals against the state, the court’s task is clear: if it finds that there has been a breach by the state, it must strike down the offending law (or rules), and vindicate the rights at issue. When, however, the court is called upon to settle a battle in the culture wars, the task is fraught with greater complexity. This is because these conflicts often represent deep, long-standing and irreconcilable divisions in society, touching issues of personal belief and conviction.
For this reason, there is a popular school of thought that asks the court to tread with particular caution when questions of culture are at stake. As far as possible — or so this school of thought holds — the court should avoid hearing and deciding such questions altogether. However, if it must decide, then it should do so on the narrowest grounds possible. There is, however, a rival philosophy of constitutional adjudication. This philosophy holds that the Constitution is a transformative document, whose goal is to erase and remedy long-standing legacies of injustice.
In these cases, therefore, the court is faced with a stark choice between the narrow and the transformative approaches to navigating the choppy waters of culture and the Constitution. Which direction it chooses to take depends upon what it believes the Constitution is for — and will have profound consequences in the years to come.
One Data Protection Legislation and One Regulator for 1.3 Billion People?
In his column for The Wire, Prashant Reddy T. writes that after all the allegations by privacy activists against the committee of experts on data protection, that its composition was lopsided and that it was not transparent, the report and draft bill turned out to be quite the anti-climax.
First, the recommendation of the committee for only one legislation likely runs against the federal nature of the Indian constitution. The second significant objection to the committee’s report is its recommendation to create a single data protection legislation and data protection authority (DPA) to regulate data protection across multiple sectors of India’s $2.5 trillion dollars economy. The third significant objection is the creation of a single DPA whose tentacles spread across every sector of the economy and with the power to investigate, search and punish. The average Indian business and citizen is already subject to the tyranny and arbitrariness of multiple government agencies and regulators and this can impact crucial sectors like journalism.
Last, but not the least, is the issue of whether the legislation drafted by the expert committee steps on too many feet, thereby risking an early death. In its present form, the draft legislation is going to upset three powerful lobbies: the intelligence community which has tripped earlier attempts to enact a privacy law will oppose this draft because it curbs their ability to conduct surveillance until authorised by law; the Silicon Valley lobby will oppose the new draft bill because of the data localisation requirements and finally, the bureaucracy, which will now have to rework their record keeping practices failing which department heads will be liable for offences.
The sobering reality: Draft bill gives you new protections to control data about you but this control may be illusory
Amba Kak writes in an article for The Times of India that if the bill were in force today, all businesses, from large global companies to your neighbourhood startups, would have to store a copy of all personal data on servers in India. For one, this imposes an additional tax on business – companies often choose to store their data outside India because it is more cost efficient and potentially more secure.
But more worryingly, what does this requirement achieve, beyond making it easier for law enforcement and security agencies to access data? This mandate doesn’t even claim to keep your data safer, and looks more like a proxy for enabling easier surveillance.
While this bill gives you new protections to control what data about you is collected, stored, and processed, especially by companies, the sobering reality is that for the majority of the population that relies on government services this control may be illusory. In fact, the bill exempts governments from seeking individual consent anytime it is delivering a service or benefit, or providing a licence or certification. Even if it did, the bill is clear that “all consequences” of withdrawing consent fall on the user.
What of the independence of the empowered regulator? The bill leaves the procedure of selection and tenure of the adjudicating officer entirely up to the central government. It is likely that this regulator will never be sufficiently independent to enforce rights against the government.
Does India care about the simmering volcano that Assam has become?
Assam is a simmering volcano today, writes Yogendra Yadav in his column for The Print. He says that as the precarious ethnic mix in the state threatens to explode, political forces are busy looking for an opportunity in this crisis. The rest of the country is, as always, oblivious to what happens in the northeast.
Large-scale migration is not new to Assam. The history of the state is made up of waves of migration. Yet this large-scale immigration in the post-independence period has disturbed the ethnic balance of the population. These linguistic and religious changes in the composition of the population are most accentuated in the districts that lie next to the Bangladesh border. Although there is little substance to the bogey of Assam turning into a Muslim majority state, yet the concerns of the ‘sons of the soil’ including the Ahomiya, Bodos and other tribal communities, cannot be dismissed. At the best of time, the situation is ripe for ethnic conflict and violence.
In the last few years, the BJP has been successful in turning this issue into a communal one and giving this linguistic and ethnic issue a religious colour. The BJP’s politics in the state is based on Bengali Hindu vote bank. So the party has a two-fold agenda: to provide citizenship status to the Bengali Hindus immigrating while denying this status to Bengali Muslims
Hindu communal politics is using the NRC as a shield for converting local/outsider divide into a Hindu/Muslim divide. On the other hand, many Muslim organisations are opposing the NRC itself. This division is dangerously close to a point of explosion.
Trees don’t hinder development; they birth ecosystems, support life
Prerna Singh Bindra writes in her column for Hindustan Times that 1,300 trees face axe for Gurugram underpass, flyover (Atul Kataria Chowk), announced a recent headline. Why is it that we find trees to be mere things, a hurdle in the way of development, the easiest casualty for a wider road or a housing project? How is it that we reduce a being that nurtures an incredible variety of life, including Homo sapiens, into a thing, a number?
A tree is a repository of memories, of associations, of bonds woven and strengthened under its benevolent shade. Indeed, a tree is the fulcrum of an entire ecosystem. Trees, I had learnt in school, give us oxygen, they purify the air, provide us shade, fruits, medicinal herbs. They are rainmakers. As I grew older, and developed an interest and affinity with nature, I was fascinated to know just how useful trees are. They act as sound barriers, help in bringing down micro climates (try standing under the shade of one, and then without, or provide a thick, green ‘tree’ curtain to your home, and note the marked difference), foster biodiversity, prevent soil erosion, maintain healthy ground water reserves.
For a tree-deprived city like Gurugram, the value of green cover takes on a greater meaning, given the high level of pollution and other issues, which will be discussed in detail in the next column.